A few weeks ago, the Court of Appeal delivered its long awaited ruling in Attorney General v Hashi and Others. In its judgement (although not explict, it seems that Judge Maraga’s judgement is the Majority Judgement with the others appending concurring opinions), the court unanimously overturned the High Court’s decision to free several Non-Kenyan defendants charged with Piracy. The High Court had held that Kenyan courts- specifically magistrates’ courts- had no jurisdiction to try acts of piracy supposedly committed outside the territorial limits defined in the Penal Code.
Without going into each of the points the Court of Appeal made, I wish to point out several issues that stick out for me in the Appeal judgement. The first is that the court was careful to analyse the applicable international law, including customary international law. As I have argued in this paper, since the promulgation of the 2010 Constitution, not enough analysis of the precise application of customary international law and jus cogens norms has happened in the Kenyan case law, even when these are directly at issue. This approach bore fruit as the judgement clearly defined the various elements of the customary crime of piracy. The judgement also demonstrated that the legislature in 1969 presumably understood international law and amended the penal code in conformity with the customary international law on piracy in jure gentium in order to give Kenyan courts jurisdiction for acts on the high seas.
Unfortunately, once again there is vagueness- particularly in Koome JA’s concurring opinion- about which international law applies under which Article of the Constitution. When, for example, Judge Koome writes “by dint of Article 2 (5) of the Constitution, UNCLOS is part of our laws…” does she mean that the convention is made up entirely of general rules of international law? Or that the convention is accepted as customary international law? Or that the convention is jus cogens? Indeed why refer to Article 2(5) at all? Since UNCLOS is treaty/conventional international law and has been ratified by Kenya, would it not be more appropriate to cite Article 2(6) which specifically addresses such conventional law?
Muddling up the different sources of international law may not have an effect in this particular case, but it will when a norm such as “crime against humanity” is defined differently under ‘general rules of international law’ than in treaty/convention law. Under international law, such a situation is permissible and elaborate rules of priority have been developed to resolve any conflicts arising from the coexistence of similar general rules and treaty rules. But blithely applying Article 2(5) and 2(6) as if the two provisions are the same will cause mistakes in applying these conflict-of-norms rules.
Another striking issue for me is that some of the reasoning for allowing extra-territorial jurisdiction for Kenyan courts seems to rest on a public policy argument based on the damage Piracy is doing to the economy (see Judge Onyango-Otieno’s Opinion) and world peace and stability (Koome and Maraga JJA’s opinions). While this may partly reflect the historical origins of universal jurisdiction against Pirates as ‘enemies of mankind’ who present a threat to each and every nation, it is important to distinguish between the inter-temporality of law and the relativity of law.
By inter-temporality, I mean the fact that the law (both international and domestic) is generally applied as it existed when the offence was committed or the cause of action arose. This approach respects the principle of legality (specifically the non-retrospective application of laws). Furthermore, the court may rightly look into the purpose behind the historical development of the relevant legal rule. Thus, for example, it was entirely correct for Koome and Maraga JJA to delve into the status of the offence of piracy jure gentium at the time the accused were charged in court and the historical evolution of the definition of piracy.
By relativity, I mean the temptation that presses upon judges to ‘recognise’ an emerging rule of law or inventively evolve a rule of law in order to meet a contemporary challenge or policy problem facing the state. To give an example, if we attach importance to the public policy arguments of the judges set out above, this would imply that if piracy off the Somali coast were not presently threatening the Kenyan economy and international peace and security, then Justice Ibrahim’s views about the limited jurisdiction of Kenyan courts would have stood. To put it another way, what would the finding have been if the persons in question were Brazilians arrested in the high seas off South America? Given that South American piracy is not viewed as being at the same economic or security threat level as piracy off the Somali coast, the judgement suggests that the court might have been more reluctant to recognise universal jurisdiction in the Brazilian pirates case.
I think the court should have stuck to its solid findings as to the existence of universal jurisdiction and not linked it (at least not so overtly) to the fact that piracy was currently a threat to the economy and to peace and security; making the link as strongly as the judges did gives the impression that if the threat of piracy off the East African coast disappears, then extra-territorial jurisdiction- specifically universal jurisdiction- may do so as well.
All in all, the judgement is commendable, I feel that it will boost the arsenal against impunity by giving warning to alleged international criminals that the courts of Kenya are prepared (in line with the permissive Lotus principle and a century of international law regarding universal jurisdiction) to recognise and exercise jurisdiction far from Kenyan territory and against persons who are not Kenyan nationals. Certain Sudanese citizens may wish to read it carefully before attempting a return visit to Kenya.
In case of any doubt, I give Judge Maraga the last word:
“For the piracy offences committed after the 27th August 2010 when the current Constitution was promulgated, Article 2(5) and (6) which have respectively incorporated the general rules of international law and the treaties Kenya has and continues to ratify into Kenyan law, Kenyan courts, have added constitutional authority to prosecute piracy and other international crimes.” (para.40)