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UNCLAS SECTION 01 OF 04 NAIROBI 002869 
 
SIPDIS 
 
AF/RSA FOR MIKE BITTRICK AND JUN BANDO, AF/E FOR SUSAN 
DRIANO, S/CT, INL FOR SILENSKY, L FOR ASH ROACH AND JOHN 
DALEY, DOJ/OPDAT FOR ALEXANDER, BERMAN, SILVERWOOD, 
KALASHNIKOVA, DOJ FOR CRIM DAAG SWARTZ 
 
E.O. 12958: N/A 
TAGS: PREL PGOV ASEC PHSA MOPS KCRM KJUS SO YM DA
UK, KE 
SUBJECT: UPDATE ON KENYAN PROSECUTION OF SUSPECTED SOMALI 
PIRATES 
 
REF: A. STATE 133493 
     ¶B. DALEY EMAIL 12/22/2008 
     ¶C. NAIROBI 2686 
 
¶1. This is an action message. Action recommendations and 
requests are at paragraphs 7, 8, 9, 12, and 16. 
 
¶2. Summary: On December 11, the eight Somali nationals 
charged with piracy again appeared before a magistrate judge 
in Mombasa. The prosecutors asked the magistrate to postpone 
the trial to give them more time to prepare, and the judge 
set the trial date for January 14, 2009. The Somalis were 
seized by the United Kingdom's Royal Navy on November 11 
after they were observed committing acts of piracy in 
international waters off the coast of Yemen, and were later 
turned over to Kenyan law enforcement authorities in Mombasa. 
It appears that, contrary to initial information provided 
(ref C), the defendants may also be charged with attempted 
piracy (of the Danish ship,"Powerful") under Kenya's general 
criminal attempt statute. End summary. 
 
¶3. The U.S. Department of Justice's Resident Legal Advisor 
(RLA) in Nairobi has been asked by the Department of Public 
Prosecutions (DPP, the Kenyan prosecutor's office) to provide 
further support for this and future piracy prosecutions. (The 
former RLA assisted with Kenya's first (and only, until now) 
piracy prosecution in 2006.) The RLA has met several times 
with prosecutors to discuss the case, outline strategies and 
provide guidance and support. The RLA also assisted in 
coordinating the transfer of evidence and information from 
the Royal Navy and the British High Commission to the DPP. 
The RLA coordinated a meeting in Nairobi on December 10 with 
Kenyan law enforcement and prosecutors, and officials from 
the British High Commission and Royal Navy who were involved 
in the transfer of the suspected pirates to the Kenyan 
authorities. The parties exchanged information about the 
case, reviewed procedural and evidentiary issues, and 
discussed the government of Kenya's (GOK) need for logistical 
support in transporting relevant foreign witnesses. The UK 
Royal Navy Commander who attended the meeting is coordinating 
with his U.S. Navy JAG counterparts in Bahrain. The UK 
representative and DPP have agreed in principle to the RLA's 
proposal to host several substantive workshops on the issues 
involved in prosecuting these cases. 
 
UK, KENYA SIGN PIRACY MEMORANDUM, WORK TO STANDARDIZE 
PROCEDURES 
 
¶4. Following its recent consultations with the GOK, the Royal 
Navy is now drafting standard operating procedures (SOPs) for 
naval personnel who take suspected pirates into custody with 
the intention of transferring them to Kenya. The Royal Navy 
will send a draft of these SOPs to the RLA and DPP for 
comment. The purpose of the proposed SOPs is to standardize 
the investigation, arrest, evidence collection, and prisoner 
transfer procedures prior to transfer to Kenyan authorities. 
On December 11, the United Kingdom (UK) and the GOK signed a 
memorandum of understanding (MOU) that provides for the 
future transfer of suspected pirates captured by the Royal 
Navy to Kenyan authorities. The UK provided the United States 
with a copy of the MOU, which is being reviewed by L. The EU 
is also negotiating a similar document with Kenya, although 
it is in the form of an agreement. Post has received refs A 
and B, which propose a U.S.-Kenyan MOU, and is preparing to 
demarche the GOK at the earliest opportunity. 
 
GOK SEEKS HELP FOR YEMEN INVESTIGATION 
 
¶5. The GOK was considering sending investigators to Yemen to 
obtain more detailed statements from the Yemeni crew of the 
dhow that was initially taken over by the defendants. (Note: 
The defendants took control of the dhow on November 8, and 
used it as a base from which to launch attacks on larger 
 
NAIROBI 00002869  002 OF 004 
 
 
merchant vessels over a three-day period. The suspects were 
captured by the Royal Navy after their failed attempt to take 
over the Danish merchant ship "Powerful." End note.) However, 
officials are now reconsidering the necessity of this travel 
in view of the time constraints imposed by the trial date and 
the costs of the proposed travel. It may be sufficient for 
the DPP to interview the Yemeni witnesses in Kenya before the 
trial begins. The Kenyans may request logistical support from 
the UK to locate the Royal Navy personnel who were involved 
in the capture of the suspects, and will need assistance in 
locating the witnesses who were on board the Yemeni vessel 
and arranging for their travel to and trial testimony in 
Mombasa. 
 
PIRATES MAY BE CHARGED WITH ATTEMPT 
 
¶6. Prosecutors initially stated that the Kenyan criminal code 
did not include a general attempt provision that would permit 
prosecution for attempted piracy. This is incorrect, and the 
RLA has suggested that the DPP amend the criminal charges 
against the defendants to include a charge for the attempted 
piracy of the Danish vessel. If the prosecution decides to 
put on evidence regarding the attempted boarding of the 
Powerful, then they will also need help in locating the 
witnesses on board that vessel and arranging for their trial 
testimony in Mombasa. 
 
FUTURE TRAINING NEEDS 
 
¶7. The RLA is providing training and mentoring to Kenyan 
prosecutors and law enforcement officials. After consulting 
further with the Kenyans about their needs, the RLA plans to 
outline a short, intensive capacity building program that 
likely would benefit from participation of U.S. and UK naval 
experts, as well as selected international partners within 
the naval community, to speak on relevant international 
conventions and anti-piracy operations. Relatively small, 
brief workshops focusing on practical knowledge and skills 
development, combined with mentoring on individual cases, are 
the most effective means of imparting useful knowledge to the 
Kenyans who will be investigating and prosecuting these 
cases. The DPP's office could also benefit from the provision 
of current, relevant resource materials and internet access. 
(Note: USAID/Kenya provided new computers to the DPP several 
years ago, but the GOK has not funded internet access. End 
note.) 
 
¶8. It may also be useful to invite a select group of 
Tanzanians to participate in proposed anti-piracy training. 
The Kenyan and Tanzanian criminal justice systems are 
similar, and joint participation may create some useful 
synergies. The RLA has met with Tanzania's chief prosecutor 
and has provided other training to Tanzanian prosecutors in 
the past. If the United States is going to seek an MOU with 
the GOK regarding the transfer of piracy suspects, post 
recommends consideration of a similar agreement with the 
government of Tanzania if its penal code permits such 
prosecutions. This could potentially open up another viable 
avenue for the disposition of international piracy cases, 
although Tanzania's maritime and law enforcement capacity is 
arguably less than Kenya's at this time. 
 
¶9. The UN Office on Drugs and Crime (UNODC) has circulated a 
draft proposal outlining a broad program of capacity building 
for countering piracy in the Horn of Africa. The proposal 
requests over $1.3 million in the next five months to review 
and develop the legal frameworks of Kenya, Djibouti, Yemen, 
and Tanzania to prosecute pirates. Although these countries' 
capacity to deter, arrest, prosecute and detain pirates needs 
development, the provision of too much assistance too quickly 
will overwhelm the ability of the recepients to benefit from 
it. The United States and its partners should coordinate 
their efforts closely and should be judicious in providing 
 
NAIROBI 00002869  003 OF 004 
 
 
support. 
 
SHIPRIDER AGREEMENTS 
 
¶10. The UNODC proposal also outlines a plan to recruit and 
train "shipriders" that would operate under shiprider 
agreements between countries in the region and countries 
operating anti-piracy patrols. The shiprider agreements are 
intended to provide a basis for the accepting/prosecuting 
country to exercise criminal jurisdiction, and, 
theoretically, to facilitate a simpler, more effective law 
enforcement operation. However, it is not clear that either 
purpose would be well served in the Kenyan context. 
 
SHIPRIDER JURISDICTION ISSUES 
 
¶11. Under its current legal framework, Kenyan courts have 
already asserted jurisdiction over piracy suspects 
apprehended in international waters by third parties. 
Therefore, there is no need for a shiprider agreement to 
establish jurisdiction. According to the Director of the 
Kenya Police Service Criminal Investigation Division, Kenyan 
law enforcement officers do not have authority to operate 
outside Kenyan territorial waters. (Note: A search of 
relevant Kenyan laws, including the Police Act, failed to 
verify this assertion, and one prosecutor avers that Kenyan 
citizens can make an arrest anywhere that Kenyan law offers 
jurisdiction. End note.) Special legislation might be 
required to establish and legitimate a Kenyan shiprider 
regime, and that legislation might need to provide for 
extraterrorial powers. Given the limited number of trained 
maritime personnel in Kenya, shipriders likely would be drawn 
from the Kenya Police Service. 
 
¶12. The appellate court now reviewing the 2006 convictions of 
the Somali pirates, who are challenging their convictions on 
jurisdictional and other grounds, may conclude that Kenya's 
piracy statute is insufficient to support jurisdiction in 
cases with no Kenyan nexus. In that case, Kenya would need to 
amend the piracy statute. Such an amendment should be 
relatively easy to craft and enact; amending the criminal 
code to allow for a shiprider regime with extended 
jurisdiction for police officer might be much more difficult. 
While post would recommend the amendment of the piracy 
statute at some point to clarify certain issues (definition 
of piracy, clearer assertion of jurisdiction and/or 
incorporation of relevant international legal instruments), 
the timing of any legislative initiative, including one 
related to shipriders, must be carefully considered. Such an 
initiative might unnecessarily or prematurely highlight the 
weaknesses of the piracy statute before Kenyan courts have 
spoken definitively on the subject. 
 
SHIPRIDER OPERATIONAL ISSUES 
 
¶13. The seizure and transfer of piracy suspects in 2006 by 
the United States and last month by the UK were not error 
free. However, it is unlikely that either of these cases 
would have been better handled by Kenyan law enforcement 
officers operating on board those ships. If, in the future, 
naval personnel are provided with a common set of SOPs that 
take Kenyan criminal practice into account, many potential 
issues stemming from naval personnel's lack of familiarity 
with the Kenyan legal system should be resolved. This simple 
remedy avoids the costs and logistical problems associated 
with shipriders (salaries, food, medical care, accommodation, 
transport, etc.) 
 
¶14. A further practical problem associated with a Kenyan 
shiprider program might be Kenya's generally rigidly enforced 
requirement that a suspect must be charged and presented 
before a magistrate within 24 hours of being in law 
enforcement custody. This right of prompt presentment is not 
 
NAIROBI 00002869  004 OF 004 
 
 
limited to Kenyan citizens. One must assume that, if a Kenyan 
shiprider took custody of a suspect at sea, the 24 hour clock 
would start. If the shiprider tried to avoid this time limit 
by not taking "official" custody of the suspect, this would 
defeat the purpose of having the shiprider on board. 
 
COMMENT 
 
¶15. The primary and most immediate practical issue facing the 
prosecution in this and future cases remains arranging for 
the trial testimony of foreign national eyewitnesses. 
Apparently because the defendants in this case were denied 
bail, the Mombasa court has set an expedited calendar for 
disposition of the case. However, it is unrealistic to expect 
that the prosecution will have the foreign national witnesses 
(Yemeni, British, and perhaps Danish) ready to testify 
beginning January 14. Although some testimony might be taken 
starting on that day, a further continuance undoubtedly will 
be required. 
 
¶16. The UK had indicated willingness to assist in locating 
and, possibly, transporting to the trial some of the 
witnesses for this case. Given that Kenyan trials are 
frequently interrupted and do not usually progress quickly, 
contingency plans for providing accommodations for witnesses 
in Mombasa will also have to be made. Even "high priority" 
cases can be continued often and can take months to complete. 
To the extent that additional practical support for this 
prosecution is needed, and if the UK cannot meet the need, 
the United States may be called upon to assist. Post 
recommends that we provide such assistance, as appropriate, 
because of our strong national interest in seeing Kenya 
successfully prosecute this and future cases, and also 
because we may need similar assistance from the British and 
other partners in the future. End comment. 
RANNEBERGER