Tanzania – a case study

One of the goals of this blog has been to evaluate strategies for prosecuting Somali pirates.  A major strategy by the international community has been to transfer pirates who are captured by EUNAVFOR to regional countries, mainly Kenya and the Seychelles, to tackle prosecution. This strategy was undermined when a Kenyan Court ruled that it did not have jurisdiction to try piracy on the high seas. Nonetheless, there are a number of other regional States that are developing the capacity to prosecute piracy. This is the first in a series of posts examining how piracy affects other coastal nations in Africa and attempts by those States to increase capacity.

In Tanzania, examples of pirate activity are commonplace. But the following report provides some context. Pirates have been captured on the traditional tourist hot-spot of Mafia Island:

They were caught with various weapons, including a magazine laden with 21 rounds of ammunition, and SMG and SAR guns, police said. Anglers operating along the Indian Ocean shores saw the suspected pirates and tipped off the law enforcers, who arrested them at around 7pm at Kirongwe Village in Mafia District on Thursday.

Reports say the suspects landed at Kifinge Village at Baleni Ward at around 2pm on Wednesday aboard a fibre boat powered by an engine.

They reportedly looked hungry and tired, gesturing to the villagers as they asked for food in their mother language.

The villagers first took all the six suspects to a dispensary at the Kirongwe Village township where good Samaritans provided them with first aid and porridge before calling in the law enforcers.

Mr Mwakyoma said the interrogations were constrained by language hitches, as the suspects could neither speak Kiswahili nor English.

The suspects explained after an interrogation that they were 11 aboard two fibre boats, but the boat carrying some of their colleagues capsized and they were not aware of their whereabouts.

These Somalis were clearly far from home, not speaking the local languages and suffering from hunger and thirst.  But this has not stopped them from initiating attacks in Tanzania’s waters.

With the expansion of piracy east and south of Somalia, there have been attacks both within Tanzania’s territorial waters and within its exclusive economic zone. The ports of Mombasa, Kenya and Dar Es Salaam, Tanzania are high-traffic areas for commercial ships. Therefore, the shipping lanes through Tanzanian waters are ripe ground for pirate attacks.  Due to the increase of pirate attacks, the East African reported on 28 February 2011 (print edition only, updated article here) that Andy Linington, a top official of the UK union Nautilus said:

We could well have a situation this year where the leading seafarer nations, including the Filipinos, will refuse to crew ships which are sailing near the Gulf of Aden, the Somali coast or to the East African ports of Mombasa or Dar es Salaam.”

Such action would obviously deal a crushing blow to the economies of East Africa. Tanzania has a significant economic interest to protect as well as its reputation. Tanzania People’s Defence Forces have indicated it intends to protect commercial and private ships within its exclusive economic zone. But until recently it did not have a legal basis to prosecute piracy on the high seas.

However, in May 2010, Tanzania amended its Penal Code, adding a Section 6, which gives the Courts of Tanzania jurisdiction for “offences committed by any person on the high seas,”  where “high seas” is defined as “the open seas of the world outside the jurisdiction of any state.”

The law defines piracy as (a) “any act of violence or detention or any act of degradation, committed for private ends;” (b) participation in the operation of a ship with knowledge that the ship was intended was has been used in acts of piracy; or (c) incitement or intentional facilitation of either (a) or (b). Section 66(1)(c) appears aimed at financiers and pirate bosses, permitting prosecution of individuals who never step foot aboard a pirate ship. Whereas Section 66(1)(b) is interesting in that it permits prosecution of individuals who are not engaged in an attack of a vessel, so long as it can be proven that the ship in which they are traveling was intended to be used for pirate acts. Proof of intent might be a tricky business. Certainly, possession of guns, RPGs and ladders might be circumstantial evidence, but such evidence is routinely tossed overboard by pirates on the verge of capture.

Nonetheless, to date 11 pirates have been tried and sentenced in Tanzanian courts, presumably since the new law was enacted in May 2010.

Two other interesting provisions of the piracy law show that Tanzania is aware of the significant resources that might be involved in pursuing pirate prosecutions. Section 66(3) provides that unless a pirate ship is registered in Tanzania, “no prosecution shall be commenced unless there is a special arrangement between the arresting state or agency and Tanzania.” Likewise, pursuant to Section 66(4), the Director of Public Prosecutions must consent to any prosecution for piracy. Tanzania does not want to become the dumping ground for every pirate captured on the high seas.

To this end, EU anti-piracy task force officials have asked Tanzania to consider taking over the prosecutions as part of joint efforts to combat piracy in the region. Tanzanian Attorney General Frederick Werema confirmed that a special committee had been set up to consider the request. Tanzania, like other States, will undoubtedly request financial backing from Western powers to pursue the prosecution of pirates.