Do they understand us? Do they speak our language? Do they know anything about social housing? How many of them have lived in a tower block or on a council estate or in social housing? That affects confidence. Confidence or lack of it affects participation. And a lack of participation from the very people who matter will affect justice. And a lack of justice is injustice.
Those were the words of Leslie Thomas QC, one of the lawyers representing the victims and families of the Grenfell Tower fire which killed 71 people in Kensington. His point was that though the Grenfell Tower block consisted largely of a diverse group of residents, the Inquiry tasked with delivering justice and the lawyers who came to represent them did not reflect that diversity and that risked affecting confidence in the process and ultimately justice itself.
3,000 miles away in Sierra Leone, villagers in the rural town of Bumbuna may well find themselves asking the same question as they are examined by Mr Justice Turner, a British Judge in the case of Kalma and others v African Minerals Ltd. Mr Justice Turner along with the parties’ lawyers has travelled to Sierra Leone to act as special examiner in a case against African Minerals Ltd: the once British company is accused of complicity and involvement in the false imprisonment, assault and rape against 41 Sierra Leonean claimants at the hands of the Sierra Leonean Police and a subsidiary company during two incidents in 2010 and 2012. The law firm Leigh Day, for the claimants, applied for the Special Examiner procedure to be put in place after the claimants failed to obtain visas to give evidence in the UK–the procedure permits a judge to travel to an overseas jurisdiction to take evidence where the witness does not reside in the UK.
It is without doubt that the alleged actions of African Minerals Ltd in collusion with the Sierran Leonean Police, if proven, would constitute grave breaches of human rights law. From that point of view, there’s much to celebrate in the claimants being heard and the long arm of English justice reaching Sierra Leone. However, as the quote above from Leslie Thomas QC demonstrates, this hearing risks being viewed as one involving a group of lawyers and judges which does not reflect or relate the experiences of the claimants involved. As this Leigh Day tweet demonstrates, the hearing though being held in Sierra Leone is neither diverse nor representative of the Sierra Leonean population (though the image doesn’t show the whole court). No doubt measures will be put in place to translate the judge’s questions and represent the claimants in as exceptional a way as the British legal system is known to do. But it will not be enough simply to apply English legal procedures to the complex and nuanced lives of people whose day to day existence is as divorced from the realities of life in London as Sierra Leone is far from London. In such crucial cases where grave human rights abuses are being exposed and redress provided to the victims, it would be equally incredible for the court and lawyers to be representative of the people they speak for.
Beyond representation, it will be interesting also to find out what remedies the court intends to provide the claimants and how enforceable such remedies will be in the context of the claimants’ unique circumstances. This is particularly important given that many claimants suffered abuse at the hands of their own police force. Would the claimants be protected from future police brutality and reprisals once the judge in London hands down his judgment? If the claimants are granted compensation, would there be a way of enforcing the judgment beyond monetary compensation by guaranteeing the safety of the claimants and enabling them to get back to their lives? And what will justice itself look like? Would it be enough only to find the once-British company liable of complicity in police brutality but not punish the police? What’s worrying in this case is the alleged blatant disregard of the law by the defendants in allegedly instructing the police to abuse the claimants. What will this hearing do to prevent such systemic abuses in future? English courts obviously do not have jurisdiction to tell local police forces what they can or cannot do–but if justice is to be delivered in such unique circumstances, it should go beyond monetary compensation which whilst welcome would not address the underlying issues which led to the injustice in the first place.
In Lungowe and others (a case covered by this blog) the Court of Appeal famously proclaimed that a time would have to come when Zambia would stop exporting access to justice cases to the UK. In that case the justification given for hearing a Zambian case in an English court was the risk of the claimants not getting justice if the hearing took place in Zambia. It is ironic therefore that in this case, an English judge is setting up court and hearing the claimants in Sierra Leone to achieve justice there. Does this step signal a concession that such human rights cases can be heard in the countries where alleged breaches take place? One would argue the same fears highlighted in Lungowe would also apply in this case. The only difference is that the case whilst being heard in Sierra Leone involves English lawyers and judges? Are we to conclude from this that the issue is not so much that justice cannot be achieved in the countries where breaches take place but rather that those countries’ judges, lawyers and legal systems cannot be trusted to deliver justice? If that’s the case then the authorities in such jurisdictions should account for why they cannot guarantee justice for their own citizens.
Whatever the answers to the questions posed above, what is certain from this case, the Lungowe decision and other similar decisions is the clear appetite and ingenuity of the British courts to try cases of human rights abuses allegedly perpetrated by British companies abroad. British companies are being exposed for having a laissez faire attitude to the actions of their subsidiaries and in certain instances condoning or at least paying a blind eye to gross breaches of human rights obligations. At the same time, African countries are being exposed for the gaps in their systems which make such gross breaches possible in the first place and their failures to develop robust enough systems for their own citizens to bring claims in their home countries. The solution: on the one hand a tailored approach that combines the best of British justice with the unique circumstances that such cases present and on the other, a sustainable approach to justice that would strengthen local African structures to not only challenge big companies but also provide access to justice for the local people.