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C I V I L - M I L I T A R Y F U S I O N C E N T R E

Regional Courts and Prisons:Developing Local Capacity to Prosecute Somali Pirates

Amber Ramsey

Knowledge Manageramber.ramsey@cimicweb.org

This report discusses the obstacles to trying piracy cases in regional courts and prisons based on a lack of strong judicial 

institutions and penal infrastructures as well as the burden being placed on the few nations that have agreed to serve as 

regional prosecution centres. It also discusses efforts being made by the international community to develop greater 

incentives for regional nations to accept piracy cases. Related information is available at  www.cimicweb.org. Hyperlinks

to source ma terial are highlighted in blue and underlined in the text. 

The first regional piracy cases were accepted by the government of Kenya in 2009, and since then, other countries,

including the Seychelles and Mauritius, have agreed to take on a larger role in the prosecution of Somali pirates.

These cases were part of an interim prosecution regime  developed by the international community to enable

pirates captured in international waters by cooperating navies to hand them over to domestic courts in the region

for prosecution, says Andrew Lee of the One Earth Future Foundation. Under such regimes, regional countries

agreed to enact strong anti-piracy laws and to act as regional prosecution centres. However, as many of these

nations tend to lack strong judicial institutions and penal infrastructures, two main issues arise when it comes to

trying pirates in their courts. Firstly, the burden that long and costly trials place on these nations often makes it

unappealing for them to accept captured pirates unless supplemented by financial support from the international

community. Secondly, as many nations operating in the Gulf of Aden and Indian Ocean are bound by international

Human Rights Standards, it is necessary to ensure that these standards are being met by all prosecuting nations.

With this in mind, international assistance for piracy prosecutions has been mainly focused on providing financial

and technical assistance to lessen the burden of piracy prosecutions on regional nations and to improve the overall

standards for the trial and imprisonment of suspected pirates throughout East Africa.

  ANTI PIRACY 

January 2012 Comprehensive Information on Complex Crises

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Despite the efforts of the international community, the issue remains that a large number of pirates still go

unpunished due to a lack of resolve by many countries to prosecute. Various United Nations Resolutions1

have

been passed urging all states to accept piracy cases and to support countries already taking on these prosecutions

in the Horn of Africa region, but willing nations are still few and far between. In response to this failure to share

the burden of piracy prosecutions, in 2010, Kenya chose to overturn agreements it had made with the internationalcommunity for the transfer of piracy suspects and now only accepts piracy cases on an ad-hoc basis. The

Seychelles also recently showed some discontent by refusing to accept 25 pirates that had been captured by the

Danish military, citing the fact that 14% of all prisoners in the Seychelles are Somali pirates. Current international

efforts continue to focus on lifting the burden on Kenya and the Seychelles through international support; however

some movement has recently been made towards shifting the burden onto other regional countries. In this regard,

Mauritius has signed an agreement with the European Union for the transfer of pirate suspects captured by the

European Union Naval Forces (EU NAVFOR) and Tanzania has shown some interest in serving as a regional

piracy prosecution centre.

With these recent developments, it has become a main goal of  the international community’s anti-piracy strategy

to provide continuing support for judicial systems throughout East Africa and to expand the capacity of courts andprisons in the Horn of Africa region to allow for the trial and imprisonment of Somali pirates. Nevertheless, the

ultimate goal of the international community with regards to piracy prosecutions is that through international

support, Somalia itself will one day become the main arbiter on all cases involving Somali pirates (see Annex A).

Current Judicial Infrastructure: Somalia2 and the Region

Criminal and Procedural Legislation

The first step in establishing a framework for piracy trials in regional courts is through the drafting of national

legislation making piracy a crime as defined by the United Nations Convention on the Law of the Sea (UNCLOS),

according to the “Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the

Coast of Somalia”. As such, signatories to the Djibouti Code of Conduct3

have all agreed to review their nationallegislation to ensure that laws are in place to criminalise piracy, and that sufficient guidelines exist for exercising

 jurisdiction, conducting investigations and prosecuting offenders4. Nevertheless, despite these agreements several

regional nations, including Somalia, have yet to draft legislation that would make piracy a prosecutable offense in

their national courts.

The June 2011 “Report of the Secretary-General on the  modalities for the establishment of specialised Somali

anti- piracy courts” notes that assessments conducted by the United Nations Development Programme (UNDP) 

and the United Nations Office on Drugs and Crime (UNODC) identified a number of inconsistencies and

deficiencies in the criminal and procedural codes across all three regions of Somalia5. Moreover, the report notes

the challenge presented by “[t]he absence so far of adoption by the Transitional Federal Parliament, and the

regional parliaments, of piracy legislation consistent with the provisions of international law”. Prosecutions in

1 Resolution 1897 (2009), Resolution 1918 (2010); Resolution 1950 (2010), Resolution 1976 (2011); Resolution 2015 (2011),Resolution 2020 (2011)2 The current focus of international judicial capacity-building in Somalia is in the semi-autonomous states of Somaliland and

Puntland. 3 Comoros, Djibouti, Egypt, Eritrea, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Oman, Saudi Arabia, Seychelles,Somalia, Sudan, United Arab Emirates, United Republic of Tanzania and Yemen.4 Article 115 Semi-autonomous State of Puntland; Semi-autonomous State of Somaliland; and the Transitional Federal Government (TFG).

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these regions have, in fact, been conducted on the basis of other criminal offences, such as the possession of 

illegal weapons, says the UN.

However, through the Kampala Accord6, the United Nations Political Office for Somalia (UNPOS) has

encouraged the transitional federal institutions to pass counter-piracy legislation before the end of the transitionalperiod in August 2012. As stated in point 13 of Annex II in the above-mentioned UN report, in support of this

effort, UNDP and UNODC brought together legal drafting experts from Somaliland, Puntland and the Transitional

Federal Government (TFG) under the guidance of United Nations legal experts to draft legislation relevant to

piracy prosecutions in Somalia. The group successfully drafted and agreed upon an anti-piracy law which was

submitted to their respective governments for approval; however, the law was only ever officially adopted by the

semi-autonomous state of Puntland. According to the UN report, the Transitional Federal Parliament chose not to

enact the draft legislation in January 2011 and the Somaliland parliament is still in the process of reviewing it.

The UN Secretary-General report notes that another obstacle to the successful prosecution of pirates is the failure

of some states to accept jurisdiction unless the incident is directly connected to their country. For instance, the

report claims that Somaliland only accepts jurisdiction for piracy cases that directly connect to Somaliland, that is,if the attack took place in their territory or was conducted by a Somaliland national. On the positive side, however,

Puntland, Kenya and the Seychelles have all agreed to accept jurisdiction for piracy cases that have no direct

connection to their countries. As part of ongoing efforts by the United Nations to address the issue of jurisdiction,

UN Resolution 2015 (2011) called on Somalia and its neighbours to take urgent steps to address legislative and

 judicial shortcomings  that make it difficult to deal with growing maritime insecurity, including piracy, says

Raymond Gilpin of the United States Institute of Peace (USIP).

Courts & Trial Procedures 

According to UN Special Adviser Jack Lang, respect for international human rights law requires nations to offer

  judgment rendered by an independent and impartial court within a reasonable amount of time and with dueprotection of the rights of the defendant. Nations must also provide conditions of detention that meet international

standards and provisions for social reintegration. The UN Convention on Human Rights requires signatory nations

to adhere to a certain standard when it comes to the trial and imprisonment of criminals. This standard extends to

the transfer of suspects to a judicial system that does not adhere to these same standards. As such, many of the

international navies that capture pirates in the Indian Ocean are required by law to ensure that suspects will be

treated humanely and given a fair trial by the accepting state.

However, according to the UN Secretary-General’s report, less than 10% of judges and prosecutors in Somalia

have undergone formal legal training.7

The majority of judges were found to have a limited understanding of 

criminal law and court procedures and were not equipped to hear serious criminal cases such as piracy. Moreover,

Somaliland and Puntland are both described by the United Nations as having a shortage of courtrooms and othernecessary judicial infrastructure to try cases in a timely fashion.

As indicated by the US Department of State Human Rights Report for 2010, while the Transitional Federal

Charter of the TFG provides for an independent judiciary, no such entity exists. Similarly, the Constitutions of 

Somaliland and Puntland both provide for an independent judiciary, but were described by the same report as “not

6 An agreement made by the President of the TFG and the Speaker of the Transitional Federal Parliament in the presence of Ugandan

President Yoweri Kaguta Museveni on bringing an end to the transitional period in Somalia.7 See Annex III of  UN Report S/2011/360 for figures on the number and training of Somalia’s judicial officials. 

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independent in practice”. It further states that untrained police and other unqualified persons in Somaliland

reportedly served as judges and described courts in Puntland as lacking the capacity to provide equal protection

under the law.

Nevertheless, the 2010 Human Rights Report registers some improvement in trial procedures in both Somalilandand Puntland as a result of international support. In particular, with the assistance of the international community

in developing courts in both Somaliland and Puntland, it is estimated that these two regions will soon have the

capacity to try 20 additional piracy cases per year (with approximately 10 individuals involved in each case)8.

Prison Capacity 

As stated by the United Nations, the improvement of court systems in regional states must correspond with an

increase in prison facilities9. UN Special Adviser Jack Lang called the lack of prison capacity “the major obstacle

to the trial of pirates by States in the region”. The Seychelles became the first regional nation to develop

agreements with all three regions of Somalia for the transfer of convicted pirates back to Somalia for the duration

of their sentences, claims African Online News. However, the question of where to house them has still yet to be

answered.

To address this lack of prison capacity, UNODC is providing assistance in building two new prisons in

Somaliland and Puntland, which is expected to allow for a total of 1,000 additional prison spaces for pirates

convicted outside of Somalia, according to the UN Secretary-General report. Meanwhile, UNODC is conducting

renovations on several existing prisons, which currently lack basic medical facilities, water, sanitation, and trained

staff. However, much of the rehabilitation process will only benefit existing prisoners being held in poorly

maintained and overcrowded prisons. According to the Secretary-General10

, very little extra capacity will be

available to take on new prisoners in these regions, including pirates. Therefore, UN Resolution 1976, adopted in

April 2011, calls on all nations to  financially support the establishment of prisons  in Puntland and Somaliland,

reports Reuters.

Table 1. Regional Prison Capacity11

 

Prison Capacity Prison

Population

Occupancy

Rate

# of prisons % of pre-trial

detainees

Kenya  22,000 49,757 226.2% 99 43.3%

Seychelles  400 432 80.8% 1 27.2%

Mauritius  2,194 2,354 100.3% 9 30%

Source: International Centre for Prison Studies, World Prisons Brief 

8 page 3.9 page 8.10 page 8.11 No specific information was available for Somalia.

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Prison Conditions 

The US Department of State Human Rights Report for 2010 describes prison conditions in Somalia as “harsh and

life threatening” and indicates overcrowding, poor sanitary conditions, lack of access to health care and

inadequate food and water. A September 2009 report by the United Nations Independent Expert (UNIE) on thehuman rights situation in Somalia described conditions at Puntland’s Garowe central prison as “terribly bad” due

to lack of capacity. Similarly, UNODC Counter-Piracy Programme (CPP) Director Alan Cole noted urgency in

addressing Somalia’s judicial capacity, explaining, “I’ve seen some prisons in Somalia where the conditions are

absolutely appalling. It’s hard to walk around those prisons and see how these men, women and in some instances

children have to live”. Similarly, A Kenya National Commission on Human Rights (KNCHR) prison assessment

conducted in 2009 noted that torture, degrading and inhumane treatment, unsanitary conditions and extreme

overcrowding were endemic in Kenyan prisons.

Alan Cole suggests that one of the principal limitations for regional states in accepting Somali pirates is the impact

on their prisons, which are often already overcrowded with domestic prisoners (see Table 1). According to a

February 2012 report from the  International Centre for Prison Studies  (ICPS), despite a number of treaties andinstruments meant to protect the rights of prisoners, such rights are routinely violated in prisons around the world.

The UN Special Rapporteur on Torture told the General Assembly in August 2009 that in many countries of the

world, places of detention are constantly overcrowded, filthy and lack the minimum facilities necessary to allow

for a dignified existence.

The UN Standard Minimum rules for the Treatment of Prisoners states that prisoners should be kept in separate

institutions based on their sex, age, criminal record, reason for detention and necessities of their treatment.

Moreover, each prisoner should occupy a room or cell by themselves or be given their own mattress or bed. The

International Committee of the Red Cross (ICRC) has also recommended minimum standards for dimensions, 

including a minimum space per prisoner no less than 5.4 m² and an area within the security perimeter of 20 to 30

m per person. According to the 2010 Human Rights Report noted above, prisons operated by the TFG were foundto hold juveniles in prison cells with adults and pre-trial detainees were often not separated from convicted

prisoners. Similarly, the report claims that in Kenya there is no separation of pre-trial detainees and convicted

prisoners. Both the European Union (EU)12

and UNODC have been working together to ensure that East African

 judicial systems meet these internationally-recognised standards and allow for the transfer of captured pirates to

regional states.

Regional Piracy Prosecution Centres 

There are three main piracy prosecution centres in the Horn of Africa region; these are located in Kenya, the

Seychelles and Mauritius (see Map 1). All three prosecution centres are described by UNODC as delivering fair

and efficient piracy trials and secure and humane imprisonment for piracy suspects captured and transferred by

international navies. A brief description of each of these centres follows in this section.

12 The European Convention on Human Rights also specifically requires European nations to adhere to a certain standard when itcomes to the trial and imprisonment of criminals.

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Map 1: Eastern Africa

Source: World Sites Atlas 

Shimo La Tewa prison and courthouse (Mombasa, Kenya)  – Mombasa is one of East Africa’s largest ports and

for several years has been the main drop-off point for pirates captured in the Somali Basin. In June 2010, a new

high security courtroom was opened at Shimo La Tewa. The court has assisted in increasing trial capacity, to

include piracy cases, which in turn has prevented a back-up of prisoners awaiting trial. UNODC has assisted in

refurbishing Shimo La Tewa prison to ensure sufficient security while maintaining a humane approach to

imprisonment. One major benefit of the new courtroom has been the proximity of the court to the prison says

Assistant Commissioner Margaret Chuma, who claims that this has  improved case flow and reduced the costs 

incurred by the Kenyan government for the transport of prisoners being brought in for trial. As of October 2011,

Kenya had conducted 143 piracy prosecutions, with 50 individuals convicted of piracy and serving time in

Kenya’s prisons. 

Montagne Posee prison  (Mahe, Seychelles)  –  The Seychelles continues to play a leading role in piracy

prosecutions in East Africa. However, the need for additional prison accommodation was identified early on as a

key concern for the small island nation. In response to this need, UNODC has been working with government

officials in the Seychelles since December 2009 to design a secure prison block that fit the needs of the nation.

The prison now has the capacity to hold 60 individuals (60 beds). The Seychelles has convicted 41 pirates and is

currently conducting prosecutions of an additional 23 piracy suspects.

Beau-Bassin Central prison  (Beau-Bassin, Mauritius)  -  UNODC’s third regional prosecution programme is

located in Mauritius. The country currently has no Somali pirates in its prison system. However, the government

signed an agreement with the European Union Naval Forces (EU NAVFOR) on 14 July 2011 to allow for the trial

of piracy suspects apprehended by EU NAVFOR in its national courts. UNODC Logistics Manager Geraint

Roberts commented about the future expansion of the judicial system to include Somali pirates, saying “[t] he

facilities in Mauritius are to a very high standard and the attitude of the court and prison staff is excellent.” 

According to the report by former UN Special Advisor Jack Lang, discussions were underway on the construction

of a new prison wing with the capacity to hold 60 individuals.

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UNODC Counter-Piracy Programme

Main Objectives:

1. Fair and Efficient Trials and Imprisonment in

Regional Countries

2. Humane and Secure Imprisonment in Somalia

3. Fair and Efficient Trials in Somalia

Source: UNODC  

International Support for Capacity-Building in the Horn of Africa

The majority of capacity-building support provided by the international community for countries in Eastern Africa

affected by piracy has gone to nations that have signed agreements with international navies for the transfer of 

captured pirates. Currently, only the countries of Kenya13, the Seychelles and Mauritius have signed such

agreements. However, support is also being provided to nations that have not made formal agreements with

international navies but have  arrested suspected pirates using their own law enforcement agencies. The support

provided from the international community towards developing the capacity to prosecute piracy cases is being

conducted within the context of each country’s existing court structures, promoting the overall development of the

 judicial system rather than just aspects related to piracy prosecutions, notes the UN Secretary-General’s report. 

United Nations Office on Drugs and Crime

UNODC  is the main actor in judicial capacity-building

efforts related to piracy. UNODC took the reins of the

United Nations’ efforts to combat piracy off the coast of  Somalia in May 2009 under its Counter-Piracy

Programme (CPP), which falls under UNODC’s 

Regional Programme established in 2009 to promote the

Rule of Law and Human Security in Eastern Africa.

Initial efforts by UNODC focused on strengthening the judicial response to piracy in regional states, particularly

Kenya, that were undertaking the majority of piracy prosecutions. The CPP was later expanded to support piracy

prosecutions in the Seychelles, and work is currently underway to develop a programme in Mauritius as well as to

assess the possibility of supporting capacity building in other regional nations, according the most recent CPP

update from September/October 2011. The UNODC programme works in general to improve the overall capacity

of the judicial services in each nation by providing legislative assistance, the training of judges, prosecutors,

police investigators, defence counsel and prison staff, and investment in courthouses, prisons and other judicial

infrastructure.

Alongside on-going efforts within Somalia, UNODC has focused on developing a Piracy Prisoner Transfer

Programme (PPTP) to allow convicted pirates to carry out their sentences in Somali prisons that have proven they

meet international standards. The long-term goal expressed by UNODC within its CPP is to develop Somalia’s

 judicial and prison system to the extent that one day Somalia will be capable of conducting free and fair piracy

trials as well as provide for the safe and secure imprisonment of sentenced pirates. This would allow all prisoners

captured by international militaries to be confidently handed over to the Somali authorities.

United Nations Development Programme (UNDP)

Like UNODC, UNDP  has played a large role in improving human rights standards and developing judicial

capacity throughout East Africa. UNDP’s Rule of Law and Security (ROLS) programme seeks to strengthen

national and local capacities to prevent, mitigate and cope with the impact of violence in Somalia. Part of the

ROLS three-prong approach is to provide training to judicial officials in order to build the capacity of Somalia’s

legal profession. Although much of the work of UNDP is done outside counter-piracy efforts, their work has had

13 Although Kenya rescinded its transfer agreements at the end of September 2010 and now only accepts piracy suspects on a case-by-case basis.

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undeniable affects on preparing Somalia to one day boast a self-sufficient judicial process that can cope with the

influx of Somali piracy suspects while meeting internationally-accepted human rights standards.

Trust Fund to Support the Initiatives of States Countering Piracy off the Coast of Somalia

The Trust Fund was created in January 2010 under the guidance of the Contact Group on Piracy off the Coast of 

Somalia (CGPCS) to “help defray the expenses associated with prosecution of suspected pirates”, as stated in the  

Trust Fund’s 2010 Annual Report. The Trust Fund has been used to finance a number of projects throughout the

Horn of Africa to support a greater prosecution rate for Somali pirates, with an estimate in the 2010 Annual

Report suggesting that 90% of pirates captured in 2010 were released without being prosecuted.

The Trust Fund has supplemented efforts by UNODC to provide assistance to the Government of the Seychelles

through training and support for upgrading prison facilities. Moreover, it has addressed all three components

identified by former Special Adviser to the Secretary-General Jack Lang as necessary to achieve an end to piracy. 

These include: the establishment of a Somali body of law which authorises the prosecution of suspected pirates,

but complies with international human rights norms; the building of Somali judicial capacity; and the creation of 

correctional facilities for the effective execution of sentences in Somalia. In his report, Jack Lang identifies theTrust Fund as a necessary source of funding for the expansion of prisons throughout the region.

Other Support

UNODC and UNDP are reportedly working with local law faculties to  provide trainings to enhance the capacities

of judges, prosecutors, police investigators and defence counsels in both Somaliland and Puntland. There has also

been some consideration by UNODC that providing international experts to mentor local judicial officials would

assist in speeding up the process of preparing Somaliland and Puntland to reach international fair trial standards.

The African Union (AU) has been identified as a possible source for the nomination of qualified mentors and

efforts are being made to recruit trained individuals among the Somali diaspora.

As part of international efforts to strengthen the rule of law and security in Somalia, foreign donors sponsored

training for the TFG Police Advisory Committee (PAC) hosted in South Africa in September 2011, as noted in a

US State Department report on Somalia. The PAC was established in 2007 with the support of UNDP to “monitor,

mentor and train Somali police force and prison personnel in how to treat detainees with dignity.” According to an

update on the PAC, “[t]he circumstances of the detainees in Mogadishu police stations and Mogadishu Central

Prison are sometimes horrible.” However, as a result of their efforts “the circumstances of the detainees have

improved considerably”, says a member of the PAC.

Conclusion

While much has been done to improve the capacity of judicial systems in several East African countries willing to

accept piracy suspects, there is still much that needs to be done to promote burden-sharing among regional nations

affected by the scourge of piracy. Currently, Somalia is not capable of taking on the full responsibility of 

prosecuting and imprisoning pirates. The country is plagued by an  insurgency in the south, which has made it

difficult for the TFG to expand its reach beyond the capital city of Mogadishu, while both Puntland and

Somaliland still lack the resources to ensure universal fair trail standards and humane imprisonment. Meanwhile,

regional prosecution centres in Kenya and the Seychelles are being overburdened by the influx of captured pirates

that require substantial time and resources to prosecute.

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Human rights standards across East Africa still show weaknesses in a number of areas, including independent and

impartial courts, pre-trial detainment, and conditions of detention that meet international standards. While the

number of East African countries willing to take on piracy cases has shown some expansion as a result of the

efforts of UNODC and UNDP in offering support for regional judicial systems, the majority of the burden still lies

on a small number of willing nations, particularly Kenya and the Seychelles.

As efforts continue to increase the capacity of regional nations to prosecute pirates, it is still pertinent that nations

show willingness to address the issue of piracy through the prosecution of suspected pirates. Most experts agree

that pirates should face trial and imprisonment in their home country, but for now regional courts and prisons are

being called on to fill the gap by accepting jurisdiction over piracy cases and taking on the burden of piracy

prosecutions until one day Somalia is capable of taking on this responsibility on its own.

Annex A. UNODC Strategic Plan, February 2011

Source: UNODC Counter-Piracy Programme,  Issue Five: February 2011 , page 3.