Apr 28, 2009
General
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The hurried manner in which the international community has entered into agreements with Kenya on prosecution of suspected Somali pirates is raising more questions than answers.
The hurried manner in which the international community has entered into agreements with Kenya on prosecution of suspected Somali pirates is raising more questions than answers.

In January, the US signed a pact with the government, while in March the European Union followed suit.

In a bid to secure the Indian Ocean waters, Kenya recently signed a protocol for an international code of conduct in Djibouti, aimed at facilitating arrest, investigation and prosecution of suspected pirates.

But it is the arrest and release of piracy suspects by NATO forces two weeks ago, who cited lack of legal power to detain them, that has raised questions over the legal basis on which the suspects are being tried in Kenya.

Now Mr Francis Kadima, a lawyer based in Mombasa, has warned that the trial of pirates in Kenya is illegal, and might have far reaching consequences.

The EU agreement was signed hastily when a Germany frigate arrested seven pirates who were handed over to the Kenyan authorities two days after the deal was signed.

“These agreements were supposed to be discussed in Parliament before they became enforceable, because the trials have serious repercussions,” says Mr Kadima.

“Kenya is owned by Kenyans and Parliament must know the content of these agreements so that they can be ratified and domesticated based on their benefits to the country. Nobody knows on what basis these agreements were signed,” he added.

He says Kenya has had problems with the Somali community, and with some pockets in their population linked to terrorism, trials in Kenya may make a strong appeal for another act of terror. “We are staying with Somalis amidst ourselves and some of the trials affect their relatives. What would happen if they decide to exact revenge?” Kadima asked.

Apparently, he argues, the Government has remained mute on the benefits accruing from these high risk trials.

Kenya, the lawyer says, has a weak legal system in regard to piracy, since the problem only took a dramatic turn recently and the Government has not put in place an adequate legal framework to deal with the problem.

But there is a provision in the Kenyan constitution which allows trial for international sea crimes.

The section under which suspected pirates are charged in the country is contained in section 69 (1) as read with section 69 (3) of the Penal Code. However, it is not specific on whether the suspects should be arrested by Kenyan authorities or whether the suspects must have committed the crime against Kenyans.

“Besides, the country’s Judiciary does not have enough experience to expeditiously deal with the issues of piracy,” Mr Kadima says.

Faced with the escalation of the crime in the Indian Ocean, the world community responded by sending war ships in the area. So far there are 43 suspects facing piracy charges in courts in Mombasa, while 10 of them are serving a seven-year jail term at the Shimo La Tewa Prison.

Eleven more are expected on Wednesday or Thursday after being captured by a Spanish ship. These will bring the number of pirates in Kenyan custody to 64. Those facing charges have since appealed against the sentence handed to them by a magistrate’s court in 2006.

The handing over of the suspects has attracted international attention, with major television stations from Europe and America converging on Mombasa to cover the trials.

And the court proceedings have also been characterised by extraordinary requests, where for instance during a hearing last week, a defence lawyer made an application to have the court visit the scene of crime in the high seas to establish the exact location the alleged piracy took place, which was denied.

The only law that is elaborate on maritime issues, and which can give Kenya enough room to deal with the problem is the Merchant Shipping Bill 2009, which was passed by Parliament in February, but is yet to be assented to by the President, Mr Kadima says.
In the case of the seven suspects who were released without charges, NATO commander Alexandre Fernandes was quoted by Reuters as saying that the forces did not have a detaining policy.

“The warship must follow its national law. They can only arrest if the pirates are from the Netherlands, the victims are from Netherlands, or if they are in Netherlands’ waters,” he said, sentiments that Mr Kadima echoes.

Says he: “The vessels for which pirates are accused of attacking were not seized in Kenya territorial waters, neither are the crew Kenyan nor the vessel and the cargo belong to Kenya.” He adds that the country does not have any interest in handling these cases. “In fact they are just overburdening our courts and judicial system which has a huge backlog of cases.”

Insurance premiums

Increased piracy in the Indian Ocean has resulted in insurance premiums shooting up and some shipping lines avoiding the Gulf of Aden for the longer and more expensive Cape of Good Hope route.

However, if the root cause of piracy is not addressed, it will be difficult to eradicate it, according to Mr Andrew Mwangura, East Africa Seafarers Assistance Programme coordinator.

When Somalia plunged into a civil war in the early 1990s, trawlers from countries including South Korea and Japan took advantage of the lawlessness and plundered marine resources, while others dumped nuclear waste within Somali waters.

Young men ganged up to protect their resources, but graduated into pirates. The millions of dollars they get in ransom payments trickles down to the villages to take care of poverty-stricken people.

“Piracy comes to the fore only when ships belonging to powerful nations are hijacked,” says Mr Mwangura.

“What the world should know is that the men arrested for being suspects in piracy are not the pirates. Pirates are living comfortably out of Somalia and those men are just foot soldiers. So long as poverty, insecurity and lawlessness persist, we are not solving the problem,” he adds.

During a conference in Brussels last week, donors agreed to spend over $250 million (Sh20 billion) to support security systems in the country.

At the same time, French Ambassador Elisabeth Barbier said the UN was pursuing other options including establishing special piracy courts.
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