The jurisdictional challenges to the prosecution of piracy cases in Kenya: mixed fortunes for a perfect model in the global war against piracy |
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Authors: | Paul Musili Wambua |
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Institution: | (1) Commercial Law Department, University of Nairobi School of Law, Nairobi, Kenya |
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Abstract: | Since 2008 Kenya has distinguished itself in the global war against piracy by undertaking prosecutions in the national courts
of suspected pirates arrested in the high seas and handed over by navies of leading maritime nations under bilateral agreements
(MOUs) entered into between Kenya and these leading maritime nations. As of July 2011, Kenya had over 20 convicted pirates
serving jail terms ranging between 7 and 20 years and over 100 suspected pirates awaiting trial in national courts. This is
the largest number of suspected pirates held and tried in any one state at any given time in modern history. To achieve this,
Kenya had to effect far reaching changes in the law. In the initial stages, suspected pirates were charged under Kenya’s Penal
Code (Cap 63 Laws of Kenya). However, the high court in the case of Re Mohamud Mohamed Dashi and eight others 2010] eKLR,
ruled that Kenya had no jurisdiction to try suspected pirates under that law. In September 2009, Kenya passed a new law (the
Merchant Shipping Act), which not only defined more comprehensively and extensively the offence of piracy, but also extended
the jurisdiction of Kenyan courts to try piracy committed by non-nationals. Though the law gives Kenya a very broad jurisdiction
to try suspected pirates, the process is still fraught with challenges due to lack of financial and human resources. In the
case of Republic vs Hassan Jama Haleys Alias Hassan Jamal and five others 2010] eKLR, the court commented thus:
“… I must note that the ‘piracy trials’ have presented a unique challenge to the Kenyan legal system. We cannot ignore the
fact that these are suspects who having been arrested by foreign naval forces on the High Seas are brought to Kenya for trial.
They are strangers in the country, do not understand the legal system, may not know what their rights are and do not understand
the language… the Kenyan Government and the International partners supporting these trials put in place a system to provide
free legal representation for the suspects…” |
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