Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004

Prosecutor v Alex Tamba Brima & Ors - Separate and Concurring Opinion of Hon. Justice Ayoola on the Decision on Brima-kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-appoint

Law report citations
Media neutral citation
[2005] SCSL 182


SPECIAL COURT FOR SIERRA LEONE
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THE APPEALS CHAMBER


Before:
Justice Raja Fernando, Presiding
Justice Emmanuel Ayoola,
Justice
George Gelaga King
Justice Geoffrey Robertson, QC
Justice Renate
Winter


Interim Registrar:
Mr. Lovemore Munlo, SC
Date:
8th December 2005
PROSECUTOR
Against
Alex Tamba Brima
Brima Bazzy Kamara
Santigie Borbor
Kanu

(Case No.SCSL-2004-16-AR73)


SEPARATE AND CONCURRING OPINION OF HON. JUSTICE AYOOLA ON
THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER
II
MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE
RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS
LEAD COUNSEL FOR ALEX
TAMBA BRIMA AND BRIMA BAZZY KAMARA



First Respondent:
The Registrar

Court Appointed Counsel for Alex Tamba
Brima:

Kojo Graham
Glenna Thompson
Second Respondent:
The Principal Defender
Court Appointed Counsel for Brima Bazzy
Kamara

Andrew K. Daniels
Mohammed Pa-Momo Fofanah


1. This appeal is from the majority decision of the Trial Chamber II
(“the Trial Chamber”) (Doherty and Lussick, JJ; Sebutinde,
J.
dissenting), on the “extremely urgent confidential motion for the
re-appointment of Kevin Metzger and Wilbert Harris as
Lead Counsel for Alex
Tamba Brima and Brima Bazzy Kamara (“the decision”). The decision
was rendered by the Trial Chamber
(Justice Sebutinde dissenting) on
9th June, 2005.


Background


2. On May 5, 2005 the Defence teams for accused person, Alex Tamba Brima and
brima Bazzy Kamara filed a “confidential Joint
Defence Submissions on the
Withdrawal of Counsel in the AFRC case (“Joint Defence
Submissions”).


3. By the Joint Defence Submissions the Defence teams prayed the trial
Chamber to:


  1. approve
    the withdrawal of Counsel as Counsel for the Accused persons’
  2. not
    order that Counsel hitherto on record be made Court Appointed Counsel,
  1. make
    any order that the Trial Chamber deems appropriate.

4. By the principal Defender’s Confidential Ex-parte
Submissions Regarding Issues Pertaining to withdraw of Counsel (“Ex-parte
Submissions”), the Principal Defender was not apposed to Mr. Harris and
Mr. Metzger being temporarily designated from “Assigned
Counsel” to
“Amicus Counsel” until such time as they believe it is safe and
effective to retain their designation
as Assigned Counsel”.


5. The Prosecution opposed all these requests but submitted that Defence
Counsel should not be permitted to withdraw but, rather,
should be directed to
represent the Accused pursuant to Rule 6(i) (B).


6. The Trial Chamber rendered its decision permitting Mr. Metzger and Mr.
Harris to withdraw from the case to which they have been
assigned. It is
evident from the decision that the ground which weighed most with the Trial
Chamber as constituting exceptional
circumstances was that of threats to Lead
Counsel and their families. There were three other grounds which the Trial
Chamber did
not regard, by themselves, as constituting exceptional
circumstances. The Trial Chamber was unanimous in the view that those three
other grounds did not amount to exceptional circumstances.


7. Justice Doherty and Justice Lussick who rendered the majority decision
stated as follows:

Taken individually, we find that the arguments put forward by Lead Counsel
regarding their difficulties, i.e. that their clients won’t
come to court,
that their clients will not give them instructions, that there is a
deteriorating relationship, not helped by the
possibility that they may be
called to give evidence in contempt proceedings against the clients’
wives, that they see themselves
acting, in the circumstances, against the
principles of their own Bar Code, do not constitute “the most exceptional
circumstances”
warranting the withdrawal of Counsel. However, when all of
these problems are considered together with the threats hanging over
their
heads, the cumulative result, in our view, creates an intolerable situation
which places Lead Counsel under an impossible burden.


The Accused are charged with crimes of a most serious nature. They are
entitled to the best Counsel available, Counsel who can fully
dedicate
themselves to their demanding task. We are of the view that Lead Counsel,
with their present difficulties, would not be capable of acting in the best
interest of their
clients. We doubt that they would be able to represent their
clients to the best of their ability when, apart from everything else,
they are
concerned for their own safety and that of their families.
Although we are
loath to come to a decision which possibly may adversely affect an expeditious
trial, we are of the view that the rights of the Accused to be represented by
counsel would best be served by appointing counsel able to
carry out their
duties free of the constraints inhibiting present Lead Counsel. (Italics
mine)


8. In the event, the Trial Chamber granted the motion for the withdrawal of
Lead Counsel Kevin Metzger and Wilbert Harris as Counsel
for the Accused Brima
and Kamara, respectively, and made consequential orders, inter alia, directing
the Principal Defender to assign
another Counsel as Lead Counsel to Alex
Tamba Brima and another Counsel as Lead Counsel to Brima Bazzy Kamara.
They made orders for representation of the two accused pursuant to Rule
60(B).


9. It is pertinent to note that Justice Sebutinde dissented, although that
dissent is not of any importance in this appeal. She was
unable to find that
threat to the accused had been substantiated or that either Mr. Metzger or Mr.
Harris had demonstrated the most
exceptional circumstances. I pause to note
that although the majority decision which is the decision of the Trial Chamber
had been
rendered on 20 May 2005, the dissenting opinion of Justice Sebutinde
which was not appended to the decision of the Court, was not
given until 8
August 2005. In my opinion, an opinion, given so late after the decision of the
Trial Chamber has been filed and published
could hardly be regarded as forming
part of the opinions rendered in the case. To hold otherwise will create an
indefinite, and unacceptable,
uncertainty were a judge who has dissented at
liberty to render and publish his or her dissenting opinion at his or her
leisure,
no matter how long after the Trial Chamber had announced and published
its majority decision. If it is permissible to render and
publish a dissenting
opinion two months after the Trial Chamber has disposed of the matter, what
stops it from being rendered one
year or two years after!


10. I continue with the narration of the background facts. There was no
appeal from the decision on the confidential Joint Defence
Application for
withdrawal of Counsel. The validity of that decision and the consequential order
made is incontestable in the present
proceedings.


The Present Proceedings


11. The present proceedings were initiated by a motion whereby the accused
Alex Tamba Brima and Brima Bazzy Kamara sought the following
orders:


(i) In the first place,........, the Defence herewith respectively prays the
Trial Chamber to order the Registrar to ensure that
Mr. Metzger and Mr. Harris
are re-assigned as Counsel for Accused persons Brima and Kamara.



(ii) In the second place, an order to the Acting Principal Defender to
immediately enter into a legal services contract with Mr.
Metzger and Mr.
Harris.



(iii) In the third place, that the Justice that re-confirmed the order not to
re-appoint as indicated in the letter from the Registrar’s
Legal Advisor
recluse (sic) themselves from hearing this present motion.



(iv) In the fourth place, an order to declare as null and void the decision of
the Registrar not to re-assign Counsel as the decision
was made without legal or
just cause and therefore ought to be quashed accordingly and set aside.



(v) In the fifth place, any other relief the Trial Chamber may deem fit and
appropriate in the circumstance.

12. By its decision rendered on 9 June 2005 the Trial Chamber
(Doherty and Lussick, JJ, Sebutinde, J dissenting) dismissed the motion.


13. Justice Sebutinde, once again, did not append her dissenting opinion to
the decision of the Trial Chamber but filed one on 11
July 2005 more than one
month after the Trial Chamber had already rendered its decision. She wrote an
opinion which was more like
an appellate decision from the opinion of her
colleagues.


14. In a decision which is commendable for its succinctness and which was
directed to the issues in the Motion, the Trial Chamber
having reviewed the
submission of Counsel on behalf of the accused, of the Registrar and of the
Principal Defender disposed of the
motion as follows:


i. In regard to the relief:

That the Justices that reconfirmed the order not to re-appoint as indicated
in the letter from the Registrar’s Legal Adviser
recluse themselves from
hearing this present motion,


the Trial Chamber ruled that:


There was no order made in the Trial Chamber refusing re-appointment of
Counsel per se. The orders sought in the original application
made for leave to
withdraw from the case. The orders were granted in full as sought and
additional orders for, inter alia, appointment of Lead Counsel were
made.


ii. In regard to the relief:


That the Trial Chamber order the Registrar to ensure that Mr. Metzger and Mr.
Harris are re-assigned as Counsel for Accused persons
Brima and Kamara


the Trial Chamber having stated that:


In our earlier decision permitting Lead Counsel to withdraw, we found that
the Accused were merely boycotting the trial and obstructing
the course of
justice. In our view, that is exactly what they are seeking to do in bringing
the present motion. We do not believe
that they genuinely wish to be
represented by those particular counsel. We believe that their real motive is
to cause as much disruption
to the Trial as possible.


The Trial Chamber went further to say:


As the Deputy Principal Defendant has correctly stated, the duty to assign
Counsel in the event of a withdrawal rests in the Principal
Defender. However,
we do not consider this entirely relevant as Rule 45 (E) provides the
appointment must be of “another Counsel.
There is no provision for
re-assignment of former Counsel in the event that they or their client, or both,
have changed their mind.


iii. In regard to the relief that an order be made to the Acting
Principal Defender to immediately enter into a Legal contract with Messrs
Metzger and Harris,
the Trial Chamber re-iterated its earlier opinion that
there is no provision for re-appointment and added the Trial Chamber has no
power to interfere with the law relating to priority of contract.


iv. In regard to the prayer that the decision of the Registrar not to re
assign Counsel null and void as it was made without legal
or just cause, the
Trial Chamber disposed of that shortly by pointing out that that the Registrar
had sought to uphold the order
of the Trial Chamber order allowing
Counsel’s application to withdraw and ordering another Counsel be assigned
in accordance
with Rule 45(E). It concluded that to argue that upholding and
implementing a Court Order, made on application of the parties concerned
is
‘without Legal or just cause’ is fallacious.


15. It is noteworthy that the Trial Chamber doubted the good faith of the
statement by the Defence that the “circumstances where
Counsel previously
withdraw his services for stated reasons and circumstances have changed”
given, as stated in the decision,
that the application emanated from a letter
from the accused purportedly written on the same day as the Trial
Chamber’s order.


16. In the event, the Trial Chamber dismissed the motion which it described
as not founded on bona fide motives and as one which sought
to reverse an order
granting relief which the Defence itself sought. It was in the light of these
findings that the Trial Chamber
considered the Motion to be frivolous and
vexation.


The Appeal


17. The appeal from the decision was on seven grounds as follows:


1. First Ground of Appeal

Error in law and/or fact due to the Trial Chamber’s erroneous
interpretation, of the statutory rights of the accused persons
as provided under
Article 17(4) (c) and (d) of the Statute of the Special Court. The Defense
submits that the appealed decision
wrongfully denied the rights of the Accused
persons to have counsel of their own “choosing” as provided for in
Article
17 (4) (d) of the Special Court Statute.


2. Second Ground of Appeal

Error in law an/or fact due to the appealed decision’s denial of the
Defense request for an Order to the Acting Principal Defender
to enter into a
legal services contract with Messrs. Metzger and Harris on the grounds the Trial
Chamber has no power to interfere
with the law relating to privity of
contract.


3. Third Ground of Appeal

Error in law and/or fact due to the ruling of the Trial Chamber that the
Defense request for “an open and public hearing”
is an application
for further relief in a Reply and that “there has been no submission to
support or explain this application
for a public hearing”.


4. Fourth Ground of Appeal

Error in law and/or fact due to the Trial Chamber’s erroneous legal
interpretation of Rule 45 (E) of the Rules of Procedures
and Evidence of the
Special Court for Sierra Leone (Rules) to prohibit re-appointment of former Lead
Counsel. The ruling in this
respect is entirely misplaced because the Original
Motion was not a Rule 45 (E) application.


5. Fifth Ground of Appeal

Error in law and/or fact due to the Trial Chamber’s treatment of the
Original Motion as an application for review of its earlier
decision on Motion
for withdrawal by Messrs. Metzger and Harris.


The Defense is of the opinion that the Trial Chamber erred in law by not
considering the original Motion as separate and distinct
from the Motion for
Withdrawal of Counsel.


6. Sixth Ground of Appeal

Error in law and/or fact due the Trial Chamber’s decisions that
“Counsel are not eligible to be reappointed since they
are no longer on
the list of qualified Counsel required to be kept under the Rule 45 (C).


7. Seventh Ground of Appeal

The Trial Chamber erred in law and/or fact due its ruling that since
“there was no determination of the issue of re-appointment
of Counsel,
there are no grounds for submitting that any Judge recuse him/herself.


18. By their notice of appeal the accused sought relief as follows:

. . . . . the Defense respectfully prays the honourable Appeal Chamber
to:


i. Find the Appeal admissible.


ii. Declaration that refusal of the Registrar and the Trial Chamber to
re-appoint Messrs. Metzger and Harris as lead Counsel amounted
to a violation of
the Statutory rights of the Accused as provided in Article 17 (4) (d) of the
Special Court Statute.


iii. Declaration that the Registrar’s decision against the
re-assignment of Messrs Metzger and Harris and also the removal of
their names
from the list of eligible Counsel is ultra vires and null and void.


iv. An order for the reinstatement of Kevin Metzger and Wilbert Harris on the
list of qualified Counsel.


v. A declaration that the Trial Chamber has both the inherent jurisdiction
and the power to review the Registrar’s decision
not to reassign Messrs.
Metzger and Harris as assigned Counsel as well as the Registrar’s decision
to remove their names from
the list of qualified Counsel.


vi. A declaration that Justices Doherty and Lussick, having advised the
Registrar against the re-appointment of Messrs. Metzger and
Harris should
properly have recused themselves from hearing the Original Motion on their
re-appointment.


19. Grounds of appeal must arise from the decision appealed from if they are
to be relevant to the appeal. It is misconceived to
complain that a tribunal
erred in its decision or is erroneous in its finding on an issue when such
finding has not been made. It
is a different thing if it is complained that the
impugned decision is vitiated by absence of findings on an issue that is
relevant
and material to the decision. That is not the complaint in any of the
grounds of appeal.


20. In this case most of the grounds of appeal do not arise from the decision
appealed from. Ground 1 complains of “erroneous
interpretation of the
statutory rights of the accused person as provided under Article 17 (4) (C) and
(d) of the Statute of the Special
Court and that the decision wrongfully denied
the rights of the Accused to have counsel of their own
‘choosing’”.
However, a careful reading of the decision shows
that it was not based on an interpretation of Article 17 (4) (C). There was no
controversy about the principle that the right to have legal assistance of
assigned counsel does not carry with it an absolute right
to any counsel. What
was in issue was whether accused was entitled to insist on counsel, as counsel
of his choice, when that counsel
had -


(i) been permitted to withdraw from the case on grounds stated;



(ii) not applied to vary or discharge the order permitting him to withdraw and
the consequential order that another counsel should
be substituted for him, and




(iii) not at all shown a change of circumstances from that that had constituted
exceptional circumstances for permitting his withdrawal
in the first place

The Trial Chamber held that (i) there was no direct evidence
from counsel permitted to withdraw that their circumstances have changed; (ii)
that all the other
factors the Trial Chamber considered in arriving at its
decision were still in existence and (iii) that it was unclear on what legal
grounds the application was made as it was not brought pursuant to Rule 45
(D).


21. Instead of dealing with the grounds of the decision as summarized above,
the defence dwelt on the question of the right of an
accused to be represented
by a counsel of his own choice, which in the circumstances of this case is a
purely academic and hypothetical
question, whereas the real question was whether
the previous subsisting order and the ground on which it was made had not
limited
that right.


22. It was clear from the reasoning of the Judges who delivered the majority
decision hat the accused could not claim a right to the
particular counsel who
have been permitted to withdraw from the case without first having the order,
varied or rescinded. Nothing
has been shown on this appeal in the grounds or in
the submissions that that reasoning was erroneous.


23. The second ground of appeal suffers from the same misconception as the
first in that it ignored the preceding statement that there
was no provision for
re-appointment of counsel under Rule 45 (E). My understanding of the reasoning
of the Trial Chamber is that
the power of the Trial Chamber to order a legal
services contract with the particular counsel must be predicated on a statutory
provision
for their re-appointment, otherwise there would be no legal source of
the power which the Defence had requested the Trial Chamber
to exercise. The
reference to privity of contract may not have been apt, but the idea it sought
to convey when read in the context
of the preceding statement is clear enough.
The Defense should have challenged that preceding statement. They did not.


24. Put under close scrutiny, the remaining grounds may be found to suffer
from the same shortcoming, albeit to a lesser degree.


Issues on the Appeal


25. The issues that are decisive of this appeal are really few. They are as
follows:


(i) Whether Justice Doherty and Justice Lussick erred in not disqualifying
themselves.



(ii) Whether the Trial Chamber made an erroneous interpretation of Rule 45 (E)
or erroneously regarded the application as one brought
pursuant to Rule 45
(E).



(iii) Whether the Trial Chamber misconceived the nature of the Motion by not
considering the “Original Motion as separate and
distinct from the Motion
for withdrawal of Counsel”.



(iv) Whether the statement that “Counsel are not eligible to be
re-appointed since they are no longer on the list of qualified
counsel required
to be kept under the Rule 45 (C)” is correct in the circumstances of the
case.

Deliberation


26. The question whether or not the two judges who delivered the majority
decision should have disqualified themselves by reason of
alleged bias or
reasonably doubt as to their impartiality arose from the relief sought in the
Trial Chamber that “the Justices
of the Trial Chamber who reconfirmed the
order not to re-appoint Counsel as indicated in the letter from the
Registrar’s Legal
Adviser should disqualify themselves. The ground for
this relief was that the said Judges having previously ordered that Mr.
Metzger and Mr. Harris were not to be re-appointed as Defence Counsel, would not
be in a position to adjudicate upon the
Motion by the defence to re-instate them
fairly and impartially.


27. The background facts can be briefly stated: The Deputy Principal Defender
in a memorandum to the Registrar informed him on 17
May 2005 that although Mr.
Metzger and Mr. Harris had been permitted to withdraw from the case, the accused
persons had chosen them
as their Counsel. She was inclined to re-appoint them
as Lead Counsel for the accused persons instead of assigning new Counsel to
the
accused.


On 18 May 2005 the Registrar wrote a memorandum to the Presiding Judge of the
Trial Chamber as follows:


Justice Doherty, as promised, this is the formal update by the Defence Office
as to the present position on Metzger and Harris. As
I have mentioned to you,
as a matter of expediency, there are reasons which would support their return.
But from the long term conduct
of the trial, and considering both
Counsels’ performance and demeanor, my view is that it would be
counter-productive to reassign
them. One point I would like to put to you
for your advice is the issue of who, ultimately, has the final word on this.
Whilst it is clear
from the Directive on Assignment of Counsel that the
Principal Defender and I have a major role, I cannot believe that a Trial
Chamber
does not have at least a say if not the final
say”.
[underlining mine]


By an inter-office memo of 18 May 2005 the Presiding Judge wrote as
follows:


Re-Appointment of Mr. Kevin Metzger and Wilbert Harris as Lead
Counsel:


This matter was already brought orally to the Court and the following order
made on 16th May 2005:


“This Court read an order on an application. The application was an
application to withdraw. That order was made and any letters,
correspondence or
documents that seek to go behind that decision cannot be countenanced in this
Court. The decision has been made.”


That ruling stands and the order stands. The Court will not give audience to
Counsel who make an application to withdraw on one day
on various grounds,
particularly security and then come back the day after and basically say they
retract. They cannot make fools
of the Court like this, nor can they do it in a
“back door” way through the Principal Defenders and the
Registrar’s
power to appoint Counsel.


28. In his memorandum of 17 May 2005 to the Presiding Judge earlier referred
to the only question on which the Registrar sought assistance
from the Presiding
Judge was “who ultimately has the final word on this. Whilst it is clear
from the Directive on Assignment
of Counsel that the Principal Defender and I
have a major role, I cannot believe that the Trial Chamber does not have at
least a
say, if not the final say”.


29. The Registrar’s enquiry should not be read out of context. The
enquiry was made in the context of a subsisting order of
the Trial Chamber that
another Counsel be appointed. The Registrar, a highly experienced
judicial administrator, was perfectly in order in his view that the Trial
Chamber has at least a say if not the final say in a matter that affected its
order. He would have risked committing a contempt
of the Trial Chamber if he
had not taken the precaution of enquiring before he acted. He acted
appropriately pursuant to Rule 33
(B).


30. The response of the Presiding Judge cannot be faulted. It was merely to
restate the existing state of affairs about which there
could not have been be
any reasonable dispute, namely:


(i) an order has been made permitting Mr. Metzger and Mr. Harris to withdraw
from the case



(ii) Counsel who obtained that order cannot turn round to seek re-appointment,
without much more.

The opinion which in substance meant that the Counsel could not
be allowed to approbate and reprobate cannot be faulted. No self
respecting
tribunal would allow its process to be trivialized and brought to ridicule.


31. However, in fairness to Mr. Metzger and Mr. Harris, they did not apply to
be re-appointed as counsel, and so they had no cause
to show that the
circumstances had changed and when and how.. They merely gave an indication
that they would be prepared to act
on condition that their security concerns
were taken care of.


32. Mature consideration would show that there was really no question of bias
or reasonable apprehension of impartiality by Justice
Doherty or Justice
Lussick. The two Judges had restated existing and known facts. They made
obvious statements, which well interpreted,
was in fact a statement of
principle regarding a court protecting its order from being treated with
contempt. The Registrar’s
enquiry as to whether the Trial Chamber had a
say or final say in the matter was not even directly considered in their
response.
The issue in the present defence motion which was whether a right of
choice of Counsel extended to a right to choose counsel who
has been permitted
to withdraw from the case with a consequential directive that another counsel be
appointed, while the order and
the consequential directive subsisted, were not
raised by the Registrar’s memorandum nor was it addressed by the Presiding
Judge’s response.


33. There was really no basis, whatsoever, for the charge of bias or
likelihood of partiality made against Justice Doherty and Justice
Lussick by
Justice Sebutinde in her dissenting opinion which was adopted by the defence.
It was unfortunate that such an allegation
was hastily and without an iota of
justification made against the two highly experienced and competent Judges
without proper analysis
of the memoranda and the circumstances. Had the two
judges not been denied the opportunity of discussing Justice Sebutinde’s
opinion perhaps a lot of misconceptions would have been cleared.


34. I find no substance in the submissions of the defence that Justice
Doherty and Justice Lussick should have disqualified themselves.


35. The remaining issues can be dealt with shortly. There is no substance in
the submissions that the Trial Chamber made an error
in interpretation of Rule
45 (E). Indeed, it had not been shown where that error occurred. The Trial
Chamber took the trouble to
show the ordinary meaning of “another”
as “different from the one already mentioned”. It has not been
shown
that they were wrong.


36. In regard to the nature of the defence motion, it is clear that although
it was not a motion for withdrawal of counsel, the order
permitting withdrawal
of counsel and the consequential directive are relevant to the motion. It was
in that context that the Trail
Chamber discussed the matter of withdrawal of
counsel and found that there was no direct evidence that their circumstances
have
changed. The complaint that they misconceived the nature of the motion is
without substance.


37. That statement that “Counsel are not eligible to be re-appointed
since they are no longer on the list of qualified Counsel”
was one of
several reasons for dismissing the motion. The other reasons were valid. Even
if the impugned reason were erroneous
that would not affect the result.


Conclusion


38. I have confined myself to issues which I find arise from the appeal. I
have refrained from discussing the question whether the
Trial Chamber could
review the decision of the Registrar because I do not see the Defence Motion as
a request for a review. If it
can be said to be a request for a review, I am
content to agree with the decision of the Appeals Chamber that it was rightly
rejected.


39. I agree with the decision that the appeal be dismissed and append to
it this concurring opinion to express my views on some
of the issues.


Done at Freetown this day 8th day of November
2005


_______________________
Justice Emmanuel Ayoola


[Seal of the Special Court for Sierra Leone]