East Africa Could Achieve Better Cooperation On Criminal Matters

States would ratify IGAD’s extradition and mutual legal assistance agreements if they focused on serious regional offences.

Transnational crimes such as terrorism and organised crime plague East Africa and the Horn and Nile Valley regions. Between 2019 and 2021, the ENACT Organized Crime Index ranked East Africa highest in terms of criminality of all regions in Africa.

The Intergovernmental Agency on Development (IGAD) could forge cooperation between the region’s countries to better tackle transnational offences. But IGAD’s track record in securing support for vital extradition and mutual legal assistance conventions has been poor. A key reason is that these instruments aren’t focused on priority threats common to all member states.

Extradition is an essential legal tool to fight crimes involving perpetrators who flee to another country. Mutual legal assistance enables police and prosecutors to effectively investigate, try and punish offences involving more than one country. Both are invaluable for tackling transnational crimes.

IGAD has been relentlessly promoting its 2009 extradition and mutual legal assistance conventions among its eight member states for over a decade. In June this year, at an IGAD training session on the two instruments, Florence Kyasiimire, IGAD focal point at Uganda’s Ministry of Foreign Affairs, again asked countries to ratify and bring the conventions into force.

IGAD’s record in securing support for extradition and mutual legal assistance conventions has been poor

But only Djibouti and Ethiopia have ratified the extradition convention. An IGAD expert told ISS Today that it’s unclear why Eritrea, Kenya, Somalia, South Sudan, Sudan and Uganda have not. However, problems in getting countries to ratify extradition and mutual legal assistance instruments are not peculiar to the IGAD region.

The Southern African Development Community’s (SADC) 2002 Protocol on Extradition is the only regional law in force in Africa. The SADC Protocol on Mutual Legal Assistance in Criminal Matters (2002) and the Economic Community of West African States’ Conventions on Extradition (1994) and Mutual Legal Assistance (1992) have not entered into force. The African Union has also struggled to adopt similar continental conventions for the past 20 years.

One factor that no doubt impedes ratification in IGAD is that the instruments are not limited in scope to issues of common regional vulnerability. By mirroring the 1957 European Convention on Extradition and the 1990 United Nations Model Treaty on Extradition, IGAD instruments enable extradition for all kinds of crimes punishable by one or more years of imprisonment. These include ‘ordinary crimes’.

Such a broad mandate could be hailed from normative and human rights perspectives. But the approach appears unpragmatic for IGAD as it amounts to an overly ambitious attempt to unite member states over concerns that aren’t common to them.

IGAD’s extradition and MLA conventions don’t focus on priority threats common to all member states

Not all crimes in IGAD’s two conventions qualify as regional threats – which is the basis for the bloc’s inter-state cooperation in criminal matters. IGAD’s Security Sector Program, which is tasked with promoting the two conventions, deals not with ordinary crimes but transnational threats such as organised crimes, terrorism and maritime insecurity. The programme classifies these serious and complex offences as regional because they are interconnected by geography, enabling infrastructure, actors and impact.

Indeed, there is no clear basis for IGAD to seek regional cooperation to prosecute or extradite ordinary crimes. The two conventions’ broad scope is also not in line with IGAD’s Regional Strategy on Peace and Security, which focuses on transnational threats and organised crime. Nor does IGAD’s founding document indicate that the agency should deal with ordinary offences of no concern to more than one state.

On top of being too broad, the conventions oblige member states to assist state parties and extradite or prosecute alleged offenders. If they are ratified, IGAD’s role may amount to a quasi-regional justice ministry that monitors members’ activities concerning all kinds of crimes. Fear of such an unfettered potential interference by IGAD might explain member states’ reluctance to ratify the conventions.

Countries in the region aren’t opposed to inter-state cooperation on criminal matters. Bilateral extradition or mutual legal assistance instruments exist between neighbouring countries, such as Kenya and Uganda (1967), Ethiopia and Sudan (2014), Uganda and South Sudan (2016), and Ethiopia and Djibouti (2020).

If ratified, IGAD’s role may amount to a quasi-regional justice ministry concerned all kinds of crimes

There is also evidence that IGAD members support multilateral arrangements that address issues of concern to all. For instance, the European Union and IGAD states have been working to establish the Greater Horn of Africa Mutual Legal Assistance Network. It mirrors the European Judicial Network, which, unlike IGAD’s mutual legal assistance convention, focuses on transnational organised and serious crimes.

And a taskforce of senior security officials from IGAD countries has since 2014 highlighted the need to establish a regional platform to combat transnational security threats. More recently, member states have called on IGAD to expedite setting up a regional criminal information system to enable better responses to emerging and existing transnational crimes.

These requests show a willingness to back a shared-threats cooperation mechanism. IGAD could exploit this to adopt a purpose-built approach to regional collaboration based on member countries’ needs and gaps in dealing with transnational security threats.

IGAD should re-look at the multilateral instruments it adopted in 2009 with a more realistic lens focused on what is acceptable to all member states. There is no compelling evidence that countries would hesitate to engage in extradition and mutual legal assistance if the conventions covered specific and shared regional interests rather than ordinary crimes.

However, before revising the conventions, IGAD must undertake a comprehensive study to identify crimes for which member states may act in unison through extradition, prosecution or mutual legal assistance.

Tadesse Simie Metekia, Senior Researcher, ENACT project, ISS Addis Ababa

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