Court/Tribunal: Special Court for Sierra Leone 

Decision Title: Judgment in Contempt Proceedings

Chamber: The Appeals Chamber

Case Name: The Independent Counsel v. Hassan Papa Bangura, Samuel Kargbo, Santigie Borbor Kanu, Brima Bazzy Kamara

Date: 21 March 2013

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Decision Background: The decision comes from an appeal by the defendants to the Trial and Sentencing judgments from September 2012 and October 2012, respectively.  The defendants were charged with knowingly and willfully interfering with the Court’s administration of justice by attempting to bribe a witness to the Court. The were also charged with knowingly and willfully interfering with the Court’s administration of justice by otherwise interfering with a testifying witness. Kamara was specifically indicted for knowingly and willfully interfering with the administration of justice by disclosing information relating to the proceedings, in violation of a court order.

Kargbo plead guilty to the charges, pursuant to an agreement whereby he would become a witness at the trial. The judge stayed his sentencing until a determination regarding the other three defendants was reached. The other three defendants plead not guilty.  The Trial Court found Bangura and Kanu guilty of the bribery charged, but acquitted Kamara as to that charge. The three accused were all otherwise found guilty on all of the other charges pending against them. Bangura received a 12-month sentence (taking into account time served on remand and rights abuses he experienced). Kargbo was sentenced to an 18-month suspended sentence due to his guilty plea and subsequent cooperation with the Court. Kanu and Kamara were both sentenced to 1 year 50 weeks for each count upon which they were convicted, to be served consecutively after already-existing sentences.

Kargbo filed an appeal, but did not actually appeal his sentence or conviction. Rather, he submitted that the Trial Court erred during his trial in three ways: failing to provide a reasoned opinion on an issue of fact and law appropriated raised during trial, failing to accord due weight to the threats against himself and his family as a result of his cooperation with the Court against the co-defendants, and failing to provide Kargbo appropriate protective orders.

Kamara filed notice of appeal in October 2013. The filing did not clearly set out the grounds for appeal, but appealed the conviction and sentence as being inordinately high due to the fact that it would run consecutively to other existing sentences.

Kanu also filed an appeal against his conviction and sentence, citing 27 grounds for appeal, which the Court noted failed to comply with the relevant Practice Direction guidelines, in form and content.

Although he asked for—and was given – an extension within which to file a proper Notice of Appeal, Bangura failed to do so.

The Independent Counsel filed responses to the defendants’ notices and grounds for appeal.

Decision Review: The Court noted that the Appeals Chamber reviews appeals from contempt convictions in the same manner that it reviews appeals from regular judgments, and that the applicable standards of review of judgments apply equally to contempt convictions.  Because Kanu’s appeal focused on issues of fact, the Court re-iterated the standard for review of errors of fact, namely that it gives deference to the fact-finding of the Trial Chamber, and will not lightly overturn its findings. The Appeals Chamber will only reverse the fact-finding of the Trial Chamber and conduct its own analysis if the evidence relied upon by that Chamber could not have been accepted by any reasonable tribunal, or where the evaluation of the evidence was “wholly erroneous.” The Appellant claiming factual error must clearly articulate how the error of fact “occasioned a miscarriage of justice” – aka, how the error was critical to the verdict reached.

The Appeals Chamber also noted that it holds the discretion to determine whether any submissions by parties lack merit, and reserve the right to find that a party’s submission may not warrant a reasoned opinion from the Court in response. The Appeals Chamber noted that if submissions by any party are obscure, vague or otherwise insufficient, the Chamber may summarily dismiss those submissions.  Generally, the Appeals Chamber will dismiss submissions where the grounds for appeal or other factual allegations in the submission are insufficiently developed. Mere allegations that the Trial Chamber failed to consider relevant evidence, or erred in its evidentiary evaluations, without providing information, evidence or argument in the pleading to show why this is the case, may be summarily dismissed by the Appeals Chamber.

In regards to the Kargbo’s appeal, the Appeals Chamber first noted that the Independent Counsel’s response to his appeal was not made within the applicable time window for filing a response. As such, the Appeals Chamber did not consider the Independent Counsel’s response. Going to the substance of the appeal, the Chamber noted that Kargbo was not appealing his sentence or his conviction, and was only addressing concerns regarding a protective order. Since he was not appealing his conviction or his sentence, the Chamber found that his submission was outside its competence to pass judgment, and dismissed the appeal.

In regards to the Kamara appeal, the Chamber noted that the defendant’s submission entirely failed to comply with requirements that the appeal clearly contain the grounds for appeal, and clearly indicate which filings contain the grounds for appeal, and which contain submissions by the party based on those grounds. The Appeals Chamber noted that this constituted a “fundamental flaw” with the defendant’s filings. As such, the Chamber found that it would be impossible for it to determine what information constituted grounds for appeal and which constituted submissions based on those grounds; for those reasons, the Appeals Chamber dismissed Kamara’s appeal in its entirety.

In regards to the Kanu appeal, the Chamber found that the defendant filed 27 grounds for appeal regarding his conviction, and 3 grounds regarding his sentence. He asked the Appeals Chamber to reverse the findings of guilt and convictions, and to vacate the Judgment in favor of a Judgment of Acquittal. The Chamber found, however, that the grounds submitted by the defendant in his appeal were obscure, contradictory, or vague. Noting that for this reason alone the appeal could be summarily dismissed, the Chamber proceeded to examine the defendant’s grounds for appeal.

In regards to the appeal of his conviction, the Appeals Chamber examined each ground, and found that each of the 27 grounds had fundamental flaws that necessitated their dismissal. Common issues that were present in many of the grounds were as follows: advancing the wrong type of claim, absence of submissions to support alleged grounds for appeal, failure to cite supporting law or principle, and confusing matters of substance and procedure. Additionally, throughout Kanu’s grounds for appeal, there was an overall lack of development of his arguments; namely, he continually failed to provide backup evidence or information to support his contentions, failed to provide adequate reasoning or support for his arguments, and generally failed to show or allege how certain allegations of error created the requisite “miscarriage of justice” needed to sustain an appeal.

In relation to Kanu’s sentencing appeal, the Chamber noted that in addition to arguing undue length of sentence considering his other sentences, Kanu also argued that the sentencing Trial Judge failed to take into account “mitigating actions” undertaken by Kanu, and that there was a significant disparity between the sentence he received and that given to co-defendant Bangura. The Appeals Chamber found that Kanu failed to even mention or address the mitigating factors that the Trial Court failed to consider, and summarily dismissed that element of the appeal. It further rejected the rest of Kanu’s grounds for appeal, noting that it took the time to examine the grounds for Kanu’s appeal – even though it could have summarily dismissed them due to the plethora of defects— in order that future counsel be reminded of the proper standards for submitting an appeal.

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