Law Reporting In Sierra Leone
By Stephen Marsh & Toby Fisher |
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Since 1865, when WTS Daniel’s Council of Law Reporting began work in Westminster Hall, there have been convenient and accurate versions of the leading cases available to any interested party. Any judgment which introduced a new principle or modified an existing principle or appeared to clarify a particular question was to be included in the reports. The original guidelines, as set down by the former Master of the Rolls, Nathaniel Lindley are still followed to this date, and law reports have become an essential tool in the fast moving world of the common law. Today, for a lawyer practising in England and Wales the common law presumes the existence of effective law reporting. For the practitioner and the student alike, law reports are the window through which the common law is revealed and the means through which the law becomes a coherent, predictable and non-retroactive whole.
Without law reports, it would be natural to assume that a system of law founded on a haphazard series of judgments would remain just that – a haphazard series of judgments - but in the second poorest country in the world, the common law has functioned without law reporting for over thirty years. The last reported case in Sierra Leone was from 1972. Under British colonial rule, the law reports in Sierra Leone were included as part of the broader West African Law Reports – many of which can be found in the Bodleian Library in Oxford. After independence in 1961, Sierra Leone took over responsibility for its own reporting, but for a reason no one can seem to remember, the reports ceased in 1972 and were never re-started. Since then, court judgments have been stored in a single copy on damp, browning paper in the bowels of the law courts in Freetown. Remarkably, despite this lack of reporting, the common law system has continued to function, albeit with great difficulty. |
“This is an impossible situation which we have been complaining about for many years,” says Mr J.B. Jenkins-Johnson, a leading Freetown lawyer. “We can rely on those reported cases before 1973, but generally we rely on English authorities, or occasionally Nigerian and Ghanaian authorities, which are merely persuasive in the
courts.”
Unreported cases since 1973 are accessible from the registry at the law courts and binding in domestic law, but one must be aware of their existence in order to access them. While the 200-odd Freetown lawyers demonstrate a remarkable collective memory of specific cases, there are undoubtedly hundreds of important cases that lie forgotten or lost.
As Jenkins-Johnson notes, the system of record keeping in the law court registry is in a “deplorable state. Many of the cases from 1973 to now may no longer be available because of bad record keeping. ”To compensate, Freetown lawyers and judges |
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have built up personal libraries of important cases. Emeka Taylor, a leading barrister in Freetown says, “Each year, the leading cases and new legislation need to be collated and bound. The legislation is purchased from the Official Stationer, but judgments need to be selected and photocopied from the Registry.” As a lawyer’s library grows, so too does his effectiveness in court, and as such, cases are like commodities: to be proudly displayed, but jealously protected from other lawyers.
Mr Ade Renner-Thomas the Chief Justice of Sierra Leone concurs how the judiciary operate without the aid of law reports: “The judiciary also bind their own copies of the judgments of the Supreme Court and Appeal Court as a matter of course, as their effectiveness depends on up-to-date knowledge of the common law”. Students also have to learn using the same system. Ms Basita Michael LLB has just finished reading law at Fourah Bay College, Sierra Leone’s oldest university. Basita ICLR The Incorporated Council of LAW REPORTING FOR England & Wales Page 8 explained that “law students are supplied with the leading cases by their lecturers, but it is up to them to obtain copies. Since all cases after 1973 are unreported, the students are given the parties’ names and the year, then have to look up the judgment at the Court Registry. Students do not have access to electronic ‘Athens’ passwords, so use hard copies of England and Wales law reports to find persuasive authorities for most areas of law, with Sierra Leone Constitutional Law being the exception, where local precedents are used”.
A second major problem with the current system is that the monopoly of legal knowledge held collectively by the legal profession is deeply undemocratic. Knowledge is power: as non-lawyers have no access to or knowledge of the decided law since 1973, a worrying dominant position has been handed to a very small elite of lawyers. Even within that elite, the jealous guarding of case law results in an elite within an elite who dominate the entire legal scene in Sierra Leone. |
There are encouraging signs that this might change. The Sierra Leone Bar Association is near the end of a three year project to publish The Sierra Leone Bar Association Law Reports for the years 1973-1980. The reports are due for publication in October, and should make a significant contribution to the common law in Sierra Leone. The project was initially funded by the UK Government’s Department for International Development (DfID), and later by the Justice Sector Development Programme, administered by the British Council, who are currently funding a number of projects to build capacity in the justice sector of Sierra Leone. It is certainly a promising endeavour to begin to plug the 30 year gap of law reporting. There had been some ad-hoc attempts to start law reporting again, but without any longevity.
Between 2000-2003 Mr Maclean Thomas, a Sierra Leonean journalist, living in London, wrote a weekly law report page for the Sierra News newspaper. These were discontinued due to lack of resources, and there has been an ongoing void up to the point the Sierra Leone Bar Association stepped into fill it.
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Long term, the Law Reporting Council of Sierra Leone, as established by the 1991 Constitution, will have responsibility for producing domestic law reports. The Chief Justice and the Attorney General are currently in the process of finalising plans for the Council and have given a date of end of 2006 as to when it will be fully operational. In a country such as Sierra Leone, emerging from a decade long conflict, where one in four children die before their fifth birthday, there are many competing priorities for the Government’s limited resources. Democracy and the rule of law have only been fully re-established since 2002, so if it takes a few more months to see law reporting properly up and running again, the legal system should be able to cope until then.
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