Why Kenya broke deal on piracy trials

Somali pirates are arraigned in the law courts of Kenya's coastal town of Mombasa, November 18, 2008. Kenya entered into MoUs with six Western powers last year namely the EU, USA, Canada, UK, China and Denmark. All these have now been terminated. Photo/FILE

Kenya terminated agreements committing itself to try captured Somali pirates to force the international community to get more involved, it has now emerged.

The government said the hosting and prosecution of the suspected Somali pirates arrested in the Indian Ocean had been left to Kenya alone, thus exposing the country to several security threats.

Many countries have yet to domesticate the International Law of the Sea that would have expanded the fight and taken the pressure to host and prosecute suspects off Kenya’s back.

“There was a fundamental change in circumstances after we signed the agreements. Kenya became a dumping ground for pirates arrested by the combined naval forces,” said Patrick Wamoto, the diplomatic secretary and director of political affairs in the Foreign of Affairs ministry.

Kenya entered into MoUs with six Western powers last year namely the EU, USA, Canada, UK, China and Denmark. All these have now been terminated, said Mr Wamoto in an interview.

Under these pacts, Kenya agreed to accept pirates seized by foreign warships, and after due trial, jail them. In exchange for this commitment, Western countries pledged to assist Kenya with this task.

But after much criticism internally and the failure of the six nations to fully meet their side of the bargain, Kenya issued a notice in March this year to terminate the MoUs.

In a statement, the ministry of Foreign Affairs said it wished to “acknowledge that the MoUs will effectively terminate on 30th September, 2010”.

According to Mr Wamoto, the whole thing was largely seen as a Kenyan affair to deal with piracy. Besides, he said, the fight against the crime of piracy requires huge administrative and budgetary costs that Kenya’s partners and the UN were not meeting as per the agreements.

Security expert Simiyu Werunga concurs, stating that the six Western powers did not meet their part of the bargain. “Kenya gave these countries access to our jails and courtrooms with the expectation that they would build or rehabilitate the same all over the country and build the capacity of our naval forces in return, which unfortunately has not happened,” said Mr Werunga.

However, the EU in particular is appealing to Kenya to reconsider the action for fear that the crime would escalate and return to haunt the region.

Thorsten Bargfrede, EU delegation to Kenya’s head of Regional Political Section said, “If in the future Kenya does not want to be part of the fight against piracy anymore (with our assistance), then is it saying that it is not prepared to ensure its own security? We are sure that is not the government’s intention, but unfortunately, it may be the message that pirates and others take from it.”

The local EU office has also denied claims that there were insufficient funds to combat the crime. By and large, Bargfrede said, international partners have committed about $4 million (Ksh322 million) to support the justice system in Kenya in dealing with piracy.

Nearly $2 million (Ksh161) of that has been spent to support the prosecution, bring witnesses in and improve prison condition.

Security threat

“Overall, the support given until now by far outweighs any cost that occurred to the Kenyan government because of the trials. We are also ready to discuss with Kenya the larger security threat they face related to Somalia,” he said.

Nearly a month after Kenya issued the notice to terminate the agreements, the UN Security Council passed Resolution 1918 of 2010 on April 27 that called on all states of the world to domesticate the Law of the Sea that criminalises piracy.

In the Resolution, members of the Security Council acknowledged Kenya’s efforts and also recognised the difficulties that the country has faced thus far.

Most important though was the Security Council’s task to the UN secretary-general Ban Ki-moon to present, within three months, a report on possible options to further the aim of prosecuting and imprisoning pirates.

Ban submitted the report to the Security Council on July 26 and Kenya awaits a debate on the report by December of this year.

The UN secretary-general’s report identified seven options for the Security Council to consider. First is the enhancement of UN assistance to build capacity of regional States to prosecute and imprison suspects and second, is the establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation.

The third option is for the establishment of a special chamber within the national jurisdiction of a State or States in the region, without UN’s participation and the fourth calls for the establishment of a similar chamber but with the participation of the UN.

Option five calls for the establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with UN participation and the sixth proposes the establishment of an international tribunal on the basis of an agreement between a State in the region and the UN.

The last option calls for the establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the UN.

The government says the action it has taken to end the agreements should not, and won’t, impact on the overall goal of eliminating piracy in the Indian Ocean.

Fight still on

“We are not saying that we shall not take part. We believe the fight is still on. All we wanted to tell them (international community) is that it is an effort from all of us, not only Kenya,” said Mr Wamoto.

The suspects who are already in custody will continue to be held and their cases concluded, he said. Whether Kenya will commit to future agreements now rests with an inter-ministerial committee that was set up in March under the chairmanship of Vice-President Kalonzo Musyoka.

The committee, the Sunday Nation understands, set up a technical committee to come up with the way forward. The experts’ report has been submitted and Mr Musyoka is expected to convene a meeting of the inter-ministerial committee to look at the recommendations and the way forward.

In the meantime, the EU said it was in ongoing talks with other governments in the region for similar arrangements. Besides Kenya, Seychelles has prosecuted nearly 31 Somali pirates and Mauritius has agreed to accept suspects for trial in future. Tanzania, Mozambique, Comoros, South Africa and the Maldives have indicated interest in joining the regional efforts.