Little known court that slew the demon of piracy

Perched on a creek about 16 kilometres north of Mombasa, Shanzu Law Court was arguably the smallest judicial station at the coast before the deadly pirates created a hell off the Coast of Somalia.

The court has left an indelible mark on Kenya’s war against piracy.

Shimo La Tewa caves, which are the breeding grounds of the fish species locals call ‘tewa’ also gained infamy in the 18th and 19th century as the holding cells for slaves.

During the slave trade, the caves were dubbed “the hole of hell”. However, nowadays, the area has played a significant role in the war on pirates.

Other than the revamped Shanzu Law Court, the neighbouring Shimo La Tewa Maximum Prison has held 138 suspected pirates since war on piracy started.

This is after Kenya signed treaties with the US, UK, China, EU, Canada, and Denmark in 2019 to try Somali pirates. Legal and security scholars argue that the tiny court is ideal because it is secluded compared to the crowded Mombasa law court.

United Nations Office on Drugs and Crime supported the construction of a secure dock, a separate witness waiting area, and improved holding cells at Shanzu Law Courts, making it unique compared to others.

In addition, it could handle piracy cases, trials of suspects in other high-risk cases, including the Mombasa Republican Council and terrorists.

But, three years into the deal, Kenya terminated the Memorandum of Understanding with the six global powers, accusing them of failing to meet their end of the bargain.

Recent reports that Kenya could sign a new Legal Finish Agreement (LFA) for suspects apprehended on the high seas has reignited debate on how this will be of benefit to the country. This is after a resurgence of pirate attacks on ships off the Coast of Somali. After a long lull, now there have been 38 piracy cases near the Coast of Somalia.

According to the European Union ambassador Henriette Geiger, Kenya was requested to conclude the Legal Finish Agreement for suspects.

However, Ms Geiger has denied reports that Kenya could also hold and prosecute Yemen Houthi rebels. In a communique from the EU Embassy in Nairobi, the so-called LFA would only support activities of the European Union Naval Forces (EUNAVFOR) Atalanta mission fighting piracy in the Indian Ocean.

“EUNAVFOR Atalanta mission fighting piracy in the Indian Ocean and the request to the Kenyan to conclude Legal Finish Agreement for suspects apprehended on the high sea,” EU said.

The EU said they have another mission called ASPIDES to protect shipping in the Red Sea, and it was not related to EUNAFOR, and “there is no request to the Kenyan related to ASPIDES.”

Piracy off the coast of Somalia has had a crushing impact on the Kenyan and regional maritime trade after the shipping lines slapped importers with a piracy surcharge and the cost of re-routing to the Cape of Good Hope to access the Port of Mombasa.

Kenya Ports Authority (KPA) estimates that the cost of shipping from Northern Europe has tripled from Sh72,450 ($450) to Sh289,800 ($1,800) per tonne because of the Houthi attacks.

This is due to the re-routing from the traditional shipment route of the Suez Canal, a short route, to down to the Cape of Good Hope, a longer route.

Maritime security experts at the Coast agree that the activities of Somali pirates disrupt the flow of ships in the Suez Canal, leading to the high-cost freight that, ultimately passed on to the end consumer.

During the peak of attacks off Somalia, liners imposed a piracy surcharge of up to Sh19,890 from Sh11,700. Estimates indicate Kenyan importers lost about Sh2 billion a month due to piracy.

“Piracy has adverse effects on the business of Mombasa Port, but there are legal and economic debates on why Kenya should prosecute those pirates here,” said Andrew Mwangura, a maritime expert.

He said that the disruption of shipping in the Gulf of Aden and along the Red Sea presents an opportunity for Kenya to establish bunkering and ship chandelling services.

“Kenya is strategically located to handle vessels servicing the growing South America-to-Asia dry companies as well as international bunker trading companies,” said Mwangura.

He said the government should liberalize the importation of fuels so that private firms could venture into bunkering and exempt bunker services from exercise duty and value-added tax.

Mwangura said the importation levy should be removed and rebated on port anchorage, pilotage, and tug services levies introduced to make the capital-intensive bunkering business attractive.

Bunkering refers to the provision of fuel (fuel/gas oil) to ships to power their engine. Ship chandelling is the supply of foodstuffs to the crew of the vessels.

High Court lawyer who has acted as a defense lawyer for suspected terrorists and Somali pirates, Mr Mbugua Mureithi, said there must be structural benefits for Kenya if it agrees to try pirates.

“On the Houthi rebels, my advice to Kenya is not to touch them because of fears of retaliation. On the Somali pirates, we should know how Kenyans will benefit from the deal, not just piecemeal offered to the judiciary,” said Mureithi.

He noted that apart from the renovations in Shanzu Court and Shimo La Tewa Prison, Kenyans felt they were offered a raw deal in the 2019 MoU, leading to its cancellation.

Kenya faced criticism about whether its legal system allows the prosecution of suspected pirates accused of having committed crimes far away from its territory.

In 2010, the High Court ruled that the courts could only deal with offenses committed within the country’s territory. The verdict was rejected by the appellant court.

The Court of Appeal said Kenyan courts have jurisdiction to try pirates caught in international waters, saying piracy off the coast of Somalia affected the economies of many nations.