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PROSECUTOR v MOININA FOFANA & ORS - ANNEX B - SEPARATE AND CONCURRING OPINION OF JUSTICE BOUTET - Case No. SCSL-04-14-J [2007] SCSL 62 (2 August 2007)

ANNEX B: SEPARATE AND CONCURRING OPINION OF JUSTICE BOUTET

1. The Chamber has chosen to consider whether President Kabbah’s alleged role forms the basis of a possible independent defence available to the Accused. In my opinion, President Kabbah’s role in the conflict should not have received the degree of prominence it did in the Judgement, as it is very much a collateral matter. It is my view that a Trial Judgement should instead focus on what is the central issue in the trial – the liability of Fofana and Kondewa.
2. In my view, the only relevance of the role of President Kabbah and the fact that Fofana and Kondewa acted with the aim of restoring democracy and ensuring the return of the Kabbah government is in assessing the liability of the Accused with respect to the specific Counts with which they have been charged. The Chamber has considered these issues in that context. The Chamber found, for example, that the attacks were directed against rebels with the aim of restoring democracy, and thus that the civilian population was not the primary target of these attacks. It therefore dismissed the Counts of Crimes against Humanity (Counts 1 and 3).
3. The role of Kabbah was also not raised by either Fofana or Kondewa in their final submissions as an independent defence. Rather, President Kabbah’s role in the conflict and the fact that the acts of Fofana and Kondewa were done with the aim of restoring democracy and ensuring the return of the Kabbah government was used by Counsel for the Accused only to demonstrate that certain elements of the crimes as pleaded had not been proven beyond reasonable doubt.
4. Insofar as the Chamber has chosen to consider the alleged role of President Kabbah as forming part of several possible independent defences, however, I concur with my learned brother, Hon. Justice Benjamin Mutanga Itoe, in dismissing them. However, I do not subscribe to all of the facts as they are presented in this section in support of his conclusion, nor do I subscribe to his reasoning in reaching such a conclusion.

Done in Freetown, Sierra Leone, this 2nd day of August 2007.

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