Commentary on Decision on Motions by Moinina Fofana and Sam Hinga Norman for the Issuance of a Subpoena ad Testificandum to H.E. Alhaji Dr. Ahmad Tejan Kabbah, President of the Republic of Sierra Leone, Prosecutor v. Norman, Fofana and Kondewa

The decisions and opinions discussed in this commentary deal with the issuance of a subpoena ad testificandum by the Special Court of Sierra Leone (SCSL) to the President of the country, and with issues closely intertwined with this matter. Two major legal issues are identified: the legal criteria the Court applies in order to issue a subpoena ad testificandum; and whether a subpoena ad testificandum may be issued to an incumbent Head of a State. Although the latter is a matter of “extreme legal, domestic and international importance” and these motions offered a historic opportunity for a legal stand to be taken on this matter by the SCSL, both the Trial and the Appeals Chambers avoided addressing it, and proceeded to examine only whether the defendants’ submissions satisfied the legal requirements set out in Rule 54 of the SCSL Rules of Procedure and Evidence (RPE). There is however, a considerable and thought-provoking analysis of the matter in the concurring and dissenting opinions.

Accordingly, this commentary begins by giving a brief overview of the context of the selected decisions, and then proceeds with examining the principal legal issues dealt by the SCSL Trial and Appeals Chambers, while providing a critical analysis of the answers given by the Court. It concludes by underlining that the issues in these motions turn to a large extent, on the particular context in which the SCSL was created.