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

Prosecuting piracy in the horn of Africa: The case of Kenya 245
cases pending for over five years. 61 According to the Judiciary’s own
report, case backlog is due to a number of factors. These include shortage
of judicial officers and staff, inadequate number of courts and
infrastructure, inappropriate rules of procedure, court vacations, and
jurisdictional limits on magistrates’ courts and mechanical management of
court records and proceedings. 62
Adding the unique and brittle prosecution of piracy to the already
stretched system only worsens the situation. By the end of March 2010, the
prison system had custody of well over 53 000 prisoners, yet the Attorney
General reportedly revealed that the State had more than 100 (precisely
118) suspected pirates in custody and some serving up to 20-year prison
sentences, 63 adding salt to the injury. Corruption and incompetence are
equally not inconsistent with Kenya’s judicial and prison systems.
Kenya’s ‘courage’ to prosecute pirates thus requires international
support and cooperation if it has to succeed. The now outmoded Security
Council Resolution 1816 anticipated this requirement when it called for
cooperation in the
[p]rosecution of persons responsible for acts of piracy and armed robbery off
the coast of Somalia, consistent with applicable international law … and
render assistance by, among other actions, providing disposition and logistics
assistance with respect to persons under their jurisdictions and control, such
victims and witnesses and persons detained as a result of operations … 64
In similar vein, Security Council’s Resolution 1851 called upon states to
make special agreements with other nations in the region to facilitate
prosecution of piracy. 65 It also encouraged the creation of an international
cooperation system and a center for the sharing of information. It further
held that for twelve months following the adoption of Resolution 1846
[s]tates and regional organizations cooperating in the fight against piracy and
armed robbery at sea off the coast of Somalia for which advance notification
has been provided by the TFG to the Secretary-General may undertake all
necessary measures that are appropriate in Somalia, for the purpose of
suppressing acts of piracy and armed robbery at sea, pursuant to the request
of the TFG ...
In reality however, this support has not been forthcoming, at least in the
case of Kenya, prompting a government official to decry: ‘We have
declined to accept captured pirates … because some of them promised to
61 Report on the Synchronized Survey of Pending Cases in Kenyan Courts (December
62
63
64
65
2009) as cited by the Final Report of the Task Force on Judicial Reforms, P 33.
Final Report of the Task Force on Judicial Reforms, P 33.
Mukinda & Shiundu, Daily Nation, 30 March 2010.
Para 11.
SC Res. 1851, P 3, U.N. Doc. S/RES/1851 (Dec. 16, 2008)