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By Root 937 0

problems ranging from underpaid personnel and staff attrition to a lack of cooperation between the police and prosecutors, Kenya’s legal system may seem a strange choice to assume the complicated burden posed by Somali piracy.7 However, following the refusal of Mauritius to lend its soil to an EU-funded prison, as well as the hostility of Somalia’s other neighbours to the concept of local trials, Kenya, in the words of E. J. Hogendoorn, the International Crisis Group’s Horn of Africa director, was “the last country standing.”8 Nonetheless, Kenyan minister of foreign affairs Moses Wetangula made it clear in a statement that the MOU was not “an open door for dumping pirates onto Kenya [sic] soil because it will not be acceptable.”9

The problem was that it was not clear whether Kenyan law allowed the country’s courts to try non-nationals for crimes committed extraterritorially, and pirates’ attorneys were quick to argue that it did not. A test case had occurred in 2006, when ten suspected pirates were arrested by the US Navy three hundred kilometres off the coast of Somalia and turned over to Kenyan authorities. In the country’s first piracy trial, a Mombasa court convicted the accused of hijacking the Indian trading dhow Safina Al Bisaraat on the high seas, and each was sentenced to seven years in prison. Subsequent to this ruling, the pirates’ defence lawyer filed an appeal, which was ultimately rejected, arguing that Kenyan courts had no jurisdiction over crimes committed by non-nationals on the high seas.10

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,