Piracy Kenyan Courts Forum non conveniens?
By Charles Wanguhu
The doctrine of Forum non conveniens offers a court the opportunity to decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.
Placing the above in context, what is Kenya’s interest in a British ship flagged in Bermuda, carrying goods destined to India, with a Filipino crew? Well the US and the EU have both signed protocols with Kenya in a bid to secure the Indian Ocean and the Maritime trade routes. The latter has facilitated the arrest, investigation and prosecution of suspected pirates. So far at least three groups of Pirates have been brought before magistrates courts at the Kenyan port of Mombasa. The total number of captured pirates currently stands at 111 handed over to Kenyan authorities.
A concern often raised in applications of the forum non conveniens doctrine is the matter of forum shopping, or picking a court merely to gain an advantage in the proceeding. Well it could be argued that there is no suitable forum and therefore the courts of Kenya are the closest available to be ceased of the criminal actions. The latter argument would lack merit on the grounds that the US transported a Somali pirate to the US for a trial after they successfully hijacked the Maersk Alabama and its American crew.
Suitable forum
In Spiliada Maritime Corp. v Cansulex Ltd one of the tests stipulated for the doctrine to apply was that: English judges will have to decline jurisdiction when a trial is likely to be more suitable elsewhere for the interests of all the parties and for the benefit of justice. As a caveat the defendant must show to the court that another forum with these characteristics is available. Somaliland anyone?? The Somaliland courts have tried pirates before and have actually incarcerated several pirates.
One would think that the restoration of a stable government in Somalia would be the top priority on the current international agenda and not the transfer of individuals from one neighbouring country to be imprisoned in the next.
In this particular instance I believe that the US and EU have managed to indulged themselves in forum shopping and the Kenyan government has fallen foul of the bargain hunter/windowshopper.
Note: The doctrine is used for only indicative purposes as it is largely used in civil cases between two parties.
http://news.bbc.co.uk/2/hi/europe/8119920.stm
Clearly even spain are backing down on international jurisdiction although it seems it may be more political
I am not sure how forum conveniens is relevant when international criminal jurisdiction is invoked. Surely the forum conveniens doctrine applies only to civil claims.
Jason,
Thanks for the comment, as noted below the article the principle is used in this article merely as an illustration of the absurdity of the pirates being tried on Kenyan soil, rather than as an application of the doctrine.