This thesis is about achieving local procedural legitimacy through fair, culturally relevant sentencing procedures. Its scope, is reconciling international due process guarantees and a traditional notion of rights, in sentencing procedures of the International Criminal Court. My interest in this topic arose from the 2003 Uganda Law Reform Commission study on sentencing legislation reforms. There, participants regarded clan courts as functional in rural areas, because they had more informal, conciliatory sentencing processes than the ?alien? national courts. I later became aware that incorporation of traditional restorative processes may also help solve problems of legitimacy at the international level, as manifested in the case of Joseph Kony, discussed in Chapter 1 of this thesis. I then investigate whether the international sentencing framework could accommodate features of traditional restorative process despite incongruent standards, and if so, how this could be achieved. I argue that procedural rights ought to underpin this reconciliation, harnessing aims of international criminal justice with traditional restorative justice. Through my translation model, I propose small structural changes to international sentencing practice, and doctrinal reforms based on precedent. Using critical legal analysis and a small empirical study, the thesis demonstrates how translation could achieve just, culturally apposite sentencing outcomes. The International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone provide insight into challenges to accommodating African normative standards. Nominal guidance from the African human rights mechanism and national courts, on an African notion of procedural fairness, further complicates this reconciliation. I conclude that we could translate laws across divergent legal systems, drawing from experiences of clan courts that assimilate legal structures and concepts from national courts. Major international instruments: Rome Statute 1998, United Nations International Covenant on Civil and Political Rights 1966 and the African Charter on Human and Peoples? Rights 1981, are evaluated against this model.
|Date of Award||2009|
|Supervisor||Richard Young (Supervisor) & Malcolm D Evans (Supervisor)|
- Sentencing : kinship justice : clan courts : Human Rights : community participation : legal translation