By Pravin Bowry
The recent conviction of Charles Taylor, former President of Liberia in The Hague at the International Criminal Court is indicative of the changing boundaries of modern criminal law.Closer home, how can crimes committed in Kenya be tried at the Hague or how can a Kenyan be arrested and taken to Guantanamo Bay and held in custody without trial or another set of Kenyans whisked to a neighbouring country to be charged are the questions Kenyans are asking themselves.
Gone are the days when only the local and national laws prevailed, as mainly codified in the Penal Code.Treaties and a multitude of conventions and new constitutions of countries are forcing courts to interpret domestic laws in a way that conforms to standards of international laws.
Burden of proof
An example is the European Convention on Human Rights which in England was domesticated through the English Human Rights Act, 1998.Modern criminal law is best understood in light of distinctive set of procedures which are developing in criminal law jurisprudence.
The emphasis is on ‘Due Process’ which has resulted in criminal laws being interpreted on the basis the rights of an individual vis-à-vis the State are paramount.Rights such as fair trial, to be presumed innocent, or not to subject a suspect to degrading treatment all have implications for investigators, prosecutors, the whole trial process and on the punishment the courts may impose.
The rule of law can be summarized as the overbearing umbrella and values in criminal law – in Kenya now embodied in the Constitution – which emerges as a cluster of procedural requirements, consistency of laws, general, as distinct to selective application, certain in effect, clear, and prospective rather than retrospective.
Principle of equality before the law – the idea that all the citizens including the rulers and lawmakers should be subject to law – in accordance with constitutional procedure – has now been well embedded in criminal law.Presumption of innocence and the associated burden of proof beyond reasonable doubt appear necessary foundations to the realisation of the rule of law.
It seems ‘Due Process’ has become an important concomitant of moral retribution in criminal law and liberal conceptions of the citizens right against the State.
Most suspects facing criminal charges in Kenya are now enforcing these new found rights. Jurisprudence is changing fast with massive increase of litigation in the constitutional and human rights docket of the courts.Since the nineteenth century in the common law jurisdictions, the fundamental principles of criminal law have remained the concept of “fault”, or “intention” or as the lawyers call it “mens rea’ or “the guilty mind”. There can be no crime without fault, it was thought.But all this in modern criminal law is far from reality, and many serious criminal offences do not adhere to this thinking.
Liability without fault ranges from health and safety legislation to environment laws, often dubbed “regulatory offences”.
doctrine of precedent.The Kenyan legal draftsman urge to adopt and craft laws from other jurisdictions in an age where laws are being made at jet setting pace, prompted by time limits of the Constitution, is creating strict liability offences without parliament appreciating the consequences.
An example of very serious strict liability criminal offence is contained in the Sexual Offences Act – the offence of having sex with say a 17-year-old attracts imprisonment of not less than 15 years irrespective whether the act is by consensus or not, whether the victim has reported the matter or not and whether or not the victim is desirous of indeed prosecuting, say, a boyfriend.
With all that is happening in the Judiciary, the doctrine of precedent – the method of making decisions in individual cases in the light of principles exemplified in previous judicial decision – is also changing. Courts are openly and bluntly disregarding previous decisions to suit a particular thinking process and adopting modern laws from other jurisdictions where precedent law has been downgraded.
The modern conception on precedent has remarkably been stated by Lord Goddard C.J. thus:“This Court .....has to deal with questions involving liberty of the subject, and if it finds, on reconsideration that in the opinion of a full court assembled for the purpose, the law has been either misapplied or misunderstood in a decision which it has previously been given ....it is the bounden duty of the court to reconsider the earlier decision with a view to seeing whether that person has been properly convicted”.
Are decisions of judges who have been sidelined from their offices as binding as they should be or is the value of these decisions diluted? Will somebody argue that a decision of Judge X should not be followed because of his image or perceived actions or misconduct?o Criminality is far from certain in these times of change, and suspects are bound to exploit new avenues.
The writer is a lawyer.
bowryp@hotmail.com
