Eunice Machuhi [The Nation], 9 November 2010
The war against piracy in the Indian Ocean has suffered a setback after the High Court ruled that Kenya has no jurisdiction over offences conducted outside its territorial waters.
At the same time, the court has directed the immediate release of nine suspects charged with piracy, saying they were brought to Kenya against their will, under coercion and compulsion.
In a landmark ruling delivered Tuesday, Mombasa judge Mohammed Ibrahim terminated the proceedings in the lower court against the suspects and prohibited any magistrates' court from dealing with the case saying that the Kenyan courts are not conferred with or given any jurisdiction to deal with matters arising or which have taken place outside Kenya.
The courts he said, did also not have jurisdiction in criminal cases and in particular in the offences set out in the penal code where the alleged offence took place outside the geographical area known as Kenya.
"The local courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya," he noted.
The nine suspects who were represented by Mr Jared Magolo were charged with piracy, where it is alleged that on March 3, 2009 at about 9.15 am, upon the high seas of the Indian Ocean, while armed with three AK 47 rifles, a pistol, RPG-7 portable rocket launcher, SAR 80 rifle and a Carabine rifle, they attacked MV Courier and at a time of such act put in fear the lives of the crew of the said vessel.
They then filed a judicial review application and sought for prohibition orders, prohibiting the hearing of the case.
Justice Ibrahim noted that the law under which the applicants were charged did not provide for an express definition of what constituted the 'high seas', and it cannot therefore be a place in Kenya or within territorial waters of Kenya, since by definition, they are deemed to be outside the jurisdiction of all states in the world, unless some law in the State brings it into their local jurisdiction.
For that reason, he noted, the magistrate's court erred in conducting the trial which he declared as null and void, as it acted without jurisdiction when it took the pleas of the applicants and heard the case up to the close of the prosecution case.
The applicants who were represented by Mr Jared Magolo included Mesrs Mohamud Hashi alias Dhodi, Mohamed Ali AW-Dahir alias Orod Dheer, Mohamed Dogol Ali Cade, Abdiwahid Mohamed Osman and Abdullahi Omar Mohamed alias Indaguran.
Others are Messrs Abdirahman Mohamud Caser, Khadar Mohamed Jama, Abdirazak Hassan Ali alias Dawagoradi and Mohamed Cirfer Ismail alias Mohamud Abdullahi Ismail who were handed over to Kenyan authorities by German marines.
The judge issued a directive that the government and in particular the Ministry of Immigration procures their safe release and passage to their respective countries of origin.
In default, the court requested the United Nations High Commission for Refugees (UNHCR) to take them into custody and consider them as displaced persons who require their protection and to assist them relocate to their counties of origin.
"The prison authorities cannot and have no power or authority to release the applicants to the police or the immigration without further orders of this court," he added.