Charge of piracy
Judicial review proceedings
The High Court has ordered the immediate release of nine suspected pirates for lack of jurisdiction over crimes that were allegedly committed on the high seas. The court also found that the suspected pirates qualified as wards of court who needed the court's protection, and ordered the Kenyan government to procure their safe return and passage to their countries of origin.
On the morning of March 3 2009 nine suspected pirates were arrested in the Gulf of Aden in the Indian Ocean. The arrests were made by the German navy – with the help of the US navy – using air support. Having arrested the suspected pirates, the officers of the German naval vessel FGS Rheinland-Pfalz brought the suspects to the Kenyan port of Mombasa and placed them in the custody of the Kenyan authorities for eventual arraignment and trial before the Kenyan courts. The trial was to be held in Kenya pursuant to piracy trial agreements entered into between Kenya and various foreign countries, including the United States, and the European Union.
Charge of piracy
On March 11 2009 the suspected pirates were arraigned before the Chief Magistrates Court in Mombasa and charged with the offence of piracy under Section 69(1) of the Penal Code, which provides that "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".
Under Section 69(3) of the Penal Code, life imprisonment is prescribed as the sentence for the offence of piracy.
The charge sheet detailed the alleged offence as follows:
"On the third day of March 2009 upon the High Seas of the Indian Ocean jointly being armed with offensive weapons – namely, three AK 47 rifles, one Tokalev pistol, one RPG-7 portable rocket launcher, one SAR 80 rifle and one Carabire rifle – attacked a machine sailing vessel – namely MV Courier – and at the time of such act put fear in the lives of the crewmen of the said vessel."
All the accused pleaded not guilty to the charge and subsequent applications for bail pending trial were denied. After the close of the prosecution's case, the accused applied for leave to institute judicial review proceedings in the High Court to seek a prohibition order to prevent the Magistrates Court from proceeding with the case.
On September 1 2009, while the case was pending, Section 69 of the code was repealed by dint of Section 454 of the Merchant Shipping Act, and a new provision in respect of piracy came into force through Section 371 of the Merchant Shipping Act. However, the charge sheet was not amended to reflect this change.
Judicial review proceedings
Once leave to institute judicial review proceedings had been granted, the substantive application seeking to stop the trial at the Magistrates Court was filed in the High Court on September 23 2010.
The accused challenged the jurisdiction of the Kenyan courts to hear the case, as the evidence showed that the alleged offence took place in the Gulf of Aden, which is between Somalia in Africa and Yemen in the Arabian Peninsula. It was argued that the alleged offence took place in an area well beyond Kenya's territorial waters and geographical jurisdiction.
The jurisdiction of the Kenyan courts to adjudicate on any matters under the code is established under Section 5 of the code which provides that "the jurisdiction of the court of Kenya for the purposes of this Code extends to every place within Kenya, including territorial waters".
Thus, the court had to decide whether it had jurisdiction to hear the case. Reference was made to the Court of Appeal in Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Limited(1), in which Justice Nyarangi stated:
"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."
The court was faced with the apparent conflict between Section 5 of the Penal Code, which seemed to limit the court's jurisdiction to territorial waters, and Sections 69(1) and (3) of the code, which provided that an act of piracy, whether committed within territorial waters or on the high seas, was a crime punishable by life imprisonment.
The prosecution argued that Section 2 of the code would rescue the situation – it provides, among other things, that unless otherwise expressly stated, nothing in the code can affect the liability of a person to be tried or punished under any law in force in Kenya relating to the jurisdiction of the court of Kenya for an offence in respect of an act carried out beyond the ordinary jurisdiction of the court.
The court, in arriving at its decision, found that Kenya's territorial waters extend 14 nautical miles into the Indian Ocean along the length of its 640 kilometres of coastline. The court also found that 'the high seas' are not defined in the code and relied on the new Merchant Shipping Act – adopting the United Nations Convention on the Law of the Seas (UNCLOS) – in which 'the high seas' are defined as:
"All parts of the sea that are not included in the Exclusive Economic Zone, in the Territorial Sea or in the Internal Waters of a state; or in the archipelago waters of an archipelagic state."
The court drew a distinction between piracy jure gentium and piracy as proscribed under Section 371 of the Merchant Shipping Act, with the new law being classified as piracy by statute as envisaged by UNCLOS.
The court also found itself in a legal quagmire, in that the law under which the accused persons had been charged (ie, Section 69 of the code) had been repealed without saving or transitional provision, and the accused could not be rearrested and charged afresh under the act, as the fresh charges would be deemed to be ex post facto and thus prohibited under Kenyan law.
Eventually, the court found that Section 5 of the code was the overriding provision of the law on matters of jurisdiction, and that the section gave the Kenyan courts jurisdiction to deal only with offences that take place within the territorial jurisdiction of Kenya. The court found that the high seas are not and could not be considered a place in Kenya or within the territorial waters of Kenya, and that Parliament had erred in purporting to extend the court's jurisdiction to the high seas under Section 69(1) of the code, contrary to the jurisdictional limits stipulated under Section 5.
The court proceeded to issue a prohibition order and barred the Magistrates Court from proceeding with the hearing. On releasing the suspected pirates, the court considered that owing to the circumstances of the case, the released persons would be extremely vulnerable and would need protection. The court therefore proceeded to declare them wards of court and ordered the Ministry of Immigration to make arrangements to procure their safe return to their countries of origin. In default, the court requested the United Nations High Commissioner for Refugees to take custody and care of the released persons and to consider them displaced persons.
This decision has caused quite a stir. From one point of view, it is a bold decision, based on a plain and ordinary interpretation of Section 5 of the Penal Code. However, given the increase in piracy in the Indian Ocean, the decision has dealt a blow to efforts aimed at dealing with this problem. The decision may also be viewed as a tacit repudiation of the piracy trial agreements into which Kenya has entered with Western states, which have been described as "illegitimate surrogacy relationship brought about by the Foreign Affairs Ministry".(2) From a jurisprudential viewpoint, the decision – although well considered – is challengeable on the grounds that the court overlooked the doctrine of universal jurisdiction. If courts around the world adopted the same reasoning, the crime of piracy, if committed on the high seas, would be without remedy or penalty at local level.
For further information on this topic please contact John Mbaluto at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).
(1) (1989) KLR 1.
(2) Sunday Nation, November 14 2010, "Straight Talk" by Ahmednasir Abdullahi.