‘Locus regit actum’
Djibouti is the third smallest country in continental Africa, after Swaziland (second smallest) and Gambia (smallest). Its geographic location makes it a strategically important area – bordered by Eritrea to the north, Somaliland to the south east and the Gulf of Aden lies to the east with Yemen less than 27 kilometres over the mouth to the Red Sea. As a result, there is a strong military presence in the country, for example China is building its first overseas Naval base here.
Djibouti’s location also means that it is a key transit point for migrants and asylum seekers. Each year some hundred thousand people, mainly Ethiopians and some Somalis, journey through Djibouti, usually to the port of Obock, to attempt the dangerous sea crossing to Yemen. However, with the escalation of the ongoing Yemen conflict, Yemenis began fleeing to Djibouti in March 2015, with almost 20,000 arriving by August 2017 – a significant amount for a population of under one million.
Djibouti suffered an Al-Shabaab terrorist attack in 2014 when two suicide bombers killed three people at the La Chaumière restaurant. The attack was targeted at the French Military presence and the continuing terrorist threat is high because of Djibouti’s support to the Somali government and its participation in the African Union peacekeeping mission AMISOM.
Djibouti City was our base for a five day mutual legal assistance (MLA) workshop with the Gendarmerie Nationale Djiboutienne, Investigative Judges, Prosecutors and the Coast Guard. We completed the preparation of the Djibouti International Enquiries Manual in French and this is now available on the MLA practitioners online platform (along with those from Kenya, Uganda, Sudan and Ethiopia).
The workshop was also an opportunity to discuss the challenge of MLA between civil and common law jurisdictions. Even if there are differences between the preliminary and investigative stages, the overriding principle of MLA must be that the Requested State will provide the Requesting State with evidence that is admissible in their domestic proceedings. Of course, the Requested State must comply with their domestic arrangements and the legal principle ‘locus regit actum’ asserts that the validity of an act depends on the law of the place where it was done. This requires, therefore, a degree of flexibility to realise the objective of securing evidence that can be used in the proceedings for the Requesting State. At the operational level, where there is divergence in process, this can create challenges. Through trust and clear lines of communication – these challenges are surmountable.
We discussed the example of interviewing those suspected of a criminal offence. In a common law jurisdiction this would be the role of the police. In civil law systems the police would conduct interviewing at the preliminary stage and then the suspect will appear before the investigating judge for questioning.
For common law jurisdictions, any MLA request for interviewing a suspect voluntarily could be conducted by the police in a civil law jurisdiction. Vice versa, as Judges and Magistrates in common law jurisdictions perform a different role to the Investigative Judge, this presents a difficulty. There needs to be flexibility and this may require adaption of processes to allow the account of the suspect to be admissible. For example this may require a suspect appears before a court and provides the equivalent of a deposition. Albeit, where relevant, the privilege against self-incrimination and any right against compelling an accused to give evidence in his own defence in the Requested State, must be observed.
In short, trust is key, and these workshops demonstrate the value of openly discussing challenges and detailing best practice in the Manual to cascade to a wider domestic audience. The Minister of Justice attended the closing ceremony and this high level support will be important to operational delivery.
Our next activity will establish a single point of contact to ensure there is communication and mutual trust, to deliver the regional aim of being proactive for all counter-terrorism international enquiries.