NO PLANK TO WALK BUT TEN GUILTY PIRATES GET SEVEN

UNCLAS NAIROBI 004726 SIPDIS SENSITIVE SIPDIS LONDON AND PARIS FOR AFRICA WATCHERS, DEPARTMENT OF JUSTICE FOR JIM SILVERWOOD AND OLGA KALASHNIKOVA E.O. 12598: N/A TAGS: PHSA MOPS EAID ASEC PTER PREL SO KE SUBJECT: NO PLANK TO WALK BUT TEN GUILTY PIRATES GET SEVEN YEARS EACH REF: A. NAIROBI 592 ¶B. NAIROBI 416 ¶1. (SBU) Summary: A Mombasa court found all ten of the Somali nationals captured by the U.S. Navy off the coast of Somalia in January guilty of piracy on the high seas and sentenced each to seven years imprisonment on November 1. The defense's planned appeal of the verdict on jurisdictional grounds is unlikely to find favor, while the prosecution's cross appeal of the light sentences imposed may find more fertile ground. In any event, that the trial resulted in a conviction is a resounding success for the Kenyan judicial system and the Department of Public Prosecutions and should send a chilling signal to would-be pirates that the era of impunity is at an end. End Summary. Piracy on the High Seas -------------- ¶2. (U) On January 21, the USS Winston Churchill captured ten Somali nationals who had commandeered an Indian-flagged vessel, rescuing its crew of 16 from their five days of captivity. The Somalis were transferred to Kenya, who agreed (after much encouragement and consultation) to prosecute the suspects. Incriminating evidence confiscated by the U.S. Navy (weapons and ammunition far exceeding the humble neof mere fisher folk) was turned over to Kenyan authorities to support the prosecution's case (ref B). The question of jurisdiction (the single greatest obstacle to Kenya's ability to prosecute the suspects) was favorably resolved on February ¶9. The presiding magistrate ruled that as a party to the UN Convention on the Law of the Sea, Kenya has a right to prosecute incidents of piracy which take place on the high seas (ref A). U.S. witnesses were instrumental in establishing that the crime occurred in international waters (the pirates were captured approximately 54 miles off the central eastern coast of Somalia). Guilty As Charged -------------- ¶3. (U) On October 26, presiding magistrate Beatrice Jaden found the ten Somalis guilty of piracy under Section 69 of the Kenyan Penal Code. The defendants argued that theirs was simply a case of mistaken identity and gross misunderstanding. They argued that they were merely innocent fishermen, who upon encountering engine difficulties with their vessel, sought refuge aboard the Indian vessel. They alleged that their inability to communicate with the Indian crew gave rise to a misunderstanding that they were hostile and sought to control the ship. This allegation was incontrovertibly contradicted by the testimony of the Indian crew, who described their ordeal of having been boarded under false pretenses, attacked, forced to cede control of their vessel, and held captive and abused by the pirates for five days until their rescue. ¶4. (SBU) The defense announced its intent to file an appeal, challenging the threshold finding that Kenya has the authority to exercise jurisdiction over the case. Legal experts agree that given the sound legal basis for jurisdiction under international and Kenyan law, it is unlikely that this ruling will be overturned on appeal. Seeking a Stiffer Sentence -------------- ¶5. (SBU) However, to the astonishment of many, after finding the defendants guilty the presiding magistrate sentenced them each to a mere seven year prison term on November 1. The crime of piracy carries with it a maximum sentence of life imprisonment. Given that all ten of the defendant were determined to be first-time offenders (necessitated by the inadequate record-keeping in their native Somalia),the maximum sentence could not be applied. That said, however, given the serious nature of the crime many experts were dismayed at the relatively lenient sentencing of seven year imprisonment. A more acceptable (in fact expected) outcome would have been a sentence between 10 to 20 years. (Note: By way of comparison, a charge of robbery with violence in Kenya routinely elicits a sentence of 10 to 20 years imprisonment. End note.) The prosecution is planning to take the unusual step of filing a cross appeal arguing that the sentence is too lenient and seeking a punishment more proportionate to the crime. ¶6. (SBU) It is uncommon for the Department of Public Prosecutions (DPP) to file a cross appeal. One, the DPP is loath to commit the additional resources required to pursue a cross appeal. And two, cross appeals are perceived to undermine the authority the presiding judge or magistrate and are therefore rarely resorted to for fear of causing undue embarrassment. In this case, however, there is sufficient international interest in the outcome of the case, and Kenya clearly feels the pressure to meet international expectations. That the DPP is prepared to pursue the appeal indicates the priority Kenya places on this issue. According to Resident Legal Advisor (RLA),experts believe that it is likely that the punishments may be enhanced upon appeal, perhaps extending the sentence up to 10 to 12 years imprisonment. A Helping Hand: RLA Support of the DPP -------------- ¶7. (SBU) The DPP's handling of this high-profile case represents a significant success in the evolution of the department. A senior prosecutor from Mombasa was assigned to the case. Contrary to standard practice, the lead prosecutor, based out of Mombasa rather than Nairobi, was given a very free hand to develop the legal strategy and liaise with international experts. From the initial transfer of the Somalis to Kenyan custody, the RLA was extensively involved in providing advice, expertise, and even tactical and strategic support to the prosecution on how to prosecute this case. Without question, the RLA's guidance was instrumental to achieving the successful prosecution. Additionally, the degree of collaboration further cements our good relationship with the DPP and will serve as a model for cooperation in the future. ¶8. (SBU) Comment: Despite the disappointingly minimal punishment imposed on the Somali pirates, their conviction represents a success not just for the Kenyan judicial system, but also a success in the struggle to eradicate the plague of piracy which threatens major international shipping routes off the coast of Somalia. (Interestingly, Somalia's Islamic Courts Union has gotten in on the act, issuing strong statements condemning piracy.) This decision sets a precedent and sends an unequivocal signal that pirates no longer enjoy impunity. End Comment. RANNEBERGER