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

244 Chapter 11
3.3 Capacity problems
Any legal system hoping to prosecute suspected pirates ought, as a
condition precedent, to have sufficient capacity. Such an undertaking calls
for, amongst others, solid judicial and prison systems. The legal system in
question should further have the necessary resources to gather and
organize evidence – even across the borders – for effective and timely
prosecution. Such is no mean task. For instance, it is hard to find the
shipping crew in one place to give evidence. Indeed, ‘shipping crews are
constantly on the move, and it is very inconvenient to bring them to a
specific place at a specific time to testify in court’. 57 It is equally not beyond
pirates ‘to kill all crew members and leave no witnesses to their crimes’. 58
There is in addition need for expertise both in international criminal law as
well as in the presentation of evidence for prosecution purposes. Even
more critical, in the case of Somali pirates, language challenges have often
prompt up, sometimes leading to the compromising entitlements such as
those of accused persons. The challenge was manifest in Seychelles’’ case,
The Republic v Mohamed Ahmed Dahir & 10 Others, Supreme Court of Sychelles,
where the defence complained that the accused were not explained their
constitutional rights – to counsel, to remain silent and to be informed of the
reasons for their arrest and detention in a language understood by them –
before being arrested. The Court’s response is instructive:
Of course it was impracticable to provide a lawyer to the accused while at sea.
Even if counsel were to be assigned at the time there was no Somali/English
interpreter in the country to assist him and the police as well as the court until
the United Nations Office on Drugs and Crime (UNODC) procured one from
overseas, ‘… as soon as it was reasonably practicable thereafter’, in line with Article
18 (3) of the Constitution. 59
The infrastructural capacity defined above is hardly available in Kenya,
which, in early 2009, signed agreements with the United States and the
United Kingdom allowing for the extradition of suspected pirates for
prosecution in Kenya. 60 The legal system has many challenges. To begin
with, the judicial system suffers from the crisis of backlog of cases, a
dilemma that threatens to cripple the entire apparatus. By December 2009,
the cases pending before the Court of Appeal in Nairobi and its circuit
stations were estimated at 2,372, the High Court stations at 115,344 and
magistrates’ courts at 792,297 making a total of 910,013. Of the cases in the
magistrates’ courts, 144,963 were classified as criminal cases, 398,136 as
traffic cases and the rest as civil cases. The said report defines backlog as
57
58
59
Panjab (n 2 above) 450.
Panjab (n 2 above) 450.
The Republic v Mohamed Ahmed Dahir & 10 Others, Supreme Court of Sychelles, Criminal Side
60
No 51 of 2009. Judgment of D Gaswaga dated 26 July 2010.
The Extradition (Contiguous and Foreign Countries) Act, chapter 76, Laws of Kenya,
Revised Edition, 2009. The treaties are contained in a Schedule to the Act.