Mr. Jenkins-Johnston Esq.
Barrister and Solicitor
54 Wellington Street
Freetown
Dear Mr. Jenkins-Johnston,
Re: Keynote Speech at Bar Association Conference on 4th July 2013
I am in receipt of your letter dated 22nd July 2013 re the above. I have decided on sending you a reply with the sole aim of not only setting the records straight, but to correct the untruths half truths, exaggerations and the legal inconsistencies contained therein.
In your letter of invitation to me to be your keynote speaker, you asked me to talk on “Enforcing the Rule of Law in a Modern Democratic State Challenges and opportunities covering inter alia the Bench, the Bar, the Police and the ACC”
My observation is that you have painted a glorious picture of you and Mr. Adrian Fisher as being very upright and not blameworthy in all that has taken place. There is nowhere in any of your correspondence where you have admitted any error from your side, be it calculated or inadvertent although Mr. Fisher to whose defence you are coming admitted in his affidavit that there were alterations to the Jury’s verdict which were meant to correct spelling mistakes, by whom, he did not say. Perhaps, you would wish to explain whether the insertion of the words “& daughter” in the jurors written verdict was a spelling mistake.
As a senior Barrister and Past President of the Bar Association you should be aware that you are an officer of the court and you must always endeavour to present evidence that is for and against your case. This you have failed to do which I shall bring out as I go through your various correspondence which has been widely published both in the print and electronic media.
I am going to preface my argument by quoting from your letter dated 14th October 2005 to Hon. Mr. Justice Ade Renner-Thomas former CJ.
This is what you said:- “since that order for Bail was obtained, so many members of the public at all levels of society have asked me questions like:-
(a)Is this the end of Yansaneh’s case?
(B)With the pronouncements of the Attorney-General over Radio Unamsil and the conduct of State Counsel in supporting Dr. Fatmatta Hassan in court, is there any hope that this matter will ever be brought to court?
(c)So Yansaneh died for nothing?
(d)Are there (2) two systems of law in Sierra Leone, one for the rich, powerful and well connected and another for the poor, voiceless and those with no connections?
(e)When will we have real justice in Sierra Leone?
Can ordinary members of the public be blamed for asking these questions? I think not.
In his famous work ADMINISTRATIVE LAW, Prof. H.W.R. Wade states at Pg. 179 that:-
“The court is more concerned with appearance than with reality. The test is not whether there is a real likelihood of bias but whether a reasonable man would suspect it. Justice must be rooted in confidence”. Per Ld Denning M.R in Metropolitan Properties V Cannon (1969) 1 QB S 77.
I need hardly remind your Lordship that in the Constitution of Sierra Leone Act No 6 of 1991 at Chapter 11 thereof under the “Fundamental Principles of State Policy” it is clearly stated at Section 8(1) as follows:-
8 (1) The Social Order of the State shall be founded on the ideals of Freedom, Equity and Justice.
In furtherance of the Social order:-
(a)Every citizen shall have equality of rights, obligations and opportunities before the law and the state shall ensure that every citizen has an equal right and access to all opportunities and benefits based on merit.
(b)The State shall recognise, maintain and enhance the sanctity of the human person and human dignity.
(c)The Government shall secure and maintain the independence, impartiality and integrity of the courts of law and unfettered access thereto, and to this end, shall ensure that the operation of the legal system promotes justice on the basis of equal opportunity and that opportunities for securing justice are not denied any citizen by reason of economic or other disability.”
“These are laudable principles indeed. But the question is ARE THEY REALLY IN OPERATION IN SIERRA LEONE”?
“Does every citizen really have equal rights and obligations before the law?”
“Does the legal system really promote justice on the basis of equal opportunity? I wonder.”
When you talk about equality before the law are you merely referring to “appearance before the courts? Or do this include all the other ingredients referred to in your letter such as the promotion of justice and ensuring that the operation of the legal system promotes justice.
I have asked this question because all the examples you have quoted do not seem to support the principles of justice you have outlined in your letter.
The law that took its course in President Bill Clinton’s case was it not found to be an abuse of the due process of law as a result of which the Prosecutor was removed from the case?
As to Lord Archer’s case, was his friend who tried to protect him by supplying him with an alibi not convicted for covering up?
As to President Zuma’s case, was it not found that President Thebo Mbeki had abused his office to get him charged to court only to be acquitted and discharged? Did Thebo Mbeki not loose his presidency as a result of this his singular act?
In all of these examples, would you agree that the process of getting accused persons before the courts must not involve an abuse of the due process of law? Is it right to manufacture evidence for the sole purpose of getting an accused person before the courts which is what happened in all of your examples supra?
Page 12 second paragraph of your letter to the Chief Justice, you said: – “Our Constitution guarantees us equality of right and obligation before the law ——– I hope that applies to all of us including Dr. Fatmatta Hassan.”
In light of all what you had said about Dr. Fatmatta Hassan supra, was this hope expressed by you genuine or was it a mere afterthought to avoid you being accused of bias. This I shall leave our readers to draw their own conclusions based on the facts presented to them.
Mr. Jenkins-Johnston, justice is not a one way street, it has always been seen to apply to all parties in all situations be they litigation or otherwise.
Was it not the same purported justice that was meted to Presidents Clinton & Zuma by officials of the state that you, the Police, SLAJ and the Coroner meted to Dr. Fatmatta Hassan? That is to say:-
(i)You knew she was never a party to the incident that took place at Short Street.
(ii)That the Jurors verdict never named her as a party to the incident which led to Yansaneh’s death.
(iii)That at the time of her arrest, you people knew she was innocent but went ahead to cause her arrest just to humiliate her and reduce her standing in society knowing well she was a Member of Parliament.
(iv)That the Coroner tampered with the Juror’s written returns by fraudulently inserting not only Dr. Hassan’s name but that of Mr. Olu Campbell on the Jurors written returns for a crime he knew and you knew they did not commit.
(v)That as a result of this fraudulent act and its execution thereof the Coroner indorsed a Warrant of Arrest in respect of Dr. Hassan and Mr. Campbell for the offence of murder which resulted in their being detained at Pademba Road Prison for five days for an offence they did not commit.
(vi)That the Coroner had also added “& daughter” to the Juror’s return which had only referred to “sons”
(vii)Like the President Clinton & President Zuma case, was it not the Judiciary in the person of The Chief Justice to whom you were moralising in your correspondence that took action to see that justice was done by setting up an enquiry to look into the conduct of the inquest by the Coroner who by his conduct had embarrassed the judiciary and the Chief Justice and had brought them into disrepute.
Like the Prosecutor in President Clinton’s case and President Mbeki, in President Zuma’s case was the Coroner Adrian Fisher not found wanting for abusing the due process of the law and was he not severely reprimanded?
Mr. Jenkins-Johnston, you were not only present in court but you took Part in all that transpired therein and more so you were privy to other happenings which took place outside of the court. With all the knowledge at your disposal and the naked injustice meted to Dr. Hassan, Mr. Campbell and her daughter who was injured but in respect of whose complaint police refused to make any arrest and yet in spite of all this, you have the courage to chide the Chief Justice and talk about justice and say:- “Our Constitution guarantees us equality of rights and obligations before the law ———-. I hope that applies to all of us, including Hon. Dr. Fatmatta Hassan. Did you really believe in what you were saying?
Mr. Jenkins-Johnston, did you not after all what had happened actually write an article in one of the newspapers praising Mr. Adrian Fisher for his good work and chastising the Chief Justice and all those who spoke against Mr. Fisher’s conduct? Did you not hail him as the best and promising? Now on hindsight and taking all the circumstances into consideration, do you consider yourself as having any moral right to question the act of others? There is no evidence anywhere that you made any effort as an officer of the court at the time to stop the Coroner from his misdeeds instead you stood by encouraged and flattered him in spite of the protestations of your colleagues to the Coroner and yet in your letter to me, this is what you said:-
“There was abundant evidence that Dr. Fatmatta Hassan was present when her children beat up Yansaneh and instead of stopping them, she encouraged them to beat him up.”
Mr. Jenkins-Johnston, were you not present in the Coroner’s court when the Coroner Adrian Fisher fraudulently tampered with the Jurors verdict, illegally endorsed the Warrant of Arrest for Murder and remanded her in custody? As a Human Rights Lawyer, did you do anything to stop these illegal acts instead, did you not come out in defence of his acts by appearing for him in court and encouraging him to perjure himself by swearing to an affidavit to say his fraudulent insertions in the Jury verdict were “mere spelling mistakes?. If your conduct was not encouragement, I would wait to see one.
I am amazed that you have failed to tell your supporters and the reading public what sort of evidence is acceptable in order to secure a conviction for Murder, manslaughter, Assault occasioning Actual Body harm etc.
6. I say this because in your correspondence and public outcry you have either deliberately or inadvertently failed to make any reference to what we call “Medical Report” instead you have always been talking about abundant evidence being adduced about the cause of Yansaneh’s death. In all of this, you have only tried to erroneously lead evidence of his alleged beating as the cause of his death when you very well know that there is evidence to the contrary to show that there was no nexus between the fight he had with Dr. Hassan’s children and his death. You also knew as a lawyer of long standing that the only document which will establish such a nexus is what is known as a Medical Report which must come from and under the hand of a competent Medical Officer or from a Pathologist.
Mr. Jenkins-Johnston, I want you to be honest with the people of this country by answering the following questions:-
(a) Were you present at the inquest?
(b) Were you the legal representative of the deceased family and SLAJ?
(c) Who hired your services? Was it the President of SLAJ, Mr. Neville or the family of the deceased?
(d) Was a Medical Report tendered in court by:-
(i) The Pathologist
(ii) The Dr. who was treating the deceased prior to his death?
(e) Was the contents of the documents made known to you? if yes:-
(f) Is it true that both doctors found that the deceased died from Acute Renal Failure (i.e. Kidney Failure) meaning that the deceased died from natural causes and not as a result of an alleged assault by the suspects?, as you would wish the public to believe.
Is it because this evidence does not support your claim that you have refused to bring it up to the domain of the public? Is it not true that there is no evidence to show that the assault or alleged beating of Yansaneh played any role in his death as you would want people to believe?
Is it not as a result of these Medical Reports that the Jury refused to return a finding of Murder against the suspects and also why the Attorney-General refused to prefer Murder charges against the persons named in the Jurors returns?
7. Mr. Jenkins-Johnston, by withholding the most important evidence in this matter viz the Cause of Yansaneh’s Death, are you not doing a disservice to the people of this country and your own supporters? In light of this evidence which you attempted to conceal, could you say you were setting the records straight, or were you by your conduct bending the records to suit your purpose viz setting Justice Cowan up as a liar and as someone promoting injustice when he said Yansaneh was not killed but died of Natural Causes.?
I have decided to set down what I said in my keynote address to remind you of what I said that may have caused you to write to me. Is it because I spoke the truth to nail the lie you and your supporters have been feeding to the unsuspecting public? Now this is what I said:- “The police should not subject themselves to peer pressure, media pressures, civil society pressure or pressure from anywhere as this would lead to bad judgement by the police which will result in a travesty of justice.
Let me give you a practical example to illustrate what I mean.
“When I was Speaker of Parliament some six years ago, there was a problem between a Dr. Fatmatta Hassan, her children and some journalists including one Yansaneh (Deceased) over the occupation of her building at No. 1 Short Street. There was a scuffle between Dr. Hassan, her children and Yansaneh after which he eventually died. The Sierra Leone Association of Journalists went into action on behalf of Mr. Yansaneh who was their member.
They pressured the police to effect arrest and the Government to set up a Coroner’s inquest. The Coroner who was also under tremendous pressure ended up doing the wrong thing by discarding all the legal procedure that should be followed in a Coroner’s Inquest. The most important injustice was that the Jury in the inquest returned their verdict without reference to Dr. Hassan as having committed any offence.
None the less, the Presiding Coroner illegally altered the written verdict of the Jury by inserting Dr. Hassan’s name in the report accusing her of murder. This was against the Medical report from both Mr. Yansaneh’s doctor and the Pathologist wherein they had said Mr. Yansaneh died of Renal Failure.
This singular act caused Dr. Hassan to be incarcerated at the Pademba Road Prisons for five days. The precincts of the prisons was under the surveillance of the media for a duration of her stay. She only got her freedom when her lawyer went to the High Court. Incidentally, the Coroner was investigated by the Judiciary found wanting and severely reprimanded.”
8. Paragraphs 4 & 5 of your vexed letter to me confirms my assertion that indeed pressure was made to bear on the police and Government:-
(a) For the arrest of Dr. Hassan and her children.
(b) For a Coroner’s Inquest to be set up.
I want to point out that the contents of your letter of 22nd July 2013 addressed to me has not made any attempt to challenge or refute my pronouncement viz that Mr. Yansaneh was not killed by Dr. Fatmatta Hassan and children or anyone else but that he died of natural causes.
All you have done is to set out the events that took place and what steps you took to move the events culminating in the setting up of the Coroner’s Inquest and their arrest and detention of Dr. Hassan. I would have appreciated if you had made efforts to put forward evidence to counter my statement.
Even the Jurors verdict you have quoted in your letter and which you rely on as evidence does not lend any weight to the assertions contained in your letter to me.
Together I want us to examine the jurors’ verdict in its entirety to see whether it in fact bears any relevance to the evidence and or the Medical Report as to the cause of his death. This is what the Jurors said in their written verdict:-
“We have come to the conclusion that his death was accelerated by the beating which he suffered from the two (2) sons of Hon. Dr. Fatmatta Hassan including Reginald Bull.”
(a) The Jurors did not say Dr. Fatmatta Hassan was one of those who beat Yansaneh up. They clearly identified the perpetrators of the crime and the language raises no ambiguity.
(b) To say the beating accelerated his death is against the weight of the evidence as you will agree that the Medical Evidence which has never been in dispute speaks to the contrary. Both Medical Reports coupled with Viva Voce evidence of the Pathologist and Mr. Yansaneh’s doctor all agreed that he died of natural causes and that his death had no bearing on the beating as alleged. The Jurors as you would agree would never have come to that verdict if the Coroner had explained to them the position of the law and charged them correctly. Who inserted the words “& daughter” in the Jurors’ written verdict? Please note the colour of the ink.
9. The Jurors further said:- “Though we cannot say he was killed by Komehs and Reginald Bull voluntarily, but we are hereby saying that the death of Harry Yansaneh was an involuntary Manslaughter.
Mr. Jenkins-Johnston, can you see now that the Jurors in that first sentence had ruled out MURDER against the Komehs and Reginald Bull and had returned a verdict of INVOLUNTARY MANSLAUGHTER.
I need not belabour the point because I know you have a grasp of the Criminal Law and would know what constitutes Murder and Manslaughter barring the “Involuntary” tag which as you know is an ingredient of the offence of Manslaughter.
Again I would submit:-
(a) That Dr. Fatmatta Hassan, her daughter and Mr. Campbell were never mentioned in the return for Manslaughter having regard to what had gone on before.
(b) The Jurors verdict of Involuntary Manslaughter was again contrary to the evidence before them to wit:- The Medical Report and the Viva Voce evidence of the Pathologist and Mr. Yansaneh’s doctor who gave evidence to say he had been treating Mr. Yansaneh up to the time of his death.
Those pieces of evidence you would agree were never controverted.
The Jurors finally said:- “we have therefore unanimously come to final conclusion that the death of former Ag. Editor of For the People newspaper Harry Yansaneh was an unlawful and illegal killing,”
As an experienced lawyer of long standing at the Bar, you will agree that in an ideal situation the Coroner would have rejected the verdict of the Jury in its entirety because they did not consider the evidence before them especially so the Medical Reports which pronounced the cause of death.
Taking all the evidence into consideration and the part you, the Coroner and SLAJ played in this Legal Jigsaw, would you say Dr. Fatmatta Hassan et all benefitted from the guarantees enshrined in our Constitution viz Equality of rights and obligations before the law.
If you answer in the affirmative, then why did the Coroner endorse a Warrant for Dr. Hassan and others for Murder contrary to the verdict of the Jurors to whom he had the duty to explain the law based on the evidence and to guide them appropriately in reaching the correct verdict?.
10. If you argue that he did it in error, why did he not make moves to release her immediately but allowed her to remain in remand for a period of five days when in fact you know as I do that in such circumstances he could make a Production Order.
Also, why did he try to put obstacles in the way of the lawyer who tried to gain her freedom?
Let me remind you that as lawyers we are to understand as a Cardinal Rule of practice that “It is better to free a hundred guilty persons than to convict one innocent person” We are also mindful of our duty as officers of the court to assist the court in arriving at a just decision.
In light of the above, I still hold the view I had expressed in my Keynote Speech of 4th July 2013 viz:- That the law enforcement Agencies allowed pressure to bear upon them in dealing with Harry Yansaneh’s case thus giving rise to a Travesty of Justice resulting in the suffering of innocent citizens in the persons of Dr. Hassan and Mr. Campbell.
I want to let you understand that I have no issue with SLAJ naming a room in their Headquarter Building at Campbell Street after the late Harry Yansaneh. What I tried to do was to stop them continuing to say that Harry Yansaneh was murdered, knowing full well that the belief was erroneous and if not checked will send the wrong message to the public and help to breed hatred for those alleged to have murdered him. I bear no grudge against him but at the same time, I am of the view that you and SLAJ are doing his memory disservice anytime you claim he was murdered and give that as a reason for naming the hall after him.
As to what you term “my tirade against Foreign Judges” this is an unfortunate statement and meant to create mischief and to play to the gallery as has always been the case with you.
Let me remind you that my topic was:-
“Enforcing the Rule of Law in a Modern Democratic State: Challenges and Opportunities covering inter alia the Bench, the Police, and the ACC.”
Is our Labour Laws part of our Legal System?
Do they have to be enforced by all and sundry?
Is the Judiciary supposed to recognize these laws when recruiting employees for the Judiciary?
If the answer is yes why do you take offence?
11. Are you seriously saying that we should reciprocate to all countries who have employed judicial staff from Sierra Leone contrary to the Labour Laws of this country? If that is your reasoning, why then did you ask me to talk on the enforcement of our laws?
You have completely missed the point as there is nowhere in my speech where I queried the competence of Foreign Judges past and present. You are only out to make mischief as you know I did not embark on embarrassing anyone but simply to buttress my argument about the non enforcement of our laws citing the employment of Foreign Judges as a typical example.
I am satisfied that the views and comments I expressed in my keynote address which is the subject matter of your complaints were well thought out and researched bearing in mind the subject matter I was asked to present.
I want to leave you with the words of Emperor Ferdinand I (1506-1564) which you quoted in your letter of 14th October 2005 to the then Chief Justice Hon. Mr. Justice Ade Renner-Thomas which states:-
“FIAT JUSTITIA, ET PEREAT MUNDUS” meaning “Let justice be done, even though the world perish.”
Finally, let me advice you that in future when you take up issues learn to set up the arguments of both sides to allow your readers to form an enlightened and objective judgements instead of being judgemental.
I am sending copies to all those you copied including other institutions of my choice.
Since we are talking about Rights & Justice I only hope that newspapers who published your letter to me will do the same in this case thus giving an opportunity to the reading public of this country to hear my own side to avoid falling in the category of being judgemental.
I remain,
Yours faithfully,
Hon. Mr. Justice E.K. Cowan
Ombudsman
12
Cc:-
1. The President
SLAJ
C/o Awoko Newspaper
47 Percival Street
Freetown
2. The Attorney-General & Minister of Justice
Attorney-General’s Office
Guma Building
Lamina Sankoh Street
Freetown
3. The Media
4. The Chief Justice
Law Courts Building
Freetown
5. The Inspector-General of Police
Police Headquarters
Freetown
6.The D.P.P.
7.The Solicitor-General
8. The President
S.L. Bar Association
9.The Chairman
Independent Media Commission
10. The Deputy Minister of Justice
Law Officers Department
Freetown
11. The Minister of Information & Communications
Ministry of Information & Communications
Youyi Building
Freetown
August 15, 2013