The Togolese have now taken a bold and foresighted step in in the fight against West African piracy. By splendid acts of legal perversion it has criminalized the reporting of pirates.
The Togolese Republic is one of those African states which is
not. It is a Category F flag state (some 10 ships are said to be registered)
and a Category D port state (1000 – 2999 vessel movements reported a year).
More interestingly, it is a state which rules by law—such as it is—but has
little rule of law. Rule of law requires due process, a fair hearing, no
unnecessary detention and other standards that are met in most industrialized
states for the criminally accused. The fairness of the criminal code is the
best way to estimate whether a state has a rule of law or a legalistic and
perverted and manipulated rule by law.
Criminalization of seafarers occurs in states with a strong rule
by law ethic. That ethic may have come from a sliding away from rule by law or
it may be just the way things are. Think, for example, Equatorial Guinea and
the United States—each a state where criminalization of seafarers is a real and
worrisome phenomenon. States tending toward failure are notorious for rule by
law for political means. Seafarers are good targets. They have no political
constituency, they are usually foreigners, they can be colorably argued to be
flight risks and they are – well, seafarers. Their reputations in many cultures
are not stellar.
The Fund for Peace Failed State Index ranks Togo as 46 out of
177 in functionality. The larger number is a highly-functioning state.
Transparency International ranks Togo as 121 of 180 in perceived corruption.
The World Bank ranks Togo on a scale of 1 – 100 (100 is best) in government
effectiveness (4); regulatory quality (15); rule of law (23) and, inversely,
rule by law (77); control of corruption (15), and political stability (40).
Togo is not where one wants to spend his leisure time away from home. Togo is
unsafe for seafarers. Therefore it is no surprise that Capt. Sanil James is
caught in the cross-hairs of a rule-by-law and corrupt legal system with no
regards for the rights of the accused.
Now, do you really think the Togolese Republic, a sliver of a
state squeezed in between Benin and Nigeria is serious about West African
pirates or the rule of law? Think again.
Captain Sanil James—the 38-year old Indian master of the MT
Ocean Centurion, a parcel chemical carrier flagged in the Republic of the
Marshall Islands—and two of his staff have been detained in Togo, mostly in
jail … since July 30.
Captain James’ real crime? He was master. Therefore he was
responsible in the Togolese legalistic and corrupt mind.
The alleged crime? Captain James, had stopped at Togo to report
pirates who had attacked his vessel on July 16 off Lagos and to obtain medical
attention after an affray with a band of those doughty lads.
Pirates had boarded the vessel off Lagos the same day from
speedboats some 45 nm east port Lome. They took two of the staff and
disembarked from the vessel with the rescue boat after stealing the ship’s and
crew’s currency and personal property, reported the International Maritime
Bureau. The staff members were released; two were injured, as was Captain
The Togolese prosecutor has alleged that Captain James was
conniving with pirates. Why? Captain James is Indian. Some of the pirates later
arrested were Indian. In a brilliant stroke of Togolese legal analysis, Captain
James must be conniving with his fellow Indians!
Captain James has been sailing for 15 years as an officer with
an unblemished record. In the last week of April, he left his residence in
Mumbai on a four-month contract with Union Maritime, Ltd., a UK-based operator.
He flew to Lagos and took command of the vessel. He was scheduled to return to
India in August.
Pirate activity is increasingly worrisome in the Gulf of Guinea,
which includes littorals of Nigeria, Togo, Ghana and Ivory Coast. The states
are exporters of oil, cocoa and metals. Unlike along the Horn of Africa, no
effective naval forces are active.
Since being in jail, Captain James has—with 79 others of his
co-wretches—been without proper food, sleep or fresh water, or sanitary
facilities, in a cell designed for 20. He has had an eye infection and has had
no proper medical attention. His condition is deteriorating, according to his
wife. Captain James has told the Times [India] Now that
the prison officials –who do not speak English—coerced him and his staff
members to execute documents. “We do not even know what we are signing.”
Neither did he have legal representation supplied by the owner or flag state
The Indian Government, as is typical in these situations, is not
helpful to one of its citizens. A month ago an inter-ministerial panel formed
to deal with hostage crises on pirate ships with Indian crews is still
“reviewing the situation.” The Indian Embassy in Lome has done nothing to
effect Captain James’ release. One person from the embassy has visited the jail
to confirm his name and his presence in the jail. The embassy appointed Togolese
lawyers prior to the hearing denying his release.
Neither Indian nor Togolese authorities have informed Captain
James or his family of the charges against him. Milind Deora, Minister of State
for Shipping, is reported to have said: “The DG of Shipping and the Ministry of
External Affairs deal with such matters. I will check the status of the same
and only then would be able to make any comment.” He apparently is still
checking. The operator of the vessel, based in the UK, has similarly not been
helpful, nor has the flag state.
The upshot: Captain James is stuck with little or no help from
his natal state, the owner, or the flag state. He may stay in jail a long time
in Togo. After all, he may be guilty of being Indian compounded by being
John A. C. Cartner (MS, MBA, LLM, PhD, Master Mariner) practices
maritime and international law in Washington, D.C. and London.
© John A. C. Cartner 2013, all rights reserved; “Report a Piracy
Attack in Togo. Get Arrested” may be copied and distributed with attribution to
John A. C. Cartner and Piracy Daily. The opinions expressed herein
are solely those of the author.