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Kenya's Piracy Prosecutions

Published online by Cambridge University Press:  27 February 2017

James Thuo Gathii
James Thuo Gathii*
Affiliation:
Albany Law School and High Court of Kenya
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Extract

Kenya became a primary destination for the prosecution of pirates captured off the coast of Somalia from late 2008 to late 2009. Yet none of the pirates being tried in Kenya as of April 2010 were captured by Kenyan armed forces but, rather, by non-Kenyan forces whose countries had signed agreements with Kenya for it to conduct such trials. In Resolution 1851 of December 16, 2008, the United Nations Security Council had urged states and regional organizations to enter into such agreements. Kenya accordingly concluded agreements on prosecuting suspected pirates with the United Kingdom, the United States, the European Union, and Denmark. According to media reports, and as Kenya recently acknowledged, two others were negotiated, with China and Canada. Only the EU-Kenya agreement has been published. The British foreign secretary told the House of Commons that Kenya did not want its agreement with the United Kingdom to be made public. Consequently, it may well be that a Kenyan preference for secrecy prevented the public release of information on the other agreements signed by Kenya.

Type
Agora: Piracy Prosecutions
Information
American Journal of International Law , Volume 104 , Issue 3 , July 2010 , pp. 416 - 436
Copyright
Copyright © American Society of International Law 2010

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References

1 Gettleman, Jeffrey Roundingup Suspects, the West Turns to Kenya as Piracy Criminal Court, N.Y. Times, Apr. 24, 2009, at A8 Google Scholar.

2 See Achieng, Celestine Kenya Imprisons Seven Somalis for Piracy, Reuters, Mar. 10, 2010 Google Scholar, available in Lexis, News Library, Individual Publications File (reporting that” [i] nternational navies trying to counter piracy off Somalia are often reluctant to take suspects to their own countries because they either lack the jurisdiction to put them on trial there, or they fear the pirates may seek asylum”).

3 UN Security Council Resolution 1851 invited “States and regional organizations fighting piracy off the coast of Somalia to conclude special agreements or arrangements with countries willing to take custody of” and prosecute pirates. SC Res. 1851, para. 3 (Dec. 16, 2008).

4 Philp, Catherine & Crilly, Rob Allies Seek Power to Pursue Somali Pirates on Land and Sea, Times (London), Dec. 12, 2008, at 54 Google Scholar; Agence France–Presse, Britain and Kenya Sign MOU on Piracy, Kenya Broadcasting Corp., Dec. 11, 2008, at http://www.kbc.co.ke/story.aspJID=54429 Google Scholar. The memorandum was signed on December 11, 2008, by Foreign Affairs Minister Moses Wetangula of Kenya and Security Minister Lord West of the United Kingdom. It formalized an ad hoc arrangement that the Kenyan government had entered into with the British in November 2008, which led to the prosecution of eight pirate suspects arrested by the British while they were allegedly trying to hijack a Danish cargo ship.

5 U.S. Dep’t of State, Fact Sheet: United States Actions to Counter Piracy off the Horn of Africa (Sept. 1, 2009), at http://www.state.gov/t/pm/rls/fs/128540.htm; Morgan, David Kenya Agrees to Prosecute US–Held Pirates—Pentagon, Reuters, Jan. 29, 2009 Google Scholar, available in Lexis, News Library, Individual Publications File (Memorandum of Understanding, Jan. 16, 2009).

6 Exchange of Letters on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy and Detained by the European Union–Led Naval Force (Eunavfor), and Seized Property in the Possession of Eunavfor, from Eunavfor to Kenya for Their Treatment After Such Transfer, EU–Kenya, Mar. 6, 2009, 2009 O.J. (L 79) 49, reprintedin 48 ILM 751 (2009) [hereinafter EU–Kenya Exchange of Letters].

7 Kenya Imposes Conditions on Acceptance of Captured Somali Pirates, BBC, Mar. 31, 2010 Google Scholar, available in Lexis, News Library, Most Recent Two Years File [hereinafter Kenya Imposes Conditions]; Danish Navy Forges Deal with Kenya over Somali Piracy, Ice News—Daily News, Aug. 27, 2009, at http://www.icenews.is/index.php/2009/08/27/danish–navy–forges–deal–with–kenya–over–somali–piracy Google Scholar.

8 Kenya Imposes Conditions, supra note 7.

9 Kenya: Piracy, Hansard, UK House of Commons Written Answers, pt. 0010, col. 921W (May 14, 2009), available at http://www.publications.parliament.uk/.

10 These numbers are based on a perusal of the court files in Mombasa. In early September 2009, Vice President Kalonzo Musyoka told the press that there were one hundred piracy suspects on trial in Kenya. Kitimo, Anthony Kenya: Piracy Suspects Appeal to VP Kalonzo, Daily Nation, Sept. 4, 2009, at http://www.allafrica.com/stories/printable/200909040838.html Google Scholar; see also Kenya Imposes Conditions, supra note 7 (placing the figure at over a hundred).

11 Appeals from magistrates’ courts go to the High Court and appeals from the High Court to the Court of Appeal, die highest court in Kenya’s judicial system. Magistrates’ courts are staffed by magistrates ranked by the magnitude of their jurisdiction in the following order descending from the top: chief magistrate, senior principal magistrate, principal magistrate, senior resident magistrate, resident magistrate, and district magistrate. The piracy cases are being tried by chief magistrates.

12 Criminal Procedure Act (1987), Cap. 75, 1st sched., §69. But see note 59 infra. Current Kenyan laws and cases referred to in the discussion below are available online at http://www.kenyalaw.org/update/, unless otherwise noted.

13 Republic v. Hassan Mohamud Ahmed, Crim. No. 434 of 2006 (Chief Magis. Ct. Nov. 1, 2006) (Jaden, Acting Sr. Principal Mag.) (on file with author).

14 Hassan M. Ahmed v. Republic, Crim. App. Nos. 198, 199, 201, 203, 204, 205, 206, & 207 of 2008 (High Ct. May 12, 2009) (Azangalala, J.).

15 Piracy, PENAL CODE, Cap. 63, §69, Penal Code (Amendment) Act, No. 24 of 1967, §6, Kenya Gazette, Supp. No. 67, Acts No. 11, at 150, 153 (1967), reprinted in Kenya Law Reports, The Lkaws of Kenya, Grey Book 43 (rev. ed. 2007) [hereinafter Repealed §69]. Under Kenyan law, the effect on ongoing cases of the repeal of a statute is provided for in §23(3)(e) of the Interpretation and General Provisions Act, Cap. 2 (1983), which states that the repeal of a statute in whole or in part shall not “affect an investigation, legal proceeding or remedy . . . , and any such investigation, legal proceeding or remedy may be instituted, continued or enforced... as if the repealing written law had not been made.” Notably, under the common law the repeal of penal statutes grants immunity from indictment to those whose prosecutions did not result in a conviction for offenses committed while the repealed statute was in force. See Bennett v. Tatton, (1918) 88 L.J.K.B. 313.

16 Judicature Act, Cap. 8 (1967), provides a hierarchical source of Kenya’s law. At the apex is the Constitution, id– §3(l)(a); followed, respectively, by laws as passed by Parliament, id. §3(l)(b); statutes of general application in force as of August 12, 1897, id. §3 (1) (c); the common law, id.; and customary law norms (that is, African customary, or indigenous, law) to the extent they are not repugnant to notions of justice and morality, id. §3(2). African customary laws here refer to cultural and religious norms in family law areas, such as marriage, divorce, and devolution of property on death. See Nyamu, Celestine How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries? 41 Harv. Int’l L.J. 381, 401–07 (2000)Google Scholar.

17 Isabirye, David Mugadu The Status of Treaties in Kenya, 20 Indian J. Int’l L. 63, 75 (1980)Google Scholar (noting that for “dualists international law is never available to a municipal court as a body of rules to be applied by it in the determination of an issue unless the constitution so provides”).

18 Okunda v. Republic, [1970] E. Afr. L.R. 453.

19 E. Aft. Cmty. v. Republic, [1970] E. Afr. L.R. 457.

20 International Crimes Act, Cap. 16 (2008), Kenya Gazette, Supp. No. 100 (2008); Treaty for the Establishment of the East African Community Act, Cap. 2 (2000); Children Act, Cap. 8 (2001).

21 In re Sugar Act 2001 (No. 10 of 2001), ex parte Mat Int’l Ltd, Misc.Civ.App. No. 192 of 2004, [2004] eKLR at 12 (High Ct.). Similarly, in Junta Ganzori v. Commissioner General Kenya Revenue Authority, App. No. 60 of 2006, the court applied a provision of the East African Parliament’s East African Community Customs Act of 2004, and thus affirmed its supremacy over the Kenyan customs law it had replaced. Cases such as Junta Ganzori are heralding a whole new area of law where regional law is beginning to take precedence over domestic law.

22 One court in this context borrowed from the Bangalore Principles, infra, and summarized this principle in the following terms: “It is only where an Act intended to bring a Treaty into effect is itself ambiguous or one interpretation is compatible with the term of the treaty while others are not that the former will be adopted.” R.M. [Rose Moraa] v. Attorney Gen., Civ. No. 1351 of 2002, [2006] eKLR at 27 (High Ct.), [2008] 1 KLR (G&F) 574. The Bangalore Principles were formulated at a high–level judicial colloquium on the domestic application of international human rights norms, which was held from February 24 to 26, 1988, organized by the Commonwealth Secretariat, and convened by P. N. Bhagwati, the former chief justice of India. The principles represent Justice Bhagwati’s summary of the discussions. Bangalore Principles on the Domestic Application of International Human Rights Norms, reprinted in 3 Developing Human Rights Jurisprudence 151(1991) [hereinafter Bangalore Principles].

23 Principle 7 of the Bangalore Principles, supra note 22, states: “It is within the proper nature of the judicial process and well–established judicial functions for national courts to have regard to international obligations which a country undertakes—whether or not they have been incorporated into domestic law—for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.”

24 R.M. v. Attorney Gen., [2006] eKLR at 27–28 (quoting R v. Chief Immigration Officer, Heathrow Airport, ex parte Bibi, [1976] 3 All E.R. 843 (C.A.)).

25 Id. at 27 (quoting Solomon v. Comm’r of Customs, [1967] 2 Q.B. 116, 143 (H.L.), and also noting that this is a “presumption in our law that legislation is to be construed to avoid a conflict with international law”).

26 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804), which has been relied on in other cases such as Fundicao Tupy S.A. v. United States, 11 C.I.T. 23, 29 (1987), to the effect that absent express congressional intent, statutes should not be interpreted to conflict with international obligations. For an analysis of this and related matters, see also Gathii, James Thuo Foreign Precedents in the Federal Judiciary: The Case of the World Trade Organization’s DSB Decisions, 34 Ga. J. Int’l & Comp. L. 1, 14–19 (2005)Google Scholar.

27 R.M. v. Attorney Gen., [2006] eKLRat 30. The applicant in the case had argued that §24(3) of the Act, which initially assigns parental responsibility to the mother, to the exclusion of the father in situations mentioned in that section (relating to what is termed “illegitimacy”), was not discriminatory, as it was based on a legitimate purpose. Id. at 31.

28 Id. at 34.

29 Id.

30 Rono v. Rono, Civ. App. No. 66 of 2002, [2005] eKLR, [2008] 1 KLR (G&F) 803, rev’g Eldoret High Ct. Probate & Admin. Cause No. 40 of 1988 (High Ct. June 12, 1997).

31 Id. at 10.

32 Id. at 11.

33 Id.

34 Id. at 12.

35 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, availableat http://www.un.org/Depts/los/index.htm [hereinafter LOS Convention].

36 Okunda v. Republic, [1970] E. Afr. L.R. 453 (High Ct.).

37 Republic v. Hassan Mohamud Ahmed, supra note 13.

38 The repealed provisions on piracy in the Kenyan Penal Code provided:

  • (1)

    (1) Any person who, in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of piracy.

  • (2)

    (2) Any person who, being the master, an officer or a member of the crew of any ship and a citizen of Kenya—

    • (a)

      (a) unlawfully runs away with the ship; or

    • (b)

      (b) unlawfully yields it voluntarily to any other person; or

    • (c)

      (c) hinders the master, an officer or any member of the crew in defending the ship or its complement, passengers or cargo; or

    • (d)

      (d) incites a mutiny or disobedience with a view to depriving the master of his command, is guilty of the offence of piracy.

  • (3)

    (3) Any person who is guilty of the offence of piracy is liable to imprisonment for life.

Repealed §69, supra note 15. Section 69 was repealed by the Merchant Shipping Act of 2009, infra note 89.

39 See Cherif Bassiouni, M. Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice 42 Va. J. Int’l L. 81, 136–51 (2001)Google Scholar (arguing that universal jurisdiction over piracy is firmly established under international law and that it developed in part in the national laws and practices of major seafaring nations). Notably, Article 86 of the LOS Convention, supra note 35, excludes exclusive economic zones, territorial seas, and internal waters of a state from the applicability of Part VII of the Convention. Article 58(2) applies the provisions relating to piracy to the exclusive economic zone. Attacks within territorial waters are referred to as armed robbery against ships. See International Maritime Organization [IMO], Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery Against Ships, para. 2.2, Res. A. 1025 (26), annex (Dec. 2, 2009), IMO Doc. A 26/Res.l025 (Jan. 18, 2010).

40 Repealed §69, supra note 15, para. 1.

41 Id, para. 3.

42 Republic v. Hassan Mohamud Ahmed, supra note 13.

43 See Capture of Suspected Somali Pirates, US Fed News, Feb. 2, 2006, available in Lexis, News Library, Wire Service Stories File.

44 Republic v. Hassan Mohamud Ahmed, supra note 13, at 147–48, 153.

45 Id. at 153. Notably, the accused persons decided to give unsworn statements when they put on their defense. Under Kenyan law, unsworn statements given in defense are not subject to cross–examination. The magistrate found die unsworn statements “not convincing in view of the overwhelming evidence from the prosecution witnesses.” Id. at 152.

46 Id. at 152, 156–57.

47 Id. at 157.

48 Mat 153–54.

49 Id. at 154.

50 Id. The Criminal Procedure Code, supra note 12, schedule 1, specifies which courts have jurisdiction over particular offenses.

51 Republic v. Hassan Mohamud Ahmed, supra note 13, at 154.

52 Id. at 155. The prosecution had argued that “there is universal jurisdiction irrespective of where the crime occurs or the nationality of the person committing it. That it’s a crime against mankind which lies beyond the protection of any state.” Id. at 154.

53 Id at l55.

54 Id.

55 Hassan M. Ahmed v. Republic, supra note 14, at 2. The other grounds of appeal related to alleged inadequacies in the evaluation of and reliance on the evidence presented to the lower court as the basis for convicting the accused, dismissing their defense, and imposing an excessive punishment. Id.

56 Id. at 5 (quoting Hassan Mohamud Ahmed, supra note 13, at 155).

57 Article 92 of the LOS Convention, supra note 35, provides that a ship is subject to the exclusive jurisdiction of its flag state on the high seas. However, Article 110 provides that warships or vessels belonging to any government may board a foreign ship, other than those entitled to complete immunity, that is suspected of piracy. Article 110 is therefore an exception to the rule on the exclusive jurisdiction of the flag state.

58 Hassan M. Ahmed v. Republic, supra note 14, at 9.

59 Id. at 10. This reasoning on the basis of a schedule to a Kenyan statute is very doubtful in my view. For further exploration of this point, see Gathii, James Thuo , Jurisdiction to Prosecute Non–national Pirates, 31 Loy. L.A. Int’l & Comp. L. Rev. 363 (2010)Google Scholar (also arguing that the High Court rather than courts of first instance is the appropriate venue for piracy trials under Kenyan law).

60 Hassan M. Ahmed v. Republic, supra note 14, at 12.

61 Id. at 10–11. On behalf of the state, it was inaccurately argued both before the principal magistrate and the High Court that Kenya had domesticated the LOS Convention. While Kenya had ratified the Convention in 1989, it was not until September 1, 2009, when the Merchant Shipping Act of 2009 came into effect, that that treaty was domesticated in Kenya. The High Court noted that neither in the lower court nor on appeal was a “contrary view . . . given by counsel for the appellants” on domestication of the LOS Convention. Id. at 10. This observation by the High Court gives further credence to my argument that piracy has occasioned a decisive break with dualism even though the two courts’ reasoning finding jurisdiction over non–national pirates captured outside Kenya leaves much room for doubt.

62 Id. at 10–11 (emphasis added) (fortifying its decision by quoting Martin Dkixon, Textbook on International Law 76–77 (1990), for the proposition that certain crimes such as piracy are considered so destructive of the international order that under customary international law any state may exercise jurisdiction over them, regardless of where the alleged crimes took place or the nationality of the perpetrators; and that this universal principle of jurisdiction is based on the nature of the alleged crime rather than the identity of the perpetrator or the place of commission). See also infra note 87 and corresponding text.

63 For example, in Rono v. Rono, supra note 30, at 10, the Court of Appeal, noting Kenya’s endorsement of customary international law and “ratification” of various international covenants and treaties, stated that even if some of these treaties had not been domesticated, they should be taken into account in resolving the central question of discrimination when that was in issue.

64 LOS Convention, supra note 35, Art. 100. UN Security Council Resolution 1816 (June 2, 2008) calls upon states in paragraph 11 to “cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia consistent with applicable international law.”

65 Jurisdiction of national courts can be provided for by agreement, as with status–of–forces agreements. See Damrosch, Lori F. Et Al., International Law: Cases and Materials 830–35 (5th ed. 2009)Google Scholar.

66 The High Court did not refer to the agreement between Kenya and the United States of January 2009, or the one with the European Union of April 2009, as additional reasons for finding jurisdiction over the pirates. Thus, the court seemed to assume that since the offense was defined under international law, jurisdiction was automatically available in Kenya. It made no distinction between having the jurisdiction and exercising it. For considerations national courts ought to take into account in exercising universal jurisdiction, see Kirby, Michael Universal Jurisdiction and Judicial Reluctance: A New “Fourteen Points, “in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law 240 (Stephen Macedo ed., 2004)Google Scholar.

67 See United States v. Abduwali Abdukhadir Mus6, No. 9–CR–512 (S.D.N.Y. filed May 19, 2009) (charging the defendant, inter alia, with piracy against the U.S.–flagged M/V Maersk Alabama on the high seas and, armed with a firearm, hijacking it by force and detaining its captain in a lifeboat on or about Apr. 8–12, 2009), Superseding Indictment (S.D.N.Y. filed Jan. 12, 2010) (adding charge of hijacking two non–U.S.–flagged ships before the Maersk Alabama); see also Press Release, U.S. Attorney, Southern District of New York, Manhattan U.S. Attorney Files Superseding Indictment Against Alleged Somali Pirate Charging Involvement in Two Additional Hijackings (Jan. 12, 2010),available at http://www.justice.gov/usao/nys/pressreleases/; note 132 infra and corresponding text. For the disposition of the Musé case, see, in this Agora, J. Ashley Roach, Countering Piracy off Somalia: International Law and International Institutions, 104 AJIL 397, 414 n.107 (2010). But see Kontorovich, Eugene Case Report: United States v. Shi, in 103 AJIL 734, 739 (2009)Google Scholar (arguing that the prosecution in the Shi case may be “a one–off occurrence” in light of the reluctance of the United States to exercise “universal jurisdiction over criminal violence on the high seas”).

68 Kontorovich, supra note 67, at 734.

69 See, e.g., Knott, John United Kingdom: Piracy off Somalia: Prosecutions, Procrastinations and Progress, Mondaq Business Briefing, Jan. 21, 2010 Google Scholar, available in Lexis, News Library, Wire Service Stories File (noting that many countries involved in the capture and detention of piracy suspects have been unwilling to prosecute them because of problems relating to the conditions in which they are held, the acquisition of evidence, and the possibility that they may be given asylum); see also Gathii, James Thuo The Use of Force, Freedom of Commerce and Double Standards in Prosecuting Pirates in Kenya, 59 Am. U. L. Rev. 1317 (2010)Google Scholar; Corder, Mike EU to Push for Piracy Prosecutions in Africa, AP, Apr. 26, 2010, available at http://www.salon.com/wires/world/2010/04/26/D9FANG9G3_pirac/index.html Google Scholar (citing reluctance of EU nations to pay for transporting suspects to Europe for trial and difficulty of prosecuting them successfully unless they are caught in the act of hijacking or attacking a ship).

70 In contrast to Kenya, the United States in its Constitution gives Congress the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” U.S. Const. Art. 1, §8, cl. 10.

71 The Penal Code, Ordinance No. X of 1930, established “a Code of Criminal Law in the Colony based on English criminal law and in substitution for the Indian Penal Code.” Branigan, P. F. Review of Legislation 1930. East Africa, Kenya, 14 J. Comp. Legis. & Int’l L. (3d ser.), pt. III, at 155 (1932)Google Scholar.

72 For an excellent exposition of the several influences on the 1930 Kenyan Penal Code, see Morris, H. F. A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935, 18 J. Afr. L. 6, 9, 11 (1974)Google Scholar.

73 Samuel Walker Griffith, Draft of a Code of Criminal Law Prepared for the Government of Queensland, Together with an Explanatory Letter to the Honourable The Attorney General, a Table of Contents, and a Table of The Statutory Provisions Proposed To Be Superseded By The Code at x (1897) [hereinafter Griffith Draft Code]; see also Gibbs, Harry Queensland Criminal Code: From Italy to Zanzibar, 77 Austl. L.J. 232 (2003)Google Scholar.

74 O’Regan, Robin S. The Migration of the Griffith Code, in New Essays on the Australian Criminal codes 103 (1988)Google Scholar.

75 The 1930 provision on piracy read as follows: “Any person who is guilty of piracy or any crime connected with or relating or akin to piracy shall be liable to be tried and punished according to the law of England for the time being in force.” 9 Kenya, Ordinances 1930 (n.s.), §63 (1931).

76 It was not until the adoption of the LOS Convention that a standard definition of piracy (Article 101) gained broad acceptance. Article 101 of the LOS Convention, supra note 35, is closely modeled on Article 15 of the Geneva Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82. There were 63 states parties to the Geneva Convention as of April 16, 2010, and 160 states parties to the LOS Convention as of January 1, 2010.

77 Crim. Code §79 (1899) (Qld.), available at http://www.austlii.edu.au/au/legis/qld/consol_act/ccl 89994/.

78 Repealed §69, supra note 15.

79 For example, after reviewing several definitions of piracy in the United States and elsewhere in the period, Edwin D. Dickinson concluded:

It is evident that some of our definitions, taken literally, are much too broad. There may be robberies or murders upon the seas which are not appropriate subjects of an international jurisdiction. The distinction may be made with difficulty in some cases. But the difficulty should not be insuperable if it is remembered that piracy jure gentium, while it involves grievous wrong to individual rights of person or property and a grave offence against the state most immediately concerned, is primarily and above all an offence against the security of trade or travel upon the international highways of the sea.

Dickinson, Edwin D. Is the Crime of Piracy Obsolete? 38 Harv. L. Rev. 334, 357 (1924–25)Google Scholar.

80 Lenoir, James J. Piracy Cases in the Supreme Court, 25 J. Crim. L. & Criminology 532 (1934–35)Google Scholar. One of the first efforts at codification, which arose from the lack of clarity surrounding the definition of piracy, was the Harvard Research in International Law, Part IV—Piracy, 26 AJIL Supp. 739 (1932).

81 Griffith Draft Code, supra note 73, at 36–37.

82 R v. Jimmy, (1875) 4 Q.S. Ct. R. 130, (1860–1907) Q. Crim. Rep. 93.

83 (1860–1907) Q. Crim. Rep. at 94. According to the Court, it was not piracy if the alleged offense occurred within a creek or port that was part of the colony. Notably, in R v. Gomez, (1880) 5 Q.S. Ct. R. 189, (1860–1907) Q. Crim. Rep. 119, Griffith, then acting as defense counsel, had made the opposite argument (albeit in a murder case that had taken place outside the territorial boundaries of the Queensland Supreme Court), that the laws of Queensland did not reach the islands where the offense had been committed because the Crown, without the Queensland legislature’s consent, had annexed the islands. Griffith lost that appeal.

84 The Griffith criminal code was also influenced by English criminal statutes of the time. These statutes mainly made piracy punishable for British subjects or people owing allegiance to die Crown. For example, the 1880 Criminal Code specifically referred to British subjects as liable “in any place where the Admiral has jurisdiction,” further suggesting that this was the period before these criminal codes embraced universal jurisdiction. Crim. Code, 43 Vict. §106(b) (1880). In fact, as Alfred Rubin has argued, piracy acquired so many meanings in the second half of the nineteenth century in British practice that “it came to be used routinely . . . with regard to nearly any acts of foreigners against whom some forcible political action was directed.” Rubin, Alfred P. The Law of Pkiracy 313 (2d ed. 1998)Google Scholar. The 1967 amendments to the Kenyan Penal Code introducing the now–repealed section 69 were justified as necessary because piracy was defined at the time by reference to the law of England, and it was thought that it “should be properly defined in the context of an independent Kenya.” 12 Republic of Kenya, The National Assembly Official Report, pt. II, col. 1753 (1967) (comments of Attorney–General Njonjo).

85 In re Piracy Jure Gentium, [1934] A.C. 586 (P.C.); see also United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (upholding a conviction for piracy as defined by the law of nations, without a specific statutory definition thereof); cf United States v. Hudson & Goodwin, 11 U.S. (7Cranch) 32, 34 (1812) (holding that a person cannot be tried for an international crime in the United States unless Congress adopts a statute).

86 Under repealed section 69, the second paragraph of the statute applied only to Kenyan citizens, while the first paragraph applied to “ [a]ny person” without specification as to citizenship. Repealed §69, supra note 15, para. 2. In addition, the Kenyan Penal Code does not make it explicitly clear that it applies to crimes committed extraterritorially. See Offences Committed Partly Within and Partly Beyond the Jurisdiction, Penal Code, Cap. 63, §6 (rev. ed. 2009) (providing that “[w]hen an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction,” which strongly suggests that for an offense to come within the jurisdiction of a Kenyan court, it must have been either wholly or partially committed within the jurisdiction of the court trying the offender). For a discussion in this issue of the early history of U.S. piracy laws and their interpretation, see John H. Knox, Extraterritoriality and Its Discontents: Limiting the Reach of U.S. Law, 104 AJIL351, 362–65 (2010).

87 See Jurisdiction of Local Courts, Penal Code, Cap. 63, §5 (rev. ed. 2009) (providing that “[t]he jurisdiction of the courts of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters”).

88 Republic v. Aid Mohamed Ahmed (aka Sicid Mahamud Ahmed), at 10–11, Crim. No. 3486 of 2008 (Chief Magis. Ct. Mombasa, Mar. 10, 2010) (holding that §6 of the Penal Code extends to offenses “that are partly committed beyond” Kenya’s territorial jurisdiction and that” [i] t is not a matter of the court having universal jurisdiction to try pirates but the domestic law has conferred the jurisdiction to this court”).

89 Merchant Shipping Act, Act No. 4 of 2009.

90 Kenya has also ratified the 1988 SUA Protocol. See IMO, Status of Conventions by Country (Mar. 31, 2010), available at http://www.imo.org/. The other treaties the new law has domesticated include the International Convention for the Safety of Life at Sea (SOLAS) of 1974 and its Protocols of 1978 and 1988. The new law is part of a major overhaul of the maritime sector in Kenya. The authority had initially been established in subsidiary legislation in 2004. Kenya Maritime Authority Order, Legal Notice No. 79 (June 21, 2004), available at http://faolex.fao.org/. In 2006 the Kenyan Parliament passed the Kenya Maritime Authority Act, which established the Kenya Maritime Authority and a director general to run it, as well as a Registrar of Ships, a Registrar of Seafarers, a Principal Receiver of Wreck, and a Principal Surveyor of Ships. In my view, these reforms, while long overdue, represented very successful lobbying by interest groups in the maritime industry. The passage of the Merchant Shipping Act was given impetus by the need for a framework for prosecution of pirates off the coast of Somalia. In addition, the IMO encouraged Kenya to pass the new law so that it could “qualify for the ‘White List’ of countries deemed to be properly fulfilling their obligations under the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers.” Efthimios E. Mitropoulos, IMO Secretary General, Meeting with H.E. Hon. Mwai Kibaki, President of the Republic of Kenya (May 4, 2006), available at http://www.imo.org/About/mainframe.asp?topic_id=1322&doc_id=6315; see also Kenya Maritime Authority Act, Cap. 5 (2006).

91 Merchant Shipping Act, supra note 89, §370(1) (providing that “[s]ubject to subsection (5), a person who unlawfully, by use of force or by threats of any kind seizes a ship or exercises control of it commits the offence of hijacking a ship. (2) Subject to subsection (5), a person commits an offence if he unlawfully and intentionally— (a) destroys a ship; (b) damages a ship or its cargo so as to endanger, or to be likely to endanger, the safe navigation of the ship; (c) commits, on board a ship, an act of violence which is likely to endanger the safe navigation of the ship; or (d) places or causes to be placed on a ship any device or substance which is likely to destroy the ship or is likely so to damage it or its cargo as to endanger its safe navigation. (3) Nothing in subsection (2) (d) is to be construed as limiting the circumstances in which the commission of any act may constitute—(a) an offence under subsection (2)(a), (b) or (c); or (b) attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting, or being of and part in, the commission of such an offence.”). Article 5 of SUA provides that “[e]ach State Party shall make the offences set forth in article 3 punishable by appropriate penalties which take into account the grave nature of those offences.” Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Art. 5, Mar. 10, 1988, S. Treaty Doc. NO. 101–1 (1989), 1678 UNTS 221.

92 Merchant Shipping Act, supra note 89, §370(4)(a), (b), (c).

93 Republic v. Said [sic] Mohamed Ahmed, Crim. No. 3486 (Chief Magis. Ct. filed Nov. 19, 2008). The accused were arrested on November 11, 2008, by the Royal British Marines from the HMS Cumberland and turned over to Kenyan officials on November 19, 2008. Zagaris, Bruce French Capture 9 Somali Pirates and NATO and Russia Send Naval Patrols to Gulf of Aden, Int’l Enforcement L. Rep., Jan. 2009 Google Scholar, § Int’l Maritime Piracy, n.11, available in Lexis, News Library, Most Recent Two Years File.

94 Republic v. Aid Mohamed Ahmed, supra note 88, at 18.

95 Republic v. Said Abdallah Haji, Crim. No. 2127 (Chief Magis. Ct. filed June 26, 2009). The accused were apprehended by the Italian naval warship Maestrale, and turned over to Kenyan officials on June 25, 2009. See U.S. Office of Naval Intelligence: Civil Maritime Analysis Dep’t, Worldwide Threat to Shipping Mariner Warning Information (June 10, 2009), available at http://www.nga.mil/MSISiteContent/StaticFiles/MISC/wwtts/wwtts_20090610100000.txt.

96 Republic v. Mohamed Hassan Ali, Crim. No. 1694 (Chief Magis. Ct. filed May 18, 2009), and Republic v. Aidid Mohamed Mohamud, Crim. No. 1784 (Chief Magis. Ct. filed May 27, 2009) (consolidated by the court’s order of Sept. 2, 2009). The accused were arrested on May 7, 2009, by the Spanish navy. Spanish Naval Ship Captures Another Seven Pirates, Ansamed, May 8, 2009, available in Lexis, News Library, Wire Service Stores File. The accused were turned over to Kenyan authorities on May 16, 2009.

97 Republic v. Liban Ahmed Ali, Crim. No. 1374 (Chief Magis. Ct. filed Apr. 23, 2009). The accused were arrested by the French navy on April 15, 2009, and turned over to Kenyan officials on April 22, 2009. Sharon, Otterman & McDonald, Mark French navy Seizes 11 Accused of Pirate Attacks off Somalia, N.Y. Times, Apr. 16, 2009, at A8 Google Scholar; Trials of 11 Suspected Somali Pirates Begin in Kenya, BBC, Apr. 22, 2009, available in Lexis, News Library, Most Recent Two Years File [hereinafter Trials of 11 Begin].

98 Republic v. Jama Abdikadir Farah, Crim. No. 1695 (Chief Magis. Ct. filed May 18, 2009). The accused were arrested on May 7, 2009, by the Spanish navy. Their boat allegedly capsized as a result of evasive action taken by the Nepheli and they were pulled out of the water by the crew of the Marque’s de la Ensenada, a ship that had responded to the Nepheli’s distress signal. Spanish Navy Detains Suspected Pirates off Somalia, Afr. News Daily, May 8, 2009, at http://www.africanewsdaily.com/newsdetails.php?newsid=1315.

99 Republic v. Ahmed Abdikadir Hersi, Crim. No. 1582 (Chief Magis. Ct. filed May 11, 2009). The accused were arrested by the French navy on May 3, 2009, when they mistook the French FNS Nivôse for a commercial vessel and made a run at it, but were trapped by a helicopter before they could fire or flee. Barrowclough, Anne Pirates Sent Packing by Friends in High Places; Somalia, Times (London), May 5, 2009, at 33 Google Scholar.

100 Republic v. Mohamud Abdi Kheyre, Crim. No. 791 (Chief Magis. Ct. filed Mar. 6, 2009). The accused were arrested by the United States Navy on February 11, 2009. Piracy on the High Seas: Hearing Before the Subcomm. on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security of the S. Comm. on Commerce, Science and Transportation, 111th Cong. (May 5, 2009) (testimony by Brian Salerno, assistant commandant, U.S. Coast Guard), available in Lexis, News Library, Most Recent Two Years File.

101 Republic v. Shafili Hirsi Ahmed, Crim. No. 2463 (Chief Magis. Ct., originally filed as Crim. No. 825, May 9, 2009, in Malindi, Kenya). The accused were arrested by the Swedish navy on May 26, 2009, and handed over to Kenyan officials on June 9, 2009. The order to transfer the case to Mombasa was issued by Judge Omondi on July 21, 2009. An issue that arose in this case is that one of the accused was allegedly fourteen years old. The magistrate hearing the matter ordered on June 9, 2009, that the accused be remanded to the Children’s Remand Home. However, on the same afternoon, the accused asserted that he was sixteen and the court referred him for age assessment.

102 Republic v. Mohamud Mohamed Hashi, Crim. No. 840 (Chief Magis. Ct. filed Mar. 11, 2009). On March 3, 2009, the accused were arrested by the German navy. Their trial began on April 22, 2009, according to an unattributed report, see Trials of 11 Begin, supra note 97, but they were later reported to be awaiting trial, see André Jensen, Editorial, Prison No Deterrent to Piracy, Herald (S. Afr.), May 4, 2009.

103 These observations are based on a perusal of the court files on two occasions, first, between August 26 and 28, 2009, and again between February 22 and 25, 2010.

104 Republic v. Ahmed Abdikadir Hersi, supra note 99, and Republic v. Aid Mohamed Ahmed, supra note 88, respectively.

105 Republic v. Liban Ahmed Ali, supra note 97.

106 For example, in Republic v. Liban Ahmed Ali, supra note 97, on their appearance in court on May 25, 2009, the accused told the court they had not eaten for the previous forty–eight hours.

107 For example, in Republic v. SaidAbdallah Haji, supra note 95, the magistrate ordered on August 20, 2009, that the accused receive medical treatment in the prison clinic.

108 For example, when the accused made such an application on May 25, 2009, in Republic v. Liban Ahmed Ali, supra note 97, the court noted that this was a question for the prison authorities to decide.

109 Republic v. Mohamed Abdi Kheyre, supra note 100 (Order of T. Gesora, magis., July 1, 2009) (on file with author).

110 Republic v. Liban Ahmed Ali, supra note 97.

111 See Mudi, Maureen Wako Says Police Prosecutors Will Be Dumped, Standard (Nairobi), Sept. 14, 2009, available at http://www.eastandard.net/business/InsidePage.php?id= 1 l44023923&cid=4 Google Scholar & (noting that Attorney General Amos Wako planned to reduce reliance on the three hundred police prosecutors in the country who handle more than 90 percent of all the criminal cases, yet lack the legal expertise to do so, and that efforts to phase out police prosecutors had failed by the end of 2008 since only 52 of the planned increase in state counsel to 150 had been employed because of inadequate funding); see also Muyanga, Philip Death Knell Tolls for Prosecutors, Nation (Kenya), Sept. 13, 2009 Google Scholar, available in Lexis, News Library, Most Recent Two Years File

112 United Nations Office on Drugs and Crime, UNODC and Piracy, available at http://www.unodc.org/easternafrica/en/piracy/index.html?ref=menuside.

113 Kenya is party to the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 (acceded May 1, 1972), and the African (Banjul) Charter on Human and Peoples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, 21 ILM 58 (1982) (ratified Jan. 23, 1992). The fact that the Somali nationals now charged in Kenyan courts are foreigners calls for Kenya to ensure that the trials are conducted fairly and properly. Oscar Schachter, International Law in Theory and Practice 269–70 (1991)Google Scholar (arguing that exercise of universal jurisdiction by a state with no territorial or nationality links “should require” that such a state fully meet the “criteria of a fair trial and the limits on punitive action that are part of basic human rights”); see also Randall, Kenneth C. Universal jurisdiction Under International Law, 66 Tex. L. Rev. 785, 840 (1988)Google Scholar.

114 Const. §77(1).

115 Id. §77(2) (a), (b), (c), (d), respectively. However, there is no right to legal representation for indigent defendants unless they are charged with offenses such as murder and robbery with violence, which are punishable by death.

116 Id.§77(2)(e),(f).

117 Id. §77(7).

118 Id. §74(1) (“No person shall be subject to torture or to inhuman or degrading punishment or other treatment.”).

119 EU–Kenya Exchange of Letters, supra note 6, Annex (Provisions on the Conditions of Transfer of Suspected Pirates and Seized Property from the EU–Led Naval Force to the Republic of Kenya), para. 3(a), 2009 O.J. (L 79) 51.

120 Id, para. 2(c).

121 Id, para. 3(c).

122 Id, paras. 6(a) & (b)(2) & (3).

123 Id., para. 5(f) & (e), respectively.

124 Kenya: Piracy, supra note 9, pt. 0007, col. 465W–466W (May 8, 2009). In another response to a question, the British secretary of state for foreign affairs told the House of Commons that the German ambassador to Kenya had visited pirates transferred to Kenya by German forces on March 10 and April 8, 2009. Id., pt. 0010, col. 92 IW (May 14, 2009).

125 Before the EU–unodc funding, this prison was notorious for crowding and unsanitary conditions in the humid and sweltering heat of Mombasa.

126 Nicholas Cage Visits Kenyan Prison, Africa News, Nov. 17, 2009 Google Scholar, available in Lexis, News Library, Most Recent Two Years File.

127 McGregor, Sarah EU, Kenya Somali–Pirate Treaty “Violates Rights”, Lawyers Say, Bloomberg News, Aug. 19, 2009, available at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aDs_bA4DXiTg Google Scholar.

128 McGregor, Sarah Aid Group to Defend Somali Piracy Suspects, Ensure Fair Trials, Bloomberg News, Aug. 3, 2009, available at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a5wQ7mzHZEEY Google Scholar.

129 Okunda v. Republic, [1970] E. Aft. L.R. 453, 457.

130 Somali Piracy Cases Stall over AG Remarks, Daily Nation (Kenya), Apr. 6, 2010, available at http://www.nation.co.ke/News/–/1056/893802/–/vsele4/–/index.html; see also AG Queried over Country’s Role on Piracy Cases, id., Mar. 30, 2010, available at http://allafrica.com/stories/201003300855.html.

131 See Kenya Ends Somali Pirates’ Trials, BBC, Apr. 1, 2010, available at http://news.bbc.co.uk/2/hi/africa/8599347.stm. For example, a member of Kenya’s Parliamentary Committee on Defence and Foreign Relations stated that the failure to deliver promised funds for constructing the water and sewage system and painting the Shimo la Tewa prison where the piracy suspects are held was a reason to withdraw from the prosecution agreements. AG Queried over Country’s Role on Piracy Cases, supra note 130. Later, Kenya reportedly agreed to “resume taking on new piracy cases.” Maliti, Tom UN: Donors to Spend $ 3.9 Million to Prosecute Somali Piracy Suspects in Kenya, Seychelles, Canadian Press, June 15, 2010, at http://ca.news.yahoo.eom/s/capress/100615/world/piracy Google Scholar.

132 United States v. Mohammed Modin Hasan, No. 10–CR–56(E.D. Va. filed Apr. 21, 2010) (charging accused, inter alia, with piracy on the high seas, attacking USS Nicholas on the high seas, and assaulting its crew with firearms within the special maritime and territorial jurisdiction of the United States on or about Mar. 31, 2010); United States v. Maxamad Cali Saciid (aka Mohammed Said), No. 10–CR–57 (E.D. Va. filed Apr. 21, 2010) (charging accused, inter alia, with piracy on the high seas, attacking USS Ashland on the high seas, and assaulting its crew with firearms in the special maritime and territorial jurisdiction of the United States on or about Apr. 10, 2010); Gebauer, Matthias Knaup, Horand & Rosenbach, Marcel First Trial of Somali Pirates Poses Headachefor Germany, DER SPIEGEL, Apr. 20, 2010, available at http://www.globalpolicy.org/ Google Scholar.

133 SC Res. 1918, pmbl. & op. para. 4 (Apr. 27, 2010).