VZCZCXRO2938
PP RUEHROV
DE RUEHNR #2667/01 3311203
ZNR UUUUU ZZH
P 261203Z NOV 08 ZDS
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 7724
INFO RUCNIAD/IGAD COLLECTIVE PRIORITY
RUEHDS/AMEMBASSY ADDIS ABABA PRIORITY 0312
RUEHCP/AMEMBASSY COPENHAGEN PRIORITY 0196
RUEHDR/AMEMBASSY DAR ES SALAAM PRIORITY 6179
RUEHDJ/AMEMBASSY DJIBOUTI PRIORITY 5453
RUEHKM/AMEMBASSY KAMPALA PRIORITY 3040
RUEHKH/AMEMBASSY KHARTOUM PRIORITY 2217
RUEHLO/AMEMBASSY LONDON PRIORITY 2973
RUEHMO/AMEMBASSY MOSCOW PRIORITY 0311
RUEHFR/AMEMBASSY PARIS PRIORITY 2866
RUEHYN/AMEMBASSY SANAA PRIORITY 0491
RUEHTC/AMEMBASSY THE HAGUE PRIORITY 1056
RUEAWJA/DOJ WASHDC PRIORITY
RHMFIUU/CDR USCENTCOM MACDILL AFB FL PRIORITY
RHMFIUU/CJTF HOA  PRIORITY
RHMFIUU/CDR USAFRICOM STUTTGART GE PRIORITY
RHMFIUU/HQ USAFRICOM STUTTGART GE PRIORITY

UNCLAS SECTION 01 OF 04 NAIROBI 002667 
 
C O R R E C T E D  C O P Y (PASSING INSTRUCTIONS) 
 
SIPDIS 
 
DEPT FOR AF, S/CT, 
AF/RSA FOR MIKE BITTRICK AND JUN BANDO, 
AF/E FOR SUSAN DRIANO AND NOLE GAREY 
INL FOR SILENSKY 
DOJ/OPDAT FOR ALEXANDRE/BERMAN/SILVERWOOD/KALASHNIKOVA 
DOJ FOR CRIM DAAG SWARTZ 
 
E.O. 12958: N/A 
TAGS: PREL PGOV ASEC PHSA MOPS KCRM KJUS UK SO DA
NL, RS, YM, KE 
SUBJECT: KENYANS MOVE AHEAD ON NEW PIRACY PROSECUTION 
 
NAIROBI 00002667  001.2 OF 004 
 
 
¶1. (SBU) Summary: On November 11, the UK's Royal Navy seized 
eight Somali nationals in international waters off the coast 
of Yemen after the British responded to a distress call from 
a Danish ship that the Somalis had attempted to board.  After 
proceeding to Mombasa, Kenya, the British relinquished 
custody of the suspected pirates to the Kenyan police on 
November 18.  The next day, the suspects were charged with 
piracy in a Mombasa court, and the prosecutor asked that the 
defendants be held without bond.  On November 24, the Chief 
Magistrate denied the defendants' bail request and set the 
trial date for December 11, giving the prosecution little 
time to organize its case and make foreign witnesses 
available.  The prosecutor's office (the Department of Public 
Prosecutions, or DPP) is confident that the trial court will 
postpone the trial until the prosecution can present its 
witnesses.  The DPP, which has given this case high priority, 
understands that there are likely more cases to come, and has 
asked post's Regional Legal Advisor (RLA) to assist in 
developing the capacity of the police and DPP to prosecute 
these cases.  The DPP successfully tried a similar piracy 
case in 2007.  End summary. 
 
------------------------------- 
BRITS TRANSFER CAPTURED PIRATES 
------------------------------- 
 
¶2. (SBU) On November 11, British naval assets picked up eight 
Somali nationals suspected of committing acts of piracy in 
international waters off the coast of Yemen.  The UK 
government first contacted the Yemeni government to inquire 
whether Yemen could undertake the prosecution.  However, the 
Yemeni government could not give assurances that the accused 
would not face the death penalty.  (Note: UK law forbids 
handing over suspects to a jurisdiction where they might face 
the death penalty. End Note.)  Subsequently, the government 
of Kenya (GOK) agreed to accept the suspects for prosecution 
in Kenyan courts, where they face a maximum penalty of life 
imprisonment.  The suspects were transferred to the Kenya 
Police Service (KPS) on November 18. They were arraigned in a 
Mombasa court on November 19. 
 
¶3.  (SBU) Also on November 18, Kenya's chief prosecutor 
Keriako Tobiko, the director of the Department of Public 
Prosecutions (DPP), asked the U.S. Department of Justice's 
Resident Legal Advisor (RLA) to provide advice and assistance 
with the prosecution.  On November 19, the RLA met with 
personnel at the UK High Commission in Nairobi who were 
involved in the transfer of the prisoners, and the RLA was 
given copies of witnesQstatements, photographs, and other 
relevant documents.  On November 20, the RLA flew to Mombasa 
and met with the lead prosecutor for two days.  They were 
later joined in reviewing the case by the director of the DPP. 
 
¶4.  (SBU) At a bail hearing on November 24, the magistrate 
hearing the case denied the defendants' request for bail, and 
directed that the case be expedited.  The magistrate set the 
next hearing for December 11.  An early December hearing 
allows little time for the prosecution to organize its case 
and to ensure that foreign witnesses will be present. 
However, the prosecution expressed confidence that the trial 
judge will grant a postponement until a time when the 
prosecution is able to present its witnesses. 
 
---------- 
BACKGROUND 
---------- 
 
¶5. (SBU) On November 8, 11 armed Somali pirates boarded and 
took control of a Yemeni dhow in international waters off the 
Yemeni coast. The pirates then used the dhow, which had a 
crew of seven Yemenis, as a base from which to launch their 
 
NAIROBI 00002667  002.3 OF 004 
 
 
smaller skiff in attempts over several days to capture 
several larger commercial vessels.  On November 11, the 
pirates attempted to board the Danish flagged merchant vessel 
Powerful, but this boarding failed when the pirates' boarding 
ladder dislodged and fell into the sea.  Some of these events 
were witnessed by the crew members of a Russian frigate, the 
Neustrashimy, and of a Dutch merchant vessel, the Bremen 
Express, that had been nearby and responded to the Powerful's 
distress signals. 
 
¶6. (SBU) The Royal Navy ship HMS Cumberland, which was 
conducting anti-piracy patrols in the area, responded to the 
Powerful's radio calls.  Once the Cumberland arrived on the 
scene, the pirate skiff had rejoined the pirated dhow, and 
the dhow began to take evasive action despite clear 
directives from the Powerful for the dhow to stop.  The dhow 
was piloted by the pirate leader, who continued to take 
aggressive actions.  As a boarding party of Royal Marines 
approaching in speed boats, the pirates raised their rifles 
to fire on them. Gunfire was exchanged.  Two pirates and one 
Yemeni crew member were shot and later died.  The dhow was 
boarded by the Royal Marines.  The Marines seized seven AK-47 
assault rifles, one rocket-propelled grenade (RPG) launcher, 
a pistol, ammunition (including three RPG warheads), 
grappling hooks, and boarding ladders. 
 
¶7. (SBU) The weaponry and all the occupants of the dhow were 
taken aboard the Cumberland and brief statements were taken 
from the six surviving Yemenis.  The Cumberland later 
received orders to permit the Yemenis to return to Yemen in 
their dhow.  The Cumberland escorted the Yemenis in their 
dhow to Yemeni territorial waters.  The Yemenis took the body 
of their deceased crew member with them, and it is believed 
that he was later buried at sea.  The Cumberland then 
proceeded to the Kenyan port of Mombasa.  On November 18, the 
British turned over the eight captured pirates, the bodies of 
the two deceased pirates and the seized evidence to the 
Kenyan police.  (Note: One of the 11 pirates that initially 
seized the dhow was lost at sea, either during the attempted 
piracy of the Powerful, or during the firefight with the 
Royal Marines. End note.) 
 
¶8. (SBU) The Kenyan police interviewed the pirates.  The 
suspects claimed that they were fishermen who the Yemenis had 
befriended and were assisting to return to Somalia.  On 
November 19, the eight Somalis were charged with piracy of 
the Yemeni dhow under the Kenyan penal code. 
 
---------------------- 
POTENTIAL LEGAL ISSUES 
---------------------- 
 
¶9. (SBU) The RLA has identified a number of legal issues and 
is working with the DPP to research and resolve them. 
Long-term solutions, legislative or juridical, should improve 
capacity to prosecute piracy, as well as crimes with similar 
features (for example, terrorism, trafficking in persons, and 
other transnational crimes). 
 
¶10. (SBU) Section 69 of the Kenya Penal Code states that 
"(a)ny person who, in territorial waters on upon the high 
seas, commits any act of piracy jure gentium is guilty of the 
offense of piracy...(and is) liable to imprisonment for (up 
to) life."  Two other sections of the penal code support the 
position that Kenya retains jurisdiction over piracy offenses 
committed on the high seas.  The penal code, and the 
precedent of the piracy case tried in 2007, support 
jurisdiction in this case. 
 
¶11. (SBU) In the current case, as in the 2007 case, the acts 
of piracy took place in international waters, and none of the 
 
NAIROBI 00002667  003.3 OF 004 
 
 
individuals or crafts involved in the piracy or police action 
were Kenyan.  The ten Somali pirates convicted in 2007 were 
all sentenced to seven years in prison; they have appealed 
and oral arguments in that appeal are scheduled for December 
¶8. 
 
¶12. (SBU) However, several features of Kenya's laws may limit 
some flexibility in the prosecution.  For example, the Kenyan 
penal code does not specifically address attempted piracy and 
contains no general attempt provisions that could be read 
with the piracy provision to support charging the suspects 
with their attempt to take over the Danish ship.  Although we 
are still researching this issue, Kenya's penal code may not 
allow prosecutors to pursue the attempt charge. 
 
¶13. (SBU) In addition, the penal code does not define piracy. 
 This should not be a hindrance in the prosecution of the 
piracy of the Yemeni dhow because the actions in that case 
can easily be shown to fit within the common, everyday 
meaning of piracy.  However, the lack of a definition in the 
penal code may hamper future prosecutions, and probably 
prevents the prosecutions from arguing that unsuccessful 
piracy attacks, like the attack on the Danish ship, are acts 
of piracy punishable under Kenyan law.  The definition of 
piracy under international law is sufficiently broad to 
include unsuccessful attacks.  However, although Kenya has 
signed and ratified several of the relevant international 
conventions on the law of the sea, it has never incorporated 
those definitions into its domestic legal framework or 
otherwise codified the relevant provisions.  Accordingly, 
those conventions do not have the force of law in Kenya, and 
it would be difficult for the prosecution to rely upon them 
to argue that the Kenyan law should be read to include 
attempted acts of piracy.  (Note: Indeed, any references made 
to the definition of piracy in international law may serve 
only to highlight the lack of definition in the Kenyan 
statute to the defense. End note.) 
 
¶14. (SBU) The Kenyan criminal procedure and evidence codes 
also contain features in the areas of confessions, plea 
agreements, and the admissibility of evidence that will make 
this case and future cases challenging.  For example, 
although the law regarding confessions has been modified to 
permit their admission into evidence if they are taken by a 
magistrate or by a chief of police, this latter method is 
still rarely used and the procedures therefore are still 
being worked out.  It is unclear whether admissions made to 
foreign military or law enforcement personnel would be 
admissible.  Also, the Kenyan plea agreement bill is still 
pending in Parliament.  Thus, unlike in the United States, 
the Kenyan authorities have no ability to reach an agreement 
with one or more of the pirates to testify against the others 
in exchange for leniency.  This and limitations on the 
admissibility of confessions means that these types of cases 
will usually go to trial and will have to be won on the 
strength of the witness statements and evidence gathered at 
sea. 
 
¶15. (SBU) In addition, Kenya retains a number of outdated 
rules on evidence that also hamper prosecution of these 
cases.  The evidence code requires that photographs cannot be 
admitted into evidence unless they were taken by a police 
photographer and were kept in the photographer's possession 
from their development.  Although there has been an exception 
made recently for videotape, this means that photographs 
taken by the Royal Navy or others at sea likely will not be 
admissible at trial unless provision is made for the police 
to download the pictures directly from the British cameras or 
computers. Kenyan judges also apply stringent requirements 
regarding the chain of custody of evidence.  In general, in 
the United States, evidence would still be admissible even if 
 
NAIROBI 00002667  004.3 OF 004 
 
 
the prosecution was not able to produce every person who took 
possession of the evidence or to explain any breaks in the 
chain of custody of the evidence prior to its being produced 
in court.  Such discrepancies may affect the weight given to 
a particular piece of evidence, but would not make it 
inadmissible. Kenyan judges often apply a more stringent 
standard.  Although it should not be a problem in the case of 
immutable objects such as the weaponry seized from the 
suspects, these items appear to have been in the custody of 
British personnel before being handed over to the Kenyan police. 
 
------- 
COMMENT 
------- 
 
¶16. (SBU) The primary practical issue facing the prosecution 
in this and future cases is arranging for the trial testimony 
of the foreign national eyewitnesses.  The DPP has asked the 
RLA to assist the GOK with streamlining the process, but the 
success of these prosecutions will depend greatly upon the 
willingness of the eyewitnesses' home countries to facilitate 
their travel to Kenya for a trial.  At present, the piracy 
case is assigned to an experienced prosecutor in Mombasa, who 
was part of the team that won the piracy case in 2007.  The 
prosecutor and the RLA have had detailed strategy 
discussions, and the RLA has committed to provide continuing 
support and guidance where appropriate.  End comment. 
RANNEBERGER