Somaliland: The inadequacy of the old criminal laws in tackling piracy

By Ibrahim Hashi Jama, Editor, www.somalilandlaw.com

21 March 2012

(Also available at this page Somaliland Piracy Law)

Prosecutions for acts of piracy have so far been conducted unsatisfactorily under the dated Somali Republic laws. The 1959 Somalia Maritime Code (which with slight modifications still applies to Somaliland since 1967) deals with piracy and mutiny by masters or crews of ships under Article 205 and 206 as follows:

“Article 205 – Piracy: The master or officer of Somaliland or foreign vessels who commits acts of depredation to the damage of a Somaliland or foreign vessel or its cargo, or for this purpose commit violence against persons on board Somaliland or foreign vessels, are punished by imprisonment from 10 to 20 years.

Article 206 - Taking Possession of the Vessel: Crew members of a vessel who take possession of the same are punished:-

1. by imprisonment from 10 to 20 years if the facts is committed with violence or threat against the master the other officers.

2. by imprisonment from 3 to 10 years if the facts is committed clandestinely or by fraudulent means.

For promoters and heads, the punishment is increased up to one third.

If the fact is committed by a person extraneous to the crew the punishment is reduced by one third.”

It is not possible, however, for Article 205 of the Code to be used to prosecute the use of skiffs and other small or large ships by pirates as we have witnessed in the Gulf of Aden and the coasts off Somalia, because the Article and (also Article 206) apply only to masters of ships or boats or their crew whose employment status is regulated under the Code. The appointment and duties of ship masters, the recruitment and contracts and duties of the crew and the supervisory role of the Maritime Authority over all these matters are all set out in Articles 92 to 110 of the Code.

The 1962 Penal Code has been used in the piracy cases that have been prosecuted so far, but the Code which does not include piracy as a crime has considerable limitations. Article 486 of the Code states that the detention of a person with the object of obtaining a wrongful gain for the price of releasing him (Kidnapping) shall incur punishment of 8 to 15 years or 12 to 18 years if the crime is successful. Article 486 is relevant to situations where persons are held as hostages until payments by them or by third parties are made but does not apply to the holding of ships or other vessels. In contrast Article 485 covers the more general crime of extortion - compelling someone to do or refrain from doing an act so that a wrongful gain may be obtained - and carries punishment of 3 to 10 years, which can be increased by one third or a half where there are aggravating circumstances. Article 485 is more applicable to the threat of or violence being directed at any person (and not necessarily someone who is detained) who is then made to do the act that the offender wanted done. The threat or the violence can relate to persons or to any kind of property, including a ship. It differs from the general offence of robbery (in Article 484) in that the latter specifically applies taking any movable property from a person by means of, or by threat of, violence, which is more immediate.

In short, taking away the personal belongings and a yacht from its owners by means of force in the territorial seas (although there are of course problems with Somalia’s 1972 Law which defines the territorial sea as 200 nautical mile - a distance that, for various reasons, is not applicable to Somaliland) could amount to robbery under Article 484; compelling them (or others) to pay more money by means of violence or threats can amount to extortion under Article 485 and holding them until they or anyone else makes a payment would bring Article 486 into play. In the more common cases involving ship crews who are detained by force, the more relevant provision is likely to be Article 486.

It is worth noting that one of the many draconian criminal laws enacted during the Somalian military dictatorship (between 1969 to 1990) was the 1975 Kidnapping Law (Law No. 36 of 30 April 1975) which repealed Article 486 of the Penal Code and replaced it with a narrow and specific offence of kidnapping and/or hijacking. The Law covered all such acts committed in the territory of the Somali Democratic Republic or “abroad” but, unlike Article 7 of the Penal Code (see below), did not specify that the act should have been committed in the territory of another country. Article 1 of this Law stated that:

“1. Any person who kidnaps a person, [or hijacks] an aircraft or any other type of transport with the intention of securing payment of money or property or of gaining political benefit which is contrary to the public interest of the state of Somalia, its peace and the Somali Revolutionary policies shall be punished by death.

2. Any other persons involved in the organisation of this offence shall also incur the same punishment referred to in clause 1 of this Article.” (my translation and underlining)

The Law also added that any person who was aware of such offences and did not inform the security forces would incur imprisonment of 20 to 30 years (Article 5). All the offences in this Law were tried at the special National Security Court (Article 6) from which there was no appeal against its decisions, (and not at the ordinary courts), and the Supreme Revolutionary Council had the power (under Article 2) to decide the fate of the offenders if the offences were not “against the public interest, independence, unity or the general policies of the Revolution”.

Understandably, this Law (and other similar security related laws passed by the military dictatorship between 1969 to 1990) are considered in Somaliland as not compatible with Article 130(5) of the Constitution which allows the continued use and implementation of the pre 1991 laws unless they conflict with fundamental rights and freedoms or with the provisions of the Constitution. Indeed the 1993 Somaliland National Charter which preceded the Constitution that was initially adopted in 1997 (prior to its adoption after a national referendum) only authorised the use of pre 1969 laws which predated the military regime but the Article 130(5) formula was adopted in 1997 to avoid too many gaps in the legislation until new laws are promulgated. The 1975 Kidnapping Law is therefore considered as having been disapplied and is no longer in use in Somaliland. It is unlikely also that this Law will be used in areas of Somalia (such as Puntland) where the Penal Code is currently used.

The Penal Code, following its civil law tradition, addresses attempts and instigation, but does not deal with other inchoate crimes adequately in the same manner as is normally dealt with in the common law countries. Attempts are defined in Article 17 of the Code as acts “unequivocally directed towards causing the event which has not be entirely completed or where the event has not resulted” and the reduced punishments are set out in Article 125. Although the joint participation in an offence that is committed or attempted is covered by Articles 71 and 73, agreements (conspiracy, in common law countries) to commit an offence which has not been committed are not punishable with imprisonment, unless they are “political conspiracies” to commit offences against the state (Article 232). Instead Article 76 (which is identical to Article 115 of the pre 1962 Italian Penal Code) states that, except as otherwise provided by law, where two or more persons agree to commit an offence which is not committed, they shall not be punished for making the agreement but the Court may apply security measures (police surveillance etc) to them. The same applies to situations where in cases of instigation (or incitement) to commit an offence but the offence was not committed (Article 76(2)).

As part of the public order offences, however, if the instigation or incitement was done publicly in an open place, it is a public order offence under Article 320 punishable with imprisonment from 1 to 5 years! Another public order offence of association under Article 322 may be used to prosecute any group associating to commit more than one crime and if they roam about carrying arms, they may incur punishment from 5 to 15 years. But there is no offence in the Penal Code comparable to “going equipped” to commit acts of theft or robbery, and, unless the matter can be dealt with as an attempt, preparatory acts of mere possession of skiffs or boats for piracy may be difficult to prosecute adequately under the Penal Code. There is also no general offence of conspiracy to commit a crime separate from the actual commission as a part of group which is adequately covered and can increase the individual sentences incurred (as set out in Articles 71, 73 and 74 of the Code).

Because of these shortcomings of the Penal Code, it has been reported that other less relevant articles of the Penal Code may have been used. The provisions mentioned were Article 230 (instigation to commit crimes against the personality of the state), Article 234 (participation in armed groups to commit crimes referred to in Article 230), Articles 222 (Devastation, Pillage and Slaughter whilst making an attempt against the state); and 324 (Devastation and Pillage). This simply underlined the inadequacy of the Penal Code in addressing acts of piracy and the crimes arising from them.

There is also the issue of territoriality. There are only a few crimes listed in Article 7 (and 8) of the Penal Code, such as crimes against the state, which can be tried in Somaliland/Somalia even though they were committed “abroad” (i.e outside the territory of the state) but in a foreign country and these include “e) any offences in respect of which (the) Somali penal law is made applicable by … international conventions”(Article 7). The reference to a foreign territory means, however, that crimes committed in the high seas cannot be brought within the purview of Article 7 even though the acts may be covered by an international convention, such as UN Convention of the Law of the Sea (UNCLOS) which was ratified by the pre 1991 Somali Democratic Republic in 1989. (Incidentally the 1975 Kidnapping Law applied simply to the crimes committed “abroad” and did not confine them to those committed in foreign countries).

The New Somaliland Piracy Law

It is for these reasons and the need to ensure laws implementing UNCLOS and the Djibouti Code of Conduct on Piracy that that the Somaliland Parliament has now passed a new (Anti) Piracy Law which defines acts of piracy along the lines of Article 101 of UNCLOS, with slightly different wording only respect of participation (which, in my view, appears to be more due to the initial translation to of the text to Somali, rather than by design). Article 2A of the new Law states that an act of piracy is:

“1. Any illegal act of violence or detention or depredation committed by the crew or the passengers of a private ship or a private aircraft or by armed pirates for the purposes of illegal financial gain and directed –

a) on the high seas, against a ship or aircraft, or against persons or property on board such a ship or aircraft;

b) against a ship, an aircraft, a person or property on board a ship or an aircraft in a place outside the jurisdiction of any state;

c) against a ship, an aircraft, a person or property on board a ship or an aircraft within the territorial waters of the Republic of Somaliland.

2. Any act of willful participation in an act directed knowingly as a pirate’s attack against a private ship or private aircraft.

3. Any act which incites or facilitates or aids piracy as defined in Clauses 1 and 2 of this Article.”

Clause 2 above deviates from the corresponding provisions in the UNCLOS Article 101(b) definition of Piracy and which states:

“b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or a pirate aircraft.” ( in Somali: fal kasta oo ah ka qaybgel habeynta markab ama diyaarad iyadoo la ogsoonyahay xaqqiiqada ah in uu markabku yahay ama diyaaradu tahay mid budcad badeed ah”.

This UNCLOS provision has as its centre the participation in the operation of a pirate ship/aircraft with the knowledge of the nature of the enterprise and is a separate and different offence from participation in “an attack” or attempted attack. It is similar to the offence of “going equipped” to commit a crime such as theft, robbery or fraud which constitutes, in some jurisdictions, a separate crime of its own. Participation in an attack or an attempted attack is already covered by Clause 1 read with Articles 71 of the Penal Code (joint participation in a crime), but there is no parallel provision in the Penal Code to the “going equipped” offence that can be used to deal with the participation in the operation of a pirate ship or aircraft as a separate crime. Clause 3 of the Law could possibly also catch some of the acts of participation in the operation of a ship/aircraft as being acts of aiding or facilitating once the act is committed or attempted (Article 17 and 125 of the Penal Code). As discussed above, Article 76 of the Penal Code covers cases where two or more persons agree to commit a crime but does not lay any punishment if the actual crime is not committed but Article 322 may be used to prosecute any group associating to commit more than one crime. Nevertheless, in other jurisdictions cases of conspiracy to commit a serious crime can attract a severe sentence, and whilst there is understandable concern in Somaliland about the past politically motivated “conspiracy offences” which were used so wantonly during the dictatorship era, the UNCLOS Clause 101(b) will adequately address this specific gap and should be added to this Law as soon as is practicable.

The Somaliland courts shall have jurisdiction, under Article 5(2) of the Law to try any offences of piracy committed within the Somaliland territorial sea or, regardless of the citizenship of the perpetrators, when the offences are committed outside the Somaliland territorial sea in an area not falling within the territorial sea of any other country when the Somaliland Coastal Forces detained the accused persons.

The punishment for acts of piracy is imprisonment from 5 to 20 years (Article 4). The pirate boats and the proceeds of the offence shall also be confiscated (Article 11).