Alnashir Ramazanali Magan Visram, John walter Onyango Otieno, David Kenani Maraga, Martha Karambu Koome, Hannah Magondi Okwengu
Attorney General v Mohamud Mohammed Hashi, Mohammed Ali Awdahir, Mohamed Dogol Ali Cade, Abdi Wahid Mohammed Osman,Abdullahi Omar Mohammed,Abdiraham Mohamed Caser, Khadar Mohammed Jama & Abdirizak Hassa Ali, Mohammed Ishmael
Attorney General v Mohamud Mohammed Hashi & 8 others  eKLR
Kenyan Courts have Jurisdiction to try Piracy Offences.
Reported by C W Lupao
i. Whether Kenyan courts have jurisdiction to try suspects in respect of Piracy Jure Gentium committed outside the Kenyan Territorial Waters i.e., in the High Seas.
ii.Is the law of piracy jure gentium a crime recognized under the International Law?
iii. Which court in Kenya has jurisdiction to try the offence of piracy, the High Court or the Subordinate Courts?
iv. Whether there is a "legislative" misnomer regarding the provisions of Section 69 (1) of the Penal Code as read with Section 5;
v. Does the repeal of a section of an Act of parliament have an effect on the prosecution of a criminal case which occurred before the repeal of the section?
Jurisdiction- concept of universal jurisdiction -jurisdiction of the states to try extra -territorial offences that threaten peace-nature of the offences to be tried under universal jurisdiction-nature of courts with jurisdiction to try piracy offences in Kenya
Statutes - interpretation of statutes-whether a repeal of a section of an Act of parliament has any effect on the prosecution of a criminal case which occurred before the repeal of the section
Statutory Law -international statutes- Kenya being a signatory to an international statute i.e. United Nations Law of the Sea Convention [UNCLOS] of 1982-applicability of the statute to the Kenyan Jurisdiction-Constitution of Kenya, 2010, Article 2(5) and (6). Read More...
Words and phrases:
Piracy jure gentium - The phrase "piracy jure gentium" is a Latin phrase which means piracy by the law of nations or piracy as known in international law.
A pirate is defined as one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand.
High Seas- means "all parts of the sea that are not included in territorial sea or internal waters of a State.
The Concept of Universal Jurisdiction- The principle of universal jurisdiction holds that certain crimes are of such a serious nature that any state is entitled, or even required, to apprehend and prosecute alleged offenders regardless of the nationality of the offenders or victims, or the location where the offence took place.
1. Though the suspects had been charged under section 69 of the Penal Code which was subsequently repealed by the Merchant Shipping Act, 2009, the repeal of section 69 of the Penal Code did not affect the continued prosecution of the case against the suspects. By dint of Section 23 (3) of the Interpretation and General Priorities Act, a repeal of a law unless a contrary intention is expressly provided does not affect an ongoing prosecution
2. The repealed section 69 fell within Chapter VIII of the Penal Code which dealt with "offences affecting relations with foreign states and external tranquility" which provided in very clear terms and gave jurisdiction to Kenyan courts to deal with crimes of piracy jure gentium which were committed in the "territorial waters or upon the high seas".
3. Section 5 of the Penal Code provided for local jurisdiction while Section 69 (1) as read with Section 69 (3) of the Code donated as at that effective time jurisdiction to try piracy Jure Gentium on the High Seas. The High Court misconstrued the territorial application of the law as provided for under Section 5 of the Penal Code, which defined the geographical jurisdiction of the courts. There was therefore no basis for the court's finding that Section 5 superseded Section 69. That section should have been read together with Section 69 which extended the jurisdiction of offences partly committed in Kenya and beyond the Kenyan courts. Thus, the Kenyan courts have jurisdiction to try such cases.
4. Even if the High Court found that there was legislative misnomer, that could easily have been resolved by falling back on the provisions of the United Nations Law of the Sea Convention [UNCLOS] of 1982, to which Kenya is signatory and by dint of Article 2 (5) of the Constitution, UNCLOS is part of the Kenyan laws. UNCLOS provides for offences of piracy and gives any state jurisdiction to try them. Any crime committed outside the jurisdiction of any state is governed by international law. So the impression the High Court created that by repealing Section 69 of the Penal Code Parliament abolished the international crime of piracy in Kenya was clearly wrong.
5. Even if the repeal of Section 69 of the Penal Code abolished the international crime of piracy, that could not have availed the suspects in this matter in view of Section 23(3) of the Interpretation and General Provisions Act. The relevant portions of the latter in essence provides that the repeal of a statutory provision does not affect any existing legal proceeding under it and that the same shall proceed "as if the repealing written law had not been made."
6. The customary international law gives universal jurisdiction to all countries to deal with crimes committed outside the territorial jurisdiction. Offences that threaten world peace are also threats to humanity and the courts have ruled that such crimes are punishable in martial courts. Piracy jure gentium has for centuries been considered a universal jurisdiction crime based also on international agreements that authorizes all nations to capture and punish a pirate.
7. Based on the rationale that the international community should ensure there is no safe haven for those responsible for the most serious crimes, the concept of universal jurisdiction therefore allows all international states to bring the perpetrators to justice. This authority derives from the principle that every state has an interest in bringing to justice the perpetrators of international crimes. All states are therefore obliged to act as guardians of international law and on behalf of the international community to prosecute international crimes regardless of the place of commission of the crime, or the nationality of the author or of the victim.
8. The offence of piracy jure gentium is an offence against international customary law; it is part of the laws of nations. The offence of piracy jure gentium is codified through treaties and also domesticated through the penal code and presently the Merchant Shipping Act.
9. For the piracy offences committed after the 27th August 2010 when the Constitution of Kenya, 2010 ,was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law, Kenyan courts, have added constitutional authority to prosecute piracy and other international crimes.
10. It is the Kenyan subordinate courts presided over by a Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate or a Senior Resident Magistrate, which have jurisdiction to try the offence of piracy.
11. The High Court, in making its decision based on some seminal materials that had been canvassed at a seminar outside Kenya. These were, as is normal with seminars and conferences, proposals that were canvassed, but they remained no more than that. They never crystallized into any legal authorities that could be relied upon to make a judicial decision of the magnitude that was made by the High Court.
12. (Obiter Per Koome, JA): ''This judgment also failed to recognize that Kenyan courts were beginning to develop jurisprudence in this area of law along the internationally recognized principles which were sadly set back by this judgment under review. For example, in the case of United States District Court For Eastern District of Virginia Norfolk Division, USA v. Mohamed Madin Hassan & 4 Others, a court in the United States made reference to the application of UNCLOSS as part of customary international law and also made reference to a Kenyan decision as thus:
13. "Moreover, the courts of other countries have held UNCLOSS to be applicable as customary international law in concrete cases, as reflected in recent judicial decisions from Kenya, the country currently handling many modern piracy cases. Courts in Kenya have relied on the piracy provisions in UNCLOSS to interpret their own domestic criminal code proscribing general piracy."
14. This decision as rightly observed even by the US Federal Court in the case of USA v. Hassan (supra) represents the correct interpretation of the law.