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RUZEFAA/CDR USAFRICOM STUTTGART GE PRIORITY
RUZEFAA/HQ USAFRICOM STUTTGART GE PRIORITY

UNCLAS SECTION 01 OF 06 NAIROBI 001527 
 
SENSITIVE 
SIPDIS 
 
FOR AF/E, PM, AF/RSA, INL, DOJ/OPDAT FOR SILVERWOOD, 
ALEXANDRE, BERMAN, KALASHNIKOVA, DOJ FOR CRIM DAAG SWARTZ 
 
E.O. 12958: N/A 
TAGS: PHUM PREL PGOV KJUS KCRM EWWT MOPS SO EU IT
RM, RP, GM, SP, UK, FR, KE 
SUBJECT: UPDATE ON KENYAN PIRACY PROSECUTIONS 
 
REF: 2008 NAIROBI 2869 
 
¶1. Summary: There are currently 100 Somali piracy suspects 
being held in Kenya, including nine delivered by the Italian 
Navy on June 26. The manner of delivery and quality of 
evidence, as much as the number of transfers, has dampened 
Kenya's enthusiasm for piracy cases. A few cases were 
delivered by EU countries (including Italy and France) with 
little prior consultation with Kenya and/or with weak 
evidence. The large number of deliveries in quick succession 
(more than 70 suspects within three months) resulted in these 
newer cases receiving less attention from police, 
prosecutors, and courts than earlier cases. Consequently, the 
informalities and weaknesses of the Kenyan judicial system 
became more pronounced. For example, some defendants made 
initial court appearances without defense counsel, assigned 
prosecutors, or translators. In one recent case, defense 
lawyers successfully stalled proceedings when the magistrate 
suspended witness testimony (including that of civilian 
witnesses flown in from Manila) in order to consider the 
defense motion challenging the court's jurisdiction. While 
the motion is not expected to succeed, delays of this kind 
may make it extremely difficult to ensure the timely 
appearance of both civilian and military witnesses in the 
future. Care must also be taken to ensure that defendants' 
human rights are respected in practice. 
 
¶2. Summary, cont. On May 29, Parliament passed the Merchant 
Shipping Act and rewrote the penal code provisions dealing 
with piracy. Most of the language repeats provisions of the 
UN Convention on the Law of the Sea and when it becomes law 
it should not significantly change how piracy cases are 
prosecuted in Kenya. The international community's 
assistance, fact-finding missions, invitations to 
conferences, advice, expectations, and scrutiny threaten to 
overwhelm this small and antiquated criminal justice system's 
ability to absorb it all, particularly at a time when the 
government of Kenya (GOK) is focused on its larger political 
crises and pressing need for progress on the reform agenda. 
End summary. 
 
DEFENSE CHALLENGES DELAY WITNESS TESTIMONY IN U.S., GERMAN 
CASES 
 
¶3. On June 30, 11 U.S. Navy and Coast Guard personnel 
(accompanied by Navy and Coast Guard JAG officers) and two 
Filipino seamen were assembled in Mombasa to testify in the 
trial of seven Somalis accused of piracy. The suspects were 
captured by the USS Vella Gulf on February 11, 2009 after 
they attempted to seize the MV Polaris, a Marshall 
Islands-flagged vessel. They were turned over to the Kenyan 
authorities on March 8. Trial was scheduled for July 1-2 and 
July 7. However, only one U.S. witness testified before the 
magistrate suspended proceedings to consider a defense motion 
challenging Kenya's jurisdiction. The magistrate is expected 
to deny the motion when he rules on July 16. (Note: The High 
Court of Kenya has rejected the same jurisdictional challenge 
made earlier on appeal by defendants captured by the U.S. 
Navy and convicted in 2006. This ruling is generally viewed 
as binding on this issue.) However, the case is likely to be 
continued until September due to lack of courtroom 
availability, so the witnesses were sent home with the hope 
that they may be able to return when trial resumes. Logistics 
and expenses for the Filipino crewmembers' participation in 
the trial were arranged by the Marshall Islands maritime 
organization and the private shipping company that employed 
them. (Note: A similar motion challenging jurisdiction was 
also made during the week of June 29 during the piracy trial 
of nine Somalis caught by the German Navy and handed over to 
Kenya on March 11, and it also resulted in a delay of that 
trial.) Post's Department of Justice Resident Legal Advisor 
and Bernadette Mendoza, the Deputy Chief of Mission from the 
Embassy of the Philippines in Nairobi, traveled to Mombasa to 
meet and assist the witnesses and participated in pretrial 
conferences with prosecutors. Ms. Mendoza indicated that her 
government remains very concerned about the impact of piracy 
 
NAIROBI 00001527  002 OF 006 
 
 
on its seafarers, and noted that there are currently 46 
Filipino seamen being held hostage for ransom in Somalia, the 
largest number from a single country. 
 
OTHER UPCOMING CASES 
 
¶4. There are currently 100 Somali piracy suspects being held 
in Kenya, including nine transferred by the Italian Navy on 
June 26. The second case of piracy suspects captured by the 
U.S. Navy (the USS Gettysburg) is scheduled to be heard on 
August 24-25. Other trial dates in August are: August 3-5, 11 
suspects, French capture; August 6-7 and 10, 14 suspects, 
Spanish capture; August 10-11, 11 suspects, second French 
capture; and August 19-20, 8 suspects, resumption of UK 
capture case. 
 
KENYAN FRUSTRATION WITH RECENT ITALIAN, FRENCH CASES 
 
¶5. The manner of delivery and quality of evidence in some 
recent cases, as much as the number of transfers, has 
dampened Kenya's enthusiasm for these cases. For example, a 
representative of the UN Office on Drugs and Crime (UNODC) 
reported that the Italians had initially "arraigned" the 
suspects they captured before an Italian magistrate via 
ship-to-shore teleconferencing while the suspects were still 
at sea. He also said that the Italian government decided 
against prosecuting the suspects in Italy, that the Italian 
Parliament passed legislation to permit transfer to Kenya, 
and that Kenya was pressured to accept the suspects, who were 
delivered to Mombasa with accompanying evidentiary documents 
in Italian. The Kenyan prosecutors are now seeking approval 
from the Attorney General to reject this prosecution. If this 
happens, it is unclear what the disposition of the suspects 
will be. 
 
¶6. Prosecutors have also faced challenges in a French case 
that was initially framed as an assault by piracy suspects on 
a French warship. The UNODC representative who has seen the 
evidence reports that, although the suspects were apprehended 
on the high seas with piracy paraphernalia (e.g. AK47s and 
RPGs), there is no evidence that they attacked the French 
ship or attempted any acts of piracy. The prosecutors may 
attempt to charge the suspects with conspiracy to commit 
piracy or similar acts under the penal code, but even these 
charges will be difficult to prove under the circumstances. 
The French and Italian cases have led the GOK to demand that 
all future requests for prosecution be accompanied by a full 
evidence package (something the GOK noted the United States 
is already providing) so they can determine before transfer 
whether or not Kenya will accept the case. Given the 
structural and capacity limitations of the Kenyan legal 
system, weak cases should not/not be brought to Kenya for 
prosecution. 
 
HUMAN RIGHTS AND DUE PROCESS CONCERNS 
 
¶7. The UNODC representative in Mombasa also reported that 
some recent cases were not handled well by the Kenyan 
authorities. She observed suspects appearing at their initial 
hearing without legal representation, and no or inadequate 
Somali language translation provided during proceedings. 
(Note: Indigent Kenyan defendants do not have a right to 
defense counsel, except in cases where the maximum penalty is 
death. The maximum penalty for a piracy conviction is life 
imprisonment.) She was also concerned by a case where one 
suspect was reported to be a juvenile who had confessed and 
provided a statement against his fellow suspects. At the time 
the case was presented, all the suspects were represented by 
one attorney, and the juvenile's confession was reported in 
open court. One defense counsel should not represent clients 
with potentially conflicting interests, but it is not clear 
what measures (if any) will be taken to ensure appointment of 
separate counsel for the juvenile. It is also unclear what 
accommodation, if any, has been made to separate the juvenile 
from his fellow suspects in custody and to house him 
separately from adult inmates. 
 
NAIROBI 00001527  003 OF 006 
 
 
 
¶8. Adequacy of legal representation for piracy suspects will 
continue to be an issue. So far, it appears the suspects' 
families or clans had pooled sufficient resources to retain 
counsel. However, in cases where suspects do not have 
sufficient funds or co-defendants need to be represented by 
more than one attorney due to conflicts of interest, Kenya 
does not provide state-funded counsel. The EU-funded UNODC 
program has funding to provide defense counsel, but UNODC and 
the Kenyan Department of Public Prosecutions (DPP) are 
reluctant to advertise this. Funding representation for 
piracy suspects may require UNODC to develop and administer a 
miniature legal aid program, and could have negative effects 
on the small legal community in Mombasa without careful 
oversight. For example, the lure of large retainers or even 
consistent and reliable pay might capture the entire local 
defense bar, leaving less representation available for Kenyan 
defendants. International attention to piracy cases has 
brought foreign defense attorneys to Kenya who are seeking to 
get involved, but there is no mechanism permitting foreign 
defense attorneys to appear in Kenyan courts unless they are 
licensed members of the Kenyan bar. 
 
¶9. The international community must be as vigilant as 
possible in ensuring that the fundamental rights of piracy 
suspects turned over to Kenya are protected. This task is 
made both more difficult and more necessary by Kenya's 
informal and often troubled criminal justice system. Thus 
far, in the U.S.- and UK-generated cases, the fundamental 
rights guaranteed defendants under Kenyan law, which are 
largely consistent with international norms, have been 
respected. For example, Somali translators have been present 
and actively engaged in the proceedings, the suspects were 
apprised of the charges against them, they were represented 
by defense counsel (who were provided with copies of witness 
statements, photographs, and other evidentiary documents and 
who actively, if not skillfully, cross-examined witnesses and 
made legal challenges), and they were permitted to appeal 
their convictions. In the Polaris hearing, the court's 
willingness to suspend the proceedings based on the defense 
counsel's jurisdictional challenge supports the view that 
defendants' legal rights will be taken seriously in these 
cases. However, as the number of cases increases, the 
challenge of ensuring fair proceedings, legal representation 
for defendants, and humane conditions of confinement will 
have to be addressed. (Note: An informal report by a visiting 
UNODC expert on Mombasa's Shimo la Tewa prison, where the 
piracy suspects are detained, was quite complimentary of the 
institution. UNODC has earmarked a large portion of their 
piracy program funds for upgrading conditions at Shimo la 
Tewa.) 
 
PERSONNEL LIMITATIONS 
 
¶10. The small number of prosecutors and judges continues to 
be a major limitation on Kenya's capacity to prosecute crime, 
including significant numbers of piracy cases. The GOK has 
long recognized the problem, and the international community 
has continually urged that the number of judges and 
prosecutors be increased. However, the GOK has been extremely 
slow to appoint new judges and prosecutors. Foreign 
prosecutors cannot appear in Kenyan courts, and while the DPP 
appreciates advice and assistance, they do not want full-time 
or embedded foreign lawyers. (Note: Against the RLA's 
recommendation and the DPP's expressed wishes, UNODC placed 
an EU-funded lawyer in Mombasa. Initial reports indicate that 
her engagement has not been particularly successful or 
productive.) 
 
¶12. The DPP has 62 prosecutors who cover the entire country. 
Most street crime (except murder) is handled by police 
prosecutors, who are not trained lawyers. The DPP has 
assigned 12 of the 62 prosecutors to the "Anti-Piracy Unit." 
Four members of that unit have prosecuted piracy cases to 
date, and two are located in Mombasa. As prosecutors 
"assigned" to the Unit are likely to retain their previous 
 
NAIROBI 00001527  004 OF 006 
 
 
assignments, duties, and caseloads in addition to the piracy 
mandate, the designation of the unit will not have a 
significant effect on Kenyan capacity to prosecute piracy 
cases. 
 
¶13. Given the personnel limitations, the best approach to 
helping Kenya is to help the few available staff to work more 
efficiently. We recommend ensuring that the cases transferred 
are strong and well-organized; providing additional training 
for prosecutors on how to prepare and try these cases 
efficiently; and providing quick and efficient trial support 
(i.e. arranging logistics and funding for foreign witness 
appearances at trial). We have also urged that the 
international community fund a paralegal or equivalent 
position to assist the DPP with intake, file organization, 
and liaison activities. Although the EU promised months ago 
to support this position, bureaucratic requirements instead 
led the EU to fund the embedded British prosecutor in 
Mombasa, a move which has not been welcomed by the DPP. UNODC 
subsequently agreed to hire a Kenyan to undertake these 
administrative/clerical support functions. The UNODC 
advertised publicly for a junior assistant to work in the 
DPP's Mombasa office. However, since the UN salary for this 
position is $48,000 per annum, approximately double the 
average prosecutor's salary, both the lead prosecutor in 
Mombasa and the senior piracy policy lead at the Ministry of 
Foreign Affairs applied for the position. UNODC was forced to 
withdraw the job announcement and plans to revise the job 
description and salary and re-advertise the position. 
 
TRAINING AND EQUIPMENT SUPPORT 
 
¶14. The U.S. Department of Justice has been providing 
training to the DPP since 2005. As of May 2009, all 
prosecutors have received training in trial advocacy and most 
of them have also attended advanced courses covering a wide 
variety of subjects (including, for example, witness 
protection, financial crimes, cyber crimes, and terrorist 
financing). In July, the RLA will train additional 
prosecutors, including 16 new hires, in trial advocacy and 
will train 30 magistrates on administrative best practices 
including case management and modern trial practice. To date 
in 2009, we have conducted two piracy-specific workshops, and 
RLA and UNODC plan to hold another piracy training at the end 
of July. The participants in these trainings include 
prosecutors, police, and maritime security personnel. The RLA 
is also exploring offering additional training to judges and 
magistrates on piracy and terrorism cases. 
 
¶15. The financial and material resources of the DPP to try 
piracy cases are also limited. However, in the last five 
months, the DPP has received four laptop computers (two from 
Germany and two from EU/UNODC), two printers (Germany and 
EU), and two fax/scanner/printer/copiers (United States and 
UNODC). The United States also provided the DPP with a 
variety of expendable office supplies. USAID previously 
equipped all DPP offices throughout Kenya with computers, 
printers, and phones as part of a capacity-building 
initiative with the DPP. The RLA also developed and delivered 
forms and evidence/trial notebooks to help the DPP 
standardize the intake, filing, and trial presentation of 
these cases. UNODC plans to provide Mombasa police with 
digital cameras to record evidence. Assistance to date 
notwithstanding, the DPP continues to request that UNODC 
supply more equipment, including 22 more laptops. It is 
unclear why they need these items. The UNODC representative 
stated that prosecutors reported that two of the donated 
laptops are "missing after an office move." It also appears 
that other donated equipment is not being utilized 
effectively or at all. 
 
¶16. UNODC has also agreed to pay travel, lodging, and per 
diem expenses for prosecutors traveling between Mombasa and 
Nairobi on piracy-related business. In the past, prosecutors 
traveled between the two cities as their jobs demanded 
largely without reimbursement. However, provision of these 
 
NAIROBI 00001527  005 OF 006 
 
 
funds (which are significant in relation to prosecutors' low 
government salaries) without adequate oversight has had the 
undesirable effect of increasing the number of prosecutors 
"assigned" to piracy cases as well as the number and length 
of trips deemed necessary. UNODC has begun tighter control 
over expense payments, but with resulting hostility from 
prosecutors who were enjoying the earlier largesse. 
 
¶17. UNODC has also agreed to upgrade two Mombasa courtrooms 
by modernizing the air conditioning and electrical systems. 
It has also committed to making improvements in the prisons 
where most of the piracy suspects are held. We do not know 
how much progress has been made in either of those projects. 
 
INTERNATIONAL CONFERENCES AND VISITS 
 
¶18. A number of prosecutors have been funded by UNODC to 
represent Kenya at international conferences on piracy. The 
lead prosecutor missed an important oral argument before the 
appellate court because he was attending a piracy conference 
in Europe. The ever-increasing number of international 
conferences serve as a distraction from the prosecutors' core 
job functions. The UNODC representative appreciates the 
problem, but commented that he does not control the number of 
conferences being held and feels he cannot refuse to 
accommodate invitations for Kenya to participate. In the last 
six months, Kenya has hosted a number of international 
organizations on fact-finding missions (including the UN, EU, 
Interpol, and various components of interested Western 
governments). Most recently, UNODC hired an EU-funded British 
lawyer to conduct a survey of the laws and capacities of 
Kenya and other countries in the region. This survey follows 
closely after surveys done by the EU and UN several months 
earlier. The International Maritime Organization (IMO) has 
meanwhile expressed its view that it should be the lead 
agency on maritime matters. An IMO fact-finding mission led 
by Ash Roach will be in Kenya for two weeks at the end of 
July. A planned NATO mission was postponed and is expected to 
be rescheduled for later this summer. 
 
LEGISLATIVE UPDATE 
 
¶19. To date, all piracy suspects have been charged under 
Kenya's independence-era penal code section 69. Although 
there were early concerns that the "bare bones" provision 
failed to define piracy and was not sufficiently explicit 
regarding Kenya's extraterritorial jurisdiction, these 
deficiencies have thus far not proven fatal to the 
prosecution. Section 69 will be superseded by the newly 
enacted Merchant Shipping Act, which was passed by Parliament 
on May 29. Following formal "notification of commencement" by 
the Ministry of Transportation (date TBD), the Act will 
become operable. The provisions of the Act relevant to piracy 
track closely with the language in the UN Convention on the 
Law of the Sea (UNCLOS), with a few omissions. Section 369 of 
the Act defines piracy in much the same way as the UNCLOS, 
but omits "on the high seas." The remaining portions of the 
definition and related provisions support the view that 
Kenya's claim of extraterritorial jurisdiction over piracy 
cases would still apply, and indeed might be slightly 
stronger under the new Act. The definition and jurisdiction 
elements are clearer than in the current law, and there is an 
added provision on robbery of ships. Overall, it is unlikely 
that implementation of the Act will significantly change how 
piracy prosecutions will proceed in Kenya. 
 
COMMENT 
 
¶20. The capture and prosecution of Somali pirates can play 
only a tiny role in the overall solution to the piracy 
problem in the region. Interdictions and prosecutions should 
continue, as should efforts to improve the prosecutorial 
capacity of regional states. However, even increased and 
problem-free prosecutions are likely to do little to deter 
pirate activity given the economic and political situation in 
Somalia, plentiful and vulnerable merchant shipping, and the 
 
NAIROBI 00001527  006 OF 006 
 
 
willingness of shipowners and/or their insurers to pay large 
ransoms. Further, Kenya's justice system (and those of its 
neighbors) can only accommodate a limited number of cases, 
and can only absorb and benefit from moderate and sustained 
international assistance. In light of these facts, we should 
continue to discourage excessive focus on and uncoordinated 
efforts at rapidly building prosecutorial capacity in the 
region. 
 
ABELL