Kenya might be at risk after prosecuting Somali pirates

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.