WORKING PAPER OF THE LESSONS LEARNED PROJECT OF THE CONTACT GROUP ON PIRACY OFF THE COAST OF (CGPCS) – http://www.lessonsfrompiracy.net

KENYA’S ROLE IN COUNTER-PIRACY AND THE CONTACT GROUP

Paul Musili Wambua, University of

Kenya has taken a lead in overhauling its legislative framework with a view to effec- KENYA AND PIRACY tively dealing with the challenges that have Despite concerted efforts by the regional been posed by piracy. Kenya has not only states and the international community to enacted a legislation to deal with actual pi- address piracy off the coast of Somalia, the ratical attacks but has also legislated against menace still persists though currently at a phenomena that promote piracy including reduced frequency. The efforts by the re- money laundering and organized crimes. gional states and the international commu- Kenya has successfully prosecuted sus- nity to curb piracy and maritime insecurity pected pirates arrested in the high seas by off the coast of Somalia and the Gulf of of other maritime nations. Aden have been greatly hampered by the As one of the means of combating piracy, lack of appropriate legislative frameworks the Contact Group on Piracy off the Coast both at the international and national levels. of Somalia, (CGPCS) was established in At the international level, the most signifi- 20091. As an ad hoc voluntary international cant limitations to the legislative frame- forum, the CGPCS brings together several work are posed by restrictive definitional stakeholders including regional states af- and jurisdictional scopes in the provisions fected by Somali piracy, as well as states in of article 101 of the United Nations Con- Western Europe, Asia and the Middle East. vention on the Law of the Sea (UNCLOS). In addition, the maritime industry, sea- In the present day, more than 85% of mari- farer’s organizations and non-governmen- time insecurity acts occur within the territo- tal organizations (NGO’s) are also in- rial sea. Naval operations at sea have rec- cluded. Kenya is a member of Working orded considerable success in apprehending Group 2 of the CGPCS. Initially Kenya had and intercepting pirates at sea. passion and enthusiasm in the work of the CGPCS, but of late Kenya’s passion and enthusiasm has waned. The purpose of the study is to interrogate Kenya’s participation

1 CGPCS was created on 14th January 2014 pursuant to the United Nations Security Council Resolution Number 1851. Wambua: Kenya and Counter-Piracy in the work of CGPCS and why Kenya’s in- variables of interest. The information gath- terest has dropped. ered forms the basis of the analysis and the concluding remarks made below dealing with Kenya’s counter-piracy operations in the Indian Ocean and her diminished inter- METHODOLOGY est in the work of CGPCS. Due the sensi- tivity of the information and the fact that it In this study, handpicked naval officers, was given in confidence by the respondents public servants in the Ministry of Foreign interviewed, the actual names of the offic- affairs and International Trade (MFAIT), ers interviewed are not disclosed in this prosecutors in the office of Director of Pub- study. lic Prosecutions (DPP), who possess infor- mation and share experiences relevant to this study, were interviewed. In this regard, THE ROLE OF THE CGPCS IN purposive sampling of those groups was ap- COUNTER PIRACY OPERATIONS OFF propriate because they were informative and possessed the required characteristics SOMALIA by virtue of status as key players in the The mandate of the CGPCS has been sum- counter piracy naval operations and prose- marized to include the coordination of po- cution of suspected piracy in Kenya’s na- litical, military and non – governmental ef- tional courts. The criteria for choosing the forts to counter piracy off the coast of So- particular cases for target respondent inter- malia; prosecution of captured pirates; and views were therefore justifiable. However, offering support to regional states to de- due to logistical and financial constraints, velop sustainable maritime security capa- the inquiry was restricted by purposive bilities2. Kenya is among the 60 countries sampling to officers serving in the Kenya and international organizations that come who were involved in counter-piracy together under the auspices of CGPCS to operations, officers in the MFAIT who counter piracy off the Somali Coast. were involved in the CGPCS activities and prosecutors in the Office of DPP who were involved in the prosecution of suspected pi- THE MANDATE AND STRUCTURE OF rates and the activities of the contact Group. THE CGPCS Hence the preference for an appropriate sampling technique and purposive selection The CGPCS undertakes its work through of respondents which did not in any way working groups. Working Group One compromise the outcomes of the inquiry. Chaired by the United Kingdom is respon- sible for facilitating effective naval opera- The handpicked key informants (full partic- tions and coordinating international efforts ulars held on file by the author) were inter- to support the building of the judicial, penal viewed by means of questionnaires (held on and maritime capacity of Regional States to file by the author) suitably designed to fa- ensure that they are better equipped to cilitate the gathering of data on relevant

2 CGPCS Newsletter, July 2014.

2 Wambua: Kenya and Counter-Piracy tackle piracy and maritime security chal- effectiveness and making best use of scarce lenges. At its thirteenth plenary session in naval resources. WG1 has consistently December 2012, the CGPCS endorsed the called for action to fill capability gaps as creation of a new Capacity-Building Coor- identified by the international naval forces, dination Group (CBCG), which will report including vital maritime patrol aircraft and to and support the Working Group in facil- oil replenishment tankers. itating the coordination of regional capacity Working Group Two (WG2) is chaired by development and the identification of fu- Denmark and consists of representatives ture priorities for international action. from nearly 60 States, including the Euro- CBCG will consist of partners from various pean Union, various UN agencies, the Inter- UN agencies including the International governmental Authority on Development, Maritime Organization, European Union, the IMO, INTERPOL, NATO, and the North Atlantic Treaty Organization, Afri- League of Arab States. It provides specific, can Union, The Inter-Governmental Au- practical and legally sound guidance to the thority on Development in East Africa, and CGPCS, states and organizations on all le- representatives from the international naval gal aspects of counter-piracy. Participants Training Awareness and De-Confliction exchange information on on-going judicial Group. The Working Group also offers sup- activities, including specific court cases, as port to those states and organizations coun- well as on relevant capacity building activ- tering piracy off the Coast of Somalia ities in states in the region. Through this ex- through contributions to, and funding from, change of information, WG2 contributes to the Trust Fund. a common approach to and understanding On naval coordination, Working Group of legal issues arising from piracy. WG2 One (WG1) has made clear its support for has furthermore developed a legal toolbox robust action by international naval forces for States wishing to improve their ability against pirates, and welcomes the success to prosecute pirates, including checklists of the coordinated patrols and convoys in for the prosecution of suspected pirates, the Gulf of Aden in reducing ship hijack- overview of impediments to prosecution, ings in this area and the positive develop- mechanisms for prosecution, applicable in- ment of the Shared Awareness and De-Con- ternational law, transfer of convicted pi- fliction Mechanism (SHADE). The Work- rates, evidence collection, private armed ing Group is clear on the importance of guards and ship-riders, and human rights compliance by all vessels transiting the considerations. Kenya is a member and key High Risk Area with industry-agreed self- participant in WG2. protection measures as the first and most ef- Working Group three (WG3) under the fective line of defence. The WG1 supports chairmanship of the Republic of Korea, action taken against hijacked merchant ves- handles concerns of the participant states, sels being used as mother ships, disruptions maritime industry and labor groups regard- of pirate operations and the continued safe ing the actions that should be used to pro- escort of World Food Program and vide self-defensive actions to protect ves- AMISOM convoys. WG1 continues to sup- sels from hijacking by pirates in the high port effective international co-ordination risk waters off the coast of Somalia. WG3 through SHADE with a view to optimizing has worked closely with the industry for the

3 Wambua: Kenya and Counter-Piracy completion and distribution of the "Best have global impact. Piracy, transnational Management Practices for Protection crime and human trafficking are regional against Somalia Based Piracy", now in its challenges facing the East African region 4th version (BMP4-August 2011). WG3 and which have global impact. As the major has paralleled efforts by the IMO and the component of the world’s trade is carried world maritime industry for the best self- on board ships, global commerce is in- defense practices for world shipping, as exorably linked to maritime security. Being well as for the security training and post- a maritime nation, Kenya has faced major hostage care of crew members involved in challenges from its geographical proximity piracy incidents. Work is progressing to Somalia. Somalia has not had any effec- through industry based roundtable develop- tive army, police, navy or coast guard, a ment for audio-visual counter-piracy train- permanent national government or national ing for the mariners, continuous review of legal system since 1991. Indeed, Kenya has the BMP and the development of vetting been involved in the prevention of the clan procedures for maritime companies to hire and militia infighting in Somalia from the most professional and effective pri- spreading across her border. The Govern- vately contracted armed security teams ment of Kenya (GOK) has played a key role when risk assessment of vessel voyages and was involved in efforts to find lasting support the high risk determined. peace in Somalia leading to the formation Working Group five (WG 5), chaired by It- of a Transitional Federal Government of aly, focuses on advance information shar- Somalia which for some time was hosted in ing internationally and between industry Nairobi. and government authorities to disrupt the As noted above, the insecurity in Somalia pirate enterprise ashore. It also works with has escalated resulting in increased piratical other key partners such as INTERPOL, na- attacks in the Gulf of Aden and off the tional law enforcement/prosecution agen- Coast of Somalia with a spillover into the cies currently pursuing piracy investiga- territorial waters of other states in the re- tions/prosecution, and the World Bank to gion. Kenya has borne the brunt of this phe- better understand how illicit financial flows nomenon, leading to a reduction in cruise associated with maritime piracy are moving industry and a slowdown in the distribution in the area. WG5 works with WG2 to create of food aid to Somalia. Due to several of new opportunities for prosecutors and in- their ships being attacked, the United Na- vestigators to exchange information about tions World Food Program has increasingly and harmonize their ongoing investigations been opting to transport relief on roads. and proactively target the arrest and prose- As a country with significant interest in re- cution the top organizers, financiers, and gional maritime security, the GOK has negotiators of Somali piracy. taken keen interest in the regional and inter- national efforts in the fight against piracy in the Gulf of Aden and off the coast of Soma- COUNTER PIRACY MEASURES BY lia. Some of the initiatives by the GOK in- KENYA clude the deployment of the The economies of all countries are intercon- to escort the merchant ships; and prosecu- nected and regional challenges sometimes tion of suspected pirates in national courts.

4 Wambua: Kenya and Counter-Piracy

In the following paragraphs we examine the tives of the MOU; the main objectives be- specific counter piracy efforts by the GOK. ing to support the Kenyan prosecutors, the police and the judicial service to ensure that

the trial of piracy cases are fair, humane, ef- BILATERAL MEMORANDA OF ficient and conducted within the sound UNDERSTANDING framework of the law. The MOU further enumerates the challenges that the Kenyan Kenya has signed several bilateral Memo- judicial system was facing including over- randa of Understanding (MOU) to facilitate stretched capacity; logistical requirements; the prosecution of suspected pirates in the and financial constraints. The MOU then national courts.3 These MOUs provide the notes the role Kenya is to play and lists the legal and logistical framework for the pros- needs which have to be taken into account ecution of suspected pirates .In exchange of in implementing the MOU such as legisla- Kenya facilitating the prosecution of sus- tive review especially of the Evidence Act pected pirates apprehended in the High to allow for admission of new forms of ev- seas, Kenya was to receive financial sup- idence (e.g. video link evidence instead of port to build the capacity of judicial officers direct oral evidence);the need for legal re- and the personnel in the Attorney Generals search and materials; and the need for spe- in charge of prosecution. Some commenta- cialized training for prosecutors, police of- tors have argued that in exchange for ficers and magistrates; prisons reform pilot Kenya’s role in allowing its courts to pros- projects at Shimo-la- Tewa and Manyani ecute pirates, it in turn enjoyed substantial prisons; and finally the need for Kenya to financial support by wealthy donor coun- give support to other regional countries tries.4 through sharing of experience. Between last quarter of 2008 and early 2009 The provisions of the MOUs are vague on Kenya signed MOUs with the UK, the US the question of financial support and do not and the EU 5 These agreements were contain a firm commitment of financial re- mainly designed to facilitate the prosecu- sources to fully and successfully implement tion in Kenyan courts of pirates captured on the terms of the MOU. Although Kenya had the high seas by the navies of other states prepared and submitted a budget of parties to the MOUs. The MOU between $5.1million for the period of 18 months Kenya and EU is contained both in a formal when the first cycle of the MOU was to last, draft document and in agreement by ex- the United Nations Office on Drugs and change of letters dated 6th March 2009. 6 Crime (UNODC) only committed itself to The formal document is divided into nine financing only $2.3million leaving a re- parts with part one dedicated to the objec- source gap of $2.6million.7 It was intended

3 J. T. Gathii. 2010. “Kenya’s Piracy Prosecutions”, Ameri- 6 Official Journal of the European Union dated 23rd March can Journal of International Law, 2010 -104, p.416. 2009 L 79/49 and available at http://publications.eu- 4 Taussig – Rubbo, Mateo.2010. “Pirate Trials, the Inter- ropa.eu/official/index_en.htm#Section2-EU (last ac- national Criminal Court, and Mob Justice: Reflec- cessed on 27th November 2009). tions on Postcolonial Sovereignty in Kenya”, Humanity: An International Journal of Human Rights, Humanitarian- 7 Part 10 of the draft formal MOU document titled ism and Development, 2010-1, p, 60. “Breakdown of Activities” where a sum of $2.3million or 5 Supra note 3 above.

5 Wambua: Kenya and Counter-Piracy that the figure of $2.3million was to cover malicious/wrongful prosecution or im- reforms in the judiciary, prison services, proper exercise of adjudicative jurisdiction. State Law Office and the Department of Po- Besides, there have been allegations of in- lice. The opening paragraphs of the MOU human treatment and abuse of human rights commit UNODC to giving ‘limited sup- by the arresting naval officers. There still port’ to Kenya, which includes reviewing exists the moot point as to which state some of the cases of convicted persons would take responsibility to indemnify the serving jail terms with a view to decongest- suspected pirates should such allegations be ing the prisons.8 Lack of adequate financ- proven to the satisfaction of the court. The ing led to the virtual collapse of the MOU MOU further places on Kenya the extra framework as it became very difficult (and burden of supporting other regional coun- politically imprudent too) for Kenya to con- tries in sharing her experience; hence the tinue to support the prosecutions by its lim- exasperation by the Kenyan leadership at ited resources.9 the failure by other states parties to the It is worth noting that the MOU was not in- MOUs to fully honor the terms of the 11 tended to be a formal binding agreement but MOUs. a mere framework document10 facilitating further detailed and specific agreements on ACTUAL PROSECUTION OF PIRATES the pertinent issues covered by the agree- ment. One notable feature of the MOU is For purely political reasons and national in- the absence of an indemnity clause. It is not terests, many maritime nations involved in clear from the document which party to the counter piracy operations off the Coast of agreement was to shoulder the burden of Somalia have not been keen to prosecute pi- paying damages for wrongful arrest and rates in their national courts. Within the confinement of the suspected pirates where framework of the MOU Kenya has success- the courts acquired them on whatever fully prosecuted pirates in its national ground. It was clear that Kenya as the pros- courts. One of the issues which arose in ecuting state would be liable for damages these prosecutions is whether the courts had for wrongful confinement/detention and for jurisdiction to hear the cases. In Republic

EUR 1.75million is provided for as the budget to imple- menting arrangements to be approved between the com- ment the terms of the MUO. petent Kenyan authorities on the one hand and the com- 8 Kenya has undertaking a reform of its prison services petent EU authorities, as well as the competent authori- under the donor funded Governance, Justice and Law ties of the sending states on the other hand.” Sector (GJLOS) reforms initiative through a common bas- 11 See the statement attributed to the Attorney General ket of donor funds administered through the Ministry of of Kenya and reported in the Daily Nation edition of 14th Justice, National Cohesion and Constitutional Affairs (See September 2009; story titled Death Knell Tolls For Prose- http://www.gjlos.go.ke/gjinner.asp?pcat2=agen- cutors in which he expressed concern by Kenya’s Partners cies&pcat=vphomeaffairs&cat=kenyaprison, (last ac- in the MOUs to honor their part of the bargain. See also cessed on 27th November 2009). the statement by Kenya’s Minister for foreign affairs not- 9 Ondari, J, The Challenges of Prosecuting piracy in Ken- ing that the MOU was not an “an open door for dumping yan Courts (unpublished and on file with the author) pp. pirates onto Kenya [sic] soil because it will not be ac- 3-8. ceptable” reported in The Journal of the Turkish Weekly, 10 Under section 9(a) entitled “implementing arrange- Kenyan Foreign Minister Shed Light on U.S.-Kenya Piracy ments” the MOU provides that: “For the purpose of the Agreement,” J. TURKISH WEEKLY, available at application of these provisions, operational, administra- http://www.turkish- tive and technical matters may be the subject of imple- weekly.net/print.asp?type=1&id=63755 (accessed 9th December 2009).

6 Wambua: Kenya and Counter-Piracy vs. Mohamud Mohamed Hashi alias Dho- shown willingness to extend the definition dhi and Eight (8) others,12 and Republic vs. of piracy beyond that found in the United Abdirahman Isse Mohamed and Three (3) Nations Convention on the Law of the Sea others,13 the question arose as to whether (UNCLOS). In Omar Shariff Abdalla vs. the magistrate’s courts had jurisdiction to Corporate Insurance Company Limited,19 try the offence of piracy in Kenya. Both Honorable Lady Justice Joyce Khaminwa cases ended up in the High Court albeit be- declined an argument by the Insurer to limit fore different benches.14 In this first case, the definition of piracy to the United Na- the High Court held that the Magistrates tions Law of the Sea Convention of 1982,20 courts in Kenya had no jurisdiction to try since the vessel was operating within the the offence of piracy. The reasoning of the geographical limits set out in the policy. court was that the provisions of section 69 of the Penal Code on the basis of which the charges were brought had been repealed by APPROPRIATE LEGISLATIVE the new Merchant Shipping Act of 2009. FRAMEWORK The second case (heard by Honorable Jus- As of July 2011 Kenya had over twenty tice Ojwang’) 15 held that the Magistrates convicted pirates serving jail terms ranging courts in Kenya had jurisdiction to try the between seven and twenty years and over offence of piracy. The two conflicting deci- one hundred suspected pirates were await- sions introduced a measure of uncertainty ing trial in national courts. 21 This is the to the law and generated a good measure of largest number of suspected pirates held debate. 16 The Court of Appeal settled the and tried in any one state at any given time matter by upholding the decision of Justice in modern history. Ojwang that indeed the Magistrates Court had jurisdiction to try suspected pirates. In the earlier case of Hassan M. Ahmed & The Merchant Shipping Act Others vs. Republic,17 the High Court held The prosecution of piracy in Kenya is cur- that Kenyan courts had universal jurisdic- rently undertaken under the Merchant Ship- tion to try piracy jure gentium commenced ping Act, Act No. 4 of 2009 of the Laws of under provisions of the repeal section 69 of Kenya 22 (the MSA 2009). Prior to the en- the Penal Code. 18 Kenyan courts have actment of the MSA 2009, the offence of

12 This case came up before Honourable Ms. T. Mwangi, Senior Resident Magistrate. – Chief Magis- 17[2009]eKLR trates Court Criminal Case Number 840 of 2009 18 But the issue of which specific court, lower or High 13 This case came up before Honourable Mr. Ole Tanchu, Court was not handled. Also not handled was the contrac- Senior Resident Magistrate.Mombasa – Chief Magis- tion between sections 4 of the Judicature Ac and Criminal trates Court Criminal Case Number 3012 of 2010 Procedure Code. 14 The first case ended up before Honourable Justice M. 19 HCCC No. 320 of 1998 – Mombasa [2005] eKLR K. Ibrahim through High Court Miscellaneous Application 20 UNCLOS Number 434 of 2010 and is reported in [2010]eKLR and 21 This information was obtained from the Commissioner judgment was delivered on 09/11/2010. of Prisons vide a confidential brief to the author in the 15High Court Criminal Application Number 72 of 2011 – month of July 2011 by virtue of his position as the Chair Mombasa. of the Task force on persons in detention ,held in custody 16 See the views by the Then Chairman of the Law Re- or imprisoned form Commission(Kathurima M’Inoti) in the Daily Nation 22 Cited as the Merchant Shipping Act 2009 Act No 4 of Edition of 16/11/2010 and those of the author published 2009 and available online at http://www.kenya- at www.musyokawambua.co.ke) on 23/03/2011 at 20.27 law.org/kenyalaw/klr_app/frames.php (last accessed 1st

7 Wambua: Kenya and Counter-Piracy piracy was provided for under the repealed territory of the state or its territorial sea28; if section 69 of the Penal Code 23.The MSA the offence is committed by the national of 2009 has not only extended the jurisdiction that state29; if the offence is committed by a of the Kenyan courts to try piracy commit- stateless person whose habitual residence is ted by non-nationals on the high seas, it also in that state30; if a national of that state is defines more extensively and comprehen- seized, threatened, injured or killed in the sively the offence of piracy than was previ- process of committing the offence31; or if ously defined under the repealed section. the offence is committed to compel that The MSA 2009 has domesticated all key in- state to do or abstain from doing any act.32 ternational Conventions on piracy and other Section 370 (4) (a) provides that the of- maritime offences. The key conventions fences created under section 370 apply domesticated under the provisions of the “whether the ship…is in Kenya or else- MSA 2009 are the United Nations Conven- where,” or whether the offences were tion on the Law of the Sea(UNCLOS ), the “committed in Kenya or elsewhere” or International Convention on the Suppres- whatever the nationality of the person com- sion of Unlawful Acts against Maritime mitting the act.” Navigation (the SUA Convention), the Dji- In this sense, the MSA 2009 confers Ken- bouti Code of Conduct (the Djibouti Code) yan courts with jurisdiction wider than that and the African Maritime Transport Char- in the SUA Convention. The MSA 2009 24 ter . also criminalizes acts of violence commit- The MSA 2009 domesticates the relevant ted in the high seas in line with Article 9 of provisions of UNCLOS and SUA Conven- the SUA Convention.33 The SUA Conven- tion. Section 369 of the MSA 2009 adopts tion further requires that, if a state wishes to the definition of piracy in article 101 of establish jurisdiction in the last three in- UNCLOS. Section 370 of the MSA 2009 stances then such a state should notify the adopts the offences of hijacking and de- Secretary General of the IMO. Kenya did stroying of ships25 contained in Article 3 of not give any notification to the IMO Secre- the SUA Convention. Article 6 of the SUA tary General and therefore the legality of Convention requires that there be a nexus provisions of section 370 of the MSA 2009 between the offence committed and the remains doubtful under international law. 26 state establishing jurisdiction . The nexus Kenya has recently enacted three key legis- is established if the ship flies the flag of the lations that may be used to fight and curb 27 state ; if the offence is committed in the the sponsors of piracy. These are The Anti

September 2011).The Act came into force on 1st Septem- 25 Section 369(6). ber 2009 26 See also Article 6(4). 23 Cited as the Penal Code Cap 63 Laws of Kenya and avail- 27 The SUA Convention, Article 6(a). able at http://www.kenyalaw.org/kenya- 28 Above, Article 6(b). law/klr_app/frames.php (last accessed 1st September 29 Above, Article 6(c). 2011). 30 Above, Article 6(a). 24 For the full text see http://www.africa-un- 31 Above, Article 6(b). ion.org/root/au/Documents/Trea- 32 Above, Article 6(c). ties/Text/AFRICAN_MARITIME_TRANSPORT.pdf and also 33 Article 9 provides that the Convention does not in any http://www.africa-union.org/root/ua/Confer- way affect “the rules of international law pertaining to ences/2007/fe- the competence of States to exercise investigative or en- vrier/IE/doc/Report_The_Experts_Meeting.pdf (last ac- forcement jurisdiction on board ships not flying their cessed 1st September 2011) flag

8 Wambua: Kenya and Counter-Piracy

Corruption and Economic Crimes Act (Cap Proceeds of Crime and Money Laun- 65 laws of Kenya), Proceeds of Crime and dering Act Money Laundering Act and Prevention of Organized Crimes Act. The Proceeds of Crime and Money Laun- dering Act (PCMLA) makes provision for a

broad legislative framework for combating The Anti Corruption and Economic the crime of money laundering and pro- Crimes Act vides for the identification, tracing, freez- ing, seizure and confiscation of the pro- The Anti Corruption and Economic Crimes ceeds of crime.38 The broad nature of the Act (ACECA) was enacted in 2003 and pro- provisions in the PCMLA can be seen from vides for the prevention, investigation and the definition of money laundering and the punishment of corruption, economic crimes broad net it casts by including any person and other related offences. ACECA pro- who knowingly enters into a transaction vides that a person who deals with property with another with a view to facilitating such that he or she believes or has reason to be- other person to conceal the proceeds of lieve was acquired in the course of or as a crime or money laundering.39 result of corrupt conduct (that is conduct constituting corruption or economic crime) It should also be noted that it does not mat- is guilty of an offence.34 For any such of- ter whether the offence is committed in fence ACECA imposes a fine of Kenya Kenya or outside Kenya or whether or not shillings one million and an additional man- it was committed before the PCMLA came 40 datory fine if the person committing the of- into force . fence received a quantifiable benefit or any other person suffered a quantifiable loss.35 Prevention of Organized Crimes Act ACECA further provides that “it shall be no The Prevention of Organized Crime Act defense that the receiving, soliciting or of- (POCA) came into force in September, fering of any benefit is customary in any 41 business, undertakings, office, profession 2010 . POCA was enacted with the objec- tive of not only preventing organized crime or calling.” 36 The Act also provides that but also providing for recovery of proceeds “unexplained assets may be taken by the of organized criminal activities. 42 POCA court as corroboration that a person accused of corruption or economic crime received a defines an organized criminal group as a benefit”37. structured group of three or more persons, existing for a period of time and acting in concert with the aim of -

34 The Anti Corruption and Economic Crimes Act section for the offence of money laundering and other related of- 47. fences. 35 Ibid, section 48. 40 Ibid, Section 3. 36 Ibid, section 49. 41 The Act can be accessed at http://www.kenya- 37 Ibid, section 57. law.org/klr/fileadmin/pdfdownloads/Acts/Prevention- 38 Proceeds of Crime and Money Laundering Act the ofOrganisedCrimesAct2010.pdf ( last accessed on Memorandum of Objects. 21stSeptemeber , 2011) 39 Ibid, Sections 3 Sections 2 and 3 but also see generally 42 Preamble to the Act the provisions of Part II (Sections 3 to 18) which provides

9 Wambua: Kenya and Counter-Piracy

(a) committing one or more serious crimes; POCA has clear provisions which may be or (b) committing one or more serious used to seize proceeds of piracy and there- crimes in order to obtain, directly or indi- fore make it a high risk low return venture. rectly, a financial or other material benefit It is worth noting that no property has been or any other advantage for the organized seized and no prosecutions have been un- criminal group or any of the members of or- dertaken under the provisions of the Act ganized criminal group since its enactment. The Minister for Internal security is em- powered, under section 22 of POCA, to de- EXPERIENCE OF THE KENYA NAVY clare any group an organized criminal group for the purposes of the Act. Traditionally Kenya's naval forces have un- dertaken surveillance in Kenya’s territorial Section 3 lists various instances where a waters and the Exclusive Economic Zone. person is deemed to have been involved in Due to increased piratical attacks on mer- organized criminal activities such as pro- fessing membership to an organized crimi- chant ships off the coast of Somalia, Ken- yan naval ships have extended patrol and nal group, recruiting another person to join surveillance to cover more areas of the In- an organized criminal group, and acting in dian Ocean as far as Kismayu in Somalia. concert with others to commit a serious crime in order to gain financial benefit The extended patrol area is designed to pro- tect merchant ships accessing the Port of among others. Section 4 makes it an offence Mombasa using the Indian Ocean shipping to engage in organized criminal activities lines. Kenyan naval forces in cooperation and on conviction a person is liable to Ksh. with their foreign counterparts therefore 5,000,000/= fine or 15 years in prison or both. continue to play a key role in the response against piracy in the Indian Ocean Region Section 15 of the Act empowers the Attor- by collecting intelligence and identifying ney General to apply to the court to obtain and disarming suspected pirate vessels be- an order to have a person who is suspected fore they pose any threat to merchant ves- to be involved in organized crime to deliver sels. any documents relevant in tracing and In response to the increased threat to the quantifying the property. Moreover, the At- tourism industry occasioned by hijacking torney General may apply to the court to get an order requiring a bank or any other fi- and murder of tourists in the Lamu Archi- pelago by Al-shabaab militants crossing nancial institution, trustee, cash dealer or from Southern Somalia, Kenya Defense custodian to produce all information and Forces (KDF) moved into Somalia and deliver up all documents and records re- garding any business transaction conducted teamed up with allied forces to defeat the Al-shabaab and to help the Transitional by or on behalf of a person suspected to be Federal Government (TFG) to take full con- involved in organized criminal activities. trol of the country. Following KDF’s incur- Section 18 of the Act empowers the court to make an order of forfeiture of such property sion into Somalia, there has been a dramatic decline in piracy incidents off the coast of upon conviction. Somalia.

10 Wambua: Kenya and Counter-Piracy

Al-Shabaab militants had used as through the CGPCS’s focus on six critical their main base for more than a year but areas, which include improvement of oper- moved out as TFG forces backed by Ken- ational and information support to counter yan and troops advanced to- piracy; the establishment of a counter pi- wards the port city. Attacks in seas around racy mechanism; strengthening judicial Somalia continued to fall dramatically, with frameworks for the arrest, prosecution and just 10 incidents attributed to Somali pirates detention of pirates; strengthening commer- in 2013, down from 70 in the same nine cial shipping awareness as well as other ca- months of 2012. 43 pabilities; pursuing improved diplomatic and public information efforts; and tracking down financial flows related to piracy.44 Kenya’s Counter piracy operations Lately Kenya has not been very passionate within the framework of CGPCS in its participation in the work of CGPCS. The Ministry Foreign Affairs and Interna- As a result there has been lethargy in the tional Trade (MFAIT) facilitates participa- manner in which the country has handled tion of other stakeholder departments and the issues of falling within the mandate of agencies in the work of the CGPCS. Other CGPCS. Some of the stakeholder depart- stakeholder departments and agencies in- ments and agencies blame the MFAIT. clude the Office of the Attorney General, Most, if not all, of the invitations for the (specifically the CGPCS’s meetings are channeled through Kenya Navy); Office of the Director of MFAIT. More often than not, the Office of Public Prosecutions (DPP) and Kenya Mar- the DPP and other stakeholder departments itime Authority (KMA). Initially, Kenya and agencies are not informed and are was very passionate and enthusiastic in the therefore unaware of the meetings con- work of CGPCS. Kenya’s passion and en- vened by CGPCS. After the invitations are thusiasm was based on a number of reasons. received, there is no timely facilitation for Firstly, the CGPCS’s activities were seen the officials of the ministry to attend the as part of wider international efforts to se- CGPCS meetings which are normally held cure peace and stability in Somalia which at the UN headquarters in New York. In was seen to be in Kenya’s best interest as a most cases the MFAIT headquarters organ- neighbor to Somalia. Secondly, through izes for representation of Kenya by the em- collaboration with other significant agen- bassy officials based at Kenya’s embassy in cies in the war against piracy off the Coast Washington DC, who may not have good of Somalia such as the United Nations Of- working knowledge about the issues to be fice on Drugs and Crime (UONDC), and discussed at the meetings. There is a lack of the United Nations Development Program passion and enthusiasm on the part of the (UNDP), Kenya was benefitting from fi- officials attending the CGPCS meetings nancial support to reform of the judiciary and little or no follow-up action on most of through building capacity in the judicial of- the matters discussed. ficers and the office of the Director of Pub- lic Prosecution. The benefit to Kenya came

43 See the World's Maritime Watchdog of September 44 Policy Statement; Contact Group on Piracy off the Coast 2013. of Somalia, U. S. Department of State, January, 14th 2009.

11 Wambua: Kenya and Counter-Piracy

MFAIT views itself as less of a lead agency of combating piracy off the Coast of Soma- and more of a convener or facilitator for the lia. However, there is concern that these informal preparatory meetings held in Nai- MoUs are aimed at only safeguarding the robi. In this facilitator role, the MFAIT sees shipping and security interests of the EU, its main mandate as bringing together of the USA and the developed maritime na- stakeholders such as the office of the Attor- tions and not to safeguard Kenya’s national ney General, office of the DPP and the interests. The general unofficial view in Kenya Maritime Authority who are the government circles is that before executing right parties to address the issues handled such MOUs, the Ministry of Foreign Af- by CGPCS. fairs and International Trade ought to have Within the MFAIT itself, there are no offic- had sufficient consultations with other stakeholders such as the Kenya Maritime ers dedicated to CGPCS’s activities. This means that when officers are transferred in- Authority (KMA), office of the DPP and ternally within the ministry or are posted to the Office of the Attorney General. Kenya’s mission abroad, there is a lack of It is important to observe that the KMA has continuity in the participation of the minis- taken the work of CGPCS and its meetings try in the work of the CGPCS as those who very seriously. KMA has been participating attend meetings are chosen on an ad hoc ba- in many of the CGPCS’s meetings as well sis. As a result of the frequent transfers of as its working groups more than any other ministry officials handling the matters fall- government department or agency. The ap- ing within the mandate of CGPCS a re- parent decline in Kenya’s interest in the source base for future engagements by the work of the CGPCS can also be partially at- ministry officials has not been developed. tributed to the general view that Kenya’s in- Apart from the inefficiency and lack of co- cursion into Somalia and the successful ordination at the MFAIT, there are also prosecution and conviction of suspected pi- other factors that have contributed to rates had greatly reduced the incidents of Kenya’s apparent gradual loss of interest in piracy off the coast of Somalia. The suc- the work of CGPCS. With the decline in pi- cessful prosecution and conviction of sus- racy incidents off the Coast of Somalia, the pected pirates is attributable to Kenya’s EU and other leading western maritime na- fairly well developed legal system, policy tions drastically reduced their funding for framework and enhanced capacity in han- dling maritime offences. It is noted that counter piracy operations and related activ- ities. Due to this reduced funding by the Kenya has ratified and domesticated many international Conventions on piracy and leading partners in the fight against piracy, Kenya’s participation in the CGPCS and re- other maritime offences through the com- lated activities slowed down. ing into operation of the Merchant Shipping Act. As noted above,45 Kenya has entered into MoUs with other states and foreign regional The politics surrounding the prosecution of bodies through the Ministry of Foreign Af- the Kenyan President and the Deputy Pres- fairs and International Trade for purposes ident at the International Criminal Court at

45 Supra, note 7.

12 Wambua: Kenya and Counter-Piracy

The Hague following the post-election vio- international piracy networks are difficult lence of 2007/2008 may have also contrib- to dismantle. The available evidence shows uted to the country’s disinterest in the work that Piracy off the coast of Somalia is a very of CGPCS. Some scholars have argued that well structured, organized and well-funded as a retaliatory measure against the interna- business. To combat piracy there is a need tional community, Kenya may have delib- for timely, reliable and actionable intelli- erately halted piracy prosecutions. 46 The gence. Many countries such as Tanzania, priority of the top government leadership Mozambique and Seychelles have not was the pending cases at the ICC, while the shown political will to fight piracy. Some work of the CGPCS has not been a priority. commentators have advocated for the for- mation of a coast Guard similar to the coast

guards of the US and India. However, set- PERSPECTIVES OF THE KENYA NAVY ting up a coastguard for Kenya may not be Piracy is admittedly one of the greatest prudent as it may prove to be expensive but challenges that the Kenyan Navy have ever is also likely to lead to duplication of roles. encountered. To counter piracy, the officers The Kenyan navy and other agencies such are required to spend a lot of time and re- as the port police and KMA have sufficient sources in meetings. Counter piracy opera- capacity to deal with piracy and other mar- tions require hands on approach and not itime offences. arm chair analysis or boardroom resolu- To ensure that the vessels sailing in tions. The Kenyan naval officers inter- Kenya’s territorial waters are safe, the viewed are aware of the existence of the Kenya Navy has designed a maritime secu- CGCPS and its activities. Indeed the repre- rity zone where vessels waiting to enter the sentatives of the Kenya Navy attended sev- port of Mombasa or leaving the Port for eral of the meetings of CGCPS including other ports such as Dar es Salaam are pro- one held in November 2013 in Djibouti. tected by Kenyan Navy vessels. Congestion Although navies of other Western nations at the port of Mombasa requires vessels to have assisted and cooperated with the Ken- wait in the open sea before being cleared to yan Navy in counter piracy operations off dock at the port by using the narrow Likoni the Coast of Somalia , their main aim/ob- Channel. Pirates operating in the Indian jective is to protect the shipping lines of the Ocean region are aware of this fact and there is a risk that vessels may be attacked Indian Ocean used by western maritime na- tions particularly Denmark and Sweden as they wait to dock at the port of Mombasa. than genuine concern for Kenya’s maritime The security operation zones are kept under security. The cooperation with these navies constant surveillance by the Kenyan naval is more to do with information sharing ra- vessels. ther than joint operations. Owing to the vastness Kenya’s territorial Piracy has grown into a fully-fledged and sea and the Exclusive Economic Zone, thriving business controlled by sponsors Kenya cannot effectively patrol the waters. who live outside Somalia. The regional and It needs the support and cooperation of

46 Milena S; Piracy off the Coast of Somalia; The Argu- The Seychelles, and Mauritius, Amsterdam Law Forum, ment for Pirate Prosecutions in National Courts of Kenya, 2012, Vol. 4;2, p.113.

13 Wambua: Kenya and Counter-Piracy other maritime nations with naval forces they are apprehended on the High Seas; (vi) operating in the Indian Ocean region. The the expansive size of Kenya’s Exclusive CGCPS and other partners should therefore Economic Zone is which made it practically focus on encouraging opportunities for bet- impossible to police and monitor. ter training as well as funding. A regional approach is better because the sea is vast and borders are shared. Other countries in CONCLUSION AND WAY FORWARD the region should be encouraged to join Kenya has played a key role in the fight Kenya in its counter piracy efforts. A joint against piracy off the coast of Somalia naval surveillance and patrol by the navies through the framework of the CGPCS by of the coastal states and neighboring Kenya direct involvement in counter-piracy opera- supported by navies of other willing foreign tions in the Indian Ocean region and also by partners would achieve better results. facilitating the prosecution of suspected pi- Kenya’s landlocked neighbors who benefit rates captured on the High Seas by naval from, and are served by, the Indian Ocean forces of other maritime nations. However, shipping lanes can contribute to the cost of Kenya has of late lost enthusiasm for the the naval operations. Already there exists work of CGPCS for various reasons, some an infrastructure for such cooperation fol- of which are related to genuine concerns for lowing the introduction of the maritime national interest as a sovereign nation. component in the East African Standby Bri- Some of the reasons identified include: bu- gade. Kenya’s neighbors can also cooperate reaucratic politics and lack of effective co- in prosecuting pirates in their national operation communication and coordination courts or to imprison convicted pirates in between various government agencies and their prisons. departments; decline of interest in piracy; At the time of commencing counter-piracy and the politics around the pending ICC tri- operations in the Indian Ocean for the first als involving the President and the Deputy time, the Kenya Navy had numerous chal- President. However Kenya’s participation lenges including: (i) lack of surveillance in the work of CGPCS is desirable as piracy vessels as most of its naval ships were in the off the coast of Somalia may have subsided process of being serviced; (ii) lack of ade- but the risk of attacks on merchant vessels quate or sufficient financial resources; (iii) is still present. the limited partnership being offered by for- Through its participation in the work of eign navies of the EU members and the US, CGPCS, Kenya can help to develop the ca- who confined their operations north of the pacity of neighboring countries such as Kenyan coast and focused on safeguarding Tanzania, Djibouti and Seychelles in com- their own trading interests without being bating piracy in their respective maritime genuinely concerned about Kenya’s na- zones and prosecuting pirates in their na- tional security interests; (iv) lack of appre- tional courts. Kenya’s experience in the ciation of the fine distinction and link be- fight against piracy has led to a change in tween piracy and terrorism with some states the tactics in combating the vice. Experi- showing reluctance to fight the latter; (v) ence gained by the Kenya Navy from coun- lack of a proper procedure and legal frame- ter-piracy operations off the coast of Soma- work for handling suspected pirates after lia and its work in the CGPCS have been

14 Wambua: Kenya and Counter-Piracy applied in shaping Kenya’s policy and op- Kenya to spearhead and coordinate re- erational tactics s in fighting piracy. Such gional cooperation in counter piracy op- experience should be shared with other re- erations and prosecution of pirates in na- gional states. tional courts. . Increase awareness through regular and widely circulated publications. SUMMARY OF SUCCESSES AND FAILURES . Identify with and openly support Kenya’s incursion into Somalia as part CGPCS contributed to Kenya’s reform of of counter piracy operations the legal sector and naval strategy by: . Help reduce congestion at the port of . Building capacity through workshops in Mombasa, which often makes ships vul- the personnel of the office of the DPP, nerable to piracy attacks. MFIT, KMA and other stakeholders. . Hold regular consultative meetings with . Creating avenues for the training of regional bodies like EAC and IGAD in Kenya’s naval officers in counter piracy order to secure the support of the re- operations. gional political leadership . Sharing of information on counter pi- . Identify with and support the vision of racy operations in the Indian Ocean re- African Integrated Maritime Strategy gion (AIMS) to guarantee support from the . Supporting the prosecution of suspected African Union. pirates in national courts. . Undertake joint naval operations with What CGPCS members could have done to the Kenya Navy to generate confidence avoid the Kenyan decline of interest: and trust that the foreign naval fleets are genuinely concerned about Kenya’s na- . Failure to win political support from the tional interests. top government leadership for the work of the CGPCS. . Failure to identify and engage all rele- vant stakeholders and government de- partments/agencies and invite them to meetings of CGPCS. . Failure to hold meetings locally to iden- tify with and engage all government de- partments /agencies and stakeholders in the work of CGPCS. . How Kenya could be brought back to the CGPCS and prospects for a regional so- lution . Pursue the establishment of a fully- fledged and funded Liaison office in

15 Wambua: Kenya and Counter-Piracy

About the Author Paul Musili Wambua is Associate Professor and Associate Dean at the School of Law of the University of Nairobi. He is a leading expert in maritime law and has published widely on maritime security, piracy and the response of Eastern African states. He can be contacted at [email protected].

Suggested Citation Wambua, Paul Musili. 2015. Kenya’s Role in Counter-Piracy and the Contact Group. Cardiff: Cardiff University

@ Paul Musili Wambua, May 2015

The Lessons Learned Project of the Contact Group on Piracy off the Coast of Somalia follows up on a plenary decision and records the history of the group, cap- tures its experience and extrapolates core lessons from its work. The Project is sup- ported by a grant by the U.S. Department of State. www.lessonsfrompiracy.net

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