The Director of Public Prosecution has appealed against a ruling that Kenyan courts have no jurisdiction to try piracy cases.
Through special prosecutor Patrick Kiage, DPP Keriako Tobiko is seeking a declaration from the Court of Appeal that Kenya has the power to try and prosecute suspected pirates.
Mr Kiage said Kenyan courts derive their jurisdiction from international law, which declares piracy an international crime.
“Under international law, suspected pirates can be charged in any country where they are captured,” Mr Kiage said.
In November last year, Mombasa High Court judge Justice Mohammed Ibrahim stopped the prosecution of nine suspected Somali pirates on grounds that Kenyan courts do not have the powers to deal with matters which take place outside Kenyan territorial waters. (READ: Court deals blow to piracy war)
The DPP is also contesting the ruling on the grounds that it contradicts another made by Justice Festus Azangalala in 2009.
Justice Azangalala ruled that Kenyan courts had the power to try piracy cases and upheld the conviction of Somalis sentenced by a lower court to seven years in jail.
The nine suspected pirates were brought to court in Nairobi from Mombasa’s Shimo la Tewa prison under tight security. They could not speak English or Kiswahili and communicated through a Somali interpreter.
They are Mohamud Mohammed, Mohammed Ali, Mohammed Dogol, Abdi Wahid, Abdulahi Omar, Abdiraman Mohammed, Khadir Mohamed, Abdirizak Hassan and Mohammed Ishmael.
They were arrested in March 2009 by American and German forces in the Indian Ocean off the Coast of Aden and charged with piracy in a Mombasa court.
It was alleged that on March 3, 2009 the nine, armed with three AK47 rifles, three pistols and portable rocket launchers, attacked Mv Courier, threatening the lives of the crew.
Mr Justice Ibrahim had released them unconditionally and ordered that they be repatriated to Somalia, but rescinded the decision after the State appealed.
The suspects’ lawyer, Mr Jared Magolo, maintained that the High Court ruling was still effective as, at the time it was issued, the Penal Code had not been repealed and replaced by the Merchant Ship Act.
The case that was to be heard by judges Samuel Bosire, Emmanuel O’Kubasu, Erastus Githinji, Philip Waki and Joseph Nyamu did not go on due to a quorum hitch at the Appeal court.
Justice O’Kubasu was available, but could not hear the appeal as the law says that any matter raising substantive questions of law can only be heard by a bench of five judges.
Mombasa judge Maureen Odero set October 17 for the hearing of the case.