LEGAL AND JUDICIARY SYSTEM of Liberia

DRAFT 25-08-04

The main problems facing the institutions in the legal and judicial system are lack of infrastructure, logistics and human resources, the problems being compounded by the lack of funding and resources.

Courts (Present status)

The Supreme Court is fully operational, and is able to deal with a significant case load without undue delay. During the March term the Court heard 32 cases and gave full, thorough and well reasoned judgments in relation to all 32 cases by August. Of the sixteen Circuit Courts in Liberia, eleven are considered open because judges have been assigned, but they will become fully operational when funding for basic operating materials have been obtained.

Over fifty Magistrates Courts are operating throughout the country, albeit with limited resources which often tend to affect their effectiveness.

Problems

Courts

• Lack of infrastructure – There are many courts which are unable to function due to the fact that there is no court house or they are in a state of total disrepair. As a result, cases cannot be heard and the rule of law is undermined. Urgent funding will be required. Recent discussions with DFID indicate that they propose to fund high impact/low budget projects to include the renovation and equipping of the courts in the regions.

• Lack of logistics – In addition to lack of security, furniture, typewriters etc, there is a shortage of legal materials, stationery and facilities for the transportation of witnesses and defendants etc.

• Shortage of judges/magistrates – There are only 11 Circuit Court judges in the country for 21 posts of which 4 are above the compulsory retirement age (70). Further, only one of the magistrates in the whole of Montserrado county is a qualified lawyer.

• Lack of expertise – Many of the judges, magistrates and court staff are poorly qualified and lack the necessary skills. The effect is that the capacity to hear cases is greatly reduced. Inadequate wages mean that it is extremely difficult to attract suitably qualified staff

• Lack of adequate or effective security.

• Judges do not have access to many fundamental legal texts necessary for their work.

Prosecution/Investigations

• Lack of knowledge and equipment for effective investigation of offences. For example there is a lack of forensic examination facilities and rape testing kits in the country which tends to hamper and frustrate the due process of law.

• Insufficient number of prosecutors – This problem is contributed to by the fact that the salaries paid are extremely low (US$20 per month)

• Lack of expertise
• Lack of capacity
• Lack of knowledge and training in areas including human rights, juvenile and gender issues.

Detention

• Monrovia Central Prison and detention cells at the LNP Headquarters are overcrowded. The situation is compounded by the fact that the condition of prisons and detention cells are very poor. The food supply to prisoners and detainees in all detention centres and holding cells is inadequate, and the hygiene and bedding conditions are very poor, with inadequate water and soap supplied to maintain basic standards of health.

• Many pre-trial detainees are detained beyond the legally prescribed period and detention review provisions of the Criminal Procedure Law are not adequately or consistently implemented.

• In relation to court ordered pre-trial detention, the usual practice is that no date is set for subsequent hearings, and in the majority of cases the defendants languish in detention until a review/jail delivery process is carried out by the Ministry of Justice.

• Many alleged offenders are detained in relation to minor offences, the usual reason being that they are unable to pay the required bail bond. The fact is that the present bail provisions which do not take into account the means of the defendant when setting bail discriminate against indigenous person – the effect being that the basic and fundamental rights of the detainees are being violated, and the problem of overcrowding in the detention facilities is exacerbated.

• Lack of funding for alternatives to detention.

• There is no separate detention facility for juvenile or adult females – at present women and juveniles at Monrovia Central Prison are kept in separate cells, although, in breach of international standards, the cells are adjacent to cells holding adult male detainees.

Defence

• There is currently a shortage of qualified attorneys in the country.
• Inadequate support, assistance and funding for civil society groups and stakeholders which provide assistance to indigenous defendants.
• It appears that there is, at present, inadequate support, funding or infrastructure in relation to legal aid/public defender systems – precise details of the situation will not be determined until a full review is carried out.

Juveniles

• Lack of basic training and knowledge of procedures and standards to be adopted in relation to juvenile offenders – Judges, Magistrates, Court officers and staff, prosecutors, police etc

• The police taking juvenile offenders to Magistrates courts which have no jurisdiction to hear juvenile cases.

• Illegal detention of juveniles by courts which have no jurisdiction to deal with such matters.

• Lack of adequate juvenile detention facilities

• The juvenile holding cell at the LNP HQ is insecure – a bar is missing from the window of one cell and the other cell has a hole in the roof

• At the juvenile holding cell, juvenile offenders share cells with very young children who have been abandoned or have run away from home

• Failure of the staff at the juvenile holding cell to take juveniles before the Juvenile Court as soon as possible

• Illegal practice by the juvenile holding cell staff of detaining juveniles brought to the facility by private complainants

• Detention of juveniles in the adult holding cells at the LNP HQ – sharing cells with adults

• Detention of juveniles by the police for periods well in excess of 48 hours without taking them before the court.

• There are no juvenile rehabilitation facilities in the whole country

• Insufficient funding for non-detention disposition orders such as probation

• No budgetary provision by NTGL in relation to the provision or running costs of a juvenile rehabilitation centre

Objectives

SHORT TERM OBJECTIVES

Resources

• Material resources continue to be sorely needed to facilitate the functioning of Liberia’s judicial system. In addition to office equipment – desks, chairs, filing cabinets and computers - all courts require basic office supplies such as stationary, legal forms, pens, paper, binders, folders and registry books. Funding to be secured from both the NTGL and donor agencies

• All courts, prosecutors’ offices and LNP stations to be supplied with copies of applicable Liberian laws.

Courts

• Completion of the vetting process for judges and magistrates as a matter of urgency (September) followed by the appointment of new judicial personnel before the next term of court (October)

• Mentoring of judges and prosecutors – it is essential that immediate steps are taken to build the capacity of the judges and prosecutors, to promote sustainability and national ownership.

• Continue to work and collaborate closely with the Liberian National Bar Association, AFELL and other civil society organizations with a view to providing immediate assistance in relation to supporting prosecutions, defense of the indigent facing serious criminal charges etc.

• Ongoing monitoring and evaluation of the legal and judicial system for the purpose of formulating recommendations to remedy identified deficiencies

• Continue to work closely with the Ministry of Justice through provision of logistical support to enable prosecution of regional criminal cases involving defendants currently detained in Monrovia.

Training

• Continue providing training to judges, prosecutors, court clerks, corrections officers, local police etc.

• Provide training on international human rights standards – including fair trail guarantees - and related instruments to judges, prosecutors, corrections officers, defense lawyers and local police.

• Support the integration of a human rights and a gender curriculum in all training and workshops for legal personnel.

Detention

• Conducting reviews for all longer-term detainees to identify and remedy delays in proceedings

• Encourage lawyers and human rights groups to utilise appeal mechanisms and writs of habeas corpus, as provided by the Constitution, to resolve cases of illegal detention. CIVPOL’s Legal Services Section to monitor local police adherence to 48 hour police custody rule.

Legislative Reform

• Support formation of a legislative reform working group with the Ministry of Justice for immediate review of all criminal laws

• Consider the immediate review and revision of the bail law – At present bail is calculated with reference to the maximum sentence and is not based upon the financial means of the defendant. The result is that indigent persons cannot pay the bail set and are detained on mass regardless of the seriousness of the alleged offense.

• Consider expanding offense jurisdiction of the Magistrates courts to enable hearing of all misdemeanor cases and thereby reduce Circuit Court caseloads

• Review of complaint procedure/law – Consider amendment to limit the bringing of criminal complaints to the police, the Attorney General or the agent of the Attorney General.

• Review of Liberian Penal Code to consider inclusion of new offenses – trafficking in human beings, corruption, organized crime etc.

Legal Aid

• Conduct legal aid assessment to evaluate current legal aid system and to formulate recommendations for improvement

• Refer cases of unrepresented detainees to NGOs/organizations (the Liberian National Bar Association, AFELL, FOHRD or other groups of human rights lawyers) that offer pro bono services.

Juvenile Justice

• Local police to be trained to ensure they ascertain and record the age of all arrested suspects, and that they arrange for juveniles arrested in Montserrado County to be taken to either the Juvenile Court or to the LNP juvenile holding cells, and not to Magisterial Courts which have no jurisdiction to hear the cases.

• UN CIVPOL to monitor LNP adherence to the police custody provisions of the Juvenile Court Procedural Code (JCPC) at all police stations.

• City Solicitors to be trained and appraised of procedures under the JCPC, to ensure that they do not proceed to prosecute juveniles in the Magisterial Courts when they have no jurisdiction to do so.

• Magistrates to be trained and appraised of procedures under the JCPC. Magistrates lacking jurisdiction over juvenile cases must direct all relevant complainants to the Juvenile Court, or Magisterial Court with jurisdiction. When arrested juveniles appear before them, magistrates lacking jurisdiction must immediately transfer the case to the Juvenile Court or Magisterial Court with jurisdiction.

• Seek direct intervention of the Chief Justice in relation to Magistrates who willfully and persistently continue to detain juveniles when they have no jurisdiction to do so.

• LNP juvenile holding cells in Monrovia must end the practice of detaining juveniles brought to the facility by private complainants. Private complainants must be told to contact the Juvenile Court to file a petition if they wish to pursue a case, or to provide the police with sufficient information relating to the allegation in order that the police may file a petition with the Court. Any juvenile brought to the facility by a private complainant must be released.

• UN CIVPOL officers overseeing operations at the LNP juvenile holding cells to be fully appraised of arrest, custody, and complaint procedures under the JCPC.

• Continued monitoring of operations at the holding cells to ensure juveniles are not detained illegally and to ensure the JCPC is correctly implemented.

• LJSSD to provide immediate financial assistance to repair damage to the LNP Juvenile Holding Cell facility to ensure juveniles under police custody are not prevented from being admitted due to concerns over possible escape attempts.

• In the event the juvenile holding cells are full and cannot accommodate any additional detainees, LNP must ensure that any juveniles who cannot be admitted are immediately transferred to the juvenile cell at MCP (in the event they cannot be brought immediately before the Juvenile Court).

• Protocol to be provided to all local police and UN CIVPOL officers addressing procedures to be followed upon the taking of juveniles into custody. All training of local police to involve a component on the JCPL.

• LJSSD to support discussions between the Ministry of Health and Social Welfare and the Episcopal Church concerning possible reestablishment of the Boystown rehabilitation facility. Discussions also to include availability of facilities/support for female juvenile offenders.

• The need for financial support for the reestablishment of a juvenile facility - as well as for other disposition measures – to be raised at the Ministry of Justice’s Juvenile Justice Forum.

MEDIUM TERM OBJECTIVES

Resources

• Encourage the NTGL to allocate adequate provision for Court infrastructure in its annual budget.

• Each court and prosecutors office requires a vehicle to deliver court documents, locate witnesses, transport at-risk personnel, and perform other basis functions outside the court

• Monrovia Central Prison requires a secure vehicle to transport prisoners to court

Courts

• Review of all salary scale structures for judges, magistrates, court officials, prosecutors etc – Until the present woefully inadequate salaries are increased significantly, there will be the problem of recruiting suitably qualified staff, and unlawful practices to supplement the incomes of the persons concerned will continue, thereby undermining access to the justice for the indigent.

• Review and amend/improve court and prosecutorial operational and administrative procedures and practices through recruitment of a court administration advisor

• Support establishment of a judicial council and complaint procedure/mechanism to allow for the investigation and disciplining of judges and prosecutors for acts of professional misconduct

• Drafting new Codes of Conduct for Judges, Prosecutors and Attorneys.

Training

• Build the capacity of the Ministry of Justice, Courts and other judicial institutions on a regular basis through ongoing workshops and training on judicial process and human rights.

Detention

• Establishment of alternate measure/diversion programs through consultations with the Ministry of Justice

Legislative Reform
• Drafting of amendments by legislative reform working group

Legal Aid

• Collaborate with the Ministry of Justice on the development of viable legal aid schemes, including the strengthening of Liberia’s public defender system

• Work with the Louis Arthur Grimes Law School to establish a legal aid clinic

Juvenile Justice

• Provision of adequate annual budgetary funding to the Ministry of Health and Social Welfare for the establishment and maintenance of a juvenile rehabilitation facility to be raised with the National Transitional Government of Liberia (NTGL).

• While it is necessary for a juvenile facility to be established, other disposition measures such as probation must also be funded.

• Support agreement between the NTGL and local charitable organizations such as Don Bosco Homes and Samaritan’s Purse to provide short-term housing for juvenile offenders until a permanent juvenile rehabilitation centre is established.

• Comprehensive review of Juvenile Court Procedural Code by juvenile justice consultant

Law School

•Continue to support and work closely with the Law School at the University – The students at the Law School provide the key to the future of the legal and judicial system. Every effort must be made to ensure that they receive the highest quality training that prepares them for addressing the challenges facing them in the Liberian legal and judicial institutions.

• Implement scholarship programme wherein the recipients will be required to work for the judiciary/Ministry of Justice following graduation (Monrovia and regions).

Liberian National Bar Association

• Support the establishment of an effective disciplinary mechanism/procedure within the Liberian National Bar Association to address complaints of attorney misconduct

LONG TERM OBJECTIVES

Courts

• Implementation of salary review

Training

• Establish a judicial training centre to provide sustainable high quality standardized induction and continuing education courses for judges and prosecutors in order to strengthen professional standards and adherence to the rule of law.

Legislative Reform

• Enactment of new Criminal Procedure Law and Penal Code

• Establish a permanent legal and judicial reform commission to regularly review laws and institutions for human rights compliance.

Legal Aid

• Promulgate legislation for establishing a legal aid system, with provisions for creating a “legal aid fund”.

Juvenile Justice

• Enactment of new juvenile criminal procedure law
• Establishment of Juvenile Courts throughout the country

Public Awareness

• Educating and sensitizing the public on both their rights and on legal reform initiatives in order to develop and sustain trust in the judicial system and the rule of law.