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Hon. Justice Pierre Boutet, Presiding Judge
Hon. Justice Bankole Thompson
Hon. Justice Benjamin Mutanga Itoe
Interim Registrar:
Lovemore Green Munlo


21st of October, 2005
(Case No.SCSL-04-14-T)


Office of the Prosecutor:

Court Appointed Counsel for Sam Hinga Norman:
Luc Côté
James Johnson
Kevin Tavener

Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr.
Tim Owen Q.C.

Court Appointed Counsel for Moinina Fofana:

Victor Koppe
Michiel Pestman
Arrow Bockarie
Andrew Ianuzzi

Court Appointed Counsel for Allieu Kondewa:
Charles Margai
Yada Williams
Ansu Lansana
Martin Michael
Susan Wright

  1. For an avoidance of doubt, let me start this Separate and Concurring Opinion by emphasizing that I have no disagreement with the Unanimous Decision of the Trial Chamber.
  2. I do strongly and unreservedly endorse the said Decision in so far as the disposition of each of the present Motions for Judgment of Acquittal filed by the Accused persons herein is concerned. I also support without hesitation the exposition as to what is the precise legal standard mandated by Rule 98 in determining the merits of a Motion for Judgment of Acquittal within the jurisdiction of the Special Court for Sierra Leone. I also agree with the expositions on the different applicable legal principles and with the specific findings of fact on the issues raised for dismissal as set out in the Decision.
  3. As regards the reasoning behind the judicial formulation of the applicable legal standard in respect of a Rule 98 Motion, I feel judicially compelled to add some of my own considered thoughts in this Separate and Concurring Opinion on some key aspects of the judicial reasoning, so as to emphasize and reinforce the said judicial analysis on this crucial aspect of the Decision. These relate to two key aspects of the Chamber’s reasoning, namely: (i) the methodological approach of the Chamber to reliance upon the jurisprudence of other international criminal tribunals in developing and formulating its reasoning, and (ii) the scope of the judicial discourse on the prescribed legal standard under Rule 98.
  4. I shall accordingly, in the succeeding paragraphs, confine and channel my reasoning to three aspects of these issues: the historical aspect, the interpretive aspect, and the analytical aspect.
  1. Let me begin this part of my Opinion by observing that the historical aspect relates to the procedural development of Rule 98 as the prescriptive or regulatory norm for determining the merits of a Defence Motion for Judgment of Acquittal. In this regard, a cursory examination of the legislative development of the rule reveals that since its adoption in its original form from the ICTR Rules of Procedure and Evidence it has only been amended once; that was on the 14th day of May, 2005. In its original form, it was in these terms:

“If, after the close of the case for the Prosecution, the evidence is such that no reasonable tribunal of fact could be satisfied beyond a reasonable doubt of the Accused’s guilt on one or more counts of the indictment, the Trial Chamber shall enter a judgment of acquittal on those counts.”

  1. In its present form the Rule provides thus:

“If, after the close of the case for the Prosecution, there is no evidence capable of supporting a conviction on one or more counts of the indictment, the Trial Chamber shall enter a judgment of acquittal on those counts.”

  1. With the historical aspect set in context, I opine that, given the formulation of the exisiting Rule 98, the proper methodology to be adopted in addressing the delicate judicial task of statutory interpretation[1] is essentially contextual and purposive. [2] The object of this approach is to discover the plain and ordinary meaning of the Rule. It is instructive to note that historically, the plain meaning rule of statutory interpretation originated in England in the Sussex Peerage case.[3] In that case, Lord Tindal wrote:

“If the words of the Statute are in themselves precise unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble...and “the mischief’s which (the makers of the Act) intended to redress.”

  1. In this regard, it must be emphasized, as a rudimentary principle, that if the rule is unambiguous, the plain meaning of the words must be applied.[4] In my view, it is an erroneous disposition, when the meaning of the rule is plain and unambiguous, to embark upon a discovery of the perceived intent of the rule and construe it accordingly. To do so is to disregard the language of the rule itself. There is settled jurisprudence in support of the proposition that if the language of a rule is clear and unambiguous, there is no need to construe it. All that the plain meaning rule of interpretation does is to require courts to distinguish between clear or plain meaning, on the one hand, and ambiguous or doubtful meaning, on the other. Hence, it is not a tenable position that it is mandatory to resort to decided cases for guidance in interpreting a rule where the language is plain and unambiguous, except if the operative or key phrase which is the subject of interpretation has been given a technical legal meaning.
  2. Admittedly, it may sometimes be judicially prudent to look elsewhere for jurisprudential support for the plain and unambiguous meaning once that meaning has been determined and applied. Such an exercise is a judicial option, and not a mandate. I take it to be trite knowledge that the language of a rule is deemed ambiguous if it can be understood in more than one way. [5] In the specific context of Rule 98, there is no ambiguity about the legal standard to be applied. It is difficult to discern how the concept of “evidence capable of supporting a conviction” can be understood in more than one way. There is, in my judgment, nothing difficult to comprehend about the rule. It does not lack clarity or precision. Further, there is clearly no evidence to suggest that the Judges, in their legislative role, intended the phraseology “capable of supporting a conviction” to carry or bear any meaning beyond its ordinary sense. Hence, it is not necessary to have recourse to case-law authorities far afield or, extrinsically, to the travaux preparatoires, to seek guidance to interpret and apply the plain and ordinary meaning of the Rule.
  3. Ex hypothesi, if the language of Rule 98 was unintelligible, unclear, and imprecise, it would not be hard to see why recourse to the jurisprudence of other international criminal tribunals for guidance may be necessary or prudent. In this context, it must readily be acknowledged that our sister international criminal tribunals, the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have had occasion to interpret provisions similar to Rule 98. Hence, it would be proper, in the interest of consistency and coherence in building a solid and intelligible body of international criminal jurisprudence to have recourse, persuasively, to their case-law authorities to unravel the semantic difficulty created by the perceived or discovered ambiguity. Such persuasive value, however, will depend on how closely related the contexts of the statutory provisions or rules are, linguistically and legally. Evidently, this is an issue that requires careful discernment and judiciousness in resolving, recognizing that sometimes perceived linguistic and legal affinities may turn out to be superficial.
  4. We have held in our Unanimous Decision[6] that the legal formula of “insufficiency of evidence to sustain a conviction” as prescribed by Rule 98 bis of the Rules of Procedure and Evidence of the ICTR and that of “no evidence capable of supporting a conviction” are not different in context. In effect, our reasoning is that in context the two concepts are linguistically and legally close. But this merely enhances the persuasive value of the principle in Prosecutor v. Kamuhanda[7] only for the purposes of supporting the plain and unambiguous meaning interpretation given to our own Rule 98. However, not to have recourse to the jurisprudence of other tribunals where the meaning of a statutory provision or rule is plain and unambiguous does not infringe any express or implied doctrine of judicial amity or comity, a key feature of the evolving international judicial culture. This leads me to the analytical aspect.
  1. My approach in so far as the analytical aspect is concerned is, again, essentially to reinforce the analytical foundation of the main Decision in so far as it correctly enunciates the applicable legal standard stipulated by Rule 98 as that of whether the evidence adduced by the Prosecution is one that is capable of supporting a conviction. Accordingly, I postulate that from its plain and unambiguous meaning, derived from its context and purpose, Rule 98 is restrictive in nature and scope in that it authorises a limited judicial inquiry, at this stage of the trial, merely as to whether the evidence adduced by the Prosecution, at the close of its case, is evidence which is legally capable of supporting a conviction on one or more counts in the indictment. Hence, I opine that by no stretch of the legal imagination can it be plausibly maintained that the existing Rule 98, in contrast to the old Rule 98, does admit of the option, at this stage, of a judicial evaluation of the credibility or reliability of the evidence with a view to determining the ultimate question of the guilt or innocence of the Accused beyond reasonable doubt. Unquestionably, such an option will be both premature and pre-emptive, and, decidedly, at variance with a core feature of the criminal adjudicatory process.
  2. Evidently, from its plain and unambiguous sense, the test mandated by Rule 98 is whether the prosecution’s evidence is such that it is not legally capable of supporting a conviction on one or more counts. A variation of the same theme is whether the said evidence is legally incapable or inefficacious in supporting a conviction. In effect, that is the controlling concept in determining the merits of a Motion for Judgment of Acquittal pursuant to Rule 98. The Rule admits of no requirement that the tribunal of fact be satisfied beyond reasonable doubt of the guilt of the Accused at this stage. To import the reasonable doubt formula into the Rule 98 equation is tantamount to a procedural incongruity.
  3. Any adoption of a formula incorporating the notion of reasonable doubt in the process of interpreting the existing Rule 98 does come perilously close to a veiled application of the familiar concept of ‘an unreasonable verdict or one that cannot be supported having regard to the evidence’, relevant to the appellate phase of criminal proceedings in common law jurisdictions. In that sphere, one approach is to treat the concepts of ‘unreasonableness’ and ‘unsupportability’ as syntactically synonymous. Such an approach is logically mistaken because it rests on the assumption that “unreasonableness” and “unsupportability” are necessarily mutually inclusive. This is not so. It is clearly legally conceivable that evidence may be unreasonable because it manifests some grave logical inconsistency or lack of conformity with reason whereas evidence which is incapable of supporting a conviction may be evidence that is manifestly defective or weak without necessarily reflecting a logical flaw. In that sense, they may properly be regarded as conceptual disjuncts.
  4. Perhaps, it may be useful to shed some further light on the issue by alluding to the familiar distinction between a question of law and a question of fact. In that sense, it seems to me beyond argument that whether on the evidence as it stands, at the close of the prosecution’s case, the Accused could be lawfully convicted is a matter of law. Unless there is some rule of law to the contrary, a ruling that there is evidence capable of supporting a conviction has no legal effect upon the persuasive burden of proof which rests throughout upon the prosecution. Where a court has ruled that the prosecution’s evidence is capable of supporting a conviction, the Accused has the legal option of calling or not calling evidence. Where he exercises or does not exercise that option, the question to be decided, in the ultimate analysis, by the court is whether having regard to the totality of the evidence before it, it is satisfied beyond reasonable doubt that the Accused is guilty. This is question of fact.[8] Finally, it is worth emphasizing that by electing to call evidence, an accused person does not thereby relieve or diminish the burden on the prosecution to prove its case beyond reasonable doubt.
  1. Based on the foregoing considerations, I, accordingly, subscribe to the main Decision in every respect, and by this Separate and Concurring Opinion, reinforce the analytical foundation of the reasoning as to the correct applicable legal standard prescribed by Rule 98.

Done in Freetown, Sierra Leone, this 21st day of October, 2005

Hon. Justice Bankole Thompson

[Seal of the Special Court for Sierra Leone]

[1] Underscoring the complexity of the judicial task of statutory interpretation, it is worth noting that there are two rival schools of thought as to what it entails. One is the traditional school; the other is the modern school. According to the former, the primary task of a court when interpreting a statutory provision or rule is to give effect to the intention of the legislature, that is, using the rules of language, supplemented by the rules of interpretation, to discover what law the legislature intended to enact and how the law was intended to apply to facts such as those before the court. The modern view, however, suggests that the function of statutory interpretation is to give effect to the intention of the legislature in so far as that intention is discoverable from the language of the text. Where the intention is not evident, resort must be had to the rules of statutory construction. See Ruth Sullivan, Statutory Interpretation, Ontario: Irwin Law, 1997 on this subject.
[2] The contextual approach to statutory interpretation enjoins that the statutory provision or rule be interpreted in context, including the rest of the statute or relevant legislative instrument, the legal context generally, and the external context in which it must operate. The purposive approach enjoins an interpretation that brings into focus the purpose of the legislation or body of rules, both as a whole and in respect of the specific provision or rule to be interpreted. The judicial norm is to prefer the interpretation consistent with either the context or purpose rather the contrary interpretation.
[3] (1841) 11 C1 & Fin 85 at 143.
[4] See, for example, the U.S. District Court’s opinion in the case, United States v. American Trucking Ass’n, 310 U.S. 534 (1940) to this effect:

“If the words are clear, there is no room for construction. To search elsewhere for a meaning beyond or short of that which they disclose is to invite danger, in the one case, of converting what was meant to be open and precise, into a concealed trap for the unsuspecting...”
[5] To ignore the plain and unambiguous language of a statutory provision or a rule or other regulatory instrument in search of some presumed legislative intent from extrinsic sources, whether from rules of construction, legislative history, or other extrinsic sources, is like raising a cloud of dust and then complain that one cannot see.
[6] Page. 9 para. 47.
[7] ICTR-99-54-A-T, 20 August 2002.
[8] May v. O’Sullivan (1995) 92 CLR 654 for this rationalization. This rationalization is implicit in both statutory and case-law authorities found in the criminal procedural laws of most common law jurisdictions, including the Sierra Leone – See sections 192, 193, 194 of the Criminal Procedure Act No. 32 of 1965 of Sierra Leone.