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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