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Field Research Trip to Nairobi, and the Myth of “Capacity Building” in the Fight against Piracy in the Horn of Africa

Guest lecture at the United States International University, Nairobi.

Guest lecture at the United States International University, Nairobi.

News from Mar 01, 2016

As part of my work in the Collaborative Research Center (SFB) 700’s Research Project C11 - Charting the International Legal Framework for Security Governance by External Actors in Areas of Limited Statehood, I traveled to Nairobi (Kenya) in October 2015 to conduct field research. Project C11 is concerned with the question of how cross-border criminality, which often flourishes in areas of limited statehood, can be countered most effectively. But why is Kenya interesting? The current model of international criminal law places responsibility for combatting transnational criminality on the states. Treaties dealing with this type of criminality determine the structures of cooperation and the ways in which a state can or must declare itself responsible for prosecuting alleged offenders in its law enforcement and justice system.

Kenya stood out from 2007 to 2014 for its fight against piracy along the Horn of Africa. While Western states mostly attempted to combat perpetrators on the high sea by deploying their marines, the heavy burden of criminal prosecution was divided among three regional states through bilateral agreements: Mauritius, the Seychelles, and Kenya. Of these three states, Kenya by far sentenced the most perpetrators. The system currently in place has never been implemented to such a great extent.

Although many doubted at the time whether Kenya would be able to rise to this challenge considering its limited resources and human rights situation, others repeatedly argued that the international cooperation would contribute to a kind of capacity building within the Kenyan justice system. My research trip aimed to investigate this argument.

I was especially interested in how the guarantees regarding basic rights to a fair trial, which the European states required of Kenya through a “Memorandum of Understanding,” actually play out in the Kenyan criminal justice system. The answer to this question is sobering. Although these rights were decidedly written into articles 49–51 of the new 2010 constitution, most of my interview partners agreed that this improvement cannot be attributed to the fight against piracy. This is particularly glaring in relation to court-appointed legal counsel: In order for a criminal proceeding to fulfill the requirements of due process according to Article 6 of the European Human Rights Convention, the accused must have the right to a court-appointed lawyer. This was one of the guaranties that Kenya accepted in the Memorandum of Understanding. Yet, even though Article 50, clause 2(h) guarantees the right to a court-appointed counsel, it only applies when a failure to do so would result in a substantial injustice. The courts almost never determine that this is the case. Thus, the right to a court-appointed defense is essentially only guaranteed when the accused faces the death penalty (for murder or high treason).

Another interesting finding was that the Kenyan population views international penal jurisdiction (for example, through the ICC) not nearly as negatively as the government does. Taken together, these two main insights can be summarized as follows: international cooperation in the framework of combatting piracy has not led to any tangible development aid for the Kenyan justice system, thus refuting the argument in support of the current legal framework. The Kenyan population takes a rather positive view of international criminal jurisdiction, suggesting that they in no way share the government’s position that it represents a postcolonial instrument used by Western states with a sole focus on Africa.

About the author:

Cedric Drescher is a research associate in the project C11 - Charting the International Legal Framework for Security Governance by External Actors in Areas of Limited Statehood. His work investigates whether the legal framework currently in place to prosecute transnational criminality is also appropriate for areas of limited statehoo.