Kenya: Appellate Court Rules Kenyan Courts Do Have Jurisdiction over Offenses Committed on High Seas
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(Oct 25, 2012) On October 18, 2012, the Kenyan Court of Appeal ruled that Kenyan courts have jurisdiction over cases involving persons suspected of international piracy. The ruling overturns a 2010 decision that had determined
The decision is significant in light of
The 2012 Decision and the 2010 High Court Ruling
The five-judge appellate court held that in the prior decision, the High Court of Mombasa had "made a mistake in holding that our courts lack the power to try piracy cases. Piracy has negative effects on the country's economy and any state, even if not directly affected by piracy must try and punish the offenders." (Paul Ogemba, Somali Pirates to Be Tried in Kenya: Appeal Court,
The Crime of Piracy Under Kenyan Law
The High Court decision had cited the repeal in 2009 of section 69 of the Penal Code, on the offense of piracy, as the basis of its determination of Kenyan courts' lack of jurisdiction to try such offenses that occur outside Kenyan territory. (Goitom, supra, citing to Penal Code, 12 LAWS OF KENYA Cap 63, § 69, KENYAN LAW REPORTS (KLR) [type in "Penal Code" or scroll down in window to "Penal Act"] (last visited Oct. 23, 2012).)
Since September 1, 2009, however, the offense of piracy has been covered under the Merchant Shipping Act (Act No. 4 of 2009, LAWS OF KENYA, Cap 4 [type in "Merchant Shipping Act" or scroll down window to the Act]). Section 396(1) of the Act broadly defines piracy as:
a) any act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed –
(i) against another ship or aircraft, or against persons or property on board such ship or aircraft; or
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any voluntary act of participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; or
(c) any act of inciting or of intentionally facilitating an act described in paragraph (a) or (b); … . (
This definition mirrors that found in article 101, under Part VII, High Seas, of the United Nations Convention on the Law of the Sea (UNCLOS) (Dec. 10, 1982) (Oceans and Law of the Sea website).
In regard to the punishment for the offense of piracy, the Kenyan Merchant Shipping Act stipulates: "[a]ny person who – (a) commits any act of piracy; (b) in territorial waters, commits any act of armed robbery against ships shall be liable, upon conviction, to imprisonment for life." (Merchant Shipping Act,§ 371.)
The 2012 Decision and Kenyan Courts' Jurisdiction over International Offenses
Judge David Maraga, speaking for the Court of Appeals bench, determined that Judge Ibrahim had not had the authority to order the suspects' repatriation or to request the United Nations High Commissioner for Refugees to take custody of them as displaced persons. Maraga therefore ordered that the suspects be transferred to
Maraga also declared, "[e]very state has interest of bringing to justice perpetrators of International Crimes including piracy, genocide, apartheid and human trafficking. It was therefore wrong for the judge to hold otherwise since the penal code gives Kenyan courts jurisdiction to try any case." (
The Penal Code states, "[t]he jurisdiction of the courts of
It may also be noted that the Merchant Shipping Act stipulates, "[f]or the purpose of conferring jurisdiction, any offence under this Act shall be deemed to have been committed in any place in
- Author: Wendy Zeldin More by this author
- Topic: Piracy More on this topic
- Jurisdiction: Kenya More about this jurisdiction
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Last updated: 10/25/2012