Four important lessons for Kenya from the Taylor trial and verdict

On Wednesday, May 30, 2012, the Special Court for Sierra Leone sitting at The Hague pronounced a hefty 50-year jail sentence on former Liberian President Charles Taylor, having found him guilty of aiding and abetting crimes against humanity in neighbouring Sierra Leone in the late 1990s.

It would be of interest to estimate what, if at all, the implications of the Taylor judgment for Kenya are.

Four of Kenya’s citizens are facing similar charges of crimes against humanity before a similar court — the International Criminal Court (ICC).

The law establishing the Special Court for Sierra Leone is different from that creating the ICC.

While the former is founded on a statute creating a hybrid international penal system that mixes international and Sierra Leonean criminal law following a resolution of the UN Security Council, the ICC is an independent institution created by over 120 states which signed the Rome Statute, and works independently from but in cooperation with the Security Council.

Secondly, some of the judges of the Special Court are nationals of Sierra Leone and others are foreign, while judges of the ICC are all international judges not judicially aligned to any state.

Third, while the Special Court applies a mixture of national (Sierra Leonean) law and international law, the ICC purely applies international law.

Fourth, while the Sierra Leonean Special Court is ad hoc (temporary) and focuses only on international crimes committed in Sierra Leone in the 1990s, the ICC is a permanent court dealing with crimes committed anywhere in the world with effect from July 1, 2002, when the Rome Statute came into force.

The differences end there. The overly important similarity of the two institutions lies in the fact that both are entities of the international criminal justice system applying the same legal norms, procedures and sentencing criteria.

In this connection, it is important to emphasise that the legal texts of both the Sierra Leonean Special Court and the ICC have a common definition of “crimes against humanity”.

Both courts apply the same jurisprudence (legal philosophy) and the same sentencing principles and criteria.

The Taylor judgment, therefore, becomes a major comparator against which to draw lessons for the Kenyan cases before the ICC. There are at least four lessons for Kenya.

The first lesson is that although international courts and tribunals do not generally endorse death or life imprisonment, the jail terms are extremely severe, commensurate with the gravity with which horrendous international crimes such as crimes against humanity are regarded.

The sentences are usually long and, depending on the age of the accused, one could view them as “indirect life sentences”.

In this connection, one understands the dismay of the lead counsel in the Taylor case, who quipped this week that “to sentence a 64-year-old to [such a long jail term] is a guarantee that he will die in prison … What is proposed is a life sentence, a sentence which cannot be imposed by [the Sierra Leonean Court].”

Secondly, the outcome of Mr Taylor’s case demonstrates that politicisation of international trials by the defence does not necessarily help the accused.

Taylor’s lead counsel, the Jamaican-born British Courtenay Griffiths, is one of the most accomplished attorneys within the Commonwealth.

Griffiths, at some point, abandoned his earlier well crafted defence line and started to attack the court accusing it of unfairness.