DAY ONE
meant that there was a need to keep abreast of the times. Training was
essential to ensure independence and impartiality.
Kenya was "besieged" by transnational crime. Accordingly, to be "on top
of the situation and not be led by events", skills and mechanisms were
needed. While the cost of such crimes might be calculable, the misery and
suffering caused by them were simply incalculable. Crime and criminals
moved from area to area, and so a global approach with shared use of
resources was called for.
crimes, such as war crimes, crimes against humanity and genocide, and
Kenya's post-election violence.
What he would be discussing were transnational crimes: these were crimes
that involved more than one country and were prosecuted in the domestic
rather than in the international courts. We found ourselves at a time of
growth, an experience that he described as "exciting but disturbing".
Background: public international law
Such crimes have an international aspect and so raise issues of public
international law because the interests of more than one country are
involved, with the result that international law issues become important in
the context of what would otherwise be purely domestic trials. Prosecutors
had to be able to explain how international and national aspects were
related; a knowledge of public international law was thus essential for
anyone wishing to prosecute in this field.
90% of countries follow international law 90% of the time
In reply to the often heard challenge that there was no such thing as
international law, he observed that it was like domestic law, inasmuch as
90% of countries followed it 90% of the time. Although it essentially
governed relations between states (which were the subjects or "actors",
while people were the objects), international human rights law had
nevertheless made inroads and individuals too could now invoke rights.
Sovereignty
The cornerstone of all international law was the principle of state
sovereignty, whereby all states were equal in law (if not in reality), exerted
control over their territory, and so had a duty of non-intervention vis--vis
other states.
The sources: treaty and custom
The sources of international law were treaties and custom, with treaties
being similar to a contract in that they imposed reciprocity. Treaties not
only addressed crimes but, in what was a relatively new development,
could create crimes. This was something of a revolution, i.e., whereas in
the past criminal law had come from state law, here it was being
"imported".
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hypothetical, some real- showed just how hazy the area was, especially
where cyber crime was involved, though there did seem to be a distinction
under the Budapest Convention between hacking as such and obtaining
information that was publicly available on a website.
Co-operation
The way states dealt with territorial limits on enforcement was via cooperation, in the form of extradition and mutual legal assistance (MLA),
whether by treaty or request, and/or policing co-operation. Whereas
extradition involved the arrest and surrender of individuals, MLA involved
evidence gathering, search and seizure, and witness testimony. Policing cooperation, which could be bilateral, regional, informal or formal (e.g.,
Interpol, treaties), could be seen in hot-pursuit and ship-rider agreements.
Q&A
What the participants thought: perceived problems and human rights
issues
At this point, Prof. Currie paused to ask his audience how they saw their
extradition relations. There was a feeling that, while there were problems
posed by resistance and language on the international front, regionally
extradition was an altogether faster process, thanks to the introduction of a
simplified search warrant recognised by Kenya, Uganda and Tanzania.
In reply to the question, "What made extradition bumpy?", the matter of
human rights issues was raised. The example given was a case involving
the UK, in which allegedly poor prison conditions in Kenya had been used
to contest a request for extradition.
Taking his cue from this example, Prof. Currie now turned to discuss
human rights issues in the context of Canada, where the streamlining of the
extradition process had led to concerns about US laws on the possession of
marijuana and the death penalty. Kenya, he was told, would not surrender
fugitives to countries where the death penalty was applied or where there
was a possibility of torture. Prof. Currie commented that such cases were
good examples of where assurances would be demanded, and in this regard
noted that suppression treaties had given rise to uneven protection.
Whereas there was clarity in the case of torture (United Nations
Convention against Torture) this was not so in other cases, such as the
death penalty.
We had reached a situation where co-operation could amount to a breach
of human rights norms.
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However, some of the participants felt that here was a double standard at
work, whereby it was easier for Kenya to accede to an extradition request
than obtain an extradition. This in turn suggested the possibility of political
pressure being brought to bear. It appeared that, rather than applying
reciprocity, some commonwealth countries actually insisted on there being
a bilateral treaty obligation.
Prof. Currie noted that there had been change in slant: whereas the dual
criminality principle, non-discrimination and political offences had
formerly been grounds which governments could invoke, the presence of
the human rights factor now meant that these were grounds which
individuals could invoke.
Similarly, human rights were also creeping into the area of MLA,
specifically affecting the admissibility of foreign evidence gathered broad,
sometimes irregularly and often in places where protection was laxer.
Under the Kenyan Constitution, this was a highly relevant issue and one
that should be brought to the attention of judges.
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DAY TWO
Warm-up
Starting the day on an informal note, participants were invited to toss a
small ball to one another and take turns in quickly summing up their
experience of the previous day and what they felt they had learnt.
Topics highlighted included universal jurisdiction, legislative jurisdiction,
sources of international law, the need for inter-state co-operation, and the
difference between migrant smuggling and human trafficking. Some felt
that the lecture had been an "eye-opener", while Prof. Currie himself felt he
had been given added insight into practical issues.
In view of the interest expressed in the topic of extradition, Mr. Victor
Mule, Assistant Director of Public Prosecutions, graciously agreed to give
his fellow participants a rapid overview of the subject, with a practical
checklist and a mention of some case illustrations.
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legal basis;
treaty requirements;
domestic law requirements in requested State;
identity of person sought, including nationality, location, passport,
national identity, photograph, DNA, fingerprints, etc;
facts and procedural history(overview) of case;
legal provisions: penal provisions, time limitations etc.;
warrant of arrest duly authenticated; and,
charge sheet (rationale: dual criminality).
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The debate that followed was as insightful as it was animated: hate speech,
"revenge porn", cyber-bullying, cyber-stalking were mentioned, as was the
fact that Kenya was looking to draft a comprehensive Act that would be
truly enforceable. Further subjects raised included the overwriting of data
by ISPs and cybercafs, and the newly created "right to be forgotten".
Cloud computing gave rise to the conundrum of where (if anywhere) the
data were being stored.
Money laundering
Before bringing his presentation to a close, Prof. Currie briefly touched on
the crime of money laundering, tracing its origins back to the US-led hunt
for gangsters' profits. The currently prevailing definition of concealing,
disguising, converting, transferring or removing criminal property was to
be found in the UK 2002 Proceeds of Crime Act.
Most of the substance for counter-measures against money laundering
came from the "40 Recommendations" for best practices issued by the
OECD's Financial Action Task Force.
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ork groups
Following a short tea break, the participants were randomly split into 4
groups, and asked to the discuss four topics and then present their
conclusions and/or recommendations. To ensure a frank and open
exchange, the session was held under Chatham House Rules.
[For a summary of the topics and main conclusions please see the
following page]
The workshop concluded with Mr. Nicholas Mutuka, Head of the Cyber
Crimes Unit, taking the floor on behalf of all the participants and
expressing his profound thanks to the Wayamo Foundation and to Prof.
Currie in particular for the clarity of his teaching and what had been an
invaluable learning experience. Prof. Currie said that the sentiments were
fully reciprocated and insisted that he very much suspected he had learnt
more from the participants than they had from him!
Ms. Ambach then expressed her gratitude to Prof. Currie and all those
present for a truly profitable two days, and asked the participants to help
the Wayamo Foundation in its work by taking a few moments to evaluate
the workshop, assuring them that their feedback, good and bad, would be
taken into account when planning future events.
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