The Court of Appeal affirms Universal Jurisdiction for Piracy

Just to refresh our memories, nearly a year ago, a High Court Judge held that the Kenyan courts could not try alleged pirates for offences committed outside Kenyan territory (particularly in the high seas). This was despite the (then) Section 69 of the Penal Code that criminalised Piracy in jure gentium.

The ruling raised eyebrows because it seemed to contradict an earlier ruling by another high court judge that Kenya had universal jurisdiction to try non-Kenyans who commit acts of piracy outside Kenyan territory.

Scholars such as Gardner have also highlighted a second problem with the ruling: the Judge seemed to ignore (or refused to apply) the rule of interpretation that Parliament is presumed to make laws in conformity with international law (unless it expressly states otherwise). By the time the Penal Code was enacted, International Law already recognised universal jurisdiction for piracy offences provided that the state in question had custody of the defendant.

Now the Court of Appeal (sitting as a bench of 5) has reversed the High Court Judgment. I had trouble finding the ruling on the Kenyalaw website. So here it is (courtesy of WARNING: THIS IS NOT THE AUTHORITATIVE SIGNED DECISION. This judgement is important for explaining how judges should interpret international law (especially international criminal law) when it is incorporated into Kenyan law (either directly through statute or through the Constitution’s Article 2)


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Following the Hague trials of 4 Kenyans to the end. A blog by Archie Nyarango

UK Constitutional Law Association

affiliated to the International Association of Constitutional Law


Advancing the rule and role of law in Africa

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