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

242 Chapter 11
phone. They took over the ship for five days during which they also
attempted an attack on three others. The suspects were eventually seized
by the United States Navy officers and delivered to Kenya for trial. The
accused persons were charged with piracy under the aforementioned
section 69 of the Penal Code. The tribunal of first instance found them
guilty and sentenced them to 7 years imprisonment.
They appealed the decision. On appeal, the litigants argued that
municipal courts lacked jurisdiction both because the alleged offence was
committed in the high seas and also since the parties were not Kenyans.
The appeal judge held that
[e]ven if the Penal Code had been silent on the offence of piracy, I am of the
view that the Learned Principal Magistrate would have been guided by the
United Nations Convention on the Law of the Sea (UNCLOS) … 51
The judge further observed that
[e]ven if the Convention had not been ratified and domesticated, the Learned
Principal Magistrate was bound to apply international norms and instruments
since Kenya is a member of the civilized world and is not expected to act in
contradiction to expectations of member states of the United Nations. 52
The Court ruled in favour of a ‘supposed’ spirit of the international
threshold, even where this was beyond the scope of municipal law.
International law provisions on the offence of piracy were upheld, despite
the fact that Kenya was mostly reputed as a dualist state. 53 In dualist states,
international law does not take immediate effect until it has gone through
incorporation or transformation.
A similar situation obtained in Mohamud A Kheyre and 6 Others 54 where
the accused were again charged with piracy contrary to section 69(1) as
read with section 69(3) of the Penal Code. The particulars of the case were
that on 11 February 2009, armed with offensive vessels, the accused
persons attacked a vessel, MV Polaris, in the high seas in the Indian Ocean.
They were seized by US Navy officers patrolling the Gulf of Aden and
handed over to Kenyan authorities. Yet again, the defense objected to
Kenya’s jurisdiction arguing that the actors were not Kenyan nationals or
habitually resident there, and, further still, that the offences were
committed outside the borders of the State. The Court took the opinion
that when Parliament legislated against piracy, it must have been fully
aware that the offence is normally committed in the high seas and that the
51 At 10.
52 At 11.
53 The original judicial authority for this principle (dualism) in Kenya was expressed in
the case of Okunda v Republic [1970] EA 512. This state of affairs has however been
reversed by the 2010 Constitution which at article 2(6) recognizes international law as a
source of law.
54 Case No 791 of 2009.