The long preliminary investigation (P1) into the matter of State V. Dr. Roland Foday Kargbo, John Kapri Gbla, Henry Abu, Peter Lamin Dumbuya and Peter Brima Kargbo, which commenced before Magistrate Komba Kamanda in Magistrate court No.2 Freetown on July 10, 2012 is winding up. The case is against former officials of the defunct Help a Needy Child International (HANCI) who worked with a U.S-based adoption agency, Main Adoption Placement Services (MAPS) to pull a number of alleged illegal adoption counts of trafficking, and 7 counts of perjury.
During the extensive preliminary inquiry which has spanned over a year, the prosecution has called 17 witnesses, including twelve (12) affected parents, and five (5) police officers. The prosecution concluded its case on May 17, 2013. On the same day, the defence applied for an adjournment so that they could make an oral address on July 5, 2013. Again, on July 5, the matter was adjourned to July 26, 2013 so that the defence could “submit a written address” to the court.
On the said date neither the prosecuting lawyers nor the defence counsel were present in court, but some junior barristers who represented them asked for the matter to be adjourned to August 1. The serenity that surrounded the overcrowded court room and corridors of Magistrate Court No.2 on August 1st with the affected parents and journalists were remarkable. Finally, an address came down from the defence. The victims looked dejected after the defence’s address, and their sense of despair might have been compounded by the conspicuous absence of the prosecuting team headed by Law Officer Department’s Gerard Soyei. In his address, which was read in open court, Roland Wright Esq. highlighted the following points:
- That the accused persons face 22 counts of conspiracy to traffic, 2 counts of trafficking, and 7 counts of perjury.
- Regarding the charge of perjury, the defence told the court that no evidence was led by the prosecution as to which court proceedings the accused persons lied under oath. He said though the prosecution alleged that the perjury was committed in proceedings before a high court, certified true copies of the proceedings ought to be tendered in the absence of which no foundation was laid to establish the 7 counts of perjury.
- He asked the court to peruse a number of exhibits, bundles of documents tendered by the prosecution comprising High Court orders, legally and officially granting the rights of adoption to HANCI. It was his submission that the children allegedly trafficked were officially adopted by HANCI at the time in question. He said the witnesses who testified claiming to be parents, guardians or relatives may continue to be the biological parents of the kids for the rest of their lives but in the eyes of the law, they ceased to be their legal parents by virtue of the adoption orders granted by the High Court. He said the adoption orders have never been questioned in any forum, which is why HANCI is still the legal parents of the children, adding “You cannot be accused of trafficking your own child”.
- He submitted that the 22 counts of conspiracy will also fail as one cannot conspire to traffic his/her own child. He said no evidence was led as to conspiracy, how it took place, and when it took place. He said the prosecution ought to have shown the meeting of minds and determination to commit an offence.
- Finally, he submitted that the charges were fundamentally flawed. He said section 2(2) of the Anti-Human Trafficking Act gives various ways the offence can be committed and what the prosecution did was to simply reproduce the entire section by giving all the ways the offence can be committed. He said they are not before the court for a lottery as the prosecution ought to have stated the specific ways the offence was committed – hence the accused persons don’t know the manner in which the offence was committed.
- He submitted that there is a definition of the word “exploitation” which he called the “purpose test”. He said for the accused persons to be guilty, it must be shown they did the act for specific purpose, adding that the following are some of the purposes hence the charges are fundamentally flawed on two grounds. He said there is no means and there is no reason for the accused to have been brought before the court.
- He said no witnesses testified as to where the children are, and how they got there, and so how can trafficking be established? He said the exercise conducted by the prosecution is a complete nullity because it was brought by people who have no legal locus to be before the court. He said all the accused persons have no case to answer as even the foundation was not laid to establish the prima facie case.
It is shocking that it took the defence exactly two months and a half (three adjournments) to address the court. This has had serious psychological and financial implications for the victims who are ordinarily resident in the North as they had to travel about hundred and ten miles to attend the court sessions. In fact, it would have made a lot of sense to investigate the matter by a Magistrate in Makeni, the region where most of the victims reside. On July 26, some of the victims expressed their dissatisfaction with the unnecessary delays accompanying their case. Some of them also expressed a genuine concern that some of the witnesses who testified before the Commission of Enquiry, which recommended the ongoing preliminary investigation, were not brought before the court to testify. They feel it would undermine the strength of their case.
On two separate occasions, there was no representation from the prosecuting teams. CARL spoke to a very dejected victim about why there was no representative from the Law Officers Department in the last two sessions of the matter. Strangely, the victim said the prosecuting attorney told him that he wasn’t aware that the matter had been scheduled for that day. Even after being advised about the scheduled date for the defence’s address, the prosecuting attorney was still absent from court. This is simply unbelievable! This is case which involved over 50 affected victims in which 200 children were allegedly trafficked. This may just undermine the victims’ hope of getting justice. No client is inspired by such attitude from a lawyer. This is a matter that has spanned years of controversy and massive local and international media coverage. Just when the victims feel like justice is about to be done, their hopes are beginning to fade by the undue delays and the somewhat “unhelpful” attitude of their lawyer.
In 2004, this same matter was reported to Interpol Sierra Leone, which investigated the matter and charged three HANCI officials with twenty three (23) counts of conspiracy to commit a felony contrary to law and child stealing contrary to section 56 of the Offences against the Persons Act 1861. The matter was discharged for want of prosecution.
The article is culled from THE MONITOR, a monthly newsletter published by the Centre for Accountability and Rule of Law (CARL).
(C) Politico 12/11/13
