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Cablegate: Kenyans Move Ahead On New Piracy Prosecution

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PP RUEHROV
DE RUEHNR #2667/01 3311203
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P 261203Z NOV 08 ZDS
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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

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