By Morison Siaffa Gbaya, Esq
On the 5th July 2024, the news that the Sierra Leone Parliament has removed the jury system under the new Criminal Procedure Act, 2024 was greeted with dissatisfaction and concerns about the future of the criminal justice system.
“Sierra Leone Parliament has officially passed the Criminal Procedure Act 2024, repealing the outdated 1965 Act. Notably, Parliament has removed jury trials from the criminal justice system. The abolition of the jury system was decided by a vote of 65 in favour (ayes) and 38 against (nays). This marks a significant change in how justice will be administered in Sierra Leone. The Bill will now be sent to President Julius Maada Bio for his assent.” (SIERRAEYESALONE on its X handle, 5 July, 2024. This story is similarly reported on other online news outlets such as Sierraloaded)
Conversely, a purported Criminal Procedure Act 2024 is in circulation on social media and sections 139, 140, 141 and 142 thereof clearly provide for the jury system. It is, however, observed that the said document is not the Act but the Bill. Care should be taken to refer to its cover page which clearly indicates that it is the BILL, Supplement to the Sierra Leone Gazette Vol- CLXV. No. 3 dated 11th January, 2024. Therefore, the Bill cannot be used as a basis to argue that the jury system is sustained and not abolished under the new Act. On that note, I will proceed on the assumption that the news above rightly presents the current status quo until we hear otherwise.
Whilst concerns and dissatisfactions over the abolition of the jury system under the new Act continue to rage, I will respectfully maintain that the assumption that retention of the jury system in the trial of capital offences in Sierra Leone is the surest path to justice as compared to its removal is not correct. I submit that the only tangible argument as to why we should maintain the jury system in Sierra Leone is because we have a legal system that traces its roots to the English common law tradition and jury trial is one of the hallmarks of that tradition. Also, that there was no sufficient public opinion and engagement to test the threshold of dissatisfaction in the jury system to warrant its abandonment.
It must be noted that though the jury system is practiced in many countries, it is not a universal system. Popularity does not equate to universality. The jury system is mostly practiced in countries with the English legal tradition. (Veljko Turanjanin, ‘European Systems of Jury Trial,’ US-China Law Review, Vol. 12, p. 197; Valerie P. Hans, ‘Jury Systems Around the World,’ Cornell Law Library (2008), p. 278) Though a significant number of countries with the civil law legal tradition use trial by jury for the most serious criminal cases, it is argued that there is a decline of the traditional jury across the criminal justice systems in Europe. (John B. Jackson, ‘The Case for a Hybrid Jury in Europe’ Cambridge University Press (2021)) Suffice to say however, that in the European civil law tradition, countries like Austria, Belgium, France, Greece, Hungary, Italy, Norway, Russia, Spain, Sweden, Ukraine, and the Canton of Geneva in Switzerland have maintained or reintroduced the jury system. In Latin America, Argentina has implemented it for serious crimes since 2015, and Brazil has also maintained the jury system. In Asia, Hong Kong, and Japan have maintained the jury system. (Valerie P. Hans, ‘Jury Systems Around the World,’ Cornell Law Library (2008), p. 280)
Notwithstanding the countries referenced above and perhaps a few others being the exception, the bulk of the countries in continental Europe, Latin America and Asia do not practice the jury system. Also in Africa, the majority of the countries are modeled on the civil law tradition and therefore do not have a jury system.
It is observed that the jury system in continental Europe has undergone such significant alteration and modification that it cannot serve as a reference point in its purest form. For instance, Francois Gorphe brings this observation to the fore analyzing that “the French type of jury has served as the model for one group of countries. But to assume an exact imitation would be misleading, for each country has made alterations more or less radical. The system has not only evolved, but has been transformed and diversified. In some countries, the assessors-system is not much more than a reformed jury-system; certainly the assessorate in Germany, Austria, and Swiss Berne, is far removed from the original jury-type. The French system has lost much ground. Even in its own country, it has only maintained itself at the cost of successive reforms, and under the pressure of general evolution it tends to enter the class of assessorates. The original system is hardly recognizable in any future. So that, though one may still speak of the “continental system,” the term no longer signifies what it did in the preceding century. It has departed radically from the English type; for it is not the result of the same institutions and ideas.” (Francois Gorphe, ‘Reforms of the Jury-System in Europe: France and other Continental Countries, 27 Am. Inst. Crim. L. & Criminology 155 (1936-1937))
Therefore, whilst advocating for the jury system to be maintained in Sierra Leone and when making reference to global practice, it is best to avoid generalized comparisons. It must be noted that “a good number of” democracies around the world have maintained the jury system but “not all” democracies practice the jury system. The fact that a good number of established democracies outside the Commonwealth have legal systems that do not recognize jury trial but have other models that perfectly deliver justice is a demonstration that the jury system cannot be accorded credence as the surest path to justice.
In fact, it must be noted that not all common law countries use jury trial in criminal cases, though many do. Some common law countries have departed from the jury system as a result of judicial and public dissatisfaction with jury trials. Malaysia abolished jury trial on 1st January 1995. Singapore fully abolished the jury system in 1969. South Africa abolished it in 1969 by the Abolition of Juries Act, 1969. Following independence in India in 1947, jury trials were finally abolished in the 1960s. In Pakistan, the jury system phased out since independence in 1947. In Africa, not all the countries pledging allegiance to the common law tradition practice the jury system. The jury system is not practiced in Nigeria, Zambia, Zimbabwe, and Kenya.
The intriguing question therefore remains, what sort of models the above countries adopted and have maintained instead of the jury system? This enquiry calls for further research and engagement with legal policy experts for a comprehensive law reform.
Finally, it can be seen that in all the common law countries where jury system has been abolished, there was a judicial and public dissatisfaction with the system. The question we must ask ourselves in Sierra Leone is whether that threshold of judicial and public outcry against the jury system has been met to the point that if the President assents to the Bill in its current form as the news indicates, the majority within the legal community and the public at large will be satisfied with a new criminal justice dispensation without a jury system. If on the other hand that threshold has not been met, then it is a matter of urgency for the Bar Association, civil society organisations and legal policy experts to lobby the Presidency to withhold his assent until Parliament takes a U-turn on abolishing the jury system.
If we are to maintain the jury system in the new Criminal Procedure Act dispensation, the system must be modified by certain safeguards to make it adaptable to domestic realities in order to properly guard against it excesses and drawbacks. Certainly, the jury in England and the jury in Sierra Leone are clearly placed in two distinct socio-economic cultural and political realities. To that end, the advocacy to maintain the jury system should extend to a broader goal which is to canvass that the system is reformed and not just maintained.