We have advised the Government of Kenya to take several steps to strengthen the law on maritime terrorism, especially the proper implementation in Kenya of two key international instruments, i.e. the 1988 Convention for the Suppression of Unlawful Acts (1988 SUA Convention) and the 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf against the Safety of Maritime Navigation (SUA Protocol). Some of these measures include, legislative intervention and the adoption of relevant regional agreements.
The concern for terrorist attacks at sea, grew with reports of kidnappings at sea culminating with the unfortunate incident of the hijacking of the Achille Lauro in the 1980s. This prompted the International Maritime Organization (IMO) to adopt two conventions which Kenya is party to i.e. the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 SUA Convention) and the 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf (1988 SUA Protocol).
In Kenya, the 1988 SUA Convention and the 1988 SUA Protocol have been implemented into law by sections 370 to 373 of the Merchant Shipping Act, Cap 389, which sections are contained in Part XVI of the said Merchant Shipping Act. However, a reading of these sections shows that there are certain gaps in Kenyan law that prevent the full implementation of the 1988 SUA Convention and the 1988 SUA Protocol.
What is more, a protocol, i.e. the 2005 Protocol to the 1988 Convention for The Suppression of Unlawful Acts Against the Safety of Maritime Navigation was adopted in London, on 14th October 2005, this Protocol is the latest measure taken by the maritime community to combat global terrorism. The Protocol introduces several new offences. At the same time, another Protocol, i.e. the 2005 Protocol to the 1988 Protocol for The Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf was adopted to strengthen the already existing Protocol on Fixed Platforms located on the Continental Shelf. We shall refer to the Protocols adopted in 2005 as the 2005 Protocols. Kenya is not a State Party to the 2005 Protocols.
Issues and Recommended Solutions
1. Inconsistent Penalties
Article 5 of the 1988 SUA Convention provides that every State Party has an obligation to make the offences set forth in article 3 of the 1988 SUA Convention punishable by appropriate penalties which take into account the grave nature of those offences. Kenya has attempted to meet this obligation by firstly, attempting to cover the offences set forth in article 3 of the 1988 SUA Convention under sections 370 and 372 of the Merchant Shipping Act and, secondly, by enacting provisions in section 370 of the said Merchant Shipping Act that make the offences therein punishable for life. Section 370 of the Merchant Shipping Act covers the offences specified in article 3 (1) (a) to (d) of the 1988 SUA Convention, while section 372 of the Kenya Merchant Shipping Act, covers the offences described in article 3 (1) (e) to (f) of the 1988 SUA Convention. However, the offences under section 372 of the Merchant Shipping Act, are punishable, under section 429 of the said Merchant Shipping Act, with a fine not exceeding ten million shillings or to imprisonment for a term not exceeding ten years or to both such fine and imprisonment.
It is recommended that, having acceded to the 1988 SUA Convention, Kenya should review and rationalize the punitive provisions under sections 370 and 372 of the Merchant Shipping Act, with a view making the penalties for both sections consistent, because the punishments should take account the principle of equal protection of the laws and protection from discrimination enshrined in article 27 of the Constitution, which the inconsistent penalties do not seem to have taken account of.
2. Measures to Establish Jurisdiction
A State Party must, under article 6 of the 1988 SUA Convention, take measures to establish its jurisdiction over the offences set forth in article 3 of the SUA Convention when the offence is committed (a) against or on board a ship flying the flag of the State or (b) in the territory of that State, including its territorial sea or (c) by a national of that State. In an attempt to fulfill its obligations under the 1988 SUA Convention, Kenya has under section 370 of its Merchant Shipping Act, Cap 389 provided that [s]ubject to subsection (5), subsections (1) and (2) shall apply (a) whether the ship referred to in those subsections is in Kenya or elsewhere (b) whether any such act as is mentioned in those subsections is committed in Kenya or elsewhere; and (c) whatever the nationality of the person committing the act. Similarly, section 372 of the Merchant Shipping Act provides that [e]xcept as provided by subsection (8), subsections (1), (3), (5) and (6) applies whether any such act as is mentioned in those subsections is committed in Kenya or elsewhere and whatever the nationality of the person committing the act. From the foregoing attempts, it would appear, that Kenya has failed to establish jurisdiction with respect to ships flying its flag as required by article 6 (1) of the SUA Convention.
Kenya should take the necessary legislative measures to establish criminal jurisdiction over ships flying its flag.
3. Obligation to Afford Greatest Measure of Assistance to Other State Parties
Under article 12 (1) of the 1988 SUA Convention, State parties have an obligation to afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences set forth in article 3, including assistance in obtaining evidence at their disposal necessary for the proceedings and under article 12 (2) of the 1988 SUA Convention, and the said State Parties must carry out the said obligation in conformity with treaties on mutual assistance that may exist between them.
We think that the Government can and should be at the forefront in developing treaties on mutual assistance within the East African Community (EAC).
It should be noted however that in the absence of such treaties, State parties shall afford each other assistance in accordance with their national law, and in this regard, there does not appear, in our law, to be a clear legal mechanism for the assistance envisaged by the 1988 SUA Convention.
4. Implementation of the 1988 SUA Protocol
The 1988 SUA Protocol was acceded to by Kenya on the 21st of January, 2002. Interestingly, though, Kenya does not appear to have taken any legislative measures for the implementation the 1988 SUA Protocol.
Kenya should therefore take the necessary measures to enact laws to implement the provisions of the 1988 SUA Protocol and should similarly, through the EAC be at the forefront in developing treaties on mutual assistance within the community or develop provisions in its laws that allow for mutual assistance between Kenya and any other State party to the 1988 SUA Protocol.
5. The 2005 SUA Protocols
The 2005 Protocols were brought about in the aftermath of the terrorist attacks in New York and Washington, on 11th September 2001, when it became clear that the shipping industry needed a new, more stringent and more comprehensive set of measures to address the question of maritime security. The 2005 Protocols contain detailed provisions that have not been covered in the 1988 SUA Convention and the 1988 SUA Protocol. The 2005 Protocols were premised on the fact that the ship or vessel could be used as the instrument of or platform of attack buy terrorists, which is very different from the basis upon which the 1998 SUA Convention and the 1988 SUA Convention were made.
Unfortunately, Kenya is not a State party to the 2005 SUA Protocols and it is recommended that Kenya becomes a party to the 2005 Protocols and in so doing should develop all the relevant laws to implement the 2005 Protocols covering issues such as jurisdiction, co-operation extradition, mutual assistance etc.
In order to appropriately implement the provisions of the 1988 SUA Convention and the 1988 SUA Protocol, which Kenya is a State Party to, Kenya may need to look into the issues addressed, i.e. look into the inconsistent penalties under the relevant provisions of the Merchant Shipping Act, provide proper measures to establish jurisdiction over ships registered in Kenya, establish measures to create afford greatest measure of assistance to other State Parties and implement the provisions of the 1988 SUA Protocol. Given the emerging issues that were brought about in the aftermath of the terrorist attacks in New York and Washington, on 11th September 2001, it is also advisable for Kenya to become a State Party to the 2005 Protocols.