Landmark Kenya ruling could see dozens of Somali pirates set free

In a blow to efforts to combat Somali pirates, a senior Kenyan judge said Tuesday that courts here have no power to prosecute crimes that took place outside Kenya’s territorial waters.

Terry Sewaqrd/MoD/Crown Copyright/Reuters
British Royal Marines and sailors from the Royal Navy Type 23 frigate HMS Montrose intercept a pirate gang in the Somali basin, Oct. 14.

International efforts to prosecute Somali pirates have hit a major snag that could see nearly 70 suspected pirates walk free from prison.

In a landmark ruling Tuesday, a senior Kenyan judge said that courts here have no power to prosecute crimes that took place outside Kenya’s territorial waters.

Jurisdiction has also been cited by Western countries as a key reason why they can't try Somali pirates that their navies have captured during international anti-piracy missions. And, because war-ravaged Somalia has no functioning systems to carry out its own trials, neighboring Kenya has been leading international legal actions against pirates.

But Tuesday's ruling now throws that in doubt.

“It is a significant setback,” says Alan Cole, anti-piracy coordinator for the United Nations Office on Drugs and Crime, the part-US funded bureau spearheading pirate prosecutions in East Africa.

Nine suspected pirates released

So far, international navies patrolling the Gulf of Aden and the waters off Somalia have sent 136 pirates to Kenya for trial.

It is the case of nine of them, arrested in March 2009 by the German Navy with help from US helicopters, that led to Tuesday’s ruling, from Mohamed Ibrahim, one of Kenya’s most senior judges.

"The local courts can only deal with offenses for criminal incidences that take place within the territorial jurisdiction of Kenya," Mr. Ibrahim said in his ruling. “The high seas are not and cannot be a place within Kenya or within the territorial waters of Kenya.”

He immediately ordered the release of the nine men.

More could soon walk free

Jared Magolo, the defense attorney for the pirates, said that the judgment would mean that dozens of his other clients, on remand suspected of piracy, should also walk free.

Many of the 69 men – including the nine ordered to be freed – currently being held by Kenya awaiting trial are now expected to appeal for their cases to be thrown out. Already, Kenya has successfully tried 67 of suspected pirates: 17 were acquitted and released, and 50 were convicted and given jail sentences.

Under its new Constitution, Kenya has the responsibility to repatriate the men back to Somalia, or to hand them over to the United Nations’ refugee agency.

Kenya has signed a series of ad hoc agreements with the United States, the European Union, and others to try suspected pirates here. But the legal status of these deals is still unclear, and there are increasing calls from some Kenyan politicians for the country not to renew them owing to the cost of repatriating pirates freed under the loophole.

The section of law that forced the judgment that Justice Ibrahim made Tuesday has since been overhauled, and under new legislation, prosecution of pirates can continue.

In a separate setback, 17 Somali men captured by the US Navy last year for allegedly attempting to hijack an Egyptian merchant ship were freed by a different court in Kenya's coastal city of Mombasa last week for lack of evidence against them.

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