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Cablegate: Update On Kenyan Prosecution of Suspected Somali

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P 231211Z DEC 08
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RUZEFAA/HQ USAFRICOM STUTTGART GE PRIORITY

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

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