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