By Fatima Kpaka
The Supreme Court of the Republic of Sierra Leone has dismissed an application made by state prosecutors for the Murder trial in which one Ikubolaje Nicol, a former General Manager at Skye Bank, stands accused. Instead the court decided that the said trial be conducted by a Judge and Jury.
The four Judges, Justices Vivian Solomon, Justice Mohamed Deen-Tarawally, Justice Alusine Sesay and Justice Jamestina King unanimously agreed on Tuesday 30th January 2024 that the accused has a right to the same treatment for fair trial as others who had faced murder charges since the abolition of the death penalty in 2021.
The Presiding Judge, Justice Solomon in her twenty-seven {27} page ruling said that the court had not been made aware of any greater risk to the public, any need to a trial by judge alone, any issue which requires a more specialist inquiry than a layman could make, any risk or actual incident of jury tampering, and in short, there was no demonstrable risk to the administration of justice.
She also said that the court had received no evidence and heard no submission distinguishing the case of Ikubolaje Nicol as one warranting the exclusion of a jury.
In the absence of such evidence, she said that a decision for the trial to be conducted by judge alone appeared to be arbitrary, and would deny the accused his constitutional rights.
“It is my view that in the interest of justice the second respondent herein will not receive fair trial were I to accept that he can be tried by judge alone. To do otherwise will set a dangerous precedent. The interest of Justice is best served when all prosecutions are conducted and seen to be conducted objectively, fairly, impartially and with integrity to help secure justice for victims, witnesses, accused persons and the general public.” Justice Vivian Solomon.
A fair trial for murder prior to the passing of the Abolition of the Death Penalty Act in 2021, she said, would have meant a trial by judge and jury, adding that such right had not been abrogated by the aforementioned legislation, which only abolished the sentence and not the mode of trial for the special category of offences concerned {which include murder}.
On point thirty {30} of the ruling she said “the right to jury trial is a fundamental right at Common Law. Even where parliament sought to limit that right, it retained it for some offences. Murder being one of them and inserted a safeguard in the general interest of justice.”
“The constitution confers extensive powers on the AG. The discretion and extensive powers must be exercised fairly, reasonably and lawfully.”
Justice Solomon cautioned that it is not the role of the prosecutor to seek conviction at all cost, but has among other duties in a criminal trial to present the case to the court by assisting the court to arrive at the truth and achieve justice for the victim and the community.
On the 19th of June 2023, High Court Judge Justice Adrian Fisher made a thirty-nine-page application to the Supreme Court seeking interpretation for a judge alone application by the Attorney General in the case of conspiracy to murder, murder and perverting the course of justice which had been objected to.
The Supreme Court on Wednesday 11th October heard oral submissions from principal state lawyer Ahmed James Bockarie and Lawyer Roland Wright defending the accused Ikubolaje Nicol.
Lawyer for the state had told the court that Paragraphs 61 and 62 of Justice Adrian Fisher’s ruling at the High Court had addressed the contention on fair trial.
Trial by Judge alone is the sole discretion of the Attorney General or the Director of Public Prosecution Bokarie said.
“We’re applying the law and not departing” he submitted.
When asked by Justice Vivian Solomon whether he could reference any other matter of murder pending for trial at the High Court for which the Attorney General had applied for judge alone, he responded: “none so far”.
State Counsel Bockarie insisted that the other matters relating to murder which are before Justice Adrian Fisher pending the determination are all by judge and jury, but he further contended that the applications for those had been made earlier.
Justice Alusine Sesay informed State Counsel Bockarie that setting bad precedents has its own implications and that the matter before them at the Supreme Court is a big task.
Lawyer Roland Wright defending Ikubolaje Nicol argued that the state in their written submission did not address the questions and issues which had been raised by the High Court which were before the Supreme Court. He furthered that the prosecution also failed to distinguish between the principles generally and how such issues affect the accused personally, thereby believing that they {the state} are restating their initial position.
He said that if all cases after the Abolition of the Death Penalty Act and even after his client Ikubolaje had been charged for murder and two other counts had been tried by judge and jury then the case of Ikubolaje should be tried by judge and jury.
Even the Attorney General’s office he further submitted had not cited any case which had been tried without a judge and jury since the abolition of the death penalty.
The Attorney General, Mr. Wright said, was in contravention of section 23 of the Constitution which provides for fair hearing.
“When you have established a precedent, for due process and fair trial, such a precedent should continue,” he affirmed.
But at the time, the now former Chief Justice Babatunde Edwards who had been Chairman of what had initially been a five-member panel interjected and said that it was because murder and treason were capital offences which no longer fell under such category that were punishable by death and rather had been replaced with life imprisonment.
Roland Wright thereafter said that “Treason and murder have always been treated as special category of offenses which the laws have recognized throughout.”
“Just treat us as you have treated everyone else,” he added.
He continued that a subjective power must be observed objectively. “What we’re asking for is to be treated equally before the law.”
“A subjective power was granted to the Attorney General. And in exercise of that power, he has consistently allowed all murder trials to go by Judge and Jury from the abolition of the death penalty, therefore, a precedent has been established” he reechoed.
As a point of caution, Mr. Wright said for what he pointed out as a subjective power should be guided by the Supreme Court.
He envisaged a new dispensation might find it very convenient for political opponents to be tried by Judge alone.
His client, former Skye Bank General Manager Ikubolaje Nicol is accused to have conspired together with other persons unknown to murder Sinnah Kai Kargbo between 15th and 16th October 2022, at Leicester Village in the Western Area.
On the 17th of October 2022, at the Criminal Investigation Department (CID), he is also alleged to have fabricated evidence with intent to pervert the course of justice.