The Appeals Chamber of the Special Court for Sierra Leone (SCSL) before Honourable Justice George Gelaga King presiding and Raja Fernando, Emmanuel Ayoola, Renate Winter and Jon Kamanda being the other Justices, on Wednesday 28^th May 2008, delivered its judgment in the appeals case of The Prosecutor against Moinina Fofana and Allieu Kondewa, former leaders of the Civil Defence forces (CDF). The Appeals Chamber after dismissing most of the Prosecution’s grounds of appeal and allowing most or in part of Kondewa’s grounds of appeal reversed the Trial Chamber’s judgment and subsequently increased the sentences of 2^nd August and 9^th October 2007 respectively. The Trial Chamber’s judgment convicted Fofana on four of the eight counts charged and subsequently sentenced him to a separate six years in prison for counts 2 and 4, three years for count 5 and four years for count 7. Kondewa was convicted on five of the eight counts charged and was sentenced to a separate eight years in prison for counts 2 and 4, five years for count 5, six years for count 7 and seven years for count 8. The Appeals Chamber by a majority with Justice George Gelaga King and Justice Jon Kamanda dissenting, reversed these decisions and enter guilty findings for count 1 charging murder, a crime against humanity for both accused. They therefore, increased the sentences to fifteen years in prison for counts 1, 2 and 4 and five years for count 5 in the case of Fofana and twenty years in prison for counts 1, 3 and 4 and seven years for count 5 and a not guilty finding substituted the Trial Chamber’s initial guilty finding for count 8 in the case of Kondewa and he was subsequently discharged on that count. These sentences should be served concurrently with credit for the time they were detained pending trial.

The summary of the appeals judgment was read in court by Justice King, noting that the judgment looks at issues relating to the background of the CDF, the position of the convicted persons, the Trial Chamber’s judgment and sentences, the grounds of appeals, the Appeals Chamber’s findings and a general deposition. The Appeals Chamber noted that only the Prosecution and Counsel for Allieu Kondewa appealed against the judgment of Trial Chamber I of the SCSL pursuant to Article 20 of the Court’s Statute and Rule 106 of the Court’s Rules of Procedure and evidence. The Appeals Chamber in making their findings noted that Moinina Fofana and Allieu Kondewa became members of the CDF with the former being the director of war and the latter a high priest responsible for initiation into the Kamajor society. The appellants’ grounds of appeal touched on issues relating to enlistment of child soldiers, cumulative convictions, superior responsibility, aiding and abetting the commission of crimes, burning and pillage, acts of terrorism, decision to amend the indictment, admissibility of evidence of sexual violence and sentencing procedure. These grounds of appeal suggested that the trial chamber in reaching their decision had erred in fact and in law and this has invalidated the judgment. The prosecution in their appeal noted inter alia that the CDF directed a widespread attack against civilian population and the Trial Chamber erred by not convicting the accused for the commission of these crimes. Counsel for Kondewa inter alia appealed that the Trial Chamber erred in fact and in law by convicting Allieu Kondewa for enlisting child soldiers, burning, looting, pillage and individually criminally responsible for murder. While the appeals Chamber upheld and granted some of the Defence’s submissions, it dismissed almost all of the pleadings submitted by the Prosecution and also partly relied on the Trial Chamber’s competence in convicting the accused.

Kondewa’s first ground of appeal touched on superior responsibility and that the Trial Chamber erred in determining a proper control test to prove a superior/subordinate relationship. The Appeals Chamber by a majority with Justice King dissenting found that Kondewa was in a position of trust and had power that would amount to effective control. The second ground of appeal includes murder, and the appellant requested that the finding for murder should be reversed as the only evidence to corroborate that fact was skeletal and hearsay. The Appeals Chamber noted that the evidence which the Trial Chamber evaluated did not establish the elements for the conviction of murder, and subsequently granted the appellant’s request.  The prosecution succeeded in their request to the appeals Chamber to enter guilty findings for counts 1 and 3 charging murder and inhumane acts respectively both as a crime against humanity. The Appeals Chamber substituted the Trial Chamber’s judgment of not guilty with guilty findings for these counts in relation to Kondewa and count 1 for Fofana. The Appeals Chamber also noted that the Prosecution did not attempt to prove that the Trial Chamber erred in fact and law and that such error would invalidate their decision. While it rejected in part or entirely all their remaining grounds of appeal, it granted them their tenth ground of appeal. This ground touched on the issue of sentencing and requested the Appeals Chamber to impose heavier sentences that would reflect the true deterrence aim of International Humanitarian Law. With Justices King and Kamanda dissenting, the Appeals Chamber upheld the Prosecution’s submission and reversed the Trial Chamber’s sentences for counts 2, 4 and 5 and imposed a new set of sentences for counts 1 and 3.

In their deposition, the Appeals Chamber noted that it has dismissed the findings of both Justices King and Kamanda and had upheld the majority decision of the Chamber. They noted that they replaced the not guilty finding for count 1 and 3 with guilty findings and increased the prison sentences from six years for Fofana to fifteen years and eight years for kondewa to twenty years. They Appeals Chamber then ordered that Moinina Fofana should serve fifteen years in prison and Allieu Kondewa twenty years in prison with credit for the time they had been detained pending trials. These sentences are to be enforced immediately and the convicts were to remain in the Court’s custody.

The Prosecution indicted Fofanah and Kondewa in June 2003, after Norman’s indictment in March 2003. On 31 May, 2004, the Appeals Chamber ruled that the recruitment of child soldiers had reified as a crime under customary international law before the beginning of the period covered by the Special Court’s mandate, a key decision allowing the recruitment of child soldiers to be charged as a crime by the Special Court. In June 2004, the Chamber joined the three trials. The Prosecution opened its case on the 3^rd June 2004, calling on 75 Prosecution witnesses including 3 expert witnesses over 131 trial days. On the 20^th September 2005, the Trial Chamber convened for oral arguments on the Motion for Acquittal as the Defence teams submitted that they had no “case to answer”. The Chamber subsequently ruled on the 21^st October 2005 ordering the Defence Teams to prepare and present their cases. On the 19^th Norman’s death in February 2007, the Trial Chamber terminated proceedings against him on the 21^st May 2007 on the objection of his Counsel. Judgments were handed down on 2nd August 2007 with a sentencing hearing on the 19th September, 2007. Sentencing judgments were subsequently handed down on the 9^th October 2007 and the Appeals Chamber convened for oral hearings and submission on the 12^th and 13^th March 2008. Januarary 2006, the Defence started their case and collectively presented 44 Defence Witnesses over 112 trial days. After