Issa H, Sesay & 2 Others v President of Special Court & 3 Others (SC 1 of 2003) [2005] SLSC 10 (10 May 2005)

: IN THE SUPREME COURT OF SIERRA LEONE SC 12003 WEEWEEN: ISSA HASSAN SESAY alas ISSA SESAY ALIEU KONDEWA * MOININA FOFANAL : PLAINTIFFS aNd ec gty, {iN URESIDENT OF THE SPECIAL COURT woe ft TAND. THE REGISTRE OF THE. SPECIAL COURT AND TIE PROSECUTOR OF THE SPECIAL COURT AND E DEFENDANTS ‘THE ATTORNEY GENERAL AND MINISTER OF JUSTICE COKAM. Hon, Justiee Dr. Ade Renner-Thomas - oa Hon, Mr. Justice E.CThompson-Davis - ssc Hon, Mr. Justice V.A.D. Wright + se Hon, Me. Justice M.A.Tolla Thompson ~ ase How, Me Juste Sir John Muria - 48 FM Carew fy, Atomey General and Minister of Justice 11, Farmall. Roberts Es, M. Sesay Esq, 4.G Kobba Esq, for the Defendany/ Applicants A. Sony-Kamal Esq. C.F. Margai Esq, for the Plaintiffe/Respondents LING DELIVERED THIS 10" DAY OF MAY 200s RENNER-FHOMAS, Cd 2 MAVING READ the Notice of Motion dated the 31" day of March 2005 and the * alldavit in support of Joseph G Kobba Esquire swom to on the 31” day of March 2005 and filed herein together with the exhibits attached thereto AND HAVING HEARD wna as comended by the Aulomey General on behalf of the Defendants.\pplicants and the arguments in opposition 10 the application by

AA Serry-Kamal Esq, of Counsel fo the Plaintiffi/Respondents, | am satisfied based oon Exhibit “IGK4" attached to the said affidavit in suppor, to wit the Cenificate of ie Immunity issued by the Ministry of Foreign Affairs and International Co-operation of the Republic of Sierra Leone, thatthe Defendants /Applicants are immune from suit

7. However, for the reasons which will be given later in these proceedings, I find myself unable at this stage, and without more, to order that the names of the Defendants/Applicants be struck out of the proceedings entitled SC 1/2003 now pending before the Court | make no order as to costs

‘A RENNER-THOMAS CJ Hon. Mr. Justice E.C:Thompson-Davis agree Hon Mrs, Justice V.A.D.Wright agree Hon, Mr. Justice M.E.T.Thompson Jagree Hon, Justi Sir John Muria Vagree

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Judgment

S.C NO. 1/2003 : IN THE SUPREME COURT OF SIERRA LEONE a IN THE MATTER OF APPLICATION PURSUANT OT SECTIONS 122, 124, AND 127 OF THE CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991 AND PART XVI, RULES OF 89-98 OF THE SUPREME COURT RULES STATUTORY INSTRUMENT, NO 1 OF 1982 AND IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE, ACT NO. 6 OF 1991, SECTIONS 122, 124,°127,1°71 (15), 120,108,40 (4), 125 AND 30

(1) AND IN THE MATTER OF THE SPECIAL COURT AGREEMENT 2002 (RATIFICATION) ACT 2002 (RATIFICATION) (AMENDMENT) ACT, 2002- ARTICLE 1

(1) OF THE SCHEDULE AND THE PREAMBLE THERETO, PART Ill SECTIONS 10, 11 (2 ) 29 AND ARTICLE 8( 1) & (2 ) OF

The Statute of the Said Act

BETWEEN: ISSA HASSAN SESAY aka ISSA SESAY AND

Allieu Kondewa

AND

Moinina Fofana - Pls

Ano THE PRESIDENT OF THE SPECIAL COURT AND THE REGISTRAR OF THE SPECIAL COURT AND THE PROSECUTOR OF THE SPECIAL COURT AND ‘THE ATTORNEY GENERAL & MINISTEROF JUSTICE - DEFENDANTS

Coram

HON MR. JUSTICE A.R.D.RENNER-THOMAS. CHIEF JUSTICE | HON. MR. JUSTICE E.C.THOMPSON-DAVIS JSC HON. MRS. JUSTICE V.A.D. WRIGHT JSC. 7 HON. MR.JUSTICE M.E. TOLLA-THOMPSON JSC. | HON..JUSTICE SIR JOHN MURIA JA AF. Serry-Kamal Esq with him C.F.Margai Esq for the Plaintiffs Attorney-General with him J.G. Kobba Esq. L.Farmar Esq and E. Roberts Esq. for the Defendants Judgment delivered the 14" day of October 2005 RENNER-THOMAS C.J. By an Agreement between the United Nations (herein after referred to as “the U N’) and the Government of Sierra Leone (herein after referred to as “the Government’) dated the 16" day of January 2002 the Special Court for Sierra Leone (herein after referred to as “the Special Court’) was established ‘to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and sierra Leonean law committed in the territory of Sierra Leone since November, 1996. The UN entered into the said Agreement pursuant to Security Council resolution 1315 (2000) of 14 August 2000 and on the part of the Government under the authority of the President pursuant to powers vested in him by virtue of the provision of section 40 of the Constitution of Sierra Leone, Act No.6 of 1991 (hereinafter referred to as “the Constitution’) According to Article 1 of the Agreement the Special Court is to function in accordance with the Statute of the Special Court which Statute is annexed to the Agreement and forms an integral ~ part thereof. On the 29" day of March 2002 the Parliament of Sierra Leone enacted the Special Court = Agreement,2002 (Ratfcation) Act. No.7 of 2002 (hereinafter referred to as “the Ratification ‘Act’. In the first preambular paragraph of the Ratification Act it is recited that the Agreement is. to be ratified by an Act of Parliament pursuant to by the provision to subsection 4 of section 40 of the Constitution,

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