Prosecuting International Crimes in Africa - PULP - University of ...

234 Chapter 11
losses in excess of one hundred million dollars. 6 There is also chance that
Somali pirates could become agents of international terrorist networks.
‘Income’ from such ransoms is already helping to pay for the war in
Somalia, including suspect organisations such as Al-Shabaab. On the
humanitarian front, piracy is making aid deliveries to drought-stricken
Somalia ever more difficult and costly. The World Food Programme
(WFP) has had to seek Canada’s escort during her deliveries. Due to the
danger and cost of piracy, insurance premiums for the Gulf of Aden have
gone up by over 40% compelling shipping to avert the Gulf of Aden/Suez
Canal and divert around the Cape of Good Hope. 7 This has a likelihood of
adding considerably to the costs of manufactured goods and oil often
transported via the same route. Even more critical, piracy might cause a
major environmental disaster in the Gulf of Aden if a tanker is sunk or run
aground or set on fire. The apparent use of ever more powerful weaponry
makes this increasingly likely.
This situation clearly deserves (legal) amelioration. However, efforts
in that direction have suffered a number of pitfalls from lack of political
will, to jurisdictional problems right to certain capacity challenges. Kenya,
a not very developed legal system, has been the epicenter of the
prosecution of Somali pirates, occasioning even more challenges. When it
all began, Kenya had yet to pass the necessary anti-piracy legislation, and
it has been argued that Kenya's corrupt judicial system cannot be trusted
to conduct free and fair trials. 8
This chapter studies both the international legal framework regulating
piracy, and Kenya’s domestic system, which has almost singularly been
entrusted with the task of prosecuting pirate cases off the coast of Somalia.
Thus, the offence of piracy (its definition and suppression) is traced first to
international law. Kenya’s municipal framework as well as attempts at
prosecuting the crime in the legal system is then reviewed before making
certain suggestions aimed at forestalling the prevailing crisis.
2 The international crime of piracy: The standard
and the Kenyan practice
The most relevant instrument for the suppression of piracy is the United
Nations Convention on the Law of the Sea of 1982 (UNCLOS). The
Preamble to the treaty expresses hope that the codification and
development progressively of the law of the sea
6 M Silva ‘Somalia: State failure, piracy, and the challenge to international law’ (2010) 50
Virginia Journal of International Law 566.
7
RTT News, http://www.rttnews.com (accessed on 12 April 2010).
8 Silva (n 6 above) 573.