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

Prosecuting piracy in the horn of Africa: The case of Kenya 243
provision was meant to ensure international tranquility. It was further the
Court’s position that the use of the words ‘jure gentium’ in the municipal
description of the offence implied intention to be bound by international
law. Thus, it mattered less whether that the accused persons were Kenyan
or foreign.
What however, requires to be highlighted is the fact that the courts in
both instances may have misrepresented the position of international law
– and UNCLOS in particular. As stated above, under UNCLOS,
jurisdiction is the prerogative of the seizing state. There are however
exceptions under international law so that the flag ship state, the State in
whose territory the offence is committed, the State whose nationals or self
is victimized may claim jurisdiction. Going by this position, there is no
way Kenya, which has hardly had any connection with the acts of piracy,
could claim jurisdiction, except by taking advantage of the concept of
universal jurisdiction. Even then, as stated in the SS Lotus case, linkage to
the offence or offenders might be necessary before a State can seize the
concept of universal jurisdiction. Usually, it is the seizing state which
ordinarily has the universal jurisdiction.
3.2 Risks and fears
It has been stated above that many states are unwilling to take over and
prosecute cases of piracy. Among the reasons for this laxity is another
explanation why prosecuting piracy remains the path not taken – fear of
the risks involved.
The apparent reasons for this refusal to accept these judicial burdens are
many: for example, … concerns about the safety and impartiality of local
judges, … and fears that if convicted, the pirates will be able to remain in the
country where are prosecuted. 55
In Kenya, for instance, Government officials claim that prosecuting piracy
exposes the State to attack by the ‘terrorist sympathizers’ of the Indian
Ocean pirates.
There are equally concerns that after serving their jail terms or where
prosecution aborts, the released pirates may lodge genuine claims to either
asylum or other status posing even greater security threats. According to
Kenya’s Attorney General ‘prosecution is one thing, but what happens if
they are acquitted or they serve out their terms? These are crucial national
security questions we are looking at’. 56
55 Dutton (n 36 above).
56 Silva (n 6 above) 573.