The Pirates of Somalia_ Inside Their Hidden World - Jay Bahadur [75]
Given that the men sitting before me had been caught aboard a foreign vessel, using her crew as the modern equivalents of galley slaves, the standard protestations of innocence rang remarkably hollow. “We were fishermen,” said Hassan. “And we were fishing when we were captured. But the Americans destroyed all the evidence: our boats and our nets.”
After investigating them as possible Al Qaeda agents, said Hassan, the Americans turned them over to Kenyan authorities, who charged them with piracy. He said they had been railroaded by a court system of which they were entirely ignorant: “We were in the dark. We weren’t even given a lawyer.” Although the public record shows they had an attorney who not only defended them against the charges but launched an appeal on their behalf, Hassan painted himself and his co-accused as the victims of a show trial. “There was no evidence brought against us,” said Hassan. “And no witnesses, either.” The BBC’s account of the trial tells a different tale: not only did members of the Al Bisaraat’s Indian crew testify before the court, they claimed that they had been “tortured” by the defendants.11 For his part, Hassan remained steadfastly unconvinced. “We were not proved guilty beyond a reasonable doubt,” he said.
Hassan insisted that he and his co-defendants should have been tried in their homeland, where they would have been able to call defence witnesses. When I related to him the horrors of Bossaso prison, the hundreds of ragged prisoners crammed into urine-soaked cages, many serving out life sentences for piracy, he was unfazed. “In Somalia, at least we would have gotten a fair trial,” he replied. Just as likely, they would have been let go—and Hassan knew it.
Hassan and his colleagues had served more than three years of a seven-year sentence, and expected to see another full season at Naivasha prior to their early release at the beginning of 2012. They had no intention of returning to Somalia following their parole. “What we want is to be granted refugee status, or residency permits,” said Hassan. “Whatever we need to stay in Kenya.” Many Somalis would undoubtedly judge Kenyan citizenship a far better prize than the most overloaded oil tanker; in an ironic twist, their utter ineptitude as pirates may have inadvertently granted Hassan and company a way out of their dead-end career. As for their future employment plans, Hassan shrugged matter-of-factly. “We’re Somalis, we’ll be businessmen,” he said. “All we need is a little capital to start off with.”
As if deciding to end the interview with this pronouncement, Hassan abruptly cut off my next question. “We have nothing more to discuss,” he said, pushing himself away from the table. But as I rose to leave, he stopped me with a parting comment. “I hope that by the time we get out of here, piracy in Somalia has stopped,” he said. “Since being put in jail, I’ve come to understand that it’s a really bad thing.” It was probably the closest thing to an admission of guilt that anyone was ever going to get out of Hassan.
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Although his appeal was rejected, Hassan’s lawyer raised an interesting legal challenge. At the time, the Kenyan penal code contained no explicit provisions specifying how to treat suspects captured on the high seas; in essence, Kenya had never implemented its obligations under UNCLOS and the SUA Convention in its domestic legal system.
This all changed in February 2009, when the Kenyan parliament passed the Merchant Shipping Act. Adopting the UNCLOS definition of piracy, the legislation explicitly assumed jurisdiction over piracy offences regardless of “whether the ship … is in Kenya or elsewhere,” whether the offences were “committed in Kenya or elsewhere,” and irrespective of the nationality of the person committing the act.12 By unilaterally extending its extraterritorial jurisdiction over non-nationals, argues Kenyan legal scholar James Gathii, the Kenyan government “exceed[ed]