Kenya: No Jurisdiction to Try Piracy?

One important factor which played into Jack Lang’s recommendation to create piracy courts in Puntland, Somaliland and Tanzania, was Kenya’s apparent unwillingness to take the entire problem upon itself.  Until last year, the international community was relying on Kenya to prosecute suspected pirates in Mombasa based upon bilateral agreements. However, in April 2010, Kenyan Foreign Minister Moses Wetangula told reporters, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” Subsequently, the Kenya High Court at Mombasa ruled that “the Local Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Therefore, it did not have jurisdiction to prosecute Piracy on the High Seas (which lies outside of a State’s territorial seas). The specifics of that case provide an interesting case study into a piracy prosecution as well as the perils in amending legislation. In re Mohamud Mohamed Hashi et. al.

The facts of the case provide some colorful background. Mohamud Mohamed Hashi and eight other persons were charged with being armed with three AK 47 Rifles, one pistol, one RPG – 7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle, attacking the MV COURIER vessel and at the time of such act put in fear the lives of the crew men of the said vessel. They were in a skiff like the one pictured in the header of this blog. They were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help of its helicopters and a U.S. helicopter assigned to the USS – Monterey, who “accosted” them in their small boat and arrested them. The Commander and/or officers of the German Naval Vessel, brought the men to Mombasa Kenya and placed them in the custody of the Kenyan police ten days after being captured in the Gulf of Aden.

The legal issue boiled down to two competing statutory provisions addressing the jurisdiction of the Magistrate to consider piracy charges. The first relevant section of the Kenyan Penal Code provided: “5. The jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters.” Whereas, the second section considered by the High Court provided: “69. (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.”

The High Court held that these two sections were inconsistent because Section 5 of the Penal Code limited the Court’s jurisdiction to territorial waters and Section 69 expanded the Court’s jurisdiction to include the High Seas.  The High Court concluded that Section 5 was juridically paramount because “It is the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the [Penal] Code is concerned.”  The limiting provision in Section 5 prevailed and, he concluded, “the whole process was therefore null and void, ab initio.  A nullity from the word go.”

What of universal jurisdiction you ask? Doesn’t it permit any State to prosecute any act of Piracy on the High Seas? Universal Jurisdiction permits a State to prosecute a suspect for piracy. However, the the substantive provisions must be supplied by that State’s penal code.  Jose Luis Jesus, the President of the International Tribunal for the Law of the Sea explains:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

In this case, the Kenya High Court appears to have determined that there were no substantive provisions of the Kenyan Penal Code which permitted it to prosecute the suspects. Although one might argue the court conflated the issues of jurisdiction and substantive penal law.

There also appeared to be a serious error in the manner of enacting the new piracy law. The High Court noted that during the prosecution of the defendants in this case, the statute under which they had been charged was repealed.  There was no sunset clause. In other words, when the Parliament repealed the old piracy law, it did not consider what would happen to persons who had already been arrested and charged under the old law.  Once the old law was repealed, defendants could not be convicted of an offence which ceased to exist. In addition, they could not be charged afresh with a violation of the new piracy statute for it would be an ex post facto violation. As nations in the region start the process of updating their piracy laws, this provides a cautionary tale.

The final kicker was the High Court decision to order the defendants released and request that the UNHCR repatriate them back to Somalia. The case in currently on appeal.