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.
He, on one occasion, led his client in storming out of the court, accusing it of bias and being a political tool of Western imperialism.
It is understandable if it is Taylor himself who was involved in the attacks (although practice has shown that this does not help either).
But for such a respected counsel to engage in such theatrics was quite demeaning of the legal profession whose pride lies in counsel not shying from fighting for justice for all persons, big or small, without fear or favour, but on the basis of applicable law, not politics.
The take-home lesson for Kenya is for those involved to try as much as possible to respect the court (or even pretend to do so), and then look for as many legal loopholes in the law and evidence that the prosecutor is relying on to counteract the prosecution theory.
Drama and sensationalism will not do, and they must be avoided at all costs.
The Eurocentricity of international law (as well as courts established under it) is not in doubt, neither is the selectivity of the international justice system in shockingly turning a blind eye to atrocities committed in “politically correct” jurisdictions such as the Russian areas of South Ossetia and Abkhazzia (2009) or even in the now 16-month butchery of civilians in Syria.
That notwithstanding, the Taylor experience and others before it have demonstrated that pointing out bias will not necessarily yield the all-important result for the defence, namely, successful demonstration of the innocence and thereby securing an acquittal.
Thirdly, the Taylor judgment and sentencing has underscored that political power and influence do not mitigate, rather they aggravate the punishment of those who are convicted of horrendous international crimes.
The Taylor case, just like the 1998 case of Prosecutor v. Jean Kambanda before the Arusha-based International Criminal Tribunal for Rwanda (ICTR), has underpinned that it is not a useful line of defence for accused persons to show — directly or indirectly — how “influential” or “powerful” they were during the atrocities in question or thereafter.
The opposite — demonstrating directly or impliedly by conduct — that the accused could not possibly have wielded significant power to influence, authorise or fail to prevent the crimes in question would work wonders.
The Taylor defence had a lot to say about his role as president and why that role as an influential and senior Liberian (and West African) ex-statesman should have been considered before charging him.
On its part, the Kambanda defence actually argued in mitigation that the accused was prime minister of the interim government in Rwanda during the genocide and his “services to the nation” should lead the court to conclude that the accused was no “common criminal”.
In both cases, the respective courts emphasised that being in position of power or authority is an aggravating circumstance and that the more “influential” an accused is or tries to demonstrate, the more likelihood to corroborate the prosecutor’s evidence, and upon conviction, the sterner the penalty.
Fourthly and lastly, the Taylor decision reminds us of the strange, unacceptable, yet real, trend of high record of convictions by international courts and tribunal compared to acquittals.
Compared to national courts even in the most advanced democracies, international courts have a very high record of convictions.
The standard of proof by the prosecution on paper is the time-honoured, high threshold of “beyond reasonable doubt”.
But in practice, international criminal tribunals have been too prosecutor-friendly and herein lies a great threat to the credibility of international criminal justice.
The implication of the reality of high convictions is that there is a need for very hard work for the defence teams for cases before international criminal tribunals.
The comforting fact, though, is that there have been a few acquittals too in recent years, since the spectacular acquittal of Ignace Bagilishema by the ICTR in 2008.
Prof Kithure Kindiki is a lawyer with expertise and wide experience in matters of international law