Kenya’s neighbours reluctant to host courts to try Somali pirates

Regional states have balked at hosting a specialised Somali court to try suspected pirates, a report prepared by the United Nations (UN) secretary-general Ban Ki-moon to the Security Council states.

Only Tanzania has expressed readiness to host the extraterritorial court, but is demanding full international co-operation, including sufficient funding, among other forms of support.

The UN further faces the more serious challenge of convincing Somalia’s Transitional Federal Institutions (TFIs) to include the constitutional and legal basis of an extraterritorial court into their laws.

(An extraterritorial court might be an existing Somali court located in a third state, or a specially established new court or a new section of an existing court, either at the federal or regional level, dedicated to or specialising in conducting piracy prosecutions).

According to the report presented to the Security Council on June 15, Somalia’s Transitional Federal Government (TFG), Somaliland and Puntland oppose the establishment of the specialised courts in other states.

TFG claims there is no justification for structures to be placed outside of Somalia, with offers for cities in Somaliland and Puntland as viable alternatives for conducting prosecutions for all of Somalia.

The locations proposed by TFG, Somaliland and Puntland authorities are the city of Garoowe, Galmadug and Gaalkacyo, all within Somalia.

The UN Political Office for Somalia has also advised that the enactment of the necessary legislation in the current political climate might be a challenge.
Though they support the establishment of such a court, Seychelles and Mauritius — the Indian Ocean island nations that have been prosecuting the piracy suspects — said they were constrained in capacity. Moreover, the two nations said they were focusing on strengthening their own national prosecutions.

Notice of withdrawal

Kenya and Djibouti had not made their written replies to the UN boss at the report’s presentation.

In March 2010, Kenya gave six months’ notice of its withdrawal from the arrangements that it had entered into with Canada, China, Denmark, the European Union, the United Kingdom and United States, for the transfer of piracy suspects.

The government explained that the cancellation of the deal was meant to force the international community to get more involved, after growing dissatisfaction with their contribution towards the fight.

The government said the hosting and prosecution of the suspected pirates had been left to Kenya alone, thus exposing the country to several security threats.

“There was a fundamental change in circumstances after we signed the agreements. Kenya became a dumping ground for pirates arrested by the combined naval forces,” Ambassador Patrick Wamoto, the acting Foreign Affairs Permanent Secretary, told the Sunday Nation in a past interview.

However, Kenya continues to accept pirates from naval forces for trial on an ad hoc basis, the UN report acknowledged.

“The prosecutions of 50 accused in six trials have been completed, and there are nine ongoing prosecutions of 69 piracy suspects.

“Kenya has six judges and six prosecutors who specialise in piracy cases, although not exclusively,” the report observed.

The human cost of piracy off the coast of Somalia is incalculable, with killings and widespread hostage taking of sailors, noted Ms Patricia O’Brien, Under-Secretary-General for Legal Affairs and UN legal counsel.

“The increasing number of incidents of piracy, the escalation of violence and the expanding geographical scope of the attacks are extremely worrying.

“The commercial cost of this scourge is also very high,” she told the Security Council when she presented the Secretary General’s report on June 21.

Since January 1, there have been 177 attacks, of which 18 were successful. As of May, 26 ships are held by pirates, with a total of 601 hostages, Mr Ban stated in the report.

The geographical area of the attacks now stretches to 2.8 million square miles, an area that is increasingly difficult for naval forces to patrol.

As of June, 1, pirates were being held in 20 different countries including Kenya, Belgium, Comoros, France, Germany, India, Madagascar, Seychelles, Somalia, Japan and Tanzania.

The present report was prepared pursuant to Security Council resolution 1976 (2011) of April 11, in which the Council requested the Secretary-General to report on the modalities for the establishment of “… specialised Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialised anti-piracy court.”

The Council’s request arose out of a report by Jack Lang, the Special Adviser to the Secretary-General on Legal Issues Related to Piracy, back in January.

Jack Lang’s report highlighted the urgent need to establish effective judicial capacity for piracy trials in Somalia and suggested an additional Somali court outside Somalia.