Lessons for Kenya from the Charles Taylor verdict

On 14^th March, and 26^th April this year, two significant but landmark decisions have been rendered by two different international courts convicting high ranking personalities of crimes against humanity, war crimes related offences under International Criminal Law.

 On 14^th March, the International Criminal Court convicted Thomas Lubanga Dyilo aged 51 of three counts of crimes against humanity including, enslavement, enlisting of child soldiers and conscription, rape and related offences committed in DRC Congo in the Ituri minerals rich province between September, 2002 and August 2003.  This verdict is the first to be delivered by the ICC and coincided with 10 years of its existence.  Thomas Lubanga is a former warlord, the founder and leader of the rebel group “Union des Patriotes Congolais (UPC) Political Party and its Military Wing, Forces Patriotiques pour la Liberation du Congo (FPLC).  The Lubanga trial took six years.

On 26^th April, 2012 , the United Nations backed Special Court for Sierra Leone  (SCSL) convicted the former Liberian President Charles Taylor of crimes under international law including aiding and abetting war crimes, crimes against humanity, such as acts of terrorism, murder, rape, use of child as soldiers  as charged in several counts in the indictment. The charges against Charles Taylor were primarily founded on his role in co-operation and involvement with the notorious warlords in Sierra Leone, especially the Revolutionary United Front (RUF) in return for blood diamonds.  Taylor was convicted of 11 counts including acts of terrorism, murder, rape and conspiration of child soldiers.

Taylor, who pleaded not guilty, advanced the argument that he was a statesman and a peace maker in the region at the time the crimes were committed. This defence was overruled by the judges. Taylor is the first head of state or former president in Africa to be convicted by an International Criminal Court of crimes against humanity and comes second in the world, after a former Naval Chief Admiral Karl Doenitz who was leader and President of Germany after Adolf Hitler’s demise, Karl Doenitz, was tried and convicted by the first International Criminal Tribunal at Nuremberg 1945 for taking part in a conspiracy to commit crimes against humanity.

Reflections on Taylor’s landmark trial and verdict raise numerous legal and political issues and lessons pertinent to Kenya’s situation today.  There is justification to argue that in the Kenya case, there is apparent failure of leadership and control in the management of the post – election violence situation and more importantly, the resulting indictments of Kenyans at the ICC.

The same day the Charles Taylor verdict was delivered the East African Legislative Assembly passed a motion seeking to transfer the ICC trials facing Kenyan suspects from the ICC at the Hague to the Arusha based East African Court of Justice. The motion was presented and discussed before the 10^th Extra Ordinary Summit of heads of states of the East African Community which President Kibaki chaired in Arusha Tanzania on 28^th April, 2012. The summit directed the Council of Ministers to consider the matter and report by end of May 2012, on a Resolution to extend jurisdiction of the court to cover crimes against humanity.

The Assembly resolution came barely two days after President Kibaki announced during his state of the Nation Address that the government was exploring mechanisms to have the I.C.C cases tried locally. The question that comes to mind is; can the ICC trials which are purely governed by international law recognized by Kenya’s Constitution and the International Crimes Act 2008 be stopped or be subjected to local political machinations aimed at deferring, suspending or transferring them to a court other than the ICC? Can political expediency of the government of the day or regional interests under the auspices of the East Africa Regional Assembly be a factor in requesting for such a move?

 This move by Kenya like many others before it, is misguided, ill advised and political. First, the EALA has no legal mandate to legislate on matters purely Kenyan without appropriate statutory backing and/or resolution of Kenya parliament.

Second, the East African Court of justice is not a criminal court, and it has no jurisdiction over the crimes, the subject of the Rome Statute and, hence, I.C.C.

Third, any Resolutions by the East African Court  at this juncture granting it jurisdiction to try the Kenyan I.C.C suspects or to refer to the I.C.C cases to the Court would be in conflict with international law, the UN Charter, the Rome Statute and even worse, inconsistent with the letter and spirit of the Constitution of Kenya together with the International Crimes Act, 2008.

It would arguably be to the detriment of the ICC suspects themselves as it could be interpreted to mean or amount to obstructing the course of justice and offences against the administration of justice under Article 70 of the Rome Statute; subversion of the law regarding obligations imposed by Rome Statute or ICC Rules on Kenya as a state party requiring co-operation with the ICC.

The actions being undertaken by the Government may in due course or in the fullness of time, fall foul of the law, as contravening or attempting to contravene the Constitution.

Overall, the picture being presented is one of  indecision, confusion and a conspicuous lack of legal and political direction on this issue. This is not only worrying but equally embarrassing the country. It is, for instance, embarrassing for the President to send statements to the ICC or to be let to make public announcements touching on the on-going ICC process or take other actions that have implications on the entire ICC legal process without appropriate legal and political advice. Just who advises who in this country? Who takes whose advice? 

A while ago  the president publicly directed the Attorney General to appoint a panel of lawyers to advice on the ICC issue. Should the Attorney General the one to be directed or advised by the President on what to do or should it be the other way round. The Attorney General is the Chief Legal Adviser to the Government who has the capacity to review situation and render appropriate advice on the course of action for Kenya, but of course within the laws applicable.

The actions by various state actors with regard to the ICC process in Kenya do not present any clear policy, political or legal position. For instance, the two Principals executed an Agreement for the establishment of a Local Tribunal here in Kenya in accordance with the recommendations of the Waki Report. The implementation of the Waki Report stalled soon thereafter. Parliament then passed the International Crimes Act, 2008, which gave an indication that Kenya was willing to co-operate with the ICC. In the meantime, the ICC Special Prosecutor Luis Moreno Ocampo visited Kenya and had a cordial and entertaining visit during which he was hosted by the President and also the Prime Minister. There was no protest and or any sign of disapproval, displeasure or discomfort with the ICC process from any of the State actors involved.

Almost immediately after the Ocampo Six were named, the President issued a public statement affirming the ICC Process, and promising that if any of the charges were confirmed against any of the suspects, the government would take action, including removal of affected persons, from government positions. Sometimes in between, Parliament endorsed a Motion calling for withdrawal of Kenya from ICC. The effort for withdrawal of Kenya from ICC does not seem to have metamorphosised into reality.

However, like other moves before and after this motion, the attempted withdrawal of Kenya from the ICC does not help maters as such withdrawal can only take effect a year after the notification is received by the Secretary General of the United Nations. The withdrawal will not in any way affect the continued consideration of any matter which is already under consideration prior to the date on which the application become effective

It is apparent that the coalition Government in Kenya has failed to effectively handle the post-election situation so as to ensure punishment for those responsible, and justice to the victims of the crimes, sustainable peace and reconciliation.

Kenya needs to consider whether it would be better, as the Rwandan Government has argued, if more locally relevant mechanisms of justice were established and applied, so that the victims of the post election violence can themselves decide whether its appropriate to punish and or whether it is appropriate to forgive. We cannot remain confused, sit aloof or indecisive for far too long without suffering serious legal and political consequences.

 Ultimately, Kenya must realize that many conflicts in society must be understood as struggles by the poor to hold the powerful to account. Government accountability is key to delivery of sustainable solution to peace, prosperity and sustainable development.

Ashford Muriuki Mugwuku is an advocate of the High Court of Kenya and a former defence counsel at the UN – ICTR, Arusha, Tanzania