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High Court verdict sounds warning to pirates (ii)

THE High Court in Dar es Salaam recently sentenced to life imprisonment seven Somali nationals for piracy following their move to attack an oil exploration vessel in 2011 in the Indian Ocean within waters of the United Republic of Tanzania.

Such verdict to be issued in the first piracy case in the country’s judicial history sends a strong warning to any other person who would be tempted to commit a similar offence within Tanzania’s Exclusive Economic Zone.

Our Staff Writer FAUSTINE KAPAMA, in this second part of piracy case, revisits the judgment delivered by Judge, Dr Yose Mlyambina, and reports….

Piracy is the practice of attacking and robbing ships at sea.It is an act of robbery or criminal violence by ship or boat-borne attackers upon another ship or a coastal area, typically with the goal of stealing cargo and other valuable items or properties.

Under Maritime Law, piracy is violence or depredation on the high seas or in the air, for private ends, using aircraft or vessels.

According to international law, piracy takes place outside the normal jurisdiction of a state, without state authority, and is private, not political.

Those who engage in acts of piracy are called pirates, like Mohamed Adam, B ashir Rooble, Muhsini Haji, Abdulwaidi Abdalahamani, Faragani Abdul, Ally Nur Ally and Omar Mohamed, alias Mudhee.

After their arrest, the pirates were taken in custody ready to face the prosecution. During the trial, the prosecution led by Dar es Salaam Regional Prosecutions Officer, Senior State Attorney Mkunde Mshanga as well as Senior State Attorney Cecilia Shelly and State Attorney George B arasa, called 14 witnesses and six documentary exhibits to prove the charge.

Advocates Aloyce K omba, Domicus Mkwera, Rupia Abraham, Msemo Omary, Dennis Tumaini, B enedict Pius and Gelas Severine had appeared for the pirates, who were facing one count of piracy, contrary to Section 66 (1) (a) (b) of the Penal Code, as amended.

Such provision reads, “Any person who does any act of violence or detention or degradation, committed for private ends by the crew or the passengers of a private ship or aircraft and directed against another ship or aircraft, or persons or property on board, (…) or in a place outside the jurisdiction of any state.

“…pa rticipates in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft, or does any act of inciting or of intentionally facilitating an act (stated above) commits an act of piracy.”

The prosecution had told the court that on October 3, 2011 within Tanzania’s Exclusive Economic Z one in the Indian Ocean, using a skiff boat and firearms, the seven Somali nationals attacked an oil exploration vessel knows as Sams All-good, for their private ends.

After evaluating the evidence tendered by both the prosecution and defence, Judge Yose Mlyambina convicted all the accused persons as charged and sentenced them each to life imprisonment, as per Sub-Section (2) of the Act.

He said that it was undisputed fact that all the accused testified to have been rescued from the Indian Ocean through a small boat on the fateful date.

Although the prosecution could not see the assailants while in the invading boat, that alone does not suffice to exonerate them from the charged piracy.

The judge pointed out that though the defence side had introduced the issue of identification in their final submissions, the said issue is demeritous in law considering circumstances of the case at hand with the reasons not hard to grasp.

“According to the evidence on record, the prosecution witnesses had the opportunity to engage into direct shootings with the pirates whereas at last they overpowered them, leading them to surrender to the Tanzania Amy Officers,” Dr Mlyambina said.

After surrendering, he noted, the pirates were led into the crew and taken to the Mainland under strict surveillance and security.

The judge further noted that there was no point that the said pirates escaped and later rearrested or rather that they were arrested later after escaping from the battle field regarding the incidents happening in the Indian Ocean of the fateful date.

In other words, he said, there was no break of chain of events between invasion, fighting, arrest, seizure and handing the pirates to the respective authorities including the court which ultimately they were facing their trial.

“Most importantly, the evidence of all accused persons indicates that they coached each other on what to say before the Court. They all asserted that they were on the way to South Africa on search of better living opportunities,” the judge observed.

However, he said, all the accused persons never mentioned the name and the registration number of the vessel they were using and asserted that they were about 100 people on board and that their boat lost balance and threw some of them into the ocean.

“All the accused persons alleged that after being rescued by good Samaritans they were blindfolded.

This leaves much to be desired. How can a Good Samaritan who rescues them blindfold them? In general, the whole evidence of the accused reflects to be coached evidence,” the judge said.

According to him, the accused persons used well their remand custody period and the court attendances dates in coaching themselves about the evidence to give in court, but such coaching solidifies the prosecution evidence that it is them, who jointly committed the charged piracy offence.

The judge was of the view that according to the prosecution evidence as well as the coaching evidence of the accused persons, it was very clear that the accused persons had common intention and acted under common design to commit the offence of piracy.

The accused persons, though coming from different parts of Somali, he noted, planned together in a concerted manner while at Raskamboni, traveled together in a piratical ship whose name and number was concealed by all of them, exchanged fire with the Tanzanian navy forced despite hearing warnings.

“All these overt acts show that all the accused persons had common intention to commit piracy. (They) all voluntarily participated in the operation of the destroyed skiff and all the accused persons were aware from Raskamboni the vessel they boarded was a pirate ship,” he said.

Furthermore, Judge Mlyambina went on holding that all the accused persons’ intention to commit the piratical act could be established through the fire exchange with the navy forces despite of the warning shots fired by the Frobisher.

“In light of section 65 of the Penal Code, Article 101 of the UNCLOS and Article 3 (1) and (2) of the SUA Convention, it is apparently from the prosecution witnesses the intention of all accused persons was likely to endanger the safe navigation of the Sams- All good Ship,” he said. UNCLOS is the United Nations Convention on the Law of the Sea, while SUA is the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.

The judge also explained that the overt act of the accused persons to board into Sams-All good ship with firearms gunshot (AK 47) caused the crew to hide themselves in the engine room, thereby making the vessel to lose direction.

“The exchange of fire with navy armed forces cannot be in any way be regarded a legal act or act of violence. It was an attempt to intercept boarding and take control of Sams- All good ship.

He, therefore, found the prosecution to have proved its case beyond reasonable doubt,” he ruled. Consequently, the judge convicted all the accused of the offence of piracy charged and sentenced each of them to life imprisonment.

B ut before penning off, the judge noted that the issue of piracy is a very dynamic area of the law where municipal law meets and harmoniously works with international law.

Therefore, he said, the interest of justice in piracy cases would be best served if the Penal Code of the United Republic of Tanzania would be amended.

Such amendments, the judge concluded, should catch up with the developments at the international level and particularly Article 3 of the Convention for Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, which Tanzania is a party.

(Continues tomorrow)

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Author: FAUSTINE KAPAMA

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