Rule of Law & Maritime Capacity Building in Somalia: Part 2

David Hammond continues recounting his experiences as a UK representative for the Foreign and Commonwealth Office (FCO) and legal advisor to the European Union (EU) in Somalia for the establishment of the East African Legal Advisory Programme in support of the current EU counter-piracy programme.

In the short period of time the EU team had in both Somaliland and Puntland, I had concentrated rounds of engagements with Ministers for Justice, Attorney Generals, Directors of Public Prosecution and Ministers of Interior and Security to name but a few. Their unified message was reflected in all of our meetings. In addition to the humanitarian assistance provided through the United Nations (UN) and other Non-Governmental Organisations (NGOs), further expert support for government departments was required in terms of monitoring, mentoring, training and advisory roles in the maritime and counter-piracy environment. Those departments needed western legal expertise to continue with the advancement of their own domestic legislation, judicial engagement in the lawless coastal areas and development of general legal skills. Consequently, our offers of such assistance were warmly welcomed.

The Somali ministers appeared not to want a permanent western legal presence in their respective states. Instead, their needs focused on the imparting of expert knowledge and experience so that the future Somali legal framework, including supporting lawyers and judiciary, could be developed into a self-sustaining model. While piracy reflects a small number of prosecutions in comparison with other domestic offences, its weighting in terms of worldwide political and commercial interest means that combating this maritime threat is a key priority within Somaliland and Puntland.

During the meetings we spoke about many other topics. We discussed at length the value of continuing professional development, future development of legal modules in Somali academic institutions (there are functioning universities in Somaliland and Puntland), in-country judicial training and the expansion of both human and women’s rights within the Internally Displaced Persons (IDP) camps.

Within the context of the Legal Advisory Programme, it was clear that for the Somali projects currently being drafted, such topics would need to be addressed by a particular kind of lawyer. It would require someone with the correct depth of legal expertise, balanced with unwavering professional drive and innate common sense. Such qualities are essential to successfully deliver weighty projects in what was, frankly, one of the most dangerous environments I have yet to work in.

I was fortunate to have full, detailed and open discussions with all interested parties and consequently, I was able to identify essential areas of need. By way of example, the Somali Criminal Procedure Rules have been little amended since 1962, yet are still used on a daily basis. There is no current coastguard legislation (at the time of writing this article), nor detailed judicial understanding of how international law and convention maybe applied to domestic legislation. This is especially so when dealing with acts of piracy. In such matters, suspects are often arrested by foreign naval forces in the western Indian Ocean, eventually handed over to the Somali authorities and then tried under separate offences for violence and kidnap which are better understood by the authorities.

A unique experience: Sentencing of pirates in Garrowe

On one noteworthy occasion during a visit to Puntland, I was quietly hustled out of a meeting with the Minister of Transport by the future Minister of the (yet to be established) Coastguard and taken on my own into Garrowe to the guarded court compound. It was explained to me that the sentencing of nine pirates recently transferred from the Seychelles was taking place and that I should witness the proceedings. Before I knew it and as the only European in court, I was accompanied by armed militia and pushed into a packed courtroom which seemed, at first glance, to contain more weapons than people.

The court space was tiny. I assessed it to be no more than eight meters square but which contained the entire proceedings as well as the evidence. This included the four man bench, the dock, the DPP with supporting lawyer and the defence representative. Piled in front of the bench were all the exhibits. These included rusting AK47s, hand guns, a Rocket Propelled Grenade (RPG) launcher and what I presumed were rockets with live warheads.  There were mobile phones, SIM cards, boat and grappling hooks and a homemade boarding ladder.

I stood next to the DPP within arm’s distance of both the dock and the first of the nine pirates. All other space was packed with locals and even the court windows were wide open with faces peering in through the bars. I was given a cursory nod by all and sundry on my unceremonious entry, before the designated judge continued with his sentencing. It was hot, fragrant (with that many bodies pressed together) and the pirates all received five years in Garrowe prison, as well as a 10 million Somali Shilling fine (about £4,000). Of note, in Somalia, five years means five years.

Juvenile pirates

Of significant concern, I noted that within the group there were two pirates who appeared only a few years older than my eldest son. I assessed them to be aged about 12-14 years old and unlike the others, they had no obvious facial hair, their features were not as lean and they had the distinct look of children. To be honest this shocked me, particularly as they had just received a sentence of five years in an adult prison. Alternatively, maybe I was naïve in what I was expecting to witness?

I raised the issue with both the Puntland AG and Minister of Justice and Religious Affairs later that same day. I was informed that there was no juvenile legislation, no juvenile courts or protection for children if they were caught with adults taking part in acts of piracy. In short, they received the same sentence and were confined with adult offenders. The chances of molestation, rape, injury or even death were represented to me as being significant if they were not afforded clan protection inside the prison. Those juveniles would be open to undue influence and were not in any position to be able to separate themselves from criminal behaviour and further adult manipulation. This made me consider just how advanced we are in the protections we rightly afford to juveniles, including rehabilitation, mentoring and opportunities for further education. None of those safeguards existed for the two pirates I assessed as being boys and as later independently confirmed by the local authorities. I confess to feeling rather uneasy as they were taken away; assuming that they were actually pirates in the first instance and that the trial had not been otherwise staged.

In sum, this article is but a snapshot of what continues to be a highly rewarding instruction. The main effort is to now ensure that the EU recruits the best lawyers and paralegals to work in such challenging environments as part of the East African Legal Advisory Programme. Outstanding work includes the drafting of the detailed legal projects, job specifications and supporting mission planning documentation; including assisting in the development of text for the legal mandate. Most importantly however, it is to ensure that all recruited legal staff will be in the best possible position to deliver the rule of law projects and thereby achieve lasting regional effect on behalf of the EU. As one Somali said to me; “Do not come if you cannot help us, and do not promise what you cannot deliver”.

David Hammond, Barrister-at-Law, Pupil of Quadrant Chambers, London

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