The Pirates of Somalia_ Inside Their Hidden World - Jay Bahadur [78]
Nyawinda’s clients had not been so lucky. One group of his defendants claimed to have been migrant workers in transit from Yemen to Somalia when they were accosted by an Italian warship and taken into custody. “There was a video-conferencing trial on the ship broadcast from a courtroom in Italy,” said Nyawinda. “There was allegedly a lawyer representing my clients, whom they did not know.” With barely a pause for breath, he fired off an accusatory barrage: “If the trial began on this ship, why not complete it in Italy? Why is Italy not competent to try them?” Any conscientious reader of the SUA Convention would be hard pressed to answer these questions.
Given the existing tensions between native Kenyans and the Somali community in the country, Nyawinda also worried that these pirate trials could strain relations even further. “Imagine an innocent Somali, arrested as a pirate. He spends two years on trial, stuck in our prison system, eating that food, sleeping in those conditions,” he said. “He’s not being offered a fair trial, his family is not there to support him, and his advocate is not being paid. What’s the difference between that and Guantanamo Bay?” As with Guantanamo, Nyawinda feared a backlash over the potential perception of injustice. “We are going to create very bitter persons,” he lamented.
His confidence in the judicial procedure was not bolstered by the quality of evidence brought against his clients, which Nyawinda claimed had consisted of nothing more than footage of a fleeing skiff and a single loaded gun; there had also been an alleged RPG launcher that, he scoffed, “no photograph or video camera could capture.” It was not only the evidentiary support that Nyawinda found suspect, however, but the legal process itself. “Kenya didn’t arrest [the alleged pirates], they were just brought here by people who purportedly found them in the act of piracy,” he said. “People who give their evidence and run away.”
Not surprisingly, Nyawinda already had a remedy in mind. “This is my proposal: create a proper group of international investigators to deal with any arrested pirate,” he explained. “The moment so-called pirates are arrested, this group should rush to the scene and take charge. Identify the alleged pirates and find out where they come from; then notify their relatives. Inform the detainees within twenty-four hours which country is going to charge them, and then take them there. The way it is now, the person testifying in court as the investigator is a Kenyan police officer. They were not there during the arrest, and they have never visited the scene of the crime.”
The solution, in Nyawinda’s view, was for the international community to fund specialized tribunals tasked solely with processing suspected pirates. “These people are a special group, and should be treated in a special way,” he said. “They shouldn’t be mixed up with other cases, and their trials should take no more than a week to one month.”
If Nyawinda’s vision had a fault, it lay with its naive optimism, not its core prescriptions. With international tribunals established to resolve issues ranging from war crimes to bilateral trade disputes, it is inexplicable that an issue of such obvious global dimensions as high seas piracy should have been relegated to Kenyan courts. Lacking even a home government to defend their rights, Somali detainees are amongst those most in need of international protection—a view that Nyawinda echoed in his closing arguments. “It is them against the entire international community,” he implored. “No one is