by Jay Bahadur
In the maximum security prison at Naivasha, a booming town on the very edge of Kenya’s Rift Valley, I managed to track down four of the ten men convicted in the Al Bisaraat incident. Shackled in irons and dressed in black-and-white striped jumpsuits reminiscent of an old convict movie, they shuffled in silently and took their seats across the wooden table in front of me. Hassan, an abrasive early-thirtysomething with yellowing teeth, sat directly opposite me, assuming the role of the group’s mouthpiece; the other three stared despondently at their handcuffs, occasionally rousing themselves to shout an answer in Hassan’s direction. Though their broken English testified to the language lessons they had been receiving at the prison school, a Somali-speaking Kenyan inmate acted as our interpreter. The meeting took place in the officer’s lounge, and it quickly became clear that Naivasha’s governors had no intention of relinquishing their territory; the prison’s entire senior staff sat in a row over my left shoulder, overseeing the meeting like diligent chaperones.
The hijacking of the Al Bisaraat was one of the best-documented early cases of a pirate band seizing a dhow to use as a mothership. On January 16, 2006, two days after loading its cargo at the southern port of Kismaayo, the Al Bisaraat was attacked by three small speedboats carrying the ten hijackers, members of Afweyne’s pioneering Harardheere-based pirate group, the Somali Marines.
After assuming control of the vessel, the pirate leader ordered the crew of the Al Bisaraat to take the group’s attack skiffs in tow and set a course for the open sea, towards the international shipping lanes. For the next three days, the pirates took the Al Bisaraat and her crew on a hunting spree, unsuccessfully attempting to hijack a container ship and a tanker, and registering a direct rocket-propelled grenade (RPG) hit to the bridge of one of their fleeing victims in the process. The gang’s third target, the Bahamian bulk carrier MV Delta Ranger, proved to be their downfall; responding to the Ranger’s report to the International Maritime Bureau, the destroyer USS Winston Churchill was dispatched to the area. After shadowing the pirates with one of its attack helicopters, the Churchill twice fired warning shots at the Al Bisaraat, following its failure to respond to hails. A three-hour standoff ensued, at the end of which the hijackers panicked and initiated standard pirate operating procedure when faced with superior force: some threw their weapons overboard, while others, strangely, decided to hide them on the ship itself. Shortly afterwards, US naval personnel boarded the Al Bisaraat and arrested the pirates.
Given that the men sitting before me had been caught aboard a foreign vessel, using her crew as the modern equivalents of galley slaves, the standard protestations of innocence rang remarkably hollow. “We were fishermen,” said Hassan. “And we were fishing when we were captured. But the Americans destroyed all the evidence: our boats and our nets.”
After investigating them as possible Al Qaeda agents, said Hassan, the Americans turned them over to Kenyan authorities, who charged them with piracy. He said they had been railroaded by a court system of which they were entirely ignorant: “We were in the dark. We weren’t even given a lawyer.” Although the public record shows they had an attorney who not only defended them against the charges but launched an appeal on their behalf, Hassan painted himself and his co-accused as the victims of a show trial. “There was no evidence brought against us,” said Hassan. “And no witnesses, either.” The BBC’s account of the trial tells a different tale: not only did members of the Al Bisaraat’s Indian crew testify before the court, they claimed that they had been “tortured” by the defendants.11 For his part, Hassan remained steadfastly unconvinced. “We were not proved guilty beyond a reasonable doubt,” he said.
Hassan insisted that he and his co-defendants should have been tried in their homeland, where they would have been able to call defence witnesses. When I related to him the horrors of Bossaso prison, the hundreds of ragged prisoners crammed into urine-soaked cages, many serving out life sentences for piracy, he was unfazed. “In Somalia, at least we would have gotten a fair trial,” he replied. Just as likely, they would have been let go—and Hassan knew it.
Hassan and his colleagues had served more than three years of a seven-year sentence, and expected to see another full season at Naivasha prior to their early release at the beginning of 2012. They had no intention of returning to Somalia following their parole. “What we want is to be granted refugee status, or residency permits,” said Hassan. “Whatever we need to stay in Kenya.” Many Somalis would undoubtedly judge Kenyan citizenship a far better prize than the most overloaded oil tanker; in an ironic twist, their utter ineptitude as pirates may have inadvertently granted Hassan and company a way out of their dead-end career. As for their future employment plans, Hassan shrugged matter-of-factly. “We’re Somalis, we’ll be businessmen,” he said. “All we need is a little capital to start off with.”
As if deciding to end the interview with this pronouncement, Hassan abruptly cut off my next question. “We have nothing more to discuss,” he said, pushing himself away from the table. But as I rose to leave, he stopped me with a parting comment. “I hope that by the time we get out of here, piracy in Somalia has stopped,” he said. “Since being put in jail, I’ve come to understand that it’s a really bad thing.” It was probably the closest thing to an admission of guilt that anyone was ever going to get out of Hassan.
* * *
Although his appeal was rejected, Hassan’s lawyer raised an interesting legal challenge. At the time, the Kenyan penal code contained no explicit provisions specifying how to treat suspects captured on the high seas; in essence, Kenya had never implemented its obligations under UNCLOS and the SUA Convention in its domestic legal system.
This all changed in February 2009, when the Kenyan parliament passed the Merchant Shipping Act. Adopting the UNCLOS definition of piracy, the legislation explicitly assumed jurisdiction over piracy offences regardless of “whether the ship … is in Kenya or elsewhere,” whether the offences were “committed in Kenya or elsewhere,” and irrespective of the nationality of the person committing the act.12 By unilaterally extending its extraterritorial jurisdiction over non-nationals, argues Kenyan legal scholar James Gathii, the Kenyan government “exceed[ed] the bases for jurisdiction in the SUA Convention.”13 It was precisely to avoid this kind of conflict that the UN had advocated the shiprider option; with Kenyan law enforcement representatives posted on foreign warships to arrest pirate suspects at the source, Kenya’s jurisdiction over them would not be in question.
Following the Kenyan parliament’s elimination of the legal hurdles, the pirates have come sweeping off the Indian Ocean like the monsoon winds. After being handed over to Kenyan authorities they are transferred to Mombasa’s colonial-era Shimo La Tewa prison, an institution whose living environment was condemned in 1995 by local journalist Mutonya Njunguna as “belonging to a horror film,” with thirty-five hundred inmates forced to sleep on the floor in sweltering and unhygienic conditions.14 Perhaps the criticism had an effect, because Shimo is now touted by the Kenyan prison service as one of the most progressive and modern prisons in the country.
As of my visit, 107 suspected pirates were awaiting trial in Shimo, and the number is certain to increase faster than Kenya’s beleaguered legal system can process their cases. Shimo’s indefatigable warden, Wanini Kireri, embraced the challenge despite her limited resources. Built for a thousand-prisoner capacity, her maximum-security facility was crammed with twice that number, and the added responsibility of becoming the world’s foremost pirate warden came as a shock.
“I wake up one evening and they tell me that I have fifty pirates to take care of,” she said from across her office desk. “I didn’t know what to do. There were security issues, questions on how to treat them—whether we should mix them with the Kenyan prisoners, how we were going to communicate with them, and so on. We didn’t know how to handle them at first. There was a lot of talk from different quarters, about whether Kenya should really be taking the Somalis, if our prison conditions w
ere good enough for them,” she added.
The culture shock, said Kireri, went both ways. “At first, we saw a lot of anger from [the Somalis],” she said. “They said, ‘We’ve done nothing to wrong the Kenyans, so why are we here?’ ” Many, according to Kireri, had wished to face trial in the home countries of the ships that captured them—a demand entirely justified under the SUA Convention. “By six months, they had settled in,” she said. In the end, Kireri decided to give the pirates their own prison block, with a few Kenyans mixed in to fill up the remaining space. Despite their cultural differences, conflicts with the Kenyan inmates were rare—though friendly competition abounded.
“They love football,” she said. “The pirates have a team, and the Kenyans have a team, and they play against each other.” Temporarily discarding the neutrality required of a prison warden, Kireri had no problem letting me know where her loyalties lay. “They can’t beat the Kenyans,” she said, laughing. “The Kenyans have been playing football for years, while the pirates say that they have been at sea, so they haven’t had much time to practice.”
Although the Kenyan authorities lacked the ability to notify most of the prisoners’ relatives of their situation (or even locate them), the populous Somali community in Kenya ensured that the pirates received visits from their countrymen every weekend, though not always from members of their own families. “Even when there are only one or two people visiting, they’ll bring things like soap and clothes for all the Somali prisoners,” Kireri said. “I don’t know if they’re all cousins, or they just behave like they are.” Through this close-knit network, she figured, her prisoners were able to send messages that would eventually find their way back to their relatives in Somalia.
Though accommodating her Somali charges had been difficult at times, the extra work had brought its rewards. As partial compensation for the Kenyan government’s willingness to serve as a dumping ground for the world’s piracy problem, the United Nations Office on Drugs and Crime (UNODC) stepped in with a $12 million EU-funded counter-piracy program aimed at strengthening the country’s overburdened justice system.
“The way I look at it, it was a blessing in disguise,” said Kireri. “Since I took over in 2006, nothing had been done to improve the conditions here until UNODC came in. Since then, the prisoners have been given blankets and mattresses, our kitchen has been upgraded, the prison has been painted, and there have been improvements to the water and sewage systems. Before, I didn’t even have a computer,” she said, pointing to her glossy new desktop monitor and laughing. “This came with the program.” Her prison was not the only beneficiary of the UNODC’s largesse, she said; its mandate included improvements to the entire justice system, including the police and courts.
Kireri admitted that she enjoyed some other perks that had come with the media spotlight, including the chance to give a personal tour to Hollywood celebrity Nicolas Cage, who had visited the prison the previous month, ostensibly to draw attention to the problem of Somali piracy. “He was so nice, and such a humble man,” she said. “He was very impressed with our prison.” Cage’s five-minute meet-and-greet with the remanded pirates, media cameras in tow, had played out in the familiar pattern. “They told him they were fishermen,” said Kireri, pausing to recollect. “Yes, that was their story.”
* * *
If there was a man likely to believe these tales of innocence, it was pirate defender Oruko Nyawinda, a suavely attired Kenyan attorney currently representing sixteen of Shimo La Tewa’s hapless denizens. Perched behind the desk in his deserted office in downtown Mombasa, two days before Christmas, Nyawinda launched into an impassioned defence of his clients worthy of a crowded courtroom. “Our constitution is very clear,” he declared. “If a person is charged with a bailable offence, that person must be given bail and bond.” As piracy is a bailable offence in Kenya, he said, there was no reason that he should have to visit his clients behind bars. “They are actually serving a sentence while being tried,” he said. “To me, denying them bail is an abuse of their human rights.”
Their right to a state-appointed counsel had also been violated, according to Nyawinda. Despite EU funding, the windfall from the UNODC program had all blown in one direction, he said: towards the prosecutors, the prisons, and the attorney general’s office. He and his fellow defence lawyers were receiving payment neither from the state nor from UNODC, and Nyawinda had been forced to lean on his destitute clients to raise funds. “They told me that to get money they had to send word home for goats and sheep to be sold,” he said. “We had to talk to the Red Cross, who sent their people into Somalia and finally tracked down some of their parents. In the end, I received a small payment.”
This service was not performed out of a concern for Nyawinda’s bank balance. The International Committee of the Red Cross had been saddled with the thankless task of tracking down the relatives of every pirate in Kenyan custody—even, as was often the case, when the pirates themselves were unable to point out their homes on a map.
In addition to the cost of the pirates’ defence, said Nyawinda, the EU had promised to fund new courts and new prisons to handle the pirate influx, none of which had materialized. And he said the EU had failed to take into account a plethora of future costs: “Not every suspected pirate brought here is guilty, so we can expect some of them to be acquitted and set free. The question is, who will finance their going home? Who will finance their temporary stay before they go home? Or do we give them homes here?”
But whether the majority of suspects were guilty or innocent was beside the point, Nyawinda argued. Piracy, he said, had become a full-time criminal enterprise—but instead of targeting the heads of the cartel, the police were going after the street dealers. “You hear every day about the millions being paid out [as ransoms],” he said. “The question is, are these wretched ones being brought to court the ones receiving the millions? They are arresting the workers, the employees. If the international community were serious, they would go after the pirate lords, the ones financing the activities. Otherwise, we’ll just continue trying these poor guys, and the trials will go on and on.” Unfortunately for these “pirate employees,” they were the only ones the international naval forces could get their hands on; short of an international invasion of Somalia, Nyawinda’s “pirate lords” would remain safely beyond the reach of justice.
Nyawinda’s clients had not been so lucky. One group of his defendants claimed to have been migrant workers in transit from Yemen to Somalia when they were accosted by an Italian warship and taken into custody. “There was a video-conferencing trial on the ship broadcast from a courtroom in Italy,” said Nyawinda. “There was allegedly a lawyer representing my clients, whom they did not know.” With barely a pause for breath, he fired off an accusatory barrage: “If the trial began on this ship, why not complete it in Italy? Why is Italy not competent to try them?” Any conscientious reader of the SUA Convention would be hard pressed to answer these questions.
Given the existing tensions between native Kenyans and the Somali community in the country, Nyawinda also worried that these pirate trials could strain relations even further. “Imagine an innocent Somali, arrested as a pirate. He spends two years on trial, stuck in our prison system, eating that food, sleeping in those conditions,” he said. “He’s not being offered a fair trial, his family is not there to support him, and his advocate is not being paid. What’s the difference between that and Guantanamo Bay?” As with Guantanamo, Nyawinda feared a backlash over the potential perception of injustice. “We are going to create very bitter persons,” he lamented.
His confidence in the judicial procedure was not bolstered by the quality of evidence brought against his clients, which Nyawinda claimed had consisted of nothing more than footage of a fleeing skiff and a single loaded gun; there had also been an alleged RPG launcher that, he scoffed, “no photograph or video camera could capture.” It was not only the evidentiary support that Nyawinda found suspect, however, but the legal process i
tself. “Kenya didn’t arrest [the alleged pirates], they were just brought here by people who purportedly found them in the act of piracy,” he said. “People who give their evidence and run away.”
Not surprisingly, Nyawinda already had a remedy in mind. “This is my proposal: create a proper group of international investigators to deal with any arrested pirate,” he explained. “The moment so-called pirates are arrested, this group should rush to the scene and take charge. Identify the alleged pirates and find out where they come from; then notify their relatives. Inform the detainees within twenty-four hours which country is going to charge them, and then take them there. The way it is now, the person testifying in court as the investigator is a Kenyan police officer. They were not there during the arrest, and they have never visited the scene of the crime.”
The solution, in Nyawinda’s view, was for the international community to fund specialized tribunals tasked solely with processing suspected pirates. “These people are a special group, and should be treated in a special way,” he said. “They shouldn’t be mixed up with other cases, and their trials should take no more than a week to one month.”
If Nyawinda’s vision had a fault, it lay with its naive optimism, not its core prescriptions. With international tribunals established to resolve issues ranging from war crimes to bilateral trade disputes, it is inexplicable that an issue of such obvious global dimensions as high seas piracy should have been relegated to Kenyan courts. Lacking even a home government to defend their rights, Somali detainees are amongst those most in need of international protection—a view that Nyawinda echoed in his closing arguments. “It is them against the entire international community,” he implored. “No one is standing by them.”
