Prosecuting International Crimes in Africa - PULP - University of ...

138 Chapter 5
that there were no mitigating circumstances as he failed to express any
genuine remorse whatsoever for his crimes. Arguably, the practice by the
SCSL is similar to the approach taken by the ICTR and the ICTY in so far
as mitigating and aggravating factors are concerned. The Trial Chamber,
however, has offered limited insight into reasons behind their decisions to
accept and or reject the defence’s submissions both in the Brima and
Kamara cases on mitigating circumstances.
As said before, the SCSL is also mandated by article 19(3), where
appropriate, to take into account the sentencing practice by the Sierra
Leone national courts and other ad hoc tribunals. In the Brima case, the
prosecution submitted that the comparisons with sentences imposed by the
ICTR were of limited value because most ICTR cases were concerned with
genocide a crime outside the jurisdiction of the SCSL. Further that, in
many cases the penalty for genocide has been life imprisonment which the
SCSL cannot impose. 138 The Chamber, rejecting this submission, held
that it will consider the sentencing practice of the ICTR in determining the
terms of imprisonment, 139 And that it would take into account the
sentencing practice of the ICTY since its statutory provisions were
analogous to those of the SCSL and the ICTR. 140
The Prosecution further argued that there was no specific guidance
discernible from the national courts of Sierra Leone because the crimes
under the jurisdiction of the court were not specifically addressed under
Sierra Leonean law. 141 The Chamber pointed out that even though it is
authorised to take into account the practice regarding prison sentences in
the national courts of Sierra Leone as and when it is appropriate, this does
not oblige the Chamber to conform to that practice. 142 To that end, the
Chamber held that it was not appropriate to adopt the practice in the case
as none of the accused persons was charged with or convicted of crimes
under Sierra Leonean law as provided for under article 5 of the Statute of
SCSL. 143 This pronouncement seems to espouse the position that the
sentencing practice of the Sierra Leonean national courts only become
relevant if the offence is one provided for under article 5 of the Statute of
the SCSL, that is, offences relating to the abuse of girls under the
Prevention of Cruelty to Children Act (1926) and offences relating to the
wanton destruction of property under the Malicious Damage Act (1861).
As highlighted by the decisions of the SCSL Trial Chamber, most of the
crimes falling within the jurisdiction of the SCSL find no corresponding
offence within the penal laws of Sierra Leone. The application of the
138 Para 26.
139 Para 32.
140 Para 33.
141 Para 27.
142 Para 32.
143 Para 33; the said offences are offences relating to abuse of girls under the Prevention of
Cruelty to Children Act of 1996 (Cap 31) as well as offences relating to the wanton
destruction of property under the Malicious Damage Act, 1861.