PROSECUTOR v ISSA HASSAN SESAY & ORS - PARTIALLY DISSENTING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE ON THE CHAMBER DECISION ON PROSECUTION’S APPLICATION FOR LEAVE TO AMEND THE INDICTMENT ( SCSL-04-15-T )  SCSL 100 (31 July 2006);
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TRIAL CHAMBER I
Hon. Justice Bankole Thompson, Presiding Judge
Hon. Justice Pierre Boutet
Hon. Justice Benjamin Mutanga Itoe
Mr. Lovemore G. Munlo SC
31st of July, 2006
ISSA HASSAN SESAY
(Case No. SCSL-04-15-T)
PARTIALLY DISSENTING OPINION OF HON. JUSTICE BENJAMIN MUTANGA ITOE ON THE CHAMBER DECISION ON PROSECUTION’S APPLICATION FOR LEAVE TO AMEND THE INDICTMENT
Office of the Prosecutor:
Defence Counsel for Issa Hassan Sesay:
Defence Counsel for Morris Kallon:
Court Appointed Counsel for Augustine Gbao:
TRIAL CHAMBER I (“Trial Chamber I”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Bankole Thompson, Presiding Judge, Hon. Justice Pierre Boutet and Hon. Justice Benjamin Mutanga Itoe;
SEIZED of the Prosecution’s Application for Leave to Amend Indictment filed on the 20th of February, 2006, and in which it sought 2 Amendments, namely, Proposed Amendment A and Proposed Amendment B;
MINDFUL of the Chamber’s Unanimous Decision dated the 31st July, 2006, refusing to grant leave to amend in respect of Proposed Amendment A as solicited by the Prosecution;
MINDFUL of the Chamber’s Majority Decision dated the 31st of July, 2006, granting Proposed Amendment B, as solicited by the Prosecution;
CONSIDERING that Hon. Justice Benjamin Mutanga Itoe is not of the opinion that Proposed Amendment B should be granted, and that it should, as was the case with Proposed Amendment A, also have been denied even though the Defence acquiesced and consented to the granting of the said Amendment B;
NOW THEREFORE, I, HON. JUSTICE BENJAMIN MUTANGA ITOE, DO HEREBY ISSUE THE FOLLOWING PARTIAL DISSENT ONLY IN RELATION TO THE CHAMBER’S MAJORITY DECISION TO GRANT THE PROSECUTION’S APPLICATION IN RELATION TO PROPOSED AMENDMENT B.
- As I have already indicated, this Dissent is based mainly on the granting, by the Chamber’s Majority Decision, of Leave to Amend the Indictment in relation to Proposed Amendment B and on the Orders made by the Majority but only in relation to the implementation of the Majority Decision to include and to incorporate Proposed Amendment B into what the Decision has characterised as the “Corrected Amended Consolidated Indictment”.
- In our unanimous Decision refusing the Prosecution leave to introduce Proposed Amendment A, we premised our reasoning on the necessity for applications to amend Indictments to have due regard to the element of timeliness.
- In the Chamber Majority Decision, Amendment B is characterised as merely semantic and that it should therefore ordinarily be granted.
- I do not, with respect, share this view. I am humbly of the view that an amendment, be it semantic as this instant one is characterized to be, or in its simplest and acceptable form, is still an amendment for purposes of the proceedings and that the procedural fall-outs in the process resulting or arising from such an amendment, should not be ignored by The Chamber.
- In fact, if the Proposed Amendment B which is now referred to as being merely semantic were not important to the case for the Prosecution, it would not have made an application to seek that amendment. In fact, I am of the opinion that granting leave to include Proposed Amendment B certainly, and notwithstanding the Defence’s waiver to object to it, gives a tactical advantage, however slight, to the Prosecution, a factor which clearly motivated their seeking the amendment which they, in any event, would not have sought if they were very sure that the Indictment, without Proposed Amendment B, was irreproachable.
- It is and has always been my view, that once any new feature is added to an existing indictment as is the case with Proposed Amendment B, the Indictment, at least for the relevant Count in which it is introduced, becomes a new Count and should accordingly be subjected to the procedural formalities of Rule 61 of the Rules of Procedure and Evidence.
- This is the view I took in my Dissenting opinion in the Hinga Norman Case in relation to the Accused’s Application for Service of the Indictment and Rearraignment. I would like to recall here that this was a situation where the Accused complained of facing extensive new allegations and new geographical locations in the Consolidated Indictment filed by the Prosecution without a formal application for leave to amend and for which he was not called upon by the Chamber to plead, and this, not even after the Decision of the Appeals Chamber on this matter dated the 16th of May, 2005.
- My understanding of this Appeals Chamber Unanimous Decision is that it approved the principle and credible option of a rearraignment of the Accused by Our Chamber on the Consolidated Indictment. In fact, from a reading through the excerpts of this Unanimous Decision, it can be inferred that the Learned Justices of the Appeals Chamber, were in favour of a rearraignment so that the rights of the Accused should, as they directed, not be “incommoded”.
- The Appeals Chamber had this to say on the controversy as to whether the Consolidated Indictment was New or not.
... It is a somewhat metaphysical approach to say that each of the 3 Indictments are ‘essentially subsumed’ in a Consolidated Indictment. The existential position is that the fourth Indictment (that is the Consolidated Indictment) is certainly different and new.
- Indeed, if the Indictment in the instant case were not New following the Majority Decision to grant Proposed Amendment B, there would be no necessity for this Majority Decison to order as follows:
1. “That the Prosecution shall file by no later than Wednesday, the 2nd of August, 2006, at 12:00pm a corrected version of the Amended Consolidated Indictment to be marked as ‘Corrected Amended Consolidated Indictment’ which will become the Indictment under which the trial shall proceed.”;
2. “That the Corrected Amended Consolidated Indictment shall be immediately and personally served to each of the Accused pursuant to Rule 52 of the Rules as well as to each of their Respective Defence Counsel.”; and
3. “That the Consolidated Indictment shall be thereafter marked ‘not to be proceeded with’.”
- One of the issues of principle which, as far as I am concerned, has created the divergence of opinion between myself and the Majority Opinion, is that I am of the view that there should be a rearraignment of the Accused on that Proposed Amendment B and that even if it were characterised as semantic or simple, it was still, in that new and amended form, a New Count for which the Accused persons had to be called upon to plead, the justification being that the simplicity of an amendment cannot be pleaded to warrant or to justify a breach of fundamental procedural imperatives of the due process, namely, a rearraignment on the New Count or on Counts as the case may be, after applications for such amendments are granted by The Chamber.
- The Majority Opinion on the issue of rearraignment on Proposed Amendment B is that there should be no rearraignment on that Count because the Appeals Chamber did not, in the Hinga Norman Case, order a rearraignment even though it found that the Indictment was ‘New’.
- Again, I do not, with respect, share this point of view and the interpretation given by My Learned Colleagues to the Appeals Chamber Decision on this issue.
- In the Hinga Norman Case, the Appeals Chamber approved the changes and amendments which the Prosecution had introduced without leave of the Chamber and mandated us, to “make any appropriate Order necessary to ensure that the Defence is not incommoded”.
- Infact on this issue of rearraignment, the Appeals Chamber in that Decision observed that a pleas is not a ‘once and for all’ process and further, that “there is no reason in principle why a defendant’s request to further appear pursuant to Rule 61 on an Amended Consolidated Indictment should be refused. It is not required by the Rules but is a short formality that cannot prejudice the Prosecution and on that basis, the Trial Chamber had a discretion to permit”.
- In the context therefore of granting powers to Our Chamber to “make any appropriate order necessary to ensure that the Defence is not incommoded”, it is my view and conviction, that the Appeals Chamber expected Our Chamber to rearraign the Accused because a failure to do so would tantamount to violating the rights of the Accused given the facts and circumstances of the case where the Accused, according to the Appeals Chamber, were facing a New Indictment, and where at least one of them, Samuel Hinga Norman, had formally requested that he be rearraigned on this Amended Consolidated Indictment.
- In paragraph 69 of its Decision under reference, the Appeals Chamber had this to say:
Judge Itoe does however make an important point, both in his original concurring opinion on the Joinder decision and in his subsequent dissent in this case about the nature of the Consolidated Indictment. Assuming (as he and the other Judges did in reliance on the Prosecution representation) that there would be no significant changes, he nonetheless insisted that the Consolidated Indictment was a New Indictment, requiring the review process of Rule 47 and a further appearance and a plea pursuant to Rule 61. Review and rearraignment or further appearance would be an entirely repetitive exercise, of course if there were no significant difference between the counts and particulars in the original Indictment and those which appeared on the Consolidated Indictment.
- Notwithstanding the clear strong finding and signal from the Appeals Chamber that the Consolidated Indictment was new, and accordingly directed Our Chamber to make any appropriate Orders that will not ‘incommode’ the Accused, a Majority Consequential Order dated the 25th of May, 2005 did not deem it necessary to include in that Order, a Directive that there be a rearraignment which was requested by Samuel Hinga Norman and indeed, justified and founded, following the Appeals Chamber finding that the Consolidated Indictment was new.
- Moreover, and in addition, notwithstanding the express and mandatory Directive of the Appeals Chamber that the 3 Indictments be marked ‘Not to be proceeded with’ following the finding that these Indictments should not be kept in the records as they had the potential, even if remote, of offending against the Rules against Double Jeopardy, it is clear from that order and I noted that the Chamber Majority Consequential Order against which I issued a dissent dated the 25th of May, 2005, failed to order that 3 Indictments be so marked and withdrawn.
- The Chamber, by its Majority Consequential Order dated the 25th day of May, 2005, and certainly in execution of the findings and directives of the Appeals Chamber in its decision dated the 18th of May, 2005, for Our Chamber to “make any appropriate order necessary to ensure that the Defence is not incommoded”, only limited itself, in a very carefully selective manner, and without addressing other issues that had to and should have been examined and resolved following the Directive of the Appeals Chamber, to issuing only the following restricted Order:
That pursuant to the Decision of the Trial Chamber of the 15th of March, 2005, relating to the presentation of witness testimony on the Moyamba crime base, and the Decision of the Appeals Chamber of the 18th of May , 2005 granting leave to amend the Consolidated Indictment, the Districts of ‘Moyamba and Bonthe’ are considered to be areas forming part of the indictment against the First Accused and therefore the evidence of witnesses who gave testimony on areas relating to the Moyamba crime base is admissible.
- There was no Order relating to the obvious and significant issue of rearraignment nor was there one in execution of the Appeals Chamber Directive that the 3 Indictments be marked, “Not to be Proceeded With”.
- My Dissenting Opinion dated the 25th of May, 2005, was to express my rejection of the way that the Majority Consequential Order was conceived, and its incompleteness in the sense that it did not resolve the vital issues that ought to have addressed.
conclusion, I would reiterate the following position:
- That I agree with Our Unanimous Decision to deny the Prosecution’s application to incorporate Proposed Amendment A into the Indictment for reasons stated in Our Decision.
- That I respectfully do not share the view taken by My Colleagues in the Majority Decision to grant the application to amend in relation to Proposed Amendment B which, in my opinion, should also have been denied on the same reasoning of timeliness as was Proposed Amendment A.
- That even if Proposed Amendment B is granted, as the Majority Decision has ordered, there must be a rearraignment only on that amended Count which, because of that amendment is, in my opinion, a New Count;
- In addition to the preceding analysis, I would add that it does not appear logical to me that we refuse to grant leave to the Prosecution to introduce Proposed Amendment A in the Consolidated Indictment on the grounds that it did not introduce them with due diligence and in a timely manner and yet, grant Proposed Amendment B when these same exigencies of diligence and timeliness, still stand as valid in the circumstances of this Decision
FOR THE ABOVE REASONS,
I DO ORDER AS FOLLOWS:
1. THAT the Proposed Amendment B, like Proposed Amendment A is denied in its entirety and that the Application by the Prosecution is accordingly dismissed;
2. THAT even if Proposed Amendment B is granted by the Chamber Decision, there should be, as indicated in that Decision, not only, Service of the Amended Indictment to the Accused and Counsel, but also, a rearraignment of the Accused and only on the Count that has been affected by the granting of the application to amend Proposed Amendment B.
Done at Freetown, Sierra Leone, this 31st day of July, 2006
Hon. Justice Benjamin Mutanga Itoe
[Seal of the Special Court for Sierra Leone]
 Prosecutor v.
Norman, Fofana and Kondewa, Case No SCSL-04-14-T, Dissenting Opinion of Hon.
Judge Benjaming Mutanga Itoe, Presiding Judge, on the Chamber Majority Decision
Supported by Hon. Judge Bankole Thompson’s Separate but Concurring Opinion
, on the Motion Filed by the First Accused, Samuel
Hinga Norman for Service and
Arraignment on the Second Indictment, 29 November
 Id., Case No. SCSL-04-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005.
 Id., para. 70.
 Id., para.
 Id., Case No. SCSL-04-14-T, Consequential Order on Amendment of the Consolidated Indictment, 25 May 2005.
 Id., Dissenting Order of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge, on the Chamber Majority Consequential Order Dated the 25th of May, 2005, on the Decision of the Appeals Chamber Dated the 16th of May, 2005, relating to the Amendment of the Consolidated Indictment, 25 May 2005.