Making a difference in a small but valuable way
Based in Liberia, Zannah Johnston reveals the difficulties of developing the rule of law in a land almost destroyed by civil war
It is 3 pm in Monrovia’s Criminal Court E – a specialist court designed to deal exclusively with allegations of sexual violence, which are rife in post-conflict Liberia. Everyone is still finding their feet; the Court only started operating in mid-2009, in a country whose justice system is recovering from 14 years of civil war.
The prosecutor is resisting a motion to dismiss the charges against one of the multitude of prisoners currently detained in Monrovia Central Prison on rape charges. It is difficult for anyone in the public gallery to hear what the prosecutor is saying, as his words are transcribed on a manual typewriter (a model last seen in New Zealand in the early 1980s), the open windows let in outside noise, and fans above whir loudly. Despite the noise, the occupants give thanks for those fans – the other courtrooms in Monrovia’s Temple of Justice have none; electricity supply to the Court is limited. The prosecutor walks around the courtroom as he addresses the Court, revealing the American origins of the Liberian justice system. Every now and then, he starts to speak with drama (and decibels) far above that you would hear ordinarily in a New Zealand courtroom. But it is not uncommon for the courtroom to suddenly dissolve into hilarious laughter.
Defence counsel rises and starts to make submissions, also moving around the room, pausing only to answer his cellphone, or to borrow legal texts from the prosecutor. It is rare for a lawyer to have access to a copy of any Liberian law. Rumour has it that a government official has secured a copyright over Liberian law, and as a consequence few can afford access to it. Resource limitations are real in this system: the Police struggle to get access to pens and paper, let alone computer systems, and almost never have access to a vehicle. It is not uncommon for Police to ask a victim to help pay photocopying costs for their file to be forwarded to court.
Every now and then, a United Nations peacekeeping soldier wanders into the court (the flags displayed on their shoulders vary from day to day). Aside from these soldiers, there is only one non-Liberian in the court: a former New Zealand Crown Prosecutor, who sits in court sweating, and trying to decipher the Liberian English. At times, it can be a blessing not being able to follow the Liberian English (sometimes it’s best not to know that the judge just directed the jury that if they find the defendant was given his “Miranda” rights they should “bring him down guilty”). She feels faint from the fact that the Court has not taken a break since it started at 9.30 am (strictly speaking, court starts at “the precise hour of 8 am”, but this seems to mean any time after 9.30 am), and she tries to distract herself from the oppressive heat and humidity that seems to focus its attention on this white girl wearing a black suit. She often asks herself whether it would be more offensive to take off the jacket and bare her arms, or to faint on the person in front of her.
Sometimes the limited role she is able to play in the court is frustrating, but when it is this hot she gives thanks that only Liberian citizens are allowed to be admitted to the Liberian bar, for she admires anyone who can stand and string a sentence together after nearly six hours without a food or water break.
Meanwhile, the court clerks start the lengthy process of arraigning a group of defendants. They read indictments to them and ask for pleas in a not too unfamiliar manner (although, after it is read, they are simply asked, “Are you guilty or not guilty?”). The length of the indictments bears more resemblance to a New Zealand Police Summary of Facts than an indictment. They contain a fascinating mix of Liberian English and spelling (“there was blood purring down her legs”), and legalese that appears ancient to the Kiwi legal eye (the defendant is never alleged to have simply done anything – he always “did do and commit, wickedly, intentionally and purposely…”). The pleadings can also be almost upsettingly merged with law that seems better suited to other legal genres: “the defendant knowingly, purposely, unconstitutionally, with wicked intent, without color of right, justification or license, and without fear of the Organic Laws of the Republic of Liberia, did rape and virginalize the twelve-year-old girl, daughter of the private prosecutrix”.
Suddenly, the Judge appears to tire, skips the reading of the last couple of indictments, bangs her gavel and leaves the court. The Kiwi, exhausted from simply observing all day, follows her colleagues from the Sexual and Gender Based Crimes Unit out to the front of the court to wait for the car back to the office (which is actually just across the road, but this Kiwi will take whatever air-conditioned transportation she can get!). As they assemble outside, she realises that the freshly arraigned defendants are standing there, handcuffed together in pairs, they too waiting for their ride. She wonders for a moment why they simply don’t make a run for it while they stand in the crowd. But then she notices the Jordanian police uniforms, blue caps, grim faces, and M16 assault rifles.
Developing the rule of law
I am taking part in a fellowship programme that places lawyers in various government departments in Liberia. Our job is to do what we can to help develop the rule of law in a country whose legal system was ravaged by 14 years of civil war. The other fellows are mainly American law grads, but thanks to the Bridget Nichols Memorial Trust, there is a Kiwi among them. I often have to defer to the American origins of the Liberian system, and I still cringe every time someone “testifies” or “takes the stand”, or uses other phrases that belong on television. Nevertheless, Liberian law, as it is written, is not too unfamiliar to the Kiwi eye. However, its practice requires entirely different reasoning and advocacy skills to practice in New Zealand. I quickly learned that the argument “this is what the Criminal Procedure Code says the procedure must be” will hold little sway with a judge who doesn’t have a copy of the Code, and who will likely respond with “but that is not how we do it”.
My placement is in the Sexual and Gender Based Violence Crimes Unit, which faces huge challenges. In 2005, the Rape Law was amended by the post-war Government to strengthen the prosecution of sex crimes, which are widespread in this post-conflict country. This new law, combined with extensive awareness campaigns (“Rape is a Crime!” “A man’s strength is not for hurting!”) has lead to a large increase in rape complaints to the Police, and a huge backlog of cases for the Unit. Even still, the majority of cases that are prosecuted are allegations of rape against children who have sustained observable physical injuries. Others are not reported or not prosecuted.
A big part of my job is to make investigative suggestions after reading police files when they first come to the Unit. I spend a lot of time recommending things like taking statements from witnesses the defendant is said to have confessed to (it is hard not to impose my Western imperialist views that things should be written down and placed in files!), and making sure all elements of the offence are considered. Proving the age of child complainants can be difficult, but there are no birth certificate/hearsay questions, as many were born during the conflict, which means no birth certificates (and sometimes no living parents). I’m sure I’m gaining a reputation in the office as an identification-evidence Nazi – I have noted many a file with the words “Insufficient evidence linking the defendant to the crime” or “How do we know the defendant is the person the complainant describes as ‘uncle’?” (I try not to think too much about the fact that many of these defendants have been in pre-trial detention for more than a year). Many cases have ended up in court because a child makes a rape allegation, points out the offender, whom angry members of the community ‘arrest’ and drag to the Police station, and who is then detained in prison. One thing my Unit is working on is to encourage investigation before arrest.
Foreign but familiar
Although the system is very foreign to me in lots of ways, many of the same issues arise in Liberian courtrooms as arise at home – they just tend to take on a different flavour. For example, the “CSI Effect” – the well-known fear of New Zealand prosecutors that jurors will expect forensic evidence the Crown just cannot produce (even though Grissom would have it ready in hours) – exists here too. There is little forensic capacity in Liberia – victims are examined and medical reports document visible injuries, but there is no DNA, no tests for the presence of semen, no blood typing. There is unlikely to be an autopsy to determine cause of death when a victim dies. But that doesn’t stop the expectation of CSI evidence. In one trial, where there was evidence about the victim going to the hospital after an alleged rape (she was bleeding excessively from a vaginal laceration), defence counsel stands and objects to the unfairness of this: “The victim had a medical examination? But you didn’t send the defendant for a medical examination, did you?? No blood test was done on HIM!?!?” Later, when the doctor was under cross-examination, he also expressed outrage that the blood in the victim’s vagina was not compared to see whether it matched the defendant.
Working in a post-conflict country makes for a fascinating and challenging experience. There are times when I wonder whether anything I do can possibly help this system with such fundamental problems. I can work to strengthen the prosecution to my heart’s content – using my best diplomatic and persuasive skills to convince prosecutors that tricking the defendant is not the best investigation technique, or that proposed evidence should be horribly inadmissible under any version of English common law, but I wonder about the long-term effect, when they go to court and the defence may not object anyway, (or may instead object to the question “please tell me what happened on April 25” on the grounds that it is “leading, cross-examining one’s own witness, and accumulative!”), and even if an objection is made on good grounds, it is hard to predict how the judge will respond.
On days when I am frustrated, I ask my workmates to tell me stories about the war (which is so fresh in everyone’s memories), and this puts things back in perspective for me.
There are days when I feel that my presence is valuable, and I can make a difference in a small, small way. Such as when I talk through the admissibility of a piece of evidence with a prosecutor before they go to court so as to prepare them to deal with an objection, when I encourage them not to alter a chain of custody form retrospectively, or when I suggest that hearsay evidence of identification may not be enough. I am constantly raising awareness about due process rights, asking questions like “But whose job is it to prove the elements of the offence?”; “If we say that in closing, aren’t we commenting on the accused’s failure to testify?”; and “Can we go to the accused’s house without a search warrant?”. When a similar issue arises again, and I hear the staff remembering the concerns I raised last time, those are the valuable days.
I am incredibly grateful to the Bridget Nichols Memorial Trust; without its assistance, I could not be here contributing to this legal system that so desperately needs the help.