Assessing current trends and efforts to combat piracy: a case study on Kenya.

AuthorMutoka, Rosemelle
PositionEnd Game: An International Conference on Combating Maritime Piracy

Despite the recent decline in piracy incidents, piracy continues to be a persistent problem in East Africa, and has now spread to West Africa and other regions. This article argues that in order to effectively eradicate piracy, an assessment of the current counter-piracy efforts and remaining challenges is required to pave the way forward. As Kenya was one of the first to try Somali pirates extraterritorially, it has seen many of the challenges played out in its courtrooms. Questions of jurisdiction, non-uniform evidentiary standards, and the lack of specialized training for judges in trying piracy cases are among the practical obstacles that persist in piracy prosecutions. Further, this article emphasizes that the international community must also look to broader, underlying challenges whose solution will ultimately inform a long-term solution to the piracy problem. Understanding the root causes and motivations of pirates, building a viable Somali state, and strengthening regional and international legal frameworks are the necessary building blocks of a sustainable solution to ending piracy.

CONTENTS I. INTRODUCTION II. EMERGENT TRENDS AND EFFORTS IN PLACE IN THE FIGHT AGAINST PIRACY A. Improvement of Security B. Advocacy C. Harmonization of Legislation III. CHALLENGES FACING THE FIGHT AGAINST PIRACY A. Jurisdiction B. Training C. Sovereignty of States and the Place of International Conventions D. Failure to Address the Root Cause E. Lack of Funding IV. WHAT IS THE WAY FORWARD? A. Monetary Assistance and Oversight B. Strengthening of International Maritime Law C. Capacity Building in Somalia V. CONCLUSION I. INTRODUCTION

Piracy in the Eastern shores of the Indian Ocean has been a growing threat to security, international shipping, and development since mid-2000. According to the International Chamber of Commerce International Maritime Bureau, the number of pirate attacks worldwide reached a five-year low in 2012, with 297 vessels attacked (compared with 439 in 2011). (1) Additionally, the number of mariners taken hostage or kidnapped for ransom fell from 802 in 2011 to 611 in 2012. (2) and the number of mariners killed fell from 35 in 2011 to six in 2012. (3) This is primarily attributable to a large drop in attacks off the coast of Africa, specifically off the east coast of Somalia, as a result of international marine mobilization through naval forces and private on-board security measures. Temporarily, such action has disrupted the piracy business model. As of April 1, 2013, pirates operating out of Somalia held only five vessels and 65 mariners hostage. (4)

In Kenya, the proliferation of pirate attacks is attributable to Somalia's unstable political situation, (5) which has, in the recent past, given rise to a high proportion of pirates in the Indian Ocean and the Gulf of Aden. Kenya has only recently begun to acknowledge the implications of Somali piracy on its security, strategic, and economic imperatives. While there has been a direct benefit to some extent from an influx of pirate money, for example in the property market, the indirect costs to the shipping industry, tourism, consumer price levels, and foreign investment, among others, far outweigh any direct benefit from piracy. (6)

  1. Emergent Trends and Efforts in Place in the Fight Against Piracy

    As far back as the Roman times, pirates have been labeled hostis humani generis, (7) and piracy has continued to be a crime under the law of nations. Today, as was in the Roman times, the threat of pirate assaults against merchant ships and private sea travelers is still a serious security problem the world over, although it has only recently affected the Indian Ocean and the Gulf of Aden. Therefore, tackling the threat of pirate attacks is a cause for concern not only for Kenya, but also for the international community as a whole. Due to the unrelenting international spirit to counter and eliminate the threats posed by piracy, numerous efforts have been generated.

    1. Improvement of Security

      The world's economy is interconnected, and regional challenges sometimes have global impact, especially when it comes to piracy, transnational crime, and human trafficking. As a major component of the world's trade is carried onboard ships, global commerce is inexorably linked to maritime security. (8) As a maritime nation, Kenya has faced vast challenges due to its geopolitical position, as it is a well-established fact that most pirate invasions affecting Kenya are due to the political instability in Somalia. As such, a permanent solution to piracy off the east coast of Africa will not arise until a stable and effective government returns to Somalia. Indeed, the World Bank, in its report on ending piracy in Somalia, has asserted that the only way to end piracy off Somalia's coast is to create a viable Somali state, and this can be accomplished by delivering key services to the entire country, reducing poverty, and creating opportunity. (9)

      Stability and security in the region would indeed go a long way towards the protection of Kenyan interests and the safety of vessels in the Indian Ocean and the Gulf of Aden. Without proper border security, pirates will continue to take advantage of the situation in the country's territorial waters. It is therefore no coincidence that substantial effort has been put in place to aid in the restoration of normalcy in Somalia through initiatives supported by the international community. Kenya has played a major role in the stabilization process intended to bring about political reconciliation, which led to the formation of the Transnational Federal Government in Somalia, which was hoped would bring the much desired stability to Somalia. (10)

      Yet these efforts, which have taken the form of advocacy and naval deployment, have not yet adequately addressed the threat of piracy and piracy attacks, both in territorial and non-territorial waters. Due to the security lapse in the Gulf of Aden, combined naval operations have proliferated, seeking to combat piracy by ensuring the safe passage of vessels and maintaining availability to respond to distress calls and possible attacks. (11)

      International consensus appears to be shifting towards a preference for shipping companies to use private security. Such security has been effective at deterring pirate attacks, does not require costly military involvement, and does not require mariners to take up arms on their own. For this reason, private shipping companies have strongly demanded armed security personnel from private security companies, as private sea travelers have also done, to ensure safe passage and security of their vessels, crew, and cargo. (12) The international community also constructed a hands-on approach where relevant personnel in regional countries are being trained to develop their own capacity to combat piracy activities and attacks. (13)

    2. Advocacy

      Efforts to counter piracy have largely been characterized by advocacy at the international level and combined foreign naval deployment, (14) while bilateral arrangements and regional organizations have played a smaller role in such efforts. (15) The International Maritime Organization (IMO) (16) has been instrumental in putting the piracy problem on the international platform. In the spirit of advocacy, the IMO convened seventeen nation states, among them Kenya, in Djibouti to help address the issue of piracy and armed robbery at sea in the Western Indian Ocean, the Gulf of Aden, and the Red Sea regions. (17)

      The U.N. Security Council, through Chapter VII of the U.N. Charter, calls on member states to become actively involved in counter-piracy efforts by encouraging regional cooperation and the promotion of legal avenues in an effort to curb piracy. (18) Through these calls for advocacy, the international legal framework is responding to the weaknesses in the current piracy legal regime to bolster an internationally legitimized response to a formidable level that has potential for further warfare against piracy.

    3. Harmonization of Legislation

      The highly controversial decision in the Kenyan case Mohamud Mohamed Hashi et al., (19) (in terms of inconsistencies with the provisions of the law), in which the High Court addressed two competing statutory provisions on the Court's jurisdiction, was perhaps a wake-up call for the need for harmonization of laws related to piracy in Kenya. (20) An effort has since been made towards harmonization of the two conflicting provisions of the Penal Code, as one of the provisions, Section 69, was repealed by the passage of the Merchant Shipping Act (MSA). (21) In addition to the adoption of a more detailed and clear definition of what amounted to piracy, the MSA, as read together with the Constitution (22) of Kenya, grants the Kenyan courts jurisdiction (23) over piracy offenses, regardless of whether the ship in question was in Kenya or elsewhere, and irrespective of the nationality of the accused. It is therefore correct to assert that Kenya has in fact made a fair contribution to counter-piracy efforts.

      However, more can be done by addressing conflicting statutory provisions through the implementation of long-term strategies involving the formulation of sound maritime policies at the continental, national, and regional levels. There should also be express amendments to existing conflicting law or interpretation by a court of competent jurisdiction to cure the inconsistencies.

  2. CHALLENGES FACING THE FIGHT AGAINST PIRACY

    Though much effort has been put forth to fight piracy on both the regional and international levels, such effort has not proceeded without a challenge. The challenges range from issues of jurisdiction, funding, and human rights, to the inexperience of state organs, to mention but a few.

    1. Jurisdiction

      The existence of jurisdiction is problematic due to discrepancies between international and domestic law, as well as the jurisdictional question that arises on the...

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