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Wayamo Foundation

Two-day Workshop on Transnational Crimes


Tuesday 1st and Wednesday 2nd July 2014, 9 am4 pm
Venue: Fairview Hotel, Nairobi
Presiding
Ms. Bettina Ambach, Director, Wayamo Foundation
Welcoming address
His Excellency Mr. Andreas Peschke, Ambassador of the Federal
Republic of Germany
Mr. Jacob Ondari, Deputy Director of Public Prosecutions, Office of
the Director of Public Prosecutions
Guest lecturers
Robert J. Currie, Associate Professor, Schulich School of Law,
Dalhousie University, Halifax, Canada
Ms. Reiko Fujibayashi, United Nations Office on Drugs and Crime
(UNODC)
Mr. Victor Mule, Assistant Director of Public Prosecutions, Office of
the Director of Public Prosecutions
Participants
Public prosecutors, criminal investigators and court reporters

DAY ONE

Welcoming remarks by Ambassador Peschke


Displaying an admirable command of both Kiswahili and English,
Ambassador Peschke underscored the fact that transnational crimes posed a
serious threat to the rule of law all over the world.
Specifically, wildlife crime in all its aspects -killing, smuggling and salehad risen to alarming dimensions. Nature was something that transcended
boundaries and affected us all.
Tackling and defeating transnational crime was our joint responsibility and
required collaboration between states. This was why this workshop was so
pertinent, and why the German government supported the effort and
welcomed the advent of the International and Organized Crimes Division
(IOCD) in Kenya. The process required two steps: firstly, the setting-up of
specialised units IN the CID and DPP, then the establishment of the
division in the High Court of Kenya; and secondly, training, coupled with
liaison to ensure effective co-operation between these three arms.
Wayamo had done significant work in all these areas, something that had to
be seen in the bigger picture as forming part of broader co-operation
between Germany and Kenya.

Welcoming remarks by Mr. Ondari


Germany was a valuable partner in the fight against transnational crimes
and this workshop was part of a series of events aimed at training various
departments. Indeed, the reason for being here today was that, due to a lack
of formal tuition in the subject, on-the-job training in international law was
required.
Thanks to international co-operation, Kenya was a leading partner in
prosecuting piracy but the ever-changing nature of transnational crimes

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.

Introductory remarks by Bettina Ambach


After thanking both speakers, Ms. Ambach also expressed her gratitude to
the German government for its support.
She briefly informed the audience about the imminent establishment of the
International Nuremberg Principles Academy in the Southern German
city of Nuremberg. She pointed out that a few Kenyans had already been
part of Wayamos trainings in international criminal law organized in
Nuremberg and that she hoped the exchange with countries like Kenya,
Uganda, Rwanda, South Africa and Sierra Leone would be strengthened:
there was a need to pursue co-operation between the national and
international levels.
Regarding the role of the Wayamo Foundation in the IOCD establishment
process, she explained her role as that of helping to build up the capacity of
the three pillars -judiciary, prosecution and investigation- and stakeholders.
Lastly, she drew participants' attention to the link between international
core crimes and transnational crimes.
IMPORTANT NOTE: These opening remarks were followed by a session
during which Prof. Currie lectured until the mid-morning coffee break, Ms.
Reiko Fujibayashi took over and continued until lunch, and Prof. Currie
spoke for the remainder of the day. For the sake of clarity, continuity and
ease of reading, however, Ms. Reiko Fujibayashi's presentation is reported
first and Prof. Currie's address is reported second, with the natural break
between days one and two.

Presentation by Ms. Reiko Fujibayashi


Ms. Fujibayashi presented the UNODC's threat assessment of transnational
organised crime in Eastern Africa, explaining by way of introduction that,
when examining these types of crimes, issues of security, impunity,
conviction and witness protection could not be overlooked. Among the
tasks in which the UNODC was engaged, she listed: the drawing-up of
manuals and the holding of training courses to enable investigators and first
responders (immigration officials) to tackle human trafficking; legislative
amendment exercises; international co-operation mechanisms such as the
East African prosecutors network; a container control programme; and a
regional network of judges.
Driven by the UN Convention against Transnational Organised Crime
(UNTOC), the UNODC covered 9 East African countries, where it initially
carried out an assessment and then followed this up with capacity-building
exercises.
The main threats and the need to follow the money
Briefly identifying the main threats as piracy, migrant smuggling, heroin
trafficking and the trafficking of ivory, Ms. Fujibayashi went on to address
each in turn.
Piracy
This merited attention in view of the revenue it generated, e.g., in the case
of Somalia this amounted to 15% of the country's GDP in 2011. There had
been a spurt in piracy since 2005 but, as her maps eloquently showed,
effective counteraction had forced the pirates to operate increasingly
further from the coast. The increase in risk associated with these protracted
expeditions had in turn led to a decline in the number of hijackings, thereby
undermining the pirates' profit margins in terms of the ransoms paid.
Interventions in this area should include building up a sea-going law
enforcement capability, ensuring cash incomes from fishing activities,
preventing money laundering, and implementing financial controls.
Migrant smuggling
There were two major flows of migrants from the Horn of Africa to the
Arabian Peninsula, with Eastern Africa being both a point of origin and
transit. There had been a noticeable increase in movement. Possible

interventions ranged from criminalising the activity through the appropriate


legislation to strengthening investigation resources. When it came to
making migrant smuggling significantly more difficult, however, care
would have to be taken to ensure that this did not increase the risks for the
migrants themselves. Public awareness would likewise have to be enhanced
Heroin seize it before it lands!
Not only had the flow risen, but the prevalence of blood-borne disease and
known injection drug use made the spread of heroin throughout the region
a further cause for concern. There had been an increase in heroin seizures
in Eastern Africa versus a decrease in the amount seized on the Balkan
Route, indicating that Eastern Africa also served as a transit zone to other
regions. The goal in every case was to seize the heroin before it landed,
i.e., before it reached the region's porous borders, isolated coastal areas and
busy ports. Interventions had to focus on intelligence sharing (where lack
of internet could be a problem), improving investigation and resources, and
capacity building.
Ivory trafficking
On broaching this subject, Ms. Fujibayashi brought in other wildlife crimes
such as illegal logging. The key, as in most of these types of crimes, was to
trace the finance. Recent research indicated that the rate of poaching in
Eastern Africa had increased, rising to levels that could threaten the local
elephant population. Large ivory shipments from Africa to Asia appeared
to pass through the container ports of Kenya and Tanzania, thereby making
these possible points for intervention. With the aid of a series of charts Ms.
Fujibayashi reported the number of illegally killed elephants and ivory
seizures. Ranking organised crime and corruption among the most acute
problems, she stressed the fact that care had to be taken to train the right
people. Aside from training, international co-ordination, provision of basic
resources and awareness campaigns, interventions should also include
research into the routes and methodology used to move ivory within Africa.
TOCUs
Transnational Organised Crime Units (TOCUs) were elite, multi-agency
teams made up of vetted staff, trained and equipped to consistent standards
and working according to standard operating procedures. Underscoring the
importance of training and strong regional connections, Ms. Fujibayashi
listed the TOCUs' key capabilities as intelligence gathering and analysis,
target development, tactical operations, investigations with modern
investigation techniques, and liaison with INTERPOL/NCB

Challenges ranged from extremely porous land borders and largely


unpatrolled coasts to unmonitored airspace, poor conditions of service,
corruption, logistics, vehicles, equipment, operational funds and training.
Q&A
In answer to questions from the floor about statistics on arrests and
prosecutions, Ms. Fujibayashi explained that, while the UNODC was
indeed endeavouring to build up a body of statistics, this particular report
was limited to trends. As regards the data sources used, she pointed out that
ivory poaching was an extremely dangerous area and that she presumed the
report had relied on government contacts. While she could confirm that her
agency had reviewed the legislation in place, she was not sure as to the
extent of liaison with local crimes research (though she herself had been in
contact with the department concerned).
Ms. Fujibayashi generously provided copies of her PowerPoint presentation
to all those wishing to have one.

Presentation by Professor Robert Currie - An Introduction to


Transnational Criminal Law (Part 1)

Stressing the practical


Prof. Currie began by saying that this was an area that was not always
taught at Law Schools. Indeed, it was a highly practical area and one that
his fellow Canadians might graphically term, "rubber on the road". His aim
was to look at the work being done, put it into an international context and
provide resources for such work.
Much as he had done in the previous day's session with law students, Prof.
Currie narrowed in from the general to the specific, posing hypothetical
scenarios and problems along the way, which the audience was by turn
invited to solve, reason and discuss in a lively and spontaneous manner.
Starting from a general overview of public international law, its
applicability and mechanisms, Prof. Currie went on to detail the pertinent
jurisdictional and enforcement issues and discuss how these might pertain
to the implementation and administration of transnational criminal justice
in the context of Kenya.
In contrast to the previous day's more academic approach, however, and
conscious of the fact that he was addressing professional prosecutors who
brought their own expertise, problems and needs to the table, Prof. Currie
adapted and moulded the thrust of his talk to "hard" issues of major
concern, e.g., admissibility of evidence gathered abroad illegally,
processing and expediting extradition requests, and cyber crime.
So why were we here?
Moving on from the founding of the International Criminal Court at the
Hague in 2002 and the passing of Kenya's 2008/2009 International Crimes
Act, Kenya had resolved to set up an International and Organized Crimes
Division (IOCD). In 2012, the IOCD Committee of the Judicial Service
Commission proposed that this court's jurisdiction be expanded to include
serious transnational crimes.
What would and would not be discussed
Areas that would expressly not be covered by his lecture were the
International Criminal Court and current Kenyan cases, core international

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".

Customary international law, on the other hand, was based on state


practice, which had to be widespread, and consistent, and accompanied by
an acknowledged legal obligation (opinio juris). Sometimes such law could
be regional, as in the case of Africa. Crimes under customary international
law included things such as crimes against humanity, which were also
covered by treaty. Another revolutionary development was that individuals
could be held responsible under customary international law.
Enforcement and consent
When it came to enforcing international law, a breach of treaty or custom
gave rise to state liability for the breach. The key in every case was
consent, with the result that -theoretically at least- decisions to prosecute or
not to prosecute could be in breach of international law. More often than
not, however, enforcement took the form of diplomacy/negotiation,
"naming and shaming", pronouncements by committees or official bodies
on abuses, or litigation at the Hague.
Jurisdiction and choice
The way that states made things happen was through the exercise of
jurisdiction, which thus made it the key factor. By virtue of their
sovereignty, states could exercise jurisdiction over persons, places, things
and events; and it was where such jurisdiction extended to transnational
crimes that international law became involved.
Rules governing jurisdiction were to be found in treaty and custom, leading
to questions such as, where did the crime happen, or where was the
person/thing?, thus underlining the importance of geography. While the
rules changed depending on the answer to this question, the overriding
principle was that a sovereign state could exercise jurisdiction
wherever/however it wished, except where there was a rule against this,
i.e., where the interests of another state were involved.
Prof. Currie divided jurisdiction into three types, namely, legislative,
enforcement and judicial, and then proceeded to analyse each in turn with
the aid of illustrative examples and input from his audience.
Legislative jurisdiction which state should prosecute?, where is the
centre of gravity?
Explaining how legislative jurisdiction involved the principles of
territoriality and nationality of both the perpetrator (active) and, more
controversially, the victim (passive), Prof. Currie showed how this might
lead to extra-territorial and/or concurrent jurisdiction with another state,

and in many cases to negotiations to decide which of the parties was to


exercise jurisdiction. Factors to be weighed in such negotiations ranged
from consideration of where it was best to prosecute to consideration of
where the sentence would be longer.
Reciprocity was the key to recognition of such crimes, and in this regard,
treaty obligations and cultural differences could well play a decisive role.
Then again, the protective principle might come into play where a state's
national interests were at stake, as in cases of treason and espionage..
Universal jurisdiction, in contrast, would apply only to certain strictly
defined, heinous crimes, such as genocide, torture, piracy, etc., regardless
of where they happened, though here too political considerations might
influence a state's attitude.
Essentially jurisdiction was a choice, in which rules were needed to
determine where the crime had taken place and how the state had been
impacted, the so-called centre of gravity. Indeed, cross-border and cyber
crimes posed this very problem of determining exactly where an offence
had occurred: an instance of this was the Gorshkov hacking case, where
Russia alleged that the FBI had broken into Russian-based computers.
Lastly there was the issue of dual criminality, which required an act to be
deemed a crime in both states: examples of this included gambling, a
practice that was lawful in the USA but not in certain Arab countries. This
was further complicated by the fact that certain countries would not
extradite their own nationals. Indeed, it was precisely here that enforcement
jurisdiction became important.
Enforcement jurisdiction states seek to control what happens on
their territory
Enforcement jurisdiction referred to states' ability to enforce their criminal
laws through police investigations, evidence gathering, arrests,
interrogation and confiscation of assets. States were jealous of their
criminal law and chauvinistic regarding that of other states: while
legislative jurisdiction was general and permissive, enforcement
jurisdiction was restrictive and specific.
Instances of cross-border pursuit and arrest of criminals or evidencecollecting in another country raised thorny problems for the prosecution of
such crimes. Responses varied from this being viewed as a separate issue in
the USA to application of the "clean-hands" doctrine in the UK. Often, the
issue centred on permission. The examples given by Prof. Currie -some

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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.

Presentation by Mr. Victor Mule International co-operation


(MLA and extradition): a practical overview
In the knowledge that he was speaking to an expert audience who had been
discussing this very issue on the previous day and that Prof. Currie was
about to resume where he had left off, Mr. Mule concentrated on the
practical aspects.
Rule of thumb: MLA is about evidence - extradition is about people
He pointed that, when talking about international co-operation, MLA was
essentially about the evidence and extradition was about the people. The
legal basis for extradition was to be found in bilateral and regional
agreements or treaties, international instruments and ad hoc arrangements,
among others.

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The United Nations Convention against Transnational Organised Crime


(UNCATOC) was the basis for international co-operation, and the key
provision in almost all such international instruments was, "State parties
shall afford one another the widest measure of mutual legal assistance in
investigation, prosecutions and judicial proceedings in relation to the
offences covered by this convention...".
Extradite or prosecute no safe havens
Under these conventions, which were binding upon the parties, states were
obliged to criminalise certain acts and make them extraditable offences.
Furthermore, application of the principle of extradite or prosecute was
intended to deny criminals the possibility of safe havens.
The 3 C's
Reciting the maxim of Capacity, Convenience and Co-operation, Mr. Mule
now proceeded to give a detailed outline of the extradition process and list
the formal requirements. The requesting state was required to submit a
request containing supporting documents which included the legal basis,
the facts of the case, an affidavit and a charge sheet, with the latter item
being essential to establish dual criminality. The alleged perpetrator's
offence and identity had to be authenticated, i.e., there was to be no room
for "fishing expeditions".
The authorities of the requested state considered the request and, if it was
in order, proceeded to file it in court. The court would then look at the
prima facie evidence rather than the merits of the case. After considering
any restrictions applicable as well as other matters, such as dual
criminality, specialty undertakings, etc., and being satisfied that all
requirements had been met, the court would order the surrender of the
fugitive. In some countries, the matter might be referred to the Executive,
where the case could take a political direction. Fugitives had a right of
appeal to a higher court
Key safeguards
Grounds on which countries would refuse extradition included political
offences, the likelihood of punishment on account of gender, race, religion,
nationality or political opinions, the rule against double jeopardy, the
principle of dual criminality, the possibility of the death penalty, nationals
of the requested state (Rwanda being a case in point), military offences, the
likelihood of torture, cruel, inhuman and degrading treatment or
punishment, health, age, etc.

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Prosecutor's extradition checklist


After quickly reminding his hearers of the ways in which states asserted
criminal jurisdiction, Mr. Mule moved on to the practical matter of drafting
a real extradition request, by supplying the following checklist:

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).

Pausing briefly to cite the alternatives to extradition as being luring,


rendition, expulsion, deportation and the reciprocal backing of warrants
(with sight of the foreign warrant and signature being the sole
requirement), Mr. Mule turned his attention to MLA.
Mutual Legal Assistance getting the evidence
Loosely defining this as the process that states used to gather, obtain and
exchange evidence/information in an effort to enforce laws, he moved on to
the more practical side of initiation, transmission and execution of requests.
A request for MLA could be initiated by any law enforcement agency,
prosecution authority or lawfully competent judicial authority, and could be
for any one of a number of reasons, including -but not limited toidentifying and locating persons for evidential purposes, examining
witnesses, effecting service of judicial documents, executing searches and
seizures and the like.
The grounds for refusing such a request were the same as for extradition.
Mr. Mule concluded his presentation by summarising some of the main
challenges to be faced when seeking MLA. These included the requirement
of a treaty/agreement, the problem of failed states without functioning
governments (e.g., Somalia), unco-operative states, language and
translation issues, the time factor, non-domestication of treaties and porous
borders.

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Presentation by Professor Robert Currie - An Introduction to


Transnational Criminal Law (Part 2)
Issues of concern to prosecutors
Taking over the baton from Mr. Mule, Prof. Currie continued in much the
same way as he had the previous day, i.e., focusing on the practical side of
co-operation and encouraging questions and comments from the floor.
The reason for extradition and MLA being so time-consuming lay in the
nature of democracy and the Rule of Law because there had to be sound
legal grounds. Furthermore, the fact that these procedures were often based
on treaties implied the need for consent and reciprocity, and this collided
with the refusal of some (civil law) states to extradite their own nationals.
The only way to deal with such refusal to co-operate was to invoke
international law, under which states had to honour their treaty obligations.
Hot-pursuit and harmonisation
Here the discussion turned to the problem of hot pursuit and the need for
the DPP to advise the police about the illegality of such practices and/or to
enter into hot-pursuit agreements under a memorandum of understanding.
The possibility of something approaching regional universal jurisdiction
struck Prof. Currie as ambitious, and in the case of cyber crime, an
altogether better idea might be to use a territorial basis for jurisdiction.
However, in the case of transnational crime, harmonisation was the key,
and he reminded his audience of the model treaties issued by the UNODC.
Streamlining extradition: an example from Canada
Canada had originally inherited a similar model to that of Kenya. The
requirement of a prima facie case and the complications of Canada's federal
court system had made the system slow and unwieldy. Consequently, the
1999 Extradition Act had been passed and extradition requests were now
centralised. Aside from the usual tests of identification and dual
criminality, the main change had been the shift away from the need for a
prima facie case to the so-called "record of case" approach, whereby the
judge would now look at the sufficiency of the requesting state's case.
Moreover, the classic list of extraditable crimes had been replaced by a
conduct-based approach, in that an extraditable offence was one

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punishable by a sentence of 2 years or more (reduced to 1 year in the case


of the US/Canadian treaty). As the Hickey (polar bear rug) case had
demonstrated, however, ministers could override legal considerations and
make a political decision.
Cyber crime - old wine in new bottles
Here we were faced with an umbrella term that was not yet well-defined,
i.e., while a computer could be seen as a tool, storage device or target (i.e.,
hackers), did the concept of "computer" extend to other electronic gadgets,
such as smart phones?
More importantly, the issue of cyber crime raised jurisdictional issues of
deciding precisely where the crime had taken place.
Under the 2001 Budapest Convention, to which the European Union,
Canada and the USA were signatories, parties had to criminalise a list of
acts, including illegal access and interception, misuse of devices, computerrelated fraud and child pornography.
ISP liability
"What", asked a participant, "was the duty of internet service providers
(ISPs) in all this? Prof. Currie felt that ISPs should be liable as facilitators
but the truth was that there was an ongoing debate about this very matter.
One area where ISP liability was particularly important was that of child
pornography because requests for suspects' internet protocol (IP) data came
up against privacy issues.
Another problem inherent to cyber crime was the pace of development: this
meant the treaties had to be worded in such a way that they achieved broadbased, relatively timeless, technological neutrality.
Budapest Convention
The Budapest Convention laid down specific procedural obligations which
required costly and sophisticated high-tech resources that not every country
could or would deploy. Apart from possible accusations of police
authorities overstepping the mark when collecting the data, there was also
the whole issue of how to lead cyber evidence, an area in which new rules
were needed to address three related yet separate aspects, namely,
authentication, computer system integrity, and admissibility.

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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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A SHORT SUMMARY OF THE MAIN CONCLUSIONS AND


RECOMMENDATIONS OF THE 4 WORK GROUPS

TOPIC 1. How could international co-operation (including extradition,


etc.) be improved?
Networking among regional and international stakeholders
Establishing multilateral treaties and bodies
Harmonising criminal laws among regional states
Strengthening enforcement mechanisms for breach of agreements
Joint training, internationally and regionally for brainstorming and
peer review purposes
Improving and strengthening existing international relations to boost
overall good
TOPIC 2. Should there be a specialised International and Organised
Crime Division?
For
Organised crimes are complex, something that attracts the media and
public scrutiny and often compromises such cases; a special division
would ease this aspect
Specialised training is needed, and it is easier to train a dedicated
team than the judiciary as a whole; a specialist is always better than a
"jack of all trades".
A specialised judiciary would improve the handling of ancillary
orders under the legislation applicable
Organised crime involves large money sums that exceed magistrates'
purview
Need to harmonise sentences
Against
Cases are currently heard countrywide; having a centralised court
would only serve to delay justice
Need for creation of new laws and law reform
Specific judges would exclusively hear TOC cases, so that once such
cases decline, such judges would be idle (but still drawing their
salaries)
Appointment and transfer of judges would make it difficult to have a
core unit of ICD-based judges
Capacity building should suffice to cope with TOC
Recommendation

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Adopt anti-corruption court model (where there is no specific


division for prosecuting anti-corruption cases, a specialised court is
identified for such matters)
TOPIC 3. How can co-operation between the ODPP, police and the
judiciary be created and/or improved?
ODPP Act already provides framework for inter-agency cooperation.
National Commission on Administrative Justice, Section 34 of
Judicial Service Commission Act establishes court users committee
Available framework could be improved by frequent meetings, interagency training and workshops, informal contacts, inter-agency
team-building and information sharing
TOPIC 4. How could independence be strengthened (including
pressure from police, corruption, etc.)?
Public Officers' Ethics Act; Leadership and Integrity Act
Enabling legislation
Working documents (i.e., rules of conduct)
Improving remuneration
Need for political will
Capacity building; "professionalism is a weapon against corruption"
Public awareness-raising
Gazettement of independent prosecutors
Rigorous recruitment

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