Baffour’s Beefs with Baffour Ankomah
LAST week, we left Charles Taylor, Liberia’s former president, inside HMP Frankland, the British jail in Durham, northeast England, where he is seeking leave to be transferred to the UN Detention Facility in Rwanda to continue serving his 50-year sentence on the continent of his birth. This week we shall see how his application for transfer is progressing. But for a start, please consider the following quotations from one of the four judges who sat, every court day, for five years, on the Taylor trial – a trial that started in mid-2007 and ended in mid-2012. Five good years that trial lasted! But let’s listen to one of the judges:
“When the system is not functioning, we must say it. It is the duty of judges to do so. If the judges don’t say it, who will say it? If judges don’t tell the truth, who will tell the truth?
“Judges are bound by the evidence. People can say whatever they want. If the guilt of the accused were proved beyond reasonable doubt, I would have been the first one to say it. I did not see the proof of guilt.
“It’s about the evidence. You cannot have such a trial and base your decision on the questionable evidence that we have received in this trial. Ask around, ask those who have read the 2 500-page judgment. This is a record. This is unprecedented. We have two thousand five hundred pages just to show that the accused was only aiding and abetting, and planning the crimes.
“Let people read the parts of the decision on the criminal responsibility of the accused because the judges have expressed their opinions in their decision. People should concentrate on the decision and read it and see for themselves if it is compatible with the evidence they heard in court.
“Let’s take for instance the Naomi Campbell issue which was the most sensational part of Taylor’s trial. Everybody heard her testimony. Who can conclude that the accused gave diamonds to Naomi Campbell? The diamonds were still available to be tested for the determination of their origin.
“The standard of proof is proof beyond reasonable doubt. It’s a very high level of proof. This is the essence of criminal justice. As a judge you must be firmly convinced that what you are doing is the right thing.
“A reasonable person reading the judgment should also be convinced that the accused is guilty. You must also convince the accused that he is guilty. Even the accused must be convinced that he is guilty of the crimes. I am unable to agree with the reasoning, the rationale, and the standard of proof. Even in domestic jurisdictions, such a standard of proof is unacceptable.
“[And] I couldn’t be indulgent in the face of the countless contradictions, lies, deceptions, and manipulations in this trial, and conclude that the accused was guilty beyond reasonable doubt of the crimes he was charged with.”
American justice abroad
The above quotations come from the only West African judge who sat on Charles Taylor’s trial, Justice El Hadji Malick Sow from Senegal, who served as the alternate judge of Trial Chamber II of the UN-backed Special Court for Sierra Leone (SCSL).
An alternate judge sits on the bench to be used in much the same way as substitutes are used in a football game. If one of the three main judges is indisposed or unavailable on a court day for any reason, the alternate judge is called upon to fill the vacant position for the day or days or sometimes weeks until the main judge returns.
That was the role played by Justice Malik Sow during the five years that Charles Taylor’s trial lasted. Yet he says, “as for a judge who attended this trial for five good years, and who worked harder than anyone else – I worked harder than anybody else because I took it very seriously – for me, it was a very important trial because I was the only judge from the West African region, and as such, I couldn’t come back home, face my people, and tell them lies about what I didn’t see, or cannot justify.”
Justice Sow is a man who could not compromise his integrity for the blandishments the Americans and the British waved behind the scenes (he calls them “manipulations”) to get Charles Taylor convicted on evidence whose quality, he says, was so low that “even in domestic jurisdictions, such a standard of proof is unacceptable”.
It is this evidence that earned Taylor 50 years in jail. It is in effect a life sentence as, now 66 years old, he is unlikely to breathe free air again until he meets his Maker. Or if he is lucky to be blessed with long life, he will come out of jail a wrinkly old man at 106 years of age. It is a daunting task.
But shame on the Americans who, because of their political interests and blood-curdling revenge, “manipulated” Taylor’s trial to get him behind bars for life. But here I am going ahead of myself, so let’s concentrate on the here and now.
Taylor’s application for transfer to Rwanda is being opposed by the prosecutor of the Residual Special Court for Sierra Leone (RSCSL), Brenda J. Hollis, an American ex-military intelligence woman turned lawyer, who has the dubious honour of being the last American chief prosecutor of Taylor, the woman who asked the Court to impose an 80-year jail term on the ex-Liberian president, for “aiding and abetting”, which the Court in the end reduced to 50 years.
The 80 years demand was a psychological tactic employed by Ms Hollis. She knew she would not get an 80-year sentence imposed for a mere “aiding and abetting” charge.
Taylor was found not guilty on all the 11 main modes of liability in the indictment, but Ms Hollis calculated that even if she got half of the 80 years, it would still amount to a life sentence for the then 64-year-old Charles Ghankay Taylor.
America’s whole drive was to get Taylor, their former comrade- in-arms, out of power, out of West Africa, and, some say, out of this world. In fact, for those of us who followed the trial closely, we knew that instead of the usual case title “State vs Charles Taylor”, it became “USA vs Charles Taylor”.
And USA won – on very dodgy evidence (as Justice Sow attests), because Washington used a lot of money to buy dodgy witnesses, dodgy court officials, and, as Justice Sow has amply demonstrated, a dodgy judgment in the end.
Now, even after achieving the gargantuan feat of getting a fellow human being behind bars for 50 years on very suspect evidence, Ms Hollis and her masters in Washington still cannot bring themselves to be magnanimous in dodgy victory as to allow a transfer for Taylor to serve his undeserved jail term in Africa.
In an opposing motion filed on July 10, Ms Hollis argued that Taylor’s application for transfer “should be denied as it is without factual or legal basis”. Moreover, “the arguments set forth in the motion are without merit.”
Ms Hollis continued: “…The opportunities the requested transfer would give Prisoner Taylor to sow discord, interfere with and undermine peace, security and stability and good order in Liberia and the West African sub-region, militate against the granting of the requested relief.
“It is important to consider the pressure that can be brought to bear on Rwandan prison officials – and perhaps other Rwandan officials – to violate or very laxly enforce conditions of imprisonment were Prisoner Taylor, a former African head of state, to be transferred to Rwanda.”
According to Ms Hollis, another important factor which militates against Taylor’s application “is the impact of [the] transfer on the security and sense of security of witnesses who testified against Prisoner Taylor, Court officials and current or former high level African leaders …
“In particular, the witnesses state that Prisoner Taylor remains very well connected and resourced to be able to go after witnesses who testified against him, compromise standards in prison to suit his liking, or even mastermind a jail breakout.
“Similarly, it is not unreasonable to believe that Prisoner Taylor holds certain SCSL officials and current and former high level state officials uniquely responsible for his transfer to the Court, conviction, sentence and presence in prison in the UK.
“For the same reasons discussed above, transfer to Rwanda would increase the prisoner’s possibilities to act on these beliefs and thus increase the risk to these individuals and undermine their sense of security.”
Taking vengeance a tad too far
Ms Hollis’ opposing motion is no more than a disingenuous attempt to give a dog a bad name and hang it. Throughout, one can see a devious attempt at fishing for spurious ideas to keep Taylor in the UK jail.
The plain truth that Ms Hollis refuses to face is that all the convicts of the Special Court for Sierra Leone (SCSL), who were sentenced before Taylor’s case was concluded, were sent to Rwanda to serve their sentences. And none of them has done what Ms Hollis claims Taylor will do if sent to Rwanda.
More importantly, the Rwandan government and prison authorities have neither relaxed the prison regime for the SCSL convicts or allowed them to do the things Ms Hollis claims Taylor will do if transferred there.
For her to say, “it is important to consider the pressure that can be brought to bear on Rwandan prison officials – and perhaps other Rwandan officials – to violate or very laxly enforce conditions of imprisonment were Prisoner Taylor, a former African head of state, to be transferred to Rwanda”, is a wicked slander that the Rwandan authorities should not let go uncommented on.
Truth be told, if you strip the platitudes from Ms Hollis’ opposing motion, you get a case of the Americans trying to take inconsiderateness to absurd levels. Even when they have Taylor’s neck firmly under their boot, and throttling him to boot, they cannot bring themselves to allow him just one intake of fresh air before he gives up the ghost.
It shows how mean and vengeful these people can be – the same people who, ironically, preach reconciliation to us in Africa, and laud Nelson Mandela for having been a latter-day saint of reconciliation.
The lowest standard of proof
Ms Hollis now rubs it in by calling Charles Taylor “Prisoner Taylor”. Yet, if it had not been American money, political power, and manipulations, Taylor would have walked free on any legal standard of proof. At least, that is the verdict of Justice El Hadji Malick Sow.
For the five years that the case lasted, Justice Sow says he saw enough “manipulation” of the Court, and less hard, convictable evidence presented by the prosecution, that he refused to agree with the guilty verdict pronounced by the three main judges (who came from Uganda, Samoa and Ireland).
But his attempt to put a dissenting opinion on the record, at the time the judgment was delivered on April 26, 2012, was comically and controversially sabotaged by his fellow judges. It was an action that brought the Court into total disrepute.
To Justice Sow, as at May 16, 2012 when the 50-year sentence was slammed on Taylor, the ex-Liberian president should have walked free based on the evidence before the Court. But that was not the script written by the Americans, and so despite the dubious evidence, a 2 500-page judgment was written to put Taylor behind bars.
In the end, Justice Sow himself fell into trouble with his fellow judges who, in a kangaroo-court fashion, suspended him as an alternate judge, after denying him the right of reply.
Before the suspension, the Senegalese conscientiousness and determination to apply the law as demanded by the statutes of the Special Court and the international justice system, had made him unpopular with the other judges, to the extent that they isolated him at the crucial “deliberations” stage of the trial where the guilt or innocence of the accused was determined by the judges.
Thus, it came as no surprise that on April 26, 2012, the day judgment was passed, Justice Sow bulldozed his way through an attempt to silence him and read a dissenting opinion in court. It was a most controversial statement in which he said:
“The only moment where a judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the rules, when there is no serious deliberations, the only place left for me is in the courtroom.
“I disagree with the findings and conclusions of the other judges, because for me under any mode of liability, under any accepted standard of proof, the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the prosecution.
“And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”
Interestingly, as soon as Justice Sow started delivering his dissenting opinion, the other three judges stood up and walked out of the courtroom.
Justice Sow’s microphone was subsequently cut, the curtains of the public gallery drawn down, his statement was later removed from the official court record, and he was subsequently sanctioned by a majority of the judges of both the Trial and Appeals chambers of the Court for alleged “misconduct”.
More or less, Justice Sow was gagged by his fellow judges.
But in December 2012, Justice Sow had the opportunity to tell his side of the story, and what a story it was! In any fair jurisdiction, what he said should have led to a retrial for Taylor.
But when the Americans are the gods who determine your destiny, and they don’t like the shape of your mother’s face, you are doomed! As Charles Taylor himself once put it: “If your master is your enemy, you are doomed!” And so Taylor was doomed.
But Justice Sow’s day came in December 2012 in a major interview with the London-based New African magazine. And, my goodness, the Senegalese judge simply refused to bite his tongue. Here are the highlights of what he said:
“What went wrong was the secret plan concocted by the other judges of Trial Chamber II to reduce me to silence. Orders were given to the Court Officer to turn off my microphone, and to the technicians to pull down the curtains…
“It was a very bad calculation. Their anxiety to leave the courtroom is an illustration of their plans to reduce me to silence, but the plan failed lamentably. If it had been a coincidence, there would have been some confusion in the courtroom, but all went very smoothly. Except that the one who recorded what I said was not warned in advance.”
Justice Sow went on: “The presiding judge read his Summary Judgment for two hours and then declared an adjournment without even giving anyone the possibility to say a word. Then in a concerted and very coordinated move, the other judges stood up and walked ostentatiously out of court.
“They were still in the courtroom when I mentioned that I had something to say, and if they did not know what I was going to say as they claimed later, there would have been no reason for them to act the way they did.
“What were they afraid of? They were afraid of something else and that’s why they walked away. They asked the Court Officer to cut my microphone. They asked the technicians to pull down the curtains to isolate me. They wanted to make a fool of me but they made fools of themselves. And what was meant to be my public humiliation became their lack of not just respect but also intelligence.”
Beyond reasonable doubt
To Justice Sow, “telling the Sierra Leonean people that the president of Liberia, the neighbouring country, is criminally responsible for the crimes committed in Sierra Leone is a serious matter. And the proof of that must be clear, convincing, and must be without much dispute.
“What I said was that the prosecution did not prove beyond reasonable doubt the guilt of the accused. Also, it was a total surprise to me to hear that it was a unanimous decision because in each of the very few times we discussed anything, there were very different opinions.
“I was very surprised to see them coming up with this Summary Judgement talking about a unanimous decision. Even the drafts I received always changed. The other judges knew that I didn’t agree with the decision, that is why they wanted to force me to keep silent.”
To the Senegalese judge, “the fundamental principles of international criminal law are contained in the statutes of the different courts and they are the same: All start with the presumption of innocence. Also, the only acceptable standard of proof is proof of guilt beyond reasonable doubt.
“The third principle of criminal law as enunciated in the Latin expression: ‘In dubio pro reo’ (doubt will benefit the accused). These principles were trampled underfoot in the Charles Taylor trial.”
Justice Sow then put the knife in: “You asked me in the beginning why I entered my dissenting opinion. It’s because I couldn’t be indulgent in the face of the countless contradictions, lies, deceptions, and manipulations in this trial, and conclude that the accused was guilty beyond reasonable doubt of the crimes he was charged with.
“You cannot conclude that there was no doubt in your mind when you see all this money spent on witnesses, and part of the money you didn’t know the origin of. I didn’t know where it came from…
“And let me tell you, if you take from the evidence received in the trial the part on Liberia, you don’t have much left. There were lots of confusions. It started from the initial stage – the indictment. There was a first indictment which was the original one. Then followed the first amended indictment. And finally, the third one, which is the second amended indictment.
“This gives an indication about the joint criminal enterprise mode of responsibility. The only question was just one – how to prove the link between Charles Taylor and the crimes committed in Sierra Leone, and not in Liberia.
“[But] international justice cannot cope and put up with the very low standard of proof applied in this case. International justice cannot be based on rumours. These are mass crimes. This is where we must have the highest standard of proof. It’s about proving the guilt of the accused beyond reasonable doubt. But they didn’t even reach the lowest standard of proof.”
Well, we shall end it here. Next week, we shall see where Taylor’s application for transfer has reached.