S/2012/50

United Nations

Security Council

Distr.: General
20 January 2012
Original: English

Report of the Secretary-General on specialized anti-piracy
courts in Somalia and other States in the region
I. Introduction
1.
The present report is submitted pursuant to paragraph 16 of Security Council
resolution 2015 (2011) of 24 October 2011, in which the Council decided tocontinue its consideration, as a matter of urgency, of the establishment ofspecialized anti-piracy courts in Somalia and other States in the region with
substantial international participation and/or support. The Council requested that the
Secretary-General, in conjunction with the United Nations Office on Drugs andCrime (UNODC) and the United Nations Development Programme (UNDP), further
consult with Somalia and regional States willing to establish such anti-piracy courtson the kind of international assistance, including the provision of international
personnel, that would be required to help make such courts operational; theprocedural arrangements required for transfer of apprehended pirates and related
evidence; the projected case capacity of such courts; and the projected timeline andcosts for such courts, and to provide the Council with detailed implementation
proposals for the establishment of such courts, as appropriate. 1
2.
The prosecution of suspected pirates and imprisonment of those convicted arebeing addressed by the Somali authorities and other States in the region with theassistance of UNDP, UNODC and the United Nations Political Office for Somalia(UNPOS) in the context of their work to develop the capacity of national courts. The
present report has been prepared on the basis of that experience and of further
consultations by UNDP with the Somali authorities and by UNODC with theauthorities in Kenya, Seychelles, Mauritius and the United Republic of Tanzania —the States in the region that are either prosecuting piracy cases with United Nations
assistance or are engaged with UNODC to consider the possibility of doing so. 2 The
Office of Legal Affairs has consulted the Permanent Missions of each of the Member
States addressed in the present report, and the Chairman of Working Group 2 of theContact Group on Piracy off the Coast of Somalia (the Contact Group). 3 While every__________________
1 In paragraph 17 of resolution 2015 (2011), the Council underlined the importance for suchcourts to have jurisdiction not only over suspects captured at sea, but also anyone who incites or
intentionally facilitates piracy operations, including key figures of criminal networks involvedin piracy who illicitly plan, organize, facilitate, or finance and profit from such attacks.
2 Other States in the region conducting prosecutions include France (the Comoros), Madagascar,
Oman, the United Arab Emirates, Yemen and India.
3 Thomas Winkler, Under-Secretary for Legal Affairs, Ministry of Foreign Affairs of Denmark,and Chairman of Working Group 2 of the Contact Group.

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effort has been made to ensure the accuracy of the information set out in the report, it
has not been possible to verify it independently in every instance. The State of Qatar
has written to the Secretary-General to indicate its readiness to host an anti-piracy
court and has requested that the United Nations follow up with a view to determining
the next steps.
3.
Section II of the present report updates the information given in previous
reports concerning incidents of piracy off the coast of Somalia and prosecutions byStates. The international assistance received and the further international assistancethat would be required for specialized anti-piracy courts in Somalia, Seychelles,
Kenya, Mauritius and the United Republic of Tanzania are set out in section III. In
section III the proposal for the establishment of an extraterritorial Somali antipiracy court is also briefly reviewed and the proposed establishment of a regional
prosecution centre in the Seychelles is discussed. Possible detailed implementation
proposals are set out in section IV, and section V contains conclusions. In each of
the concerned jurisdictions, the courts conducting piracy prosecutions do so undernational law within the framework of their existing court structure. The UNDP and
UNODC consultations indicate that the national authorities would not favour
establishing new special courts with jurisdiction exclusive to piracy offences, which
they consider may constrain scarce prosecution and judicial resources to piracy
cases in the absence of any certainty that they would be consistently and fully
occupied. The term “specialized anti-piracy court”, as used in the present report,
should therefore be understood to refer to a court operating under national law, withinternational assistance and with a focus on the prosecution of piracy offences.
4.
In respect of each jurisdiction, the present report assesses the current capacity
and international assistance received to date to conduct piracy cases and the further
international assistance that would be required for a specialized anti-piracy court toconduct cases in accordance with international standards of fairness. 4 For eachjurisdiction, a projection is made of the caseload capacity that could be achieved, as
well as timelines and costs. Although the request of the Security Council does notrefer to international assistance for the imprisonment of suspected and convictedpirates, this has been included in the report because consultations have demonstrated
that it is a key element in the capacity of States to receive transfers of suspects frompatrolling naval States. 5
5.
In the consultations conducted by the Office of Legal Affairs, each of thePermanent Missions referred to above confirmed the commitment of their
Government to combating piracy off the coast of Somalia. It was clear that those__________________
4 Articles 10 and 11 of the Universal Declaration of Human Rights and articles 9, 14 and 15 of theInternational Covenant on Civil and Political Rights. The protection of the human rights of thesuspects under applicable international human rights instruments is incorporated in the transfer
arrangements between naval States and organizations and regional prosecuting States, as well as
in the agreements between Seychelles and the Transitional Federal Government, “Puntland” and“Somaliland” for the transfer of convicted pirates for imprisonment in Somalia.
5 UNODC and UNDP assist States in the region with prison facilities, with the goal of achieving
imprisonment in accordance with international standards: the Standard Minimum Rules for theTreatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime
and Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social
Council in its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, andthe Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by the General Assembly in its resolution 43/173 of 9 December 1988.

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States in the region that are conducting piracy prosecutions consider that they havetaken on a heavy responsibility that entails a commitment of national resources aswell as security risks. It is important both to acknowledge the important prosecutionrole that they are playing and to strive to ensure that their national commitment ismatched by strong support and assistance from the international community. Theyemphasized the continuing need for contributions by States, internationalorganizations and the shipping industry to the Trust Fund to Support Initiatives ofStates Countering Piracy off the Coast of Somalia. They also underlined that asustainable response to piracy off the coast of Somalia requires the re-establishmentof peace, security and the rule of law in Somalia and social and economic
development for the Somali people.
6.
The consultations reinforced the need for clarity in the present reportconcerning the projected capacities of specialized anti-piracy courts in States in theregion. The projections made in section III and the detailed implementation
proposals set out in section IV present the maximum caseload capacities that UNDP
and UNODC consider could be achieved through the further international assistanceset out in the present report. However, planning for the caseload capacities of
specialized anti-piracy courts in States in the region should take account of the
anticipated numbers of piracy suspects likely to be apprehended at sea andtransferred to those States for prosecution. The three naval coalitions 6 engaged inanti-piracy operations off the coast of Somalia have made only three requests toregional States for the transfer of piracy suspects during 2011, and only one incident
was reported in which the suspects were released in circumstances where there may
have been sufficient evidence to pursue prosecution. 7 In 2011, Kenya received one
request for the transfer of 24 piracy suspects, and Seychelles received two requests
for the transfer of a total of 18 piracy suspects. 8
7.
In other words, of the total of 286 reported piracy attacks in 2011, only
4 resulted in any of the 3 naval coalitions considering that there would be sufficientevidence to warrant transfer of persons in their custody to a regional State forprosecution. It would therefore be prudent to make an assessment, with theassistance of the naval coalitions and other States active in naval operations, of theunderlying reasons for the low number of requests for transfer of suspects toregional States and the likely anticipated demand for prosecution capacity inregional States for the foreseeable future. With the assistance of the various naval
coalitions and States, such an assessment could help to determine the number ofincidents in which piracy suspects were apprehended, the number in which thesuspects were released and the reasons for each release. This may provide valuable__________________
6 The Combined Task Force 151 of the Combined Maritime Forces; the European Union Naval

Force Somalia (EU NAVFOR); and the Standing Naval Group of the North Atlantic Treaty
Organization. The efforts of these coalitions are complemented by the naval forces of otherStates, including China, India, Iran (Islamic Republic of), Japan, Kenya, Malaysia, the RussianFederation, Saudi Arabia, South Africa and Yemen.
7 Enquiries were made of each of these naval coalitions, and only one such release was indicatedby the Combined Task Force. No similar information is available about releases by other States’
naval forces.
8 At the time of issuance of the present report, there were four groups of suspects held on naval
vessels at sea, by the United States of America, Denmark, the United Kingdom of Great Britain
and Northern Ireland and the European Union (Spain). The Secretary-General understands thatthe six suspects held by Spain may be transferred to Spain. It is unclear at this stage where theother groups of suspects may be transferred.

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information concerning the extent to which releases are caused, for example, bynaval operational considerations or legal and evidentiary considerations. Suchinformation may assist the Security Council and the Contact Group in theirconsideration of the most effective measures to combat piracy off the coast ofSomalia.

II. Incidents of piracy off the coast of Somalia and numbers ofprosecutions by States 98.
Reports by the International Maritime Organization (IMO) indicate that during
2011, there were 286 attacks against ships in the waters off the coast of Somalia, of
which 31 were successful. As of 20 December 2011, 13 ships were held by pirates,with a total of 265 hostages. This compares with 28 ships and 656 hostages held by
pirates on 31 December 2010. The number of attacks per month declined throughout
2011, from a high of 45 in January 2011 to 14 in the month of November 2011. The
success rate of attacks has also steadily declined from 21 per cent at the end of 2010
to 7 per cent in November 2011. The majority of attacks leading to vessels being
hijacked during 2011 took place in the western Indian Ocean. The reduction insuccessful attacks was achieved through a combination of: (a) actions by naval
forces; (b) the improved implementation of the IMO guidance and industrydeveloped best management practices for protection against Somalia-based piracy;and (c) the imprisonment of more than 1,000 suspects or convicted pirates and thefact that several hundred died or were lost at sea. The increase in privately
contracted armed security personnel on ships may also have contributed to the
reduction in successful attacks.
9.
The presence of naval forces close to the coast of Somalia to contain anddisrupt the activities of pirate groups has proved effective for the Gulf of Aden, but
has led to a geographical expansion of pirate operations into the Red Sea, theSomali Basin and further off the coast of Somalia into the Indian Ocean. Pirates now
operate in the high seas at distances of up to 1,750 nautical miles from the coast ofSomalia, covering a geographical area of roughly 2.8 million square miles. Despite
a reduction in the number of successful attacks, the total number of pirate attacks
continues to be high. The geographic spread of pirate activities has put increased
strain on scarce naval resources. The pirates have continued to deter action by thenavies through the greater use of captured ships and dhows as “mother ships”, often
retaining the captured crews on-board as human shields. Violence against seafarers
continues to be reported and is a growing concern.
10. Since the issuance of the report of the Secretary-General of 15 June 2011(S/2011/360), the number of States prosecuting acts of piracy off the coast ofSomalia in their courts has remained at 20, and the total number of prosecutions
taking place has increased from 1,011 to 1,063. The following table provides abreakdown of global piracy prosecutions from 2006 to the present.

__________________
9 The information in this section was provided by the International Maritime Organization and theDepartment of Peacekeeping Operations.

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Country

Number held

Belgium

1

Comoros

6

France15

Germany

10

India

119

Notes

1 convicted

5 convicted

Japan

4

Kenya

143

Madagascar

12

Malaysia

7

Maldives

37

Awaiting deportation in absence of a law underwhich to prosecute

Netherlands

29

10 convicted

Oman

22

All convicted

Seychelles

70

63 convicted

50 convicted

Somalia“Puntland”

290

Approximately 240 convicted“Somaliland”

94

68 convicted (approximately 60 subsequently
released)South Central

18

Status of trial unclear

Republic of Korea

5

5 convicted, appeal pending before theSupreme Court

Spain

2

Both convicted

United Arab Emirates

10

United Republic of Tanzania

12

6 convicted

United States of America

28

17 convicted

Yemen

129

123 convicted and 6 acquitted

Total States: 20

1 063

III. International assistance for specialized anti-piracy courts in
Somalia, Seychelles, Kenya, Mauritius and the United
Republic of Tanzania 10
11. The consideration of specialized anti-piracy courts in this section focuses on
the legal framework in each of the above jurisdictions, the current capacity to
conduct piracy prosecutions, the international assistance received to date and thefurther assistance that would be needed for a specialized anti-piracy court.
Consideration is given to each of the main components of the criminal process —investigations, prosecution, the courts, legal aid and defence representation, andprisons. The scope for participation by international judges, advocates and other__________________
10 The information in this section and the assessments made are provided by UNDP and UNODC.

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legal professionals is assessed. In the case of Somalia, this includes the possibility
for participation by experts from the Somali diaspora. 11

A.

Somalia 12
Legal framework
12. Somalia’s legal system consists of a formal legal sector, Sharia law andcustomary law, known as “Xeer”. These three elements operate in parallel, and thedistinction in their application is not always clear. The formal justice system, whichreflects both civil and common law traditions, is not administered systematically,
even where more formal governmental structures are in place in “Puntland” and“Somaliland”. The Penal Code and the Criminal Procedure Code have largely not
been updated since 1960, and are not available in the Somali language. UNDP and
UNODC assessments indicate that the criminal and procedural codes in the threemain regions of Somalia are out of date and contain numerous inconsistencies anddeficiencies. They have assisted legal experts from the Transitional Federal
Government, “Puntland” and “Somaliland” to form a Somalia Law Reform
Programme Expert Group (the Law Reform Group), which has drafted and agreed
upon anti-piracy legislation, prison and prisoner transfer legislation. UNPOS isencouraging the transitional federal institutions to pass appropriate counter-piracy
legislation before the end of the transitional period, and the Somalia End of
Transition Road Map (see S/2011/759, annex) tasks the Transitional Federal
Government with enacting anti-piracy legislation by 18 May 2012. 13
13. Against this background, and given the low numbers and level of training oflegal professionals in each of the regions of Somalia (see S/2011/360, annex III,sect. A), increasing the capacity to conduct the prosecution of piracy cases is amajor, long-term challenge. To investigate or conduct more complex prosecutions
involving those suspected of financing, planning or organizing acts of piracy would
be even more challenging. The capacity-building assistance in “Puntland” and“Somaliland” referred to in this section focuses on the prosecution of piracy rather
than those more complex crimes. Training and mentoring by international experts is
an integral part of the assistance being provided by UNDP, but there is currently no
legislative basis for the participation of foreign nationals in proceedings in judicial
or prosecutorial posts, and the authorities do not favour such participation. UNDP
will actively explore the possibility of using experts drawn from the Somali diaspora
as it moves forward with its plans for assistance. Details of the availability of legal
professionals from the Somali diaspora were set out in the report of the SecretaryGeneral of 15 June 2011 (S/2011/360, annex III, sect. B). The security situation in
Somalia, including in “Somaliland” and “Puntland”, is also a limitation on efforts to__________________
11 In the case of the other States considered in this section, there may also be scope forparticipation by experts from their diasporas.
12 UNDP assesses that the security situation in Somalia is such that it is not possible at this stage

to provide assistance for specialized anti-piracy courts other than in “Puntland” and“Somaliland”. Some limited judicial and prosecutorial training has been possible; UNDP has
supported 27 legal aid centres throughout Somalia, working through bar associations, university
law faculties and local non-governmental organizations (see S/2011/759).
13 In consultations with the Permanent Mission of Somalia, it was indicated to the Office of Legal
Affairs that the prospects for the adoption of legislation may be enhanced after the end of thetransitional period, when a newly elected Parliament is in place.

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increase capacity, and in particular, on the possibilities for the deployment ofinternational experts.
“Puntland”
Legal framework
14. “Puntland’s” penal code and code of criminal procedure are those of Somalia,
which do not expressly cover piracy offences. “Puntland” Piracy Law No. 6 of
18 December 2010 was passed by the “Puntland” parliament, based on legislation
drafted by the Law Reform Group with the assistance of UNODC, but was amended
in terms that are not consistent with the definition of piracy set out in the United
Nations Convention on the Law of the Sea. The legislation, if amended
appropriately and adopted, will make it an offence for anyone to finance, provide
transport by air, land or sea, or provide weapons or any other equipment whichfacilitates the abduction of marine transport. The jurisdiction of “Puntland” overpiracy offences would extend to acts committed anywhere on the high seas, anddoes not require a connection to “Puntland” (such as the nationality of the ship
attacked, or the perpetrators or crew).
Current capacity, international assistance received and further assistance needed fora specialized anti-piracy court
15. “Puntland” courts have conducted some 30 cases involving about 290 piracy
suspects. They have been heard in the assize courts in Boosaaso, Garoowe andGalkayo by a total of 18 judges. Approximately 240 of the suspects have been
convicted. The challenges that the proceedings have faced include delays, lack ofdefence counsel, the lack of formal legal training of judges and other legal
professionals, lack of secure and properly equipped courtrooms, and otherinfrastructure and resource issues. There have been concerns about bribery, and thisis being tackled through a code of conduct, approved by the “Puntland” High
Judicial Council, that will apply to the judiciary and the prosecution service.
16. The security situation in “Puntland” for prosecutors and judicial personnel is amajor concern. Since the end of 2009, seven judges and prosecutors have beenassassinated, and the Attorney General, the Deputy Chief Justice and a further
prosecutor have escaped assassination attempts. Around 10 per cent of theprosecutors and judiciary in “Puntland” have been the subject of attacks. UNDP willdevelop options to address the problem, including enhancement of the “Puntland”
police close protection capacity and provision of equipment to enhance security incourtrooms, such as metal detectors.
Investigations
17. There are approximately 150 officers assigned to investigations of the
Criminal Investigation Division of the police force at key locations, including themain cities of Garoowe, Boosaaso, Qardho and Galkayo. They investigate serious
criminal cases, including piracy, and present evidence in court. They face severe
challenges, including a low level of basic investigation skills and the lack ofestablished operational procedures, infrastructure, transport, and search or forensic
equipment. Over the last 12 months, UNDP has trained 100 Criminal Investigation
Division officers in investigations, operational procedures and basic forensic skills,
and has provided police equipment. UNDP has improved police management

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capabilities and will provide police mentoring and advice through specialized
Criminal Investigation Division experts, and international and national UNDP
civilian police staff. UNDP is constructing a new police headquarters in Garoowe,
rehabilitating a police station in Boosaaso and providing additional vehicles. It will
also assist with the drafting of a police act, regulations and a code of conduct.
UNDP plans are advanced to establish a national crime directorate in 2012, which
will incorporate a counter-piracy unit with operational teams based in Boosaaso,
Garoowe and Galkayo.
18. With further training of Criminal Investigation Division officers on
investigative techniques, the rehabilitation of Division offices and the provision offorensic equipment, UNDP assesses that the “Puntland” police could have thecapacity to investigate piracy crimes effectively within 20 months. UNDP will also
conduct a maritime policing needs assessment in the first half of 2012.
Prosecution
19. There are 10 prosecutors in the “Puntland” Attorney General’s Office, 3 ofwhom have conducted piracy prosecutions. UNDP has provided basic training insubstantive and procedural criminal law and a six-month programme through“Puntland” State University and the East African University to key prosecution staff
and the judiciary. The prosecutors have received training by international Criminal
Investigation Division prosecution experts. UNDP will train an additional 12 serving
police officers to work as police prosecutors to support the prosecution service. It
will also construct an Attorney-General’s Office in Garoowe, provide vehicles for the
Attorney-General’s Offices in Garoowe and Boosaaso, help to establish a casemanagement system and provide further training and mentoring by international
experts, as well as equipment. UNDP estimates that, with this further assistance, theAttorney-General’s Office will achieve the capacity to prosecute piracy cases
effectively within 20 months.
Courts, including legal aid and representation
20. Piracy trials in “Puntland” are heard in the assize courts, which are the courtsof first instance and comprise a bench of three judges. Appeals go to the assize
section of the appeals courts and can possibly go on to the Supreme Court. There area total of 53 judges sitting in 17 assize courts, 4 appeal courts and the Supreme
Court. Basic training has been provided in substantive and procedural law to
80 members of the judiciary, registrars and court support staff. UNDP has
constructed and/or rehabilitated court premises in Garoowe, Qardho, Boosaaso andGalkayo, and established four mobile courts to travel to rural areas to hear cases.
UNDP has also piloted a case management system in Garoowe, trained lawyers andstaff in the Ministry of Justice, supported legal studies at the “Puntland” State
University in Garoowe and provided copies of laws, as well as information
technology equipment and vehicles. UNDP funds legal aid, including eight lawyers
to provide free legal assistance and representation. All piracy suspects who do nothave their own counsel are now provided with legal representation.
21. UNDP has received funds from the Trust Fund to Support Initiatives of States
Countering Piracy off the Coast of Somalia to implement a three-year piracy trials
programme to assist the authorities to conduct piracy trials in “Puntland” inaccordance with international standards. It includes construction of a dedicated8

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court to hear piracy cases, further amendment of the Piracy Law, the Penal Code andthe Code of Criminal Procedure and their translation into Somali, capacitydevelopment of the High Judicial Council, a package of training and mentoring forjudges and support staff, and provision of courtroom equipment, including to enable
evidence to be given by video link. There will be periodic monitoring byinternational experts to ensure that trials are in accordance with international
standards. UNDP assesses that, with this further assistance, the “Puntland” courts
could have capacity to try piracy cases in accordance with international standards
within two years.
Prisons
22. UNDP and UNODC assess that current prison capacity is not sufficient andfaces challenges, including overcrowding and a lack of basic medical facilities,
water and sanitation, as well as a lack of opportunities for rehabilitative study andexercise. UNDP is building a new prison in Qardho, with an additional capacity of
266 inmates, which will be completed and handed to the “Puntland” authorities in
April 2012 or thereabouts. UNODC has worked to expand prison space and to
improve water and sanitation facilities at the prison in Boosaaso and is building a
new prison, a prison headquarters and a training academy in Garoowe. The prison
will have the capacity to hold 500 persons and will be made available to the“Puntland” authorities in 2013. It will be primarily for convicted pirates repatriatedfrom other jurisdictions. It will be mentored and subject to independent monitoring
to enable it to operate in accordance with international standards. Further, UNODC
has assisted the Law Reform Group to draft a prison law to place the running ofprisons on a sound footing and to provide a legal basis for the receipt of prisoners
convicted of piracy in other jurisdictions. The Government of Norway has seconded
two prison advisers for two years from November 2011 to assist UNODC with thiswork.
Projected capacity, timeline and costs of a specialized anti-piracy court
23. The assistance set out above would enable effective piracy investigations
within 20 months, and within two years would result in trials in accordance withinternational standards in two courts with a capacity to hear 24 trials per year, withup to 10 defendants per case. The assistance in support of investigations would be
provided for three years, and would cost a total of $1.1 million. Support to the courts
would be for two years, with a further year thereafter of mentoring and monitoring.
The total cost of that support over the three-year period, including 12 additional
prosecutors would be $2.6 million. The Garoowe prison project will cost $9.8 million
over 3 years, of which the first two ($8 million) are fully funded. The Qardho prison
will cost a total of $1.5 million.
Transfers of suspects, evidence and prisoners
24. “Puntland” does not have any agreements with naval States or organizations toreceive piracy suspects for trial in its courts. In practice, such agreements will not
be entered into until naval States are satisfied that trials in “Puntland” are capable ofmeeting the human rights provisions that naval States and organizations include insuch agreements. “Puntland” entered into a memorandum of understanding with
Seychelles in April 2011, which follows the same framework as the agreement
between the Transitional Federal Government of Somalia and Seychelles, for the

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transfer of convicted pirates for imprisonment in “Puntland”. The memorandum of
understanding provides for transfers to be considered on a case-by-case basis; thatis, it requires requests to be made by Seychelles in respect of each proposed transfer
of a convicted person and consent by the “Puntland” authorities. The consent of theperson proposed for transfer is also required. In the event of a transfer, “Puntland” isrequired to continue to enforce the sentence as if it had been imposed in “Puntland”.
The transferred person must be treated in accordance with applicable international
human rights obligations, and Seychelles has the right to monitor that thoseobligations are complied with. The necessary next steps include the adoption of thelegislation necessary in “Puntland” 14 to receive transferred prisoners and thecompletion of construction of appropriate prison facilities at Garoowe in 2013.
“Somaliland”
Legal framework
25. “Somaliland” also has a hybrid common and civil law system. Piracy offences
are not explicitly covered in either the penal code or the code of criminal procedure.
Article 486 of the Penal Code is usually applied to acts of piracy, which is theoffence of “detention of a person for the purpose of robbery or extortion”. UNODC
and UNDP have assisted the Law Reform Group to draft a specific piracy law,which is in the process of amendment and will soon be presented to the“Somaliland” parliament for approval. 15 The “Somaliland” courts exercise
jurisdiction exclusively in respect of offences for which there is a connection with
“Somaliland”. This includes, for example, offences committed on the territory of“Somaliland” and offences where the perpetrators are from “Somaliland”.
Current capacity, international assistance received and further assistance needed fora specialized anti-piracy court
26. “Somaliland” courts have heard about 16 piracy trials involving around
97 suspects. The challenges that the proceedings have faced include delays, lack ofdefence counsel, the lack of formal legal training of judges and other legal
professionals, lack of secure and properly equipped courtrooms, and otherinfrastructure and resource issues. There have been concerns about bribery, and thisis being tackled through a code of conduct, approved by the “Somaliland” High
Judicial Council, that will apply to the judiciary and the prosecution service. The
courts and prosecution services in the coastal regions, mainly Erigavo and Berbera,
have heard almost all of the piracy cases to date. UNDP assesses that the buildings,
basic resources and infrastructure of the courts and prosecution offices in thoseareas are poor and that the proceedings face a number of challenges in meetinginternational standards of fairness. Although the security situation in “Somaliland”
is less severe than in other areas of Somalia, security for prosecutors and judicial
personnel involved in piracy cases is nevertheless a concern. Increasing the capacityof “Somaliland” prosecutors and courts to conduct piracy cases would increase the__________________
14 The Chairman’s conclusions of the meeting of Working Group 2 of the Contact Group held on

11 and 12 October 2011 underlined the urgent need for Somalia to pass the necessary legislation,and supported the UNODC plan to revitalize the work of the Law Reform Group.
15 The “Somaliland” authorities have undertaken to have the law in place within six months.
Revision of the penal code and the code of criminal procedure will also be needed.

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threat, and there would be a need to enhance protection for such personnel along
similar lines to that required in “Puntland”.
Investigations
27. There are approximately 67 officers assigned as chief investigators in the
Criminal Investigation Division at key locations around “Somaliland” whoinvestigate serious crimes, including piracy, and present evidence in court. They
face severe challenges, including a low level of basic investigation skills, and thelack of established operational procedures, infrastructure, transport, and search or
forensic equipment. UNDP has provided specific counter-piracy training to 100
police officers, including on investigations, operational procedures and basic
forensic skills. Further police mentorship and advice will be provided over the next
20 months through international and national UNDP civilian police staff.
28. UNDP is planning construction of a new police headquarters in Hargeysa, andmodel police stations in other regional centres. UNDP has provided assistance in thedevelopment of a police act, which is to be presented to parliament in the firstquarter of 2012, and will be followed up with development of regulations and a codeof conduct. UNDP is providing support to the Special Protection Unit in“Somaliland”, which provides protection to international agencies. Further Criminal
Investigation Division training and mentoring will include investigative skills, andwill aim to establish a specialized counter-piracy unit. Criminal Investigation
Division offices will be rehabilitated and equipped. UNDP is assisting in theestablishment of a national crime directorate and a criminal records management
system. Specific support for capacity-building of the maritime police will also be
provided. UNDP estimates that, with the above assistance, the “Somaliland” police
will have the capacity to investigate piracy cases effectively within 20 months.
Prosecution
29. There are currently 36 prosecutors serving the whole of the “Somaliland”
criminal court system. UNDP has provided a nine-month foundation programmethrough Hargeysa University to key prosecution staff, who have also received
training by international Criminal Investigation Division experts. UNDP has
constructed regional prosecution offices in Hargeysa and Burao, and will also do soin Boromo and Berbera. Assistance has been given to recruit 10 new prosecutors,
including 5 female prosecutors. UNDP considers that, within 20 months, thisincrease in prosecutors should enable up to 24 piracy prosecutions per year to be
conducted effectively.
Courts, including legal aid and representation
30. The “Somaliland” court system comprises 65 courts, including 52 district
courts, 6 regional courts, 6 appeals courts and the Supreme Court. Piracy trials areheard at first instance in the assize sections of the district and regional courts by abench of three judges. Appeals go to the assize section of the appeal courts and canpossibly go on to the Supreme Court. There are a total of 120 judges sitting in thesecourts. UNDP has funded legal representation for all of the piracy suspects in the
16 trials, constructed district and regional courts in Hargeysa and offices for theHigh Judicial Council, and established five mobile courts to travel to rural areas.

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31. UNDP has been given funds through the Trust Fund to Support Initiatives ofStates Countering Piracy off the Coast of Somalia to implement a three-year piracy
trials programme to assist the “Somaliland” authorities to conduct piracy trials inaccordance with international standards. This includes the amendment of key laws
and their translation into Somali, development of the capacity of the High Judicial
Council, further training and mentoring of judges and support staff, and provision of
essential equipment, including to hear evidence by video link. UNDP assesses that
this programme will make it possible to conduct piracy trials in accordance withinternational standards within two years, with continued mentoring and monitoring
for a further year thereafter.
Prisons
32. UNDP and UNODC assess that current prison capacity in “Somaliland” is not
sufficient and faces challenges, including overcrowding, a lack of basic medical
facilities, water and sanitation, and a lack of opportunities for rehabilitative study
and exercise. Although UNDP and UNODC have recently completed construction ofHargeysa prison, it is fully occupied with domestic prisoners and has no capacity toreceive those convicted of piracy in other jurisdictions. Now that “Somaliland” hasconfirmed its readiness to accept the transfer of Somali piracy prisoners into its
prisons, 16 UNODC is revisiting its draft proposal for additional prison capacity withan ongoing monitoring capability. The preference of the “Somaliland” authorities isfor increased accommodation at existing prisons, rather than a new prison. This
would consist of 200 places each at Mandera and Berbera prisons, and a block of
100 beds at Gabiley prison (for juveniles). The proposed assistance includes
training, mentoring and an independent monitoring regime. The two prison advisers
seconded to UNODC by the Government of Norway will assist with this work.
Projected capacity, timeline and costs of a specialized anti-piracy court
33. The assistance described above would enable investigation and prosecution ofpiracy cases to be conducted effectively within 20 months and a maximum of
24 trials per year, with up to 10 defendants per trial, to be conducted in accordancewith international standards in two years. Assistance to investigations would
continue for a three-year period at a total cost of $1.05 million. Assistance toprosecution capacity would be provided for three years at a cost of approximately$2.6 million. Support to the courts would be for two years, with a further year
thereafter of mentoring and monitoring, at a total cost of approximately$2.6 million. The additional prison accommodation of 500 spaces would take twoyears to complete, and would be likely to cost in the region of $6 million in total.
Transfers of suspects, evidence and prisoners
34. “Somaliland” does not have any agreements with naval States or organizations
to receive piracy suspects for trial in its courts. In practice, such agreements will not
be entered into until naval States are satisfied that trials in “Somaliland” are capable__________________
16 In a statement by the Minister of Foreign Affairs and International Cooperation on 11 December

2011, “Somaliland” declared itself ready to accept prisoners who come from Somalia under theterms of its agreement with Seychelles. It was also indicated in the statement that “Somaliland”
would not accept prisoners who come from “Puntland”, because “Puntland” is itself in receipt ofassistance from the international community.

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of meeting the human rights provisions that naval States and organizations include
in such agreements. As “Somaliland’s” jurisdiction is limited to cases that have aconnection with “Somaliland”, any future agreements with naval States for thetransfer of suspects may be similarly limited.
35. “Somaliland” entered into a memorandum of understanding with Seychelles in
April 2011, which follows the same framework as the agreement between theTransitional Federal Government of Somalia and Seychelles for the transfer ofconvicted pirates for imprisonment in “Somaliland”. The memorandum of
understanding provides for transfers to be considered on a case-by-case basis; thatis, it requires requests to be made by Seychelles in respect of each proposed transfer
of a convicted person and consent by the “Somaliland” authorities. The consent of
the person to be transferred is also required. In the event of a transfer, “Somaliland”
is required to continue to enforce the sentence as if it had been imposed in“Somaliland”. The transferred person must be treated in accordance with applicableinternational human rights obligations, and the Seychelles has the right to monitor
that those obligations are complied with.
36. In his report of 9 December 2011 (S/2011/759, para. 46) the Secretary-Generalreported that the counter-piracy work carried out in “Somaliland” by UNODC
would come to an end early in 2012 following a decision of “Somaliland” towithdraw from the memorandum of understanding with Seychelles and theunexplained release of a large number of pirates from Hargeysa prison. UNODC isreconsidering that position in light of a statement issued by the “Somaliland”
authorities on 11 December 2011 reconfirming their commitment to accept transfersof prisoners under the memorandum. The necessary next steps include the adoptionof the legislation necessary in “Somaliland” to receive transferred prisoners andcompletion of construction of appropriate additional prison spaces over the next two
years.
Brief review of the proposal for an extraterritorial Somali anti-piracy court
37. In his report, Jack Lang, Special Adviser to the Secretary-General on Legal
Issues Related to Piracy off the Coast of Somalia, proposed the establishment of an
extraterritorial Somali anti-piracy court in a third State in the region to act as a focal
point for regional and international support to help strengthen the rule of law inSomalia, as a swift and inexpensive measure if located within the premises of theInternational Criminal Tribunal for Rwanda in Arusha, United Republic of Tanzania(see S/2011/30, annex). In his report of 15 June 2011 (S/2011/360), the SecretaryGeneral identified the modalities for the establishment and effective functioning ofsuch a court, which included: consideration of the views of the Somali authorities
and of potential host States; the need for an appropriate criminal and procedural
legislative framework for piracy prosecutions; the need for trained judges,
prosecutors and other legal professionals; and the need for security and premises.
38. Consultations conducted both by the Office of Legal Affairs and by UNDP
have indicated that the Somali authorities continue not to favour the establishmentof a Somali court outside the territory of Somalia, preferring any assistance for new
courts to be implemented within Somalia. Further, the challenges faced by Somalia
in relation to the adequacy of the legislative basis for piracy prosecutions, and thelevel of training and qualifications of Somali judges and other legal professionals,

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remain difficulties. 17 Security experts continue to advise that co-locating an
extraterritorial Somali anti-piracy court with the International Criminal Tribunal for
Rwanda in Arusha, as proposed by the Special Adviser, would increase dramaticallythe risks to the Tribunal and its staff. The advice of the Department of Safety andSecurity remains that stand-alone premises would need to be found. It remains
difficult to comment authoritatively on the Special Adviser’s estimated annual costs
for an extraterritorial Somali court (S/2011/360, para. 91). The need for stand-alone
premises, associated security costs, and the salaries and other expenses ofinternational experts, including from the Somali diaspora, may impact on thoseestimates.

B.

Seychelles
39. In view of the continuing challenges facing the establishment of an
extraterritorial Somali anti-piracy court at this stage, Working Group 2 of theContact Group on Piracy off the Coast of Somalia has discussed the possibility ofdeveloping a regional prosecution centre, for example in the Seychelles. Consistent
with the principles identified by the Special Adviser, the purpose of the centre
would be to act as a focal point for regional and international support to theprosecution of piracy suspects and provide a location offering relative logistical easefor their transfer by naval forces. As the regional prosecution centre would be basedin the national legal system of the Seychelles, it would enjoy the cost and speed of
establishment advantages identified as important considerations by the Special
Adviser.
40. The Government of Seychelles has indicated its willingness to host such a
regional prosecution centre, contingent upon there being an effective post-trial
transfer framework in place for the return of those convicted to Somalia. During
2012, Seychelles will open the Regional Anti-Piracy Prosecution and Intelligence
Coordination Centre, under the auspices of the Indian Ocean Commission. The
Centre will seek to develop the expertise to track piracy finances and develop cases
capable of prosecution in Seychelles or elsewhere. The design of the facility iscomplete, and construction, supported by the United Kingdom of Great Britain andNorthern Ireland, is expected to begin in the first quarter of 2012. A number ofStates and international agencies have indicated that they may commit resources andstaff to the Centre.
Legal framework
41. Seychelles has a common law legal system. Section 65 of the Penal Code, asrevised with assistance from UNODC in March 2010, covers the offence of piracy
and reflects the definition and jurisdiction over piracy offences set out in articles
101 to 107 of the United Nations Convention on the Law of the Sea, read in
conjunction with article 58(2). 18 The revised provision has been the basis of theoffence charged in six of the seven cases that have led to convictions in Seychelles
to date. It allows prosecution for the full range of offences, including attempt,__________________
17 Although these may be alleviated to some extent through the recruitment of experts from theSomali diaspora to mentor and advise.
18 Article 58(2) clarifies that the definition of piracy set out in article 101 and universal

jurisdiction over piracy as set out in article 105 apply in the exclusive economic zones of States.

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incitement and conspiracy. The law thus allows, in the assessment of the Attorney
General of Seychelles, for the investigation and prosecution of foreign nationals
involved in the financing, planning or organizing of piracy. Such prosecutions
would be dependent on extradition of the suspects to Seychelles. 19 The provisionsof the Seychelles Criminal Procedure Code have proved suitable to support piracy
prosecutions, and do not need amendment.
Current capacity, international assistance received and further international
assistance needed for a specialized anti-piracy court
42. The Supreme Court of Seychelles is the highest trial court in Seychelles andthe court of first instance for serious criminal cases, including piracy trials. Appeals
would be heard by the Seychelles Court of Appeal, but there have been no appeals
against piracy convictions to date. Seychelles has prosecuted eight piracy cases overthe last two years. One case was withdrawn for lack of evidence, and the suspects
were repatriated to Somalia, while seven cases resulted in convictions. The main
challenge for Seychelles is the small size and resources of its judiciary, rather thanany difficulty in conducting trials in accordance with international standards.
Investigations
43. Investigations of acts of piracy are carried out by the Seychelles police force
and the Seychelles coastguard. There are a total of 35 investigators for the wholecountry, of which 5 have been selected to deal with serious crimes, including piracy.
The police have received training and mentoring by UNODC and the International
Criminal Police Organization (INTERPOL), and the coastguard has received
training from UNODC and the European Union Naval Force Somalia (EUNAVFOR). UNODC maintains a full-time police training coordinator and a Central
Investigation Division mentor in Seychelles who are assisting the police to improve
management and to develop investigation skills, statement taking, operational
procedures, forensic skills, case management and trial support. UNODC uses police
officers loaned by the Governments of Australia and the Netherlands to provide
specialist training, and the Mauritius police have seconded an investigator toprovide further capacity. A further 12 investigators trained by the Criminal
Investigation Division are needed to increase capacity, and additional international
support is required to provide logistical assistance to the police, in particular toincrease forensic capacity.
Prosecution
44. The Seychelles Attorney General’s Office has six Seychellois prosecutors, oneof whom (the Attorney General himself) has prosecuted one of the eight piracy cases
to date, and two prosecutors seconded by the United Kingdom who have prosecuted
the remaining seven cases. 20 UNODC has provided training in the law of the sea,
guidance on the handover of suspects and evidence, funding to support the two
United Kingdom prosecutors, legal and information technology resources and officeequipment, and support for travel and training of prosecutors. UNODC will continue
to provide this support. No additional international assistance is required if the__________________
19 Rather than transfer from a naval vessel under the agreement with the European Union.
20 The United Kingdom prosecutors prosecute other serious crimes when there are no piracy trials.

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United Kingdom, or another Commonwealth country, continues to provide twoprosecutors.
Courts, legal aid and representation
45. There are six Supreme Court judges, including the Chief Justice, none ofwhom are assigned exclusively to piracy trials. There is a backlog of approximately
two years of both criminal and civil cases before the Supreme Court, but the
judiciary has given priority to processing piracy cases. The seven piracy cases tried
to date have taken an average of seven months from the time of arrest to judgment.
All piracy suspects are afforded legal representation by Seychelles Legal Aid, whichis refunded to the Government by UNODC using, in part, funds from the Trust Fundto Support Initiatives of States Countering Piracy off the Coast of Somalia. UNODC
has reviewed piracy legislation and will continue to provide judicial training, legal
resources and office equipment, transcription services, travel for foreign witnesses
to testify in piracy trials, defence costs and court interpreters.
46. Subject to the approval of funding from the Trust Fund, UNODC will constructa courtroom dedicated primarily to piracy cases. While the Government supports theneed for a new courtroom for this purpose, it is not favourable to the establishment
under the law of a new court with jurisdiction limited exclusively to piracy. The
Government has determined that no advantage would be gained by constraining
court space and court staff exclusively to piracy trials, and that it would be wastefulduring any lulls in the number of piracy suspects arrested or transferred to
Seychelles. Seychelles has received only two requests for the transfer of piracy
suspects in the last year.
47. Given the small size and limited resources of the Seychelles judiciary,
UNODC assesses that additional Supreme Court judges would be required for a
specialized anti-piracy court, and they would need to be recruited internationally.
Seychellois law and practice allows judges and lawyers from other Commonwealthjurisdictions to practice in Seychelles. 21 The Commonwealth Secretariat is therefore
a natural interlocutor for this purpose, and has been approached by the Government
with a view to initiating a recruitment process. The Government would be
favourable to the assignment of Commonwealth judges primarily, but not
exclusively, to piracy cases.
Prisons
48. Seychelles has one prison, with a maximum capacity of 420. It is full andcurrently holds 63 convicted pirates and 7 persons suspected of piracy. UNODC
assesses that conditions in the main prison block suffer from a lack of therapeutic,
rehabilitative and vocational opportunities, and that the building does not provide afully safe and secure environment. Refurbishment is under way, funded in part by
UNODC. The Secure Incarceration Unit, constructed by UNODC, provides anadditional 60 prisoner spaces.
49. UNODC assesses that Seychelles has very limited capacity to accept any
further piracy prisoners until prison renovation work is complete in late 2012.
Further, the Government of Seychelles considers it a precondition for an increased__________________
21 The current Chief Justice and the Head Judge of the Supreme Court, Criminal Division, are both

Ugandan judges. The Court of Appeal includes judges from Sri Lanka and Mauritius.

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role in piracy prosecutions that there be a functional repatriation option forconvicted pirates to be transferred to Somalia. If the prisoner transfer arrangementswith “Puntland” and “Somaliland” become effective in practice, and when theprison building work in Somalia is complete, Seychelles would have physicalcapacity to hold more suspected and convicted pirates.
Potential capacity, timeline and costs of a specialized anti-piracy court
50. UNODC estimates that the two internationally recruited prosecutors and two
additional Supreme Court judges could increase the number of cases heard per year
to a maximum of 24. The addition of an extra courtroom for the Supreme Court,
increasing the number of courtrooms to three, would raise the capacity to hold trials
to a maximum of 48 cases per year. However, in practice, this maximum number
would be limited by the availability of prison spaces to hold suspects on remand.
UNODC estimates that, subject to prisoner transfer arrangements with Somalia
becoming effective, the Seychelles prison could hold up to 100 piracy suspects at atime. This would allow approximately 15 to 20 cases per year, assuming an averageseven-month stay in prison for each suspect.
51. UNODC estimates that, subject to funding availability, the additional
assistance for all four areas set out above could be provided within 12 months. This
would include the construction of a new secure courtroom for the Supreme Court, 22
and recruitment of the necessary additional judges and administrative staff. The costof increasing the capacity to conduct investigations consists of a $120,000 one-off
cost for a secure exhibit room and $500,000 in annual costs. The $500,000 in annual
costs breaks down as follows: $150,000 for training; $80,000 for forensic support;$50,000 for information technology equipment; $20,000 consumable stores, such asevidence-handling equipment; $140,000 for the training coordinator mentor; and$60,000 for logistics. Approximately 30 per cent of the annual costs for 2012 arealready funded by UNODC.
52. The most feasible options for the funding of two additional Supreme Court
judges would be either: (a) recruitment from Commonwealth countries where
candidates would find the Seychelles salary attractive, in which case the $3,800 per
month costs of each post would be reimbursed to the Government by UNODC; or(b) recruitment from Commonwealth countries where candidates would not find the
Seychelles salary attractive, in which case, the most workable solution would be
provision gratis by the sending Government.
53. The cost of defence lawyers would amount to approximately $7,700 per case,which would be provided by UNODC through the legal aid fund of Seychelles. Twolocally recruited court administration staff would cost $12,000 per annum each.
Transcription costs for 24 trials would be $80,000. Interpretation costs for 24 trials
would be, at most, $200,000, allowing for 2 trials running simultaneously, each with
two interpreters. Witness travel costs for 24 trials would be $120,000.
54. The building work and other improvements at the Seychelles prison would
take 12 months, and costs are estimated at $500,000, of which UNODC has alreadyreceived half. The annual costs of providing transport to and from court, additional
medical resources for prisoners, and therapeutic, rehabilitative and vocational
opportunities at the prison, would be in the region of $250,000.
__________________
22 Depending on an outstanding decision to be taken by the Board of the Trust Fund.

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Transfers of suspects, evidence and those convicted
55. The Government of Seychelles has entered into arrangements with theEuropean Union, the United States, the United Kingdom and Denmark to accept
suspected pirates for prosecution. There have been eight piracy cases to date.
Twenty-nine suspected pirates, in three of the cases, were transferred to Seychelles
by naval States. The remaining 41 suspects were arrested by Seychelles authorities.
In practice, the handover of suspects from warships to the Seychelles authorities has
been straightforward. The terms of these arrangements vary a little, but generally
concern the respective rights and responsibilities of the naval State and Seychelles,
the treatment, prosecution and trial of the suspect in accordance with international
human rights standards, and a requirement that the naval State give its consent
before the suspect is transferred either for trial or imprisonment in a third State.
56. UNODC has assisted Seychelles authorities to draft guidance on theprocedural and evidential requirements for piracy prosecutions. That guidance is thebasis upon which naval forces transfer evidence to the Seychelles police force. The
transfer arrangements are straightforward, and consist of a single policeman being
assigned to receive the transfer of evidence, which is carried out manually. Initialproblems associated with the gathering of evidence by naval forces and its transfer
to the regional prosecuting States, in particular Kenya and Seychelles, have been
overcome through the use of the guidance. 23
57. The Government of Seychelles has entered into an agreement with theTransitional Federal Government, and memorandums of understanding with theauthorities of “Puntland” and “Somaliland”, for the transfer of convicted persons toprisons in “Puntland” and “Somaliland”. As set out in the section above concerning
Somalia, each proposed transfer under these arrangements requires a request to bemade by the Seychelles authorities and the agreement of the relevant Somali
authorities. Concerns have been raised 24 about the lack of any such transfers to date,
and the release of a large number of piracy prisoners in “Somaliland”. In a recent
statement, the “Somaliland” authorities reconfirmed their commitment to receiving
transfers of convicted pirates under the memorandum of understanding with
Seychelles (see para. 36 above). To become effective, these arrangements also
require the completion of construction of suitable prison spaces in “Puntland” and“Somaliland”.

C.

Kenya
Legal framework
58. Kenya has a common law legal system. Section 371 of the Merchant Shipping
Act 2009, read in conjunction with section 369, covers the offence of piracy andarmed robbery, and was drafted with assistance from UNODC. It reflects thedefinition and jurisdiction over piracy offences set out in article 101 of the United
Nations Convention on the Law of the Sea, read in conjunction with article 58(2),and incorporates offences such as hijacking, as contained in the Convention for the__________________
23 See the broader discussion of evidentiary matters, including the issue of the attendance of

witnesses, and possible use of evidence by video link, in the report of the Secretary-General of
15 June 2011 (S/2011/360).
24 During discussions in Working Group 2 of the Contact Group.

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Suppression of Unlawful Acts against the Safety of Maritime Navigation. Thislegislation is the basis for charges in five cases currently before the Kenyan courts.
It includes the offences of inciting or intentionally facilitating an act of piracy. It
does not prevent an individual from being charged with attempting or conspiring tocommit, aiding or abetting, counselling or procuring an act of piracy. UNODC, incooperation with the Director of Public Prosecutions of Kenya, has proposed
amendments to the Merchant Shipping Act which would expand the law to include
those offences. The proposed amendments are currently under consideration by the
Kenyan authorities.
59. The Merchant Shipping Act 2009 repealed the piracy provisions under section
69 of the Penal Code 1963. The repealed provisions are the basis for charges in fiveolder piracy cases that are ongoing before the Kenyan courts. A High Court decisionin November 2010 held that Kenyan courts do not have jurisdiction to hear piracy
offences under that section, and all five older cases are therefore awaiting appeal.
60. Kenya’s jurisdiction over piracy offences extends to acts committed anywhereon the high seas, and does not require a connection to Kenya, such as the nationalityof the ship attacked, the perpetrators or the crew. The provisions of the Criminal
Procedure Code of Kenya have proved adequate to support piracy trials and havenot needed amendment. Naval forces transferring suspects to Kenya have for sometime requested provision to allow naval witnesses to give their evidence by video
link. A recent decision by the Magistrates Court suggests that civilian witnesses cangive evidence by video link in cases where they are afraid to appear in person. This
procedure will be followed for the first time in January 2012, with UNODC
equipment linking a witness in Iran to the court in Mombasa.
Current capacity, assistance received and further assistance necessary for a
specialized anti-piracy court
61. Kenya has been requested and agreed to accept one transfer case involving
24 suspects in the last 12 months. Seven piracy cases have been prosecuted overthree years, resulting in one acquittal (of 17 suspects) and six convictions (of a totalof 50 pirates). Another 10 cases (involving 93 suspects) are being prosecuted.
Investigations
62. Investigations by the Kenya police are carried out by the Criminal
Investigation Division in Mombasa, and, although there is no designated counterpiracy team, the investigations are in practice carried out by the same two or three
officers each time. While there are some investigative skill challenges, no piracy
case thus far has failed owing to the quality of police work. Extensive support,
training and mentoring has been provided by EU NAVFOR, UNODC, INTERPOL
and bilateral donors, including Germany, the United States and the United Kingdom.
UNODC assistance to the police has included training, mentoring and construction,
including of a secure evidence room. Mentoring has focused on investigation skills,
file preparation and review of piracy files for use in court.
63. The Mombasa Criminal Investigation Division would welcome the placementof a permanent international police adviser in Mombasa, and UNODC has identified
a candidate who could be in post by 1 March 2012. The Division’s offices in
Mombasa need refurbishment to provide a modern, well-equipped environment foreffective investigations. Further investigations training is required in interviewing,

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statement taking and investigative technologies. The armoury in Mombasa is in astate of disrepair, and requires rebuilding to hold weapons sufficient for security for
an increased number of cases.
Prosecution
64. The Director of Public Prosecutions of Kenya has prosecuted seven piracy
cases over three years. Seven prosecutors out of a total of 70 are assigned to piracy
cases, but they also carry out other prosecutions. UNODC has provided training inlaw of the sea and naval operations, equipped the offices of the Director of Public
Prosecutions in Nairobi and Mombasa, provided an office car and funded travel for
prosecutors to attend court and meetings of Working Group 2 of the Contact Group.
65. UNODC will be providing further training, and will be meeting travel costs
and equipping the Mombasa prosecution office. Additional prosecutors will be
required in Mombasa in order to increase the number of piracy cases that can beprosecuted. They could be recruited either nationally or internationally. Althoughconsideration could be given to assigning additional prosecutors exclusively topiracy cases, this would raise questions in a jurisdiction where there are somechallenges regarding delays in the hearing of criminal trials. 25 While the law in
Kenya 26 allows the Chief Justice to admit as advocates legal practitioners that areentitled to appear before the superior courts of Commonwealth countries, the law
also requires such advocates to appear with a Kenyan advocate, and they areprohibited from signing or filing pleadings in court. There is a practice of foreign
advocates appearing in the Kenyan courts, but consultations suggest that this may bepermitted only if a specific need for foreign advocates is demonstrated.
Courts, legal aid and representation
66. The Magistrates Court in Mombasa is the court of first instance for piracy
cases. Appeals are heard by the High Court in Mombasa, and they can go on to the
Court of Appeal in Nairobi. Ten magistrates are assigned to hear piracy trials, but
not exclusively piracy trials. UNODC has constructed a secure courtroom adjacentto Shimo La Tewa prison, 12 km north of Mombasa, where most of the suspectedpirates are held on remand.
67. Kenya has prioritized piracy cases in the trial schedules before its courts, andthere are 10 cases currently ongoing. The seven completed piracy cases have taken
an average of 17 months from arrest to judgement. All piracy suspects are afforded
legal representation on request through a Kenyan non-governmental organization,funded by UNODC. UNODC assesses that trials are conducted in accordance withinternational standards. 27 UNODC further assesses that there is unlikely to besupport for the creation of new courts with jurisdiction exclusive to piracy, as it is
not apparent that there would be an advantage to be gained by constraining court
space and staff to piracy trials at times when there may be insufficient trials to fully
occupy them.
68. If there were to be an increase in the number of piracy cases, additional
magistrates would be required in Mombasa to avoid causing further delays in__________________
25 Kenya has undertaken judicial and prosecutorial reforms aimed at reducing delays.
26 Section 11 of the Advocates Act.
27 The Chief Justice of Kenya acknowledges that there are challenges regarding delays in trials.

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non-piracy cases. They could be recruited either nationally or internationally.
Kenyan law allows for the recruitment of magistrates and high court judges fromother Commonwealth or common law jurisdictions. There is a practice of suchforeign judges sitting in Kenyan courts, but consultations suggest that a specificnecessity for this in relation to piracy trials would need to be shown. An extra piracy
caseload would also necessitate additional court administration staff, interpretationand court security and would involve costs for travel of foreign witnesses to testify.
Prisons
69. Somali suspects awaiting trial in Kenya are held at Shimo La Tewa prison,
which holds approximately 100 piracy suspects. Kenyan prisons have around50,000 prisoners incarcerated (43 per cent of them on remand) and capacity foraround 22,000. Shimo La Tewa is itself 300 per cent over capacity. Any additional
Somali piracy suspects would therefore exacerbate the situation. Solutions might
include the construction of additional cells, or considering possible means to reduce
the existing prison population, while ensuring that piracy suspects are not given
special treatment, which would be inconsistent with the Government’s efforts totransform the judicial, prosecution and prison system under the new Constitution.
70. Of the 93 prison establishments in Kenya, support has been provided, or iscurrently being provided, to 6 prisons that have been designated to accommodate
Somali pirates and suspects, including Shimo La Tewa. UNODC has improved
water storage, sanitation and food preparation facilities, and provided staff training
and medical, recreational, educational and other equipment. An additional piracy
caseload may require only a modest number of additional prison cells, or the needfor prison space may be met through a reduction in the existing prison population,subject to the important caveat referred to above.
Projected capacity, timeline and costs of a specialized anti-piracy court
71. If the number of officers handling piracy investigations were increased to five,and assistance provided as set out above, it is estimated that Kenya police could
investigate up to 24 piracy cases per year. Provision of an additional eightprosecutors, with paralegal support, would be needed to prosecute that number ofcases per year. An additional two magistrates could handle a maximum of 12 casesin 12 months each, or 24 cases per year. If sufficient magistrates and court staff
were available, the single courtroom built by UNODC adjacent to Shimo La Tewa
prison would be capable of handling a maximum of 12 cases per year. The
remaining 12 additional cases would therefore need to be heard in the main
courtroom in Mombasa.
72. It is estimated that up to 200 prison spaces could be made available every six
months if it were possible to reduce remand and convicted prisoner populations as
referred to above. This would likely be sufficient to enable the additional 24 trials totake place. Kenya does not have a prisoner transfer agreement with Somalia, and, if
that remains the case, the capacity to achieve a maximum of 24 cases per year
would be dependent on making national prison places available.
73. Increasing the capacity of investigations, as set out above, would take about
12 months. Construction costs would be: the new armoury ($160,000) and a purpose
built Criminal Investigation Division office (which is likely to cost $400,000).
UNODC currently has no funding for these activities. Annual costs would consist of

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mentoring ($160,000) and training of investigators ($100,000). UNODC currently
has funding for approximately 25 per cent of these activities. INTERPOL also hassome funding to assist.
74. With financing in place, and subject to the agreement of the Kenyan
authorities, it would take a minimum of six months to recruit the additionaldomestic or international prosecutors and make them operational. Paralegals could
be recruited in around three months. Eight national prosecutors paid $500 per monthwould each cost $48,000 per annum (including training). Internationally recruitedprosecutors/advisers would be likely to cost around $160,000 each per annum(including travel and training). Four local paralegals would be sufficient, paid at$250 per month, resulting in a total annual cost of $12,000. Annual training andlogistical support would be in the region of $150,000.
75. With adequate funding and the agreement of the Kenyan authorities, it would
take approximately one year to recruit the necessary additional magistrates and court
administration staff. The most workable options for the funding of magistrates wouldbe: (a) recruitment nationally or from Commonwealth or common law countries
where candidates would find the Kenyan salary attractive, in which event, UNODC
would reimburse the $1,400 per month for each magistrate to the Government; or(b) recruitment from Commonwealth or common law countries where candidates
may not find the Kenyan salary attractive, in which case, the most workable solution
would be for the judges to be provided gratis by their home country.
76. Increasing the provision of UNODC funding to a Kenyan legal aid
non-governmental organization for defence representation would cost $5,000 per
case, totalling $120,000 per annum. Logistical support, including interpretation,
witness travel to court and training averages $20,000 per case, totalling, at the most,$480,000 per annum.
77. Routine training and logistical support to the prisons is in place. The
recruitment of staff to assist in reducing the prison population would take six
months. There would be a one-off cost of the construction of a fully equipped
15-bed crisis care unit at Shimo La Tewa of approximately $250,000. Annual costs
would be: logistical, medical and training support to the six Kenyan prisons (around$500,000); staffing and operating costs for the crisis care unit ($40,000); and thepossible programmes to help reduce remand and convicted prisoner populations(around $200,000).
Transfers of suspects, evidence and prisoners
78. In 2009, the Government of Kenya signed agreements with the European
Union, the United States, the United Kingdom, Canada, China and Denmark, toaccept suspected pirates for prosecution. The Government of Kenya withdrew fromthose agreements in March 2010, but continues to accept piracy suspects forprosecution on a case-by-case basis and to apply the provisions of the former
agreements for such transfers. Forty-four suspects have been accepted on that basis.
The agreements vary a little, but they generally contain provisions concerning therespective rights and responsibilities of the naval State and Kenya, the treatment,
prosecution and trial of the suspect in accordance with international human rights
standards, a prohibition of the application of the death penalty, and a requirementthat the naval State give its consent before the suspect is transferred either for trial
or imprisonment in a third State.

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79. Handovers of suspects from warships to the Kenya police, supported by
UNODC police advisers and the EU NAVFOR liaison officer in Mombasa, havebeen straightforward and have not given rise to legal difficulties. Kenya has
accepted the one case it was requested to receive in the last 12 months, but UNODC
considers that renewal of the various agreements may increase certainty for thenaval States of being able to transfer suspects.
80. To assist naval States in gathering evidence for transfer to Kenya, UNODC,
EU NAVFOR and the Combined Maritime Forces worked with the Kenyan
authorities to draft guidelines on their procedural and evidential requirements. The
guidance note was published in July 2009, and has been successfully used by naval
States. Transfers of evidence have proved straightforward and have not led todifficulties before the Kenyan courts. The Secretary-General understands that Kenya
has not to date approached the Somali authorities with a view to negotiating
prisoner transfer agreements.

D.

Mauritius
Legal framework
81. During consultations, the Government emphasized that it had adopted a set ofmeasures to effectively combat the spread of piracy in the Indian Ocean. 28
Mauritius criminal law derives from both common and civil law systems. On 13
December 2011, the Mauritius parliament adopted the Piracy and Maritime Violence
Act, which is expected to come into force in January 2012. It reflects the definitionof and jurisdiction over piracy, as set out in articles 101 and 105 of the United
Nations Convention on the Law of the Sea, read in conjunction with article 58(2).
Section 3 of the Act defines piracy and the offences of inciting or intentionallyfacilitating acts of piracy. These provisions could potentially allow for theinvestigation and prosecution of foreign nationals involved in organizing or
financing piracy. Such prosecutions would be dependent on the home State
extraditing the suspects to Mauritius. 29 The Act specifically provides for the transferof suspects by the European Union or States for prosecution, for the possibility of
witnesses statements to be admitted in evidence in the absence of the witness andfor the transfer of convicted persons. UNODC considers that the rules of procedureand evidence set out in the Criminal Procedure Act are a suitable basis on which toprosecute piracy offences.
Current capacity, international assistance provided and further international
assistance needed for a specialized anti-piracy court
82. On 14 July 2011, Mauritius entered into an agreement with the European
Union defining the conditions and modalities for the transfer of suspected pirates
and any seized property. No transfers have yet taken place, and no piracy trials have
yet been conducted in Mauritius, pending completion of guidelines for the transfer__________________
28 At the regional level, Mauritius hosted the Second Regional Ministerial Conference on Piracy in

October 2010, in which a regional strategy and a regional plan of action were adopted, to be
implemented over 15 years at a cost of €25 million. Mauritius will also second a representative
to work in the Regional Anti-Piracy Prosecution and Intelligence Coordination Centre to beopened in Seychelles.
29 Rather than under transfer arrangements for suspected pirates apprehended at sea by naval forces.

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of suspects being developed with the assistance of UNODC. Until the laws andprocedures of Mauritius have been tested through transfers of suspects from naval
forces, it is difficult to assess with certainty what additional assistance would be
required for a specialized anti-piracy court. Nevertheless, UNODC considers thatthe joint European Union/UNODC programme set out below would provide thenecessary capacity.
Investigations
83. UNODC assesses that the Mauritius police is a well-structured, resourced andmanaged organization. There are a total of 838 Criminal Investigation Division
officers, including 320 in the Central Criminal Investigation Division in Port Louis.
There are 20 Criminal Investigation Division officers in the anti-piracy unit. They
have not yet been engaged in the investigation of piracy cases, apart from one
investigator who has been seconded to the Seychelles police for six months to assist
with their piracy investigations. Mauritius police investigators have been trained in
the investigation of piracy cases, and have attended a number of UNODC regional
exchanges to learn how piracy investigations have been carried out in other regional
States. Mauritius criminal analysts took part in INTERPOL/UNODC training
concerning the analysis of information obtained from convicted pirates.
84. A joint European Union/UNODC programme has been developed to provide
support over an 18-month period. It envisages mentoring and training for the policeand coastguard, an additional investigator to support piracy investigations, renovationof the police facilities at Port Louis and financial support for transportation,interviewing, custodial and other related costs. Interpretation and mentoring support
would also likely be required for piracy investigations.
Prosecutions
85. The Director of Public Prosecutions of Mauritius has not carried out any
piracy prosecutions to date, but has agreed to set up a dedicated unit of prosecutors
to try piracy cases. UNODC has begun training and mentoring, as well as drafting
guidelines for the handover of piracy suspects and evidence by naval States. It has
also provided funding for prosecutors to attend meetings of Working Group 2 of theContact Group on Piracy off the Coast of Somalia, and the shadowing of a United
Kingdom prosecutor conducting piracy trials in Seychelles. Further financial
support will include covering expenses for the attendance of foreign civilian
witnesses at piracy trials and enhanced security arrangements in the Supreme Court.
86. Additional prosecutors would be required to handle the added caseload, but
UNODC judges that Mauritius lawyers are trained to a high standard, and there
would not be a need to recruit internationally. Two, or sometimes three, prosecutors
are assigned to important criminal cases, and UNODC believes that a certain
number of prosecutors could be assigned exclusively to handling piracy cases.
Mauritius law allows for foreign law firms and lawyers to be registered and to workin Mauritius, and the Chief Justice has the discretion to allow foreign lawyers totake cases before the courts.
Courts, including legal aid and representation
87. Piracy cases would be heard before judges of the Supreme Court or before
magistrates of the Intermediate Court. The Mauritius courts are well staffed and24

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managed, and UNODC assesses that trials are in accordance with international
standards, although there is a significant backlog of cases, mostly civil, but also
some criminal. UNODC assesses that Mauritius has perhaps the best developed
criminal justice system in the region and would be well placed to deliver substantial
prosecuting capability. The Government has stated that a new courtroom is required
if piracy trials are to continue beyond the 18 months of the European Union/
UNODC joint programme. The Government sees no advantage in establishing a new
court with jurisdiction exclusive to piracy, which would constrain court space andcourt staff to piracy trials.
88. Support would be required for the recruitment of additional judges. UNODC
assesses that Mauritius judges are of a high professional standard, and it would not
be necessary to recruit internationally. Although participation by foreign judges
would be compatible with the law, there is in practice no tradition of accepting
foreign judges in the Mauritius courts. The extra caseload would probably
necessitate additional court administration staff.
Prisons
89. The Mauritius prisons are generally overcrowded, but UNODC assesses thatthey otherwise meet international standards. Accommodation has been identified for
up to 30 piracy suspects at Beau Bassin prison. The European Union and UNODC
have agreed to fund and/or refurbish part of this prison to standards similar to thosefor Mauritian prisoners to make some derelict cells suitable for occupation by
convicted Somali pirates. Training for 20 senior prison officers has been provided.
The joint European Union/UNODC programme would enable improvements to theBeau Bassin prison, drafting work to harmonize the Prison Act, regulations,standing orders and international requirements under which the prisons operate, andfurther training for prison officers.
90. The Government of Mauritius has indicated a need for additional prison space
to allow it to accept further piracy suspects. They have funding for this project, andat this stage are considering where best to locate the new prison facility. The
funding may provide for up to 200 prison spaces. The additional prison capacity,
along with continued training and management development support for prison
officers, are likely to be prerequisites for accepting piracy cases for prosecution.
However, given space constraints, and for humanitarian reasons, Mauritius isconsidering the possibility of negotiating agreements with the Somali authorities forthe transfer of convicted pirates.
Projected capacity, timeline and costs of a specialized anti-piracy court
91. The joint European Union/UNODC programme will support six trials of up to
10 suspects in each trial, over the 18 months of the programme from 1 September
2011. A team of two prosecutors could accept up to 12 cases per annum. A single
judge would be able to handle around 12 cases per year. The Chief Justice estimates
that, with the new courtroom, two new judges and the necessary support describedabove, Mauritius could handle 24 cases per year. Once new prison capacity isavailable, there will be potential for up to 150 piracy suspects to be held. Although
the capacity envisaged is 24 cases per year, it should be noted that after about
20 cases, depending on the number of accused per case, the new prison would be

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full, and prosecutions could only continue on the basis of a functioning prisonertransfer arrangement with Somalia.
92. If Mauritius were willing to take on these piracy prosecutions, it is estimatedthat a programme of assistance for the police could be developed and implemented
in 12 months. Investigative support, including logistics, is likely to cost no morethan $200,000 per year. It would take approximately six months to recruit additional
prosecutors. Prosecutors in Mauritius are paid approximately $2,000 per month,including benefits. Therefore, two prosecutors for 12 months would cost $48,000.
Other logistical assistance, including training and travel, would cost no more than$100,000 per year.
93. It is estimated that a programme of assistance to the courts could be developedand implemented in approximately 12 months. It would take about 12 months toconstruct a courtroom and recruit the necessary judges and court staff. Judges arepaid approximately $60,000 per year, including benefits. Court administration staff
are paid approximately $7,200 per year, including benefits. The cost of legal aid forpiracy cases in Mauritius is still under negotiation between the defence lawyers andthe judiciary, but is likely to be between $6,000 and $10,000 per case. Transcription
costs for 24 trials would cost approximately $66,500, and witness travel expenses
approximately $116,500. Interpretation costs for 24 trials would be $300,000,
allowing for two trials running simultaneously, each with two interpreters.
94. It is estimated that it would take 18 months to complete the new prison facility.
The other support required could be provided within six months. Financing forconstruction of a new prison is already secured. It is estimated that other training
and management development support would cost no more than $200,000 per
annum. It is not known at this stage whether Mauritius would request assistancewith staff and prison running costs.
95. In summary, total annual costs would amount to $1.4 million as follows: police($200,000); four prosecutors ($96,000); logistical and training support ($100,000);
two judges ($120,000); two administrative staff ($14,400); legal aid for 24 cases($240,000); transcription ($66,400); witness travel ($116,500); interpretation
allowing for two trials running simultaneously each with two interpreters($300,000); prisons ($200,000). 30
Transfer of suspects, evidence and prisoners
96. The Government of Mauritius has signed an agreement with the European
Union to accept for prosecution persons suspected of committing piracy on the highseas off the territorial seas of Mauritius, Madagascar, the Comoros, Seychelles andReunion Island. The Government interprets this as being limited to their exclusive
economic zones. This agreement therefore does not cover the principal pirate
operating areas, and ideally would be expanded to cover a greater geographical area.
It is important to note that Mauritius is distant from the areas of the ocean mostheavily affected by piracy. Transferring suspects by naval ship may therefore delay
their initial appearance in court, and could reduce naval resources in the area ofnaval operations. Transferring suspects by air via a State closer to the area of naval
operations would require an agreement between Mauritius and the transiting__________________
30 These figures assume that Mauritius would cover police and prison staff costs.

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State(s), and would require logistical, and possibly financial, support. It would takeat least six months to negotiate the necessary agreement(s).
97. UNODC has assisted the Mauritius police to establish guidance for the transferof evidence, and experience of similar guidance in Kenya and Seychelles suggeststhat transfers of evidence to Mauritius would be straightforward. Mauritius isconsidering the possibility of negotiating agreements with the Somali authorities forthe transfer of convicted pirates. The Chairman of Working Group 2 of the Contact
Group is assisting in this process.

E.

United Republic of Tanzania
Legal framework
98. The United Republic of Tanzania has a common law legal system and has twopieces of legislation establishing piracy as a criminal offence: the Penal Code 1945
and the Merchant Shipping Act 2003. The Penal Code was amended in May 2010 toreflect the definition of, and jurisdiction over, piracy set out in article 101 andarticle 105 of the United Nations Convention on the Law of the Sea, read in
conjunction with article 58(2). Section 66 of the Penal Code defines piracy andprovides for the inchoate offences of inciting or intentionally facilitating an act ofpiracy. It sets a maximum penalty of life imprisonment. Sections 22 and 23 of thePenal Code also provide for the offences of enabling or aiding, aiding or abetting,counselling or procuring joint offenders in the prosecution of a common purpose
and acts of omission, but not attempt to commit an offence.
99. Section 66 of the Penal Code specifically contemplates the possibility ofprosecuting suspected pirates arrested by foreign navies, specifying that a special
arrangement between the arresting State or agency and the United Republic of
Tanzania is necessary where the pirate ship is not registered in the United Republicof Tanzania. 31 Any such agreement would need to take into consideration whether
the accused persons are suspected of murder, in addition to piracy, as murder carries
the death penalty in the United Republic of Tanzania.
100. Section 341 of the Merchant Shipping Act also prohibits piracy. It wasamended in May 2010 to criminalize acts of piracy. It also reflects the definition of,and jurisdiction over, piracy offences set out in article 101 and article 105 of theConvention, read in conjunction with article 58(2). Section 341 defines piracy andprovides for the offences of inciting or intentionally facilitating an act of piracy.
Both the Penal Code and Merchant Shipping Act provide for the offence of inciting
or intentionally facilitating acts of piracy. In addition, as mentioned above the Penal
Code provides for the offences of enabling or aiding, aiding or abetting, counsellingor procuring joint offenders in prosecution of a common purpose and acts ofomission, but not attempt to commit an offence. Prosecutions for these offences
would be dependent on the law of the extraditing State, as well as that of the United
Republic of Tanzania.

__________________
31 These amendments were made under the Written Laws (Miscellaneous Amendments) (No. 2) Act,

2010, 20 April 2010.

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101. Procedure and evidence are dealt with in the Criminal Procedure Act 1985 andthe Evidence Act 1967. UNODC considers that the rules of procedure and evidence
should be a satisfactory basis on which to conduct piracy prosecutions.
Current capacity, international assistance provided and further international
assistance needed for a specialized anti-piracy court
102. The United Republic of Tanzania has not yet conducted any piracy
prosecutions. At the moment there are two pending cases, which are at theinvestigation stage. Until the laws and procedures of the United Republic of
Tanzania have been tested through trials of piracy cases, it will be difficult to assess
the kind of international assistance that would be required for a specialized
anti-piracy court. The Government is actively engaged with the European Union in
the negotiation of an agreement for the transfer of suspected pirates for prosecution.
In the event of conclusion of that agreement, UNODC will deliver the joint
European Union/UNODC programme of assistance set out below, and considers that
this would provide the necessary capacity for a specialized anti-piracy court.
Investigations
103. Tanzanian police officers have taken part in counter-piracy training, including
UNODC training in Mombasa, the INTERPOL/UNODC training programme for the
analysis of information received from convicted pirates, and counter-piracy training
organized by the United States in Mombasa, Kenya.
104. A joint European Union/UNODC programme of assistance to the United
Republic of Tanzania with both short-term (up to 18 months) and medium-term(18 months to three years) elements has been proposed and the Government is
considering it. It will be implemented if and when an agreement is concluded
between the United Republic of Tanzania and the European Union for the transfer ofpiracy suspects. The short-term programme envisages a package of training andmentoring for the police and coastguard in investigative techniques, evidence
handling and the conduct of complex investigations. UNODC would also refurbish
the central police station and detention cells, enhance the police forensic scenes ofcrime unit facility and provide essential investigative equipment.
Prosecution
105. There are 305 prosecutors in the United Republic of Tanzania, including
32 senior attorneys, who have been organized in five specialized units. At the moment,
the unit that would be responsible for prosecuting piracy cases has 10 senior
attorneys. Tanzanian prosecutors have attended a number of UNODC training
courses and are familiar with the experiences of other regional States engaged inpiracy prosecutions. The short-term European Union/UNODC programme envisagesa package of training and mentoring for prosecutors, participation in conferences
and meetings of Working Group 2 of the Contact Group on Piracy off the Coast ofSomalia, support for the drafting of evidence handover guidance, and provision oflibrary and other essential resources.
Courts, including legal aid and defence representation
106. The Tanzanian High Court comprises 61 judges in 13 locations. Dar es Salaam
and Tanga would be the most appropriate locations for hearing piracy cases, given

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their port facilities and high security prisons. UNODC assesses that, although thejudges are of a high professional standard, they would be likely to benefit fromtraining in law of the sea, and piracy trials specifically. The High Court has a large
backlog of cases, which could take two to five years to complete. The judiciary istrying to streamline procedures to reduce these delays. The Registry in Dar es
Salaam has begun reviewing and reforming the case management systems, including
with the assistance of an internationally recruited legal adviser. A few Tanzanianjudges have attended UNODC regional exchanges and are familiar with the issues
associated with piracy trials.
107. The short-term European Union/UNODC programme envisages training andmentoring support to the judiciary, specialized training in the law of the sea andcross-border investigations, attendance at conferences and courses, support for thecost of travel for foreign witnesses to testify in piracy trials, provision of legal
representation for suspects at trials, provision of interpretation and transcription
services for piracy trials, improvement of the High Court facilities and infrastructure,including the prisoner holding capacity and storage area for exhibits, provision of
secure docks in the Supreme Court, and procurement of additional court security
services, essential legal resources and materials, as well as video link technology.
Prisons108. The United Republic of Tanzania has 38,000 prisoners in a system designed
for fewer than 30,000. The prison service has identified a 72-space discrete unit at
the Ukonga Prison in Dar es Salaam which could be remodelled for use asaccommodation for Somali piracy suspects. UNODC anticipates that, for the United
Republic of Tanzania to be prepared to play a role in piracy prosecutions, theywould either seek assistance to create additional prison spaces or assistance toreduce their current prisoner population, or both. Two Tanzanian senior prison
officers have attended UNODC regional learning exchanges and are familiar with
the issues associated with the custody of Somali piracy suspects.
109. Based on the assumption that Ukonga Prison would be used, the short-term
European Union/UNODC programme envisages refurbishment and rehabilitation ofprison cells, training of prison staff, provision of essential equipment, including
medical supplies and recreational resources, provision of material for prisoner
clothing, purchase of plates, cups, serving utensils, bedding, blankets andmattresses, provision of vehicles for prison management and transport of inmatesfrom prison to court and provision of radio communications equipment and humane
restraints.
Projected capacity, timeline and costs of a specialized anti-piracy court
110. The joint European Union/UNODC programme would provide capacity to hear
five piracy cases per year. The international assistance set out in the short-term joint
European Union/UNODC programme would be delivered over an 18-month period,
and the long-term programme over three years. The estimated total cost isapproximately $2 million. The commencement of the programme will be dependent
on consideration by the United Republic of Tanzania of the programme proposal anda decision whether to enter into a transfer agreement with the European Union.

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Transfers of suspects, evidence and those convicted
111. The United Republic of Tanzania has no existing arrangements to receive
piracy suspects and evidence from naval States, nor does it have prisoner transfer
arrangements with Somalia. However, arrangements to receive suspects andevidence could be put in place without difficulty or delay. The Government isengaged in negotiation of a transfer agreement with the European Union and isconsidering the joint European Union/UNODC proposal.

IV. Detailed implementation proposals
112. The first step before planning the caseload capacities of specialized anti-piracy
courts in the region and a regional prosecution centre would be to assess, with theassistance of the naval coalitions and other naval States active in the repression ofpiracy off the coast of Somalia, the anticipated number of piracy suspects that arelikely to be transferred to States in the region. Projects to increase the capacities ofregional jurisdictions should be matched to the anticipated workload. A second
important preliminary step is to ensure that work is funded and under way toincrease prison capacity, primarily in “Puntland” and “Somaliland”, but also in theregional States. Otherwise, the lack of sufficient prison space for piracy suspects on
remand and convicted pirates may restrict the caseload capacity of the specialized
anti-piracy courts that are the subject of this report.
113. Subject to the above considerations, the suggested detailed implementation
proposals for the specialized anti-piracy courts are set out below in two sections —measures of a general nature, and a country-by-country list of specificimplementation steps.

A.

Measures of a general nature
114. Measures of a more general nature to be considered by the Security Council,
UNDP, UNODC and other relevant international organizations, as appropriate,
would include the following:(a) The Security Council would encourage those regional States which have
yet to enter into agreements with naval States and organizations for the transfer ofpiracy suspects to do so as a matter of priority;(b) The Security Council would call upon States where the financiers,
planners and organizers of piracy off the coast of Somalia are believed to be (seeS/2011/360, annex IV) to investigate, prosecute or extradite such individuals toStates willing and able to conduct prosecutions;(c) The Security Council would call upon the relevant Somali authorities,“Puntland” and “Somaliland” to consider the urgent adoption of the legislationnecessary for the effective prosecution of those suspected of piracy, consistent withthe provisions of the United Nations Convention on the Law of the Sea;(d) The Security Council would urge the relevant Somali authorities,“Puntland” and “Somaliland” to ensure that arrangements for the transfer of thoseconvicted in other jurisdictions to Somalia for imprisonment become operationallyeffective at the earliest opportunity;30

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S/2012/50(e) The Security Council would encourage further donations to the TrustFund to Support Initiatives of States Countering Piracy off the Coast of Somalia,
including from the shipping industry and flag States, so that the proposed assistanceby UNDP and UNODC to regional States referred to in this report can go ahead asplanned;(f) UNDP and UNODC would discuss and obtain the agreement (to theextent not already obtained) of the relevant authorities for projects engaging theirpolice, marine police, prosecution services and courts to increase trial capacity to
24 trials per year each in “Puntland”, “Somaliland” (UNDP), Seychelles, Kenya andMauritius, and five cases per year in the United Republic of Tanzania (UNODC);(g) UNODC would discuss and obtain the agreement (to the extent notalready obtained) of the relevant authorities for projects to increase prison
capacities, most urgently in “Puntland” and “Somaliland”, but also in Seychelles,
Kenya, the United Republic of Tanzania and Mauritius;(h) UNDP and UNODC would assist with recruitment of the necessary
judges, prosecutors, police and other legal professionals, and recruit the necessaryinternational experts, as set out in the present report;(i) In recruiting international experts to participate, assist and mentor in“Puntland” and “Somaliland”, UNDP would actively consider the use of legal
professionals and experts from the Somali diaspora, and to that end, contact theSomali Law Council and the Council of Somali Organizations 32 for names andcontact details of willing and available individuals;(j) UNDP and UNODC, in their projects with regional States, would look
actively at the possibility of including capacity-building for the investigation andprosecution of those suspected of crimes of financing, planning or organizing acts ofpiracy;(k) UNDP and UNODC would continue to develop guidance on theprocedural and evidentiary requirements of “Puntland”, “Somaliland” (UNDP) andthe regional States engaged in, or considering playing a role in, piracy prosecutions(UNODC);(l) UNODC, in cooperation with the Chairman of Working Group 2 of theContact Group on Piracy off the Coast of Somalia, would assist the authorities ofSomalia, “Puntland” and “Somaliland”, to negotiate prisoner transfer arrangementswith States in the region engaged in the prosecution of piracy suspects, or
considering doing so.

B.

Specific measures
115. Specific measures to be taken by UNDP and UNODC in relation to eachcountry situation are set out in the paragraphs below.

__________________
32 Based in London; see S/2011/360, annex III, sect. B.

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1.

Somalia(a)“Puntland”
116. UNDP would:(a)Recruit an international UNDP staff member to be stationed in Boosaaso;(b) Provide expert assistance and guidance for the amendment of key
legislation and its translation into Somali;(c) Support, in partnership with Somali as well as international law faculties,
legal training programs for the judiciary, the prosecution and law academics;(d) Recruit international experts to provide advanced Criminal Investigation
Division training and specialized training for prosecutors in the Attorney-General’s
Office;(e) Provide for the refurbishment of the Criminal Investigation Division
offices, including a basic forensic capacity;(f) Complete construction and equipping of the police headquarters in
Garoowe and establishment of the model police station in Boosaaso;(g) Provide for the construction and equipping of a further three model
police stations;(h) Assist the Criminal Investigation Division to establish a national crime
directorate;(i)
conduct;

Provide expert assistance to draft a police act, regulations and a code of(j) Provide specialized training and mentoring to the police and prosecutors
in conduct, oversight and the handling of complaints;(k) Procure basic police equipment, including a biometric registration system
and uniforms;(l)Conduct a maritime policing needs assessment;(m) Procure vehicles and office equipment, including information technology,
and forensic equipment;(n) Procure enhanced security for courtrooms, witnesses, prosecutors, judges
and other legal professionals;(o)Support the recruitment of an additional 12 prosecutors;(p) Provide for the refurbishment of the Attorney-General’s Offices in
Garoowe and Boosaaso;(q) Recruit international experts to train and mentor prosecutors to establish
a case-management system and to regulate conduct and address complaints;(r) Recruit international experts to train and mentor judges and judicial
support staff and the High Judicial Council in matters of judicial oversight andcomplaints;(s)

32

Fund legal representation for defendants through the legal aid scheme;

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S/2012/50(t)place;

Assist the courts to put case-management and case-tracking systems in(u) Procure video-link equipment and train court staff in its use for witnesses
to give evidence remotely;(v)

Recruit international experts to monitor trials.

117. UNODC would:(a)Provide for the construction of a dedicated court to hear piracy cases;(b)Continue the rehabilitation and expansion of Boosaaso prison;(c) Provide for the construction of prison headquarters and a training
academy in Garoowe;(d) Continue to use international experts to train and mentor prison staff at
Boosaaso and Qardho prisons;(e)Provide expert assistance for the implementation of the new Prison Law;(f) Use its international experts to provide continued monitoring andmentoring at Garoowe prison.
(b)“Somaliland”
118. UNDP would:(a) Support the revision of key legislation, including the Somali Penal Codeand Code of Criminal Procedure;(b) Recruit international experts to provide advanced Criminal Investigation
Division training and specialized training for prosecutors in the Attorney-General’s
Office;(c) Provide for the refurbishment of the Criminal Investigation Division
offices, including a basic forensic capacity;(d) Assist the Criminal Investigation Division to establish a national crime
directorate;(e) Provide expert assistance to implement the Police Act and to develop
regulations and a code of conduct;(f) Provide specialized training and mentoring to the police and prosecutors
in conduct, oversight and the handling of complaints;(g) Procure basic police equipment, including office equipment andinformation technology and forensic equipment;(h) Provide for the construction of an Attorney-General’s Office in Boroma
and Berbera;(i) Procure vehicles and office equipment, including information technology,
and forensic equipment;(j) Procure enhanced security for courtrooms, witnesses, prosecutors, judges
and other legal professionals;(k)12-20567

Support the recruitment of an additional 10 prosecutors;

33

S/2012/50(l) Recruit international experts to train and mentor prosecutors to establish
a case-management system and to regulate conduct and address complaints;(m) Recruit international experts to train and mentor judges and judicial
support staff and the High Judicial Council in matters of judicial oversight andcomplaints;(n)(o)
place;

Fund legal representation for defendants through the legal aid scheme;
Assist the courts to put case-management and case-tracking systems in(p) Procure video-link equipment and train court staff in its use for witnesses
to give evidence remotely;(q)

Recruit international experts to continue the monitoring of trials.

119. UNODC would:(a) Procure the construction and refurbishment work necessary to provide
additional spaces at Mandera, Berbera and Gabiley prisons;(b) Use its international experts to train, mentor and continue to monitor
prison conditions at those prisons;(c) Discuss with the Government the possibility of use of prison space atHargeysa for convicted pirates transferred from other jurisdictions.
2.

Seychelles
120. UNODC would:(a) Assist the Criminal Investigation Division to restructure its investigative
capacity and provide training and mentoring through international Criminal
Investigation Division experts;(b) Support the construction and equipping of the Regional Anti-Piracy
Prosecution and Intelligence Coordination Centre;(c)Provide for the construction and equipping of a dedicated piracy court;(d) Support the recruitment internationally of two additional Supreme Court
judges and additional judicial support staff;(e) Procure police vehicles and office furniture and equipment, including
information technology equipment for case management and digital evidence
processing;(f) Provide training and mentoring through international experts to increase
forensic skills;(g)Procure forensic laboratory equipment;(h)Provide for the construction of a secure exhibit storage facility;(i)

Recruit additional translators (Creole to English);(j) Fund travel and provide training for prosecutors, and provide further
basic office and information technology equipment;

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S/2012/50(k) Provide training and mentoring for judges and basic office equipment
and legal resources;(l)Continue to fund the travel of foreign witnesses to give evidence at trials;(m) Continue to fund transcription services, defence representation andinterpretation;(n) Fund the refurbishment of the prison to provide rehabilitative andeducational opportunities and to improve safety;(o)3.

Continue to train and mentor prison staff.

Kenya
121. UNODC would:(a) Continue training and logistical support to the Criminal Investigation
Division and consider recruiting an international police adviser to be stationed in
Mombasa;(b)

Support the recruitment of an additional five investigators;(c) Provide for the refurbishment and equipping of the Mombasa Central
Investigation Division offices;(d)

Provide for the rebuilding of the police armoury in Mombasa;(e) Continue its training and mentoring through international experts ininterviewing, statement taking and police technologies;(f) Provide further
international experts;

training

andmentoringtoprosecutors

through(g) Support the recruitment of an additional eight prosecutors and paralegal
assistance;(h) Support the recruitment of an additional two magistrates and additional
judicial support staff;(i) Continue to support the training and mentoring of judges and support
staff and their attendance at key meetings and conferences;(j) Procure and support security for courtrooms, judges and other legal
professionals;(k)Continue to fund legal representation through the legal aid fund;(l)Continue to provide training and mentoring to prison staff;(m) Carry out an audit of the prison population with a view to reducing thenumber of prisoners on remand and those convicted but held beyond the duration of
their sentence;(n)4.

Support the provision of psychiatric care for Somali prisoners.

Mauritius
122. UNODC would:(a)12-20567

Provide for the renovation of police facilities at Port Louis;

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S/2012/50(b)Continue to provide international assistance to the police;(c) Provide training and mentoring in investigative techniques throughinternational experts for the police and coastguard;(d) Support the police with the additional interviewing, transportation andcustodial requirements;(e) Support the recruitment nationally of an additional four prosecutors andtwo judges;(f) Fund the attendance of prosecutors at training courses and meetings ofWorking Group 2 of the Contact Group and the shadowing of prosecutors in otherjurisdictions;(g)

Provide legal library resources;(h) Organize a meeting of police, prosecutors and the naval forces to develop
guidance on the handing over of suspects and evidence;(i) Fund and facilitate the participation of key legal professionals ininternational meetings and conferences;(j)

Provide for renovation work at Beau Bassin prison;(k) Provide expert assistance to harmonize the Prison Act and regulations
with international requirements;(l) Provide expert assistance to the prison authorities to develop a strategic
framework for the running of the prisons;(m) Support the overseas training of a small number of senior prison officers;(n) Consider with the Government the possibilities for the construction of anew prison facility in the longer term.
5.

United Republic of Tanzania
123. Subject to the agreement of the Tanzanian authorities to accept the transfer ofpiracy suspects, UNODC would:(a) Provide for the upgrading of facilities at the central police station,
including the evidence storage facility, and renovation of cells at the police
custodial premises;(b) Provide a package of training, mentoring and monitoring of the police
and the coastguard, including in investigative techniques and evidence handling;(c) Provide expert assistance for the preparation of guidance for the handing
over of evidence;(d)region;Support learning exchange programmes with other jurisdictions in the(e) Procure basic police equipment, including evidence bags and forensic
and digital photography equipment;(f) Provide advanced Criminal Investigation Division training and mentoring
through international experts;

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S/2012/50(g) Provide specialized training and mentoring to prosecutors throughinternational experts;(h) Provide specialized training and mentoring to judges throughinternational experts, and fund the attendance of judges overseas to shadow piracy
trials;(i) Provide advanced training by international experts for judges in the lawof the sea and cross-border investigations;(j) Fund learning exchanges and attendance at international meetings andconferences for investigators, prosecutors and judges;(k)Fund travel for foreign witnesses to attend trials;(l)Fund legal representation for defendants;(m) Support transcription and interpretation services;(n) Provide for improvements to court holding areas and exhibit storage
facilities;(o) Procure security services for courtrooms, witnesses, judges and otherlegal professionals;(p)experts;(q)

Provide training and mentoring of prison staff through international
Provide expert assistance to review and amend prison regulations;(r) Procure basic equipment, including medical supplies, and resources forrehabilitative and educational opportunities.

V. Conclusions
124. Consultations demonstrate that a great deal of work is under way to assist theregional States conducting piracy prosecutions and those considering doing so. Iffurther international assistance were provided and the other matters set out in thepresent report are implemented, the projection is that in two years, Somalia, Kenya,
Seychelles, Mauritius and the United Republic of Tanzania collectively could
conduct a maximum of 125 piracy prosecutions per year in accordance withinternational standards, involving up to 1,250 suspects. This would be a verysignificant contribution to combating piracy off the coast of Somalia, and would begreater than the total number of suspects prosecuted globally to date (see the table inparagraph 10 above).
125. As a first step, an assessment, with the assistance of the naval coalitions andother States active in naval operations, could be useful to help to determine thenumber of piracy incidents in which the suspects have been apprehended but
released, and the reasons underlying the releases. This information may assist boththe Security Council and the Contact Group in their consideration of the mosteffective measures to combat piracy off the coast of Somalia, and assist regional
States and the United Nations to determine the likely demand for prosecution
capacity in the region for the foreseeable future.

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126. On that basis, a number of implementation measures may be taken by the
Security Council, UNDP, UNODC, and other relevant international organizations as
appropriate, for specialized anti-piracy courts in States in the region. The
availability of sufficient and suitable imprisonment facilities, including in Somalia,
remains a key requirement. The scope for participation and/or assistance byinternational judges, prosecutors and other legal professionals, including those fromthe relevant diaspora populations, will be actively considered in each of these
specialized anti-piracy courts.
127. The establishment of a regional prosecution centre in Seychelles would further
a number of the goals identified by the Special Adviser to the Secretary-General. In
particular, it would act as a focal point for regional and international support to theprosecution of piracy suspects and help to strengthen the rule of law in Somalia. The
centre would enjoy relative advantages in respect of cost and speed of
establishment, as it would be based in the national legal system and would provide alocation offering relative logistical ease for the transfer of suspects by naval forces.
128. The Secretary-General stands ready to assist the Security Council in any way
as it takes forward its deliberations on the basis of the present report.

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