Deal on piracy trials skewed, say ministers

Kenya may have been coerced into accepting to host a court to try suspected Somali pirates arrested in the Indian Ocean.

Two Cabinet ministers who are directly involved in the process told the Sunday Nation that the government yielded to pressure from the UN Security Council veto-wielding members – USA, UK, France, China and Russia – Germany, Nordic states among others whose vessels have been targeted by pirates.

Justice and Constitutional Affairs minister Mutula Kilonzo has openly stated that Kenya got a raw deal that exposes the country to high risk of revenge terrorism. So has Foreign Affairs minister Moses Wetang’ula.

“We agreed to the deal because of pressure,” Mr Kilonzo said. “From a legal policy perspective, Kenya is being short-changed,” added the Justice minister.

Little funds

Mr Kilonzo and Wetang’ula said Kenya was not happy with the deal, more so on funds the United Nations Office on Drugs and Crime (UNDOC) is committing for the trials.

Interviews with multiple sources revealed that Kenya could have been coerced into signing the agreement that was facilitated by the UN Security Council.

The country has so far signed agreements with the EU, USA, Canada, UK, China and Denmark among others. The list essentially consists of the most influential and veto-wielding members of the UN Security Council as well as rich nations of Western Europe.

Pressure had been piling on President Kibaki to allow suspects arrested outside the country’s territorial waters tried within Kenya since 2008.

This was after Kenya was seen to dither after earlier agreements that it signed to try the suspects. The agreements were later denied by Attorney-General Amos Wako who said the ministry of Foreign Affairs had unilaterally made the commitment without his knowledge. This did not please the UN Big Five. And pressure started to build.

According to Mr Kilonzo, the government was seeking an all-inclusive and binding agreement that would be beneficial to both sides.

Shoulder burden

Kenya wanted the EU, USA and China among other rich nations to help shoulder the burden of trying Somali pirates captured in the Indian Ocean.

When Kenya was seen to be still hesitant to neither accept new suspects nor try them locally, EU’s Foreign Affairs diplomat Catherine Ashton was dispatched to Nairobi.

She held a meeting with President Kibaki and Prime Minister Raila Odinga on May 19, 2010. It was at this meeting that Kenya softened from the earlier hard-line position.

It was not an agreement that Kenya had wanted, a source said.

“Meeting with Mrs Ashton was critical because it brought a very senior EU official to discuss the problem of piracy with us. It opened more avenues of cooperation,” Mr Wetang’ula said.

Three weeks ago, Kenya received six suspects from the UK following Mrs Ashton’s intervention in May.

In return, the rich nations cobbled up a Sh744 million ($9.3 million) fund to refurbish the Shimo La Tewa Prison which will now host the court house to try piracy suspects.

UNDOC Programme Manager Alan Cole told the media that with the refurbishment of the courtroom, cases will be heard and determined within 12 to 18 months. Kenyan magistrates and prosecutors who have been trained in law of the sea and specific piracy evidential issues will hear the cases.

UNDOC has also hired interpreters who will translate the proceedings into Somali and French to enable the suspects follow the proceedings.

“The prison can handle more than 2,450 prisoners and we believe it will serve the purpose for the next two years before we expand it further,” the UNDOC boss said.

The new court house has been fitted with a computerised case management system and other facilities to allow video evidence to be used. Accommodation facilities at the prison, water supply, catering services and introduction of welfare services for the prisoners to provide suspects with basic needs too have benefited.

However, Kenyan authorities have remained sceptical.

The government is particularly irritated by the mere Sh744 million UNDOC pledged for this year. Fears are also rife that the funds could even reduce as more coastline states such as Tanzania, Seychelles, Mozambique, Yemen and the landlocked Uganda are brought on board.

Besides, Kenya is uneasy with the activities carried out by these partners which are not specifically aimed at assisting the country cope with the influx of prisoners to an already overstretched service.

Capt (rtd) Simiyu Werunga, a security expert, says the EU and other Western governments whose vessels have come under serious attacks duped Kenya.

“Initially, they (Western governments) said they would build the capacity of our navy and police by training and equipping them to enable them take care of our territorial waters but they have not done their bit,” said Capt Werunga.

He says that despite sharing the longest boundary with Somalia, options of using Seychelles and Tanzanian courts could be reason the donors are giving Kenya peanuts.

Security experts further say that Kenya was exposing itself to revenge terrorist attacks by groups such as Al Shabaab for accepting to detain and try suspected pirates.

Concern is also rising over the sustainability of the funding. With no binding agreements between the parties and the incorporation of Tanzania and Seychelles as well as willingness shown by Uganda, Yemen and Mozambique to try piracy suspects, funds could dry up.

According to Mr Wetang’ula, Kenya was looking at getting further assistance in the areas of capacity building for prosecution, provision of security for suspects and the rehabilitation of the prisoners once their jail terms are over.

So far, ministries of Justice and Home Affairs have put forward a proposal to UNDOC for refurbishment of all maximum security prisons in the country starting with Kamiti, Manyani and Naivasha, said Mr Kilonzo.

Kenya currently holds 123 piracy suspects while 18 others have been convicted and sentenced in Kenya.

The UN recently opened a logistics office in Mombasa to facilitate the process of taking in new suspects as well as the trial process.