Policy WATCH:Analysis
Pirate Law 101
A Short History of Kenya's Pirate Prosecutions
Somalia Pirates Captured by Indian Navy
Indian Navy
Somalia Pirates Captured by Indian Navy

On November 9, 2010, Kenyan High Court judge Mohamed Ibrahim drew intense criticism when he issued a controversial bench ruling ordering the release of nine alleged Somali pirates. Justice Ibrahim’s decision hinged on a perceived contradiction between Section 5 and Section 69(1) of the Kenyan Penal Code, under which all suspected pirates had been charged prior the February 2009 passage of the Merchant Shipping Act (MSA), Kenya’s modern anti-piracy legislation. Critically, the ruling may also spring the cell doors of each of the approximately 50 pirates handed over by international naval forces to Kenyan authorities before the MSA had come into effect. To the masses clamoring to have suspected pirates summarily hung from the yardarm (“We will have to act as our forefathers did when they met pirates,” Russian president Dimitry Medvedev once blustered), a rogue Kenyan judge potenitally setting four dozen of them free on a seeming legal technicality was utterly incomprehensible. It was equally mystifying to other Kenyan judges, and the case is currently under review in the Court of Appeals, where a ruling is expected on December 15.

Pirate Dumping Ground

The nine defendants, known in the legal files as “Mohamud Mohamed Hashi and eight others,” had been arrested on March 3, 2009, by the warship Rheinland-Pfalz after attempting to hijack the German-owned cargo ship MV Courier. For three days, the German navy held the pirates in custody as politicians back home wrangled over what to do with them. With Angela Merkel facing an upcoming election and having little desire to explain to voters why public dollars would be spent on a 4,000 mile paddy wagon ride for a gang of Somali criminals, the decision was made to hand the nine over to Kenyan authorities for prosecution. The impromptu extradition inaugurated Kenya’s role as the world’s foremost pirate dumping ground, and shortly afterwards the country signed a Memorandum of Understanding (MOU) with the European Union formalizing the handover arrangement. Since the agreements came into effect, around 50 pirates have been convicted, with another 93 torpidly making their way through Kenya’s backlogged justice system.

The legal precedent for pirate prosecutions in Kenyan courts had been set in a ruling some years earlier, in the 2006 case of Hassan M. Ahmed and nine other would-be pirates, a collection of bumblers who had been caught by the US Navy while blasting RPGs at passing cargo ships. After being investigated as possible Al Qaeda agents, Mr. Ahmed et al. were handed over to Kenyan authorities and, in what was Kenya’s first ever piracy trial, were subsequently sentenced to seven years’ imprisonment, later appealing the conviction on the basis that Kenyan courts had no jurisdiction. In a legal argument that could have come from the desk of a high school civics student, the Hon. Justice Azangalala dismissed the appeal in fewer than 300 words, noting merely that Article 69(1) of the Kenyan Penal Code criminalized piracy “in territorial waters or upon the high seas,” and furthermore that the appellants’ crime fit the definition of piracy as set forth in the United Nations Convention on the Law of the Sea (UNCLOS).

Such reasoning utterly neglected the fact that in Kenya, which possesses a dualist legal system, international treaties have no binding legal force until domesticated through an act of Parliament. Though Article 69(1) had established piracy as a criminal offence, it lacked any accompanying substantive provisions that concretely defined the crime. In short, it was not at all clear what actions one had to commit in order to be labeled a pirate under Kenyan law.

“There was an initial argument by Justice Azangalala that, irrespective of the lack of substantive provisions, piracy was an international crime and the courts of any and all nations had automatic universal jurisdiction,” explained Francis Kadima, a Kenyan public defender currently representing thirty alleged pirates. “That kind of argument infringes on the rights of the accused. An accused person needs to know specifically what he’s being charged with, so that he’s able to adequately prepare a defense. The courts cannot simply quote those international conventions when they draw up a charge; that’s like something out of Kafka’s The Trial.”

While not quite as sinister as inventing charges out of thin air, by borrowing the UNCLOS definition of piracy Justice Azangalala effectively sought to paper over a hole in the Kenyan Penal Code. Though his legal gymnastics sufficed to shelve the debate over one solitary case, by 2009, as pirates started becoming regular guests in Kenyan courtrooms, a more long-term solution was required. So, in February 2009, the Kenyan Parliament passed the Merchant Shipping Act (MSA), which officially entered into force some seven months later. Addressing the lack of substantive provisions and repealing Article 69(1), the legislation also granted Kenyan courts jurisdiction over piracy offences “whether the ship...is in Kenya or elsewhere,” and irrespective of the nationality of the accused. If there was any doubt that the MSA was intended as the domestication of UNCLOS and the 1998 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention), it was dispelled by the bill’s definitions of piracy and armed robbery at sea, which were lifted almost verbatim from the two conventions.

Jurisdictional Troubles

But if these references to international law were intended to inject Kenya’s pirate prosecutions with much-needed legitimacy, the attempt died in the details; though the SUA Convention's sixth article lays out the circumstances under which a state party may establish jurisdiction over piracy offences—for instance, if the crime is committed on board a vessel flying the state’s flag, or its own citizens are directly involved—simply “being a country in the neighborhood” not make the list. By extending its jurisdiction over cases with no tangible ties to Kenya, the MSA clearly overstepped the scope of UNCLOS and SUA Convention, while paradoxically leaning on the two treaties to justify itself.

This embarrassing contradiction does not necessarily doom the Kenyan pirate prosecutions to legal illegitimacy, or so argues US-based Kenyan international legal scholar James T. Gathii. The Kenyan Constitution, he notes, places no absolute limits on the High Court’s jurisdictional reach, but rather grants the court “unlimited” jurisdiction so long as its powers were conferred on it by the Constitution or “any other law.” As Mr. Gathii correctly points out the clause “any other law” includes international customary law, or “the law of nations,” the unwritten rules of state-to-state behavior that have developed over the course of thousands of years of human interaction (maritime law and the laws of war being the most prominent examples).

As far back as Roman times, pirates were labeled hostis humani generis, “enemies of all mankind,” and piracy continued to be a crime under the law of nations, or jure gentium, long before the process of codifying customary maritime law began in mid-twentieth century with UNCLOS. Critically, the (now-repealed) Section 69(1) of the Penal Code made explicit reference to the crime of piracy jure gentium, clearly placing it within the more ancient of the two legal traditions; the provision itself, according to Mr. Gathii, had been an old British statute inherited through the colonial grapevine. Yet in Ahmed and others., Justice Azangalala chose an altogether different legal route to justify the court’s decision, leaning on the UNCLOS concept of universal jurisdiction rather than on the law of nations.

“It was legally inaccurate to argue for universal jurisdiction as a basis for jurisdiction,” Mr. Gathii explained over the phone from his office at Albany Law College. “Universal jurisdiction is understood in contemporary terms to emanate from a treaty, UNCLOS, the negotiations for which began in the 1950s. Whereas, if you trace that provision in our Penal Code it goes back much further than that.”

By this argument, there was no need for Kenyan judges to twist UNCLOS and the SUA Convention into self-serving shapes; armed with the country’s own Constitution, in tandem with a legal precedent borrowed from centuries’ old British admiralty law, and they would have been within their rights to extend Kenyan jurisdiction to Martian pirates and beyond.

In the terrestrial realm, of course, there are practical limits to how far a state can extend its laws past its borders before they inevitably run up against the sovereignty of other nations. No Kenyan court, for instance, could viably claim extraterritorial jurisdiction over a murder committed by an American citizen in Texas, even in the unlikely event that Parliament had passed a statute empowering them to do so. In international customary law, this is known as the principle of comity, a kind of “International Golden Rule” obliging governments to do unto foreign states as they would have foreign states do unto them. The Kenyan government would undoubtedly consider it a breach of its sovereignty if Somali Transitional Federal Government (TFG) forces began seizing and prosecuting Kenyan high seas marauders; the principle of comity, then, demands that Kenya pay reciprocal respect to the sovereignty of the TFG. Given the current state of Somalia, such a scenario may seem absurd, or at best academic. But Somalia has not given up its statehood, and Kenyan courts should consider comity when interpreting the validity of arbitrary extensions of their extraterritorial jurisdiction.

It would be a stretch to call Kenya’s pirate trials outright illegal, if only because legality is never quite clear-cut in the realm of ever-shifting, Dali-esque murk that is international law. At best, however, they rest on very tenuous ground, in the regions of grey that judges, legal scholars, and policymakers worldwide are desperately trying to pass off as black. On the other hand, it’s hard to blame them for making the best of the completely inadequate international legal framework they were handed; if that means creatively stretching existing conventions to patch up the gaps, well, it’s hardly the most egregious judicial abuse in history.

Round Two in Germany?

The fates of Mohamud Hashi and his eight colleagues—as well as those of the roughly 50 pirates charged prior to the enactment of the MSA—will still hinge on whether the December 15 decision of the Appeals Court upholds Justice Ibrahim’s November 9 ruling. Their release from Kenyan captivity may prove to be only a temporary breath of fresh air, as the defendants may soon afterwards face extradition to Germany and a new trial.

“There was a court decision in Cologne to determine whether the handover to Kenya met the standards of the European Convention on Human Rights,” explained Markus Goldbach, a Berlin attorney handling the potential "Round Two" defence of Mr. Hashi and co. “The court went through reports from the German embassy, which had visited Shimo La Tewa prison in Mombasa, and decided that it did not meet anything we Europeans would consider appropriate,” he said. “Especially in terms of the overcrowding of prison cells, where inmates did not have enough room even to sleep on the ground.”

Mr. Goldbach was uncertain whether the German government would follow through with the prosecution. But it is probable that the charges will be quietly dropped, for the same reason the German navy has reverted to a “catch and release” policy when it encounters pirates: that Western nations simply do not want to deal with the mammoth legal, logistical, and human rights issues that come along with processing alleged pirates in their domestic legal systems.

An overturning of Justice Ibrahim’s decision would be a heinous miscarriage, at least as a matter of law; as a matter of justice, it would mean the continued incarceration of four dozen men who are almost certainly guilty. The Appeals Court may well opt for this option, thereby sparing the Kenyan government the costly headache of deciding what to do with them—at least until their sentences are served. But regardless of which direction the verdict falls, hopes for a permanent Kenyan “dumping ground” solution appear to be dead in the water. For over a year, Kenyan prisons have been closed to pirates, a state of affairs that is unlikely to soon change.

“We discharged our international obligation,” Kenyan foreign minister Moses Wetangula announced back in April 2010. “Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

To date, however, Kenya’s level of cooperation has hinged more on the perceived insufficient weight of the coins flowing into its coffers from international donors, rather than the burden of international responsibility. In exchange for accepting the handover of Mr. Hashi et al. and signing the MOU, Kenya was promised a $12 million United Nations Office on Drugs and Crime (UNODC) assistance program funded by the European Union, which has mostly been directed towards prisoner transfer vehicles and the refurbishment of prisons (Shimo La Tewa’s new desktop computers and fresh paint job were not enough, apparently, to convince the German court of the facility’s adequacy). Faced with a domestic backlash over its decision to take in criminal members of a minority already viewed with mistrust and suspicion by “native” Kenyans, Kenyan officials soon decided that a few million in handouts was not worth the hassle. So they began demanding more.

“Kenya is always playing a poker game to receive more financial support,” said Mr. Goldbach. The most recent captured pirates to have been accepted by the Kenyan authorities, he noted, was a group of 24 handed over by a Danish warship in June of this year.

“No one knows why Kenya accepted those pirates,” he said. “It’s heavily suspected that Denmark paid money to the authorities to open up the gates again.” It’s likely that future pirate prosecutions in Kenya will be limited to these sorts of à la carte, pay-as-you-go arrangements.

The UN Steps In

In the face of Kenyan obstinacy, policymakers have begun to look at other options. Responding to UN Special Advisor on piracy Jack Lang’s recommendations to the Security Council in January 2011, the United Nations Development Project (UNDP) and UNODC have proposed a $24 million project to build the judicial capacities of Somaliland and Puntland, with the aim of equipping local courts in the regions to prosecute a combined additional 200 pirates per year. The rather looming flaw with this approach is that piracy is not a crime under Somali law, and the TFG has no plans to make it one (Puntland and Somaliland have no intentionally legitimate lawmaking powers of their own). Nor does Somalia even have enough courts in place—literal, physical courtrooms—to conduct trials on the scale envisaged by the UN.

Yet UNDP’s first step was the construction of a "pirate prison" in Somaliland, a facility, mind you, that will only admit Somaliland’s own (virtually non-existent) homegrown pirates. Building prisons before a functioning judicial system might be putting the horse before the cart (or, in this case, the hoosegow before the court), but logic rarely stands in the way of a UN project. Nonetheless, it is clear that some form of UN-mandated tribunal, specifically trained to conduct pirate prosecutions, is infinitely preferable to the quasi-legal, drawn out, and procedurally inequitable trials currently underway in Kenya and other countries.

The broader meta-question, of course, is whether prosecuting pirate foot soldiers will have any deterrent effect, or whether it merely amounts to pointless retribution. Many captured pirates would no doubt view a jail sentence followed by a grant of Kenyan citizenship as a far better trophy than a few meager tens of thousands to blow on cars and khat inside Somalia.

“Are these wretched one being brought to court the ones receiving the millions?” Oruko Nyawinda, a Mombasa-based attorney, once put it to me. “They are arresting the workers, the employees.” The issue may be moot, given how piracy has died down in recent months, and future prosecutions may be more about clearing the detainee backlog than deterring future waves of pirates.

Regardless, future pirate prosecutions should recognize that Somali citizens are unique in the world in having only a semblance of a government to defend their rights, including the right to due process under the law. But they are still human beings; hanging them from the yardarm, in short, is no longer an acceptable option.