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).
Following the September 11 attacks on New York and Washington DC, the IMO adopted the 2005 Protocol to the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the 2005 Protocol to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf. Both protocols shall be referred here as the 2005 SUA Protocols. The 2005 SUA Protocols introduced new offences that acknowledged the fact that the vessel itself could be used as the tool of terrorism and the use of biological and other weapons.
Certain issues become apparent when looking at the SUA Conventions and Kenyan law.
Issue no. 1
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, Cap 389 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.
Recommended solution for issue no. 1
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 the Constitution, which the inconsistent penalties do not seem to have taken account of.
Issue no. 2
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.
Recommended solution for issue no. 2
Kenya should take the necessary legislative measures to establish criminal jurisdiction over ships flying its flag.
Issue no. 3
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.”
Recommended solution for issue no. 3
Kenya can be at the forefront in developing treaties on mutual assistance within the community.
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.
Issue no. 4
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.
Recommended solution for issue no. 4
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.
Issue no. 5
The 2005 SUA 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.
Recommended solution for issue no. 5
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.
The detailed paper is available here.
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