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.
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.
"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.