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Exclusive Interview With Somali ‘Pirate’ Lawyer, Francis Kadima

[Join us live via Internet every Wednesday from Noon to 5pm Eastern Time for the Cedric Muhammad and Black Coffee Program" @ http://www.cedricmuhammad.com/media/]

(Cedricmuhammad.com) When I was in Nairobi, Kenya in March, as part of the African Union’s First Congress of African Economists, I had the honor of meeting and making the acquaintance of an enterprising analyst-journalist Evans Ojiambo Akelo. Since that time, we have maintained correspondence on cultural, political, and economic events on the continent. As our dialogue continues to evolve, his insight has been valuable to me.

When the Somali ‘piracy’ controversy broke out, and I saw an April 9, 2009 Wall Street Journal article, “Case In Kenya Tests New Push To Prosecute Sea Attacks,” (http://online.wsj.com/article/SB123932560889007401.html), which mentioned an upcoming trial in Kenya, of seven alleged pirates, I thought the scenario a bit peculiar and wanted to know more about the case, which it was clear to me was being underreported in Western, alternative, and progressive media. I suspected immediately that this case could be a wealth of information for those of us trying to get to the bottom of the matter and who were not satisfied with explanations of its origins broadcast in the West.

[I also believe that this is the court case we should focus on, even more than the trial underway in New York involving alleged Somali ‘pirate,’ the young, Abduwali Abdukhadir Muse (http://www.nytimes.com/2009/04/22/nyregion/22pirate.html?bl&ex=1240545600&en=ab4559dbcc4ddb83&ei=5087%0A). That trial looks like a smokescreen to me.]

I reached out to Evans Ojiambo Akelo and asked him what he knew about the trial and whether he was acquainted with the lawyer Francis Kadima, who was reported to be defending the ‘pirates.’ He responded that he would look into it and get back to me.

Well, that he did – visiting Mombasa, Kenya to get the story from the source and on the ground, something impossible for those of us to do from the Diaspora – Mr. Akelo secured an exclusive interview with Mr. Kadima, which he kindly provided for re-publication at Cedricmuhammad.com (http://www.cedricmuhammad.com/).

Those who have read my analysis on the situation in Somalia in “Things The Diaspora Can Do About Somalia,” (http://www.cedricmuhammad.com/9-things-the-diaspora-can-do-about-somalia/) and “Somalian ‘Pirates:’ Criminals, Terrorists, or Freedom Fighters (http://www.cedricmuhammad.com/somalian-%e2%80%98pirates%e2%80%99-criminals-terrorists-or-freedom-fighters/) will find Mr. Kadima’s defense of his clients of great interest, as it rests on two pillars: the West’s lack of jurisdictional authority in international and Somali waters and questions about Kenya’s legal jurisdiction to hold trial and 2) those arrested and on trial are fisherman and not ‘pirates.’

Whatever your current view of this crisis and controversy, Evans Ojiambo Akelo has made a valuable contribution to our understanding of these events and I am personally grateful for his diligence and thoughtfulness.

I hope and pray that this interview informs analysis and activism, particularly for those of us based outside of Africa who, however conscious or progressive, are still reacting to the story being told.

****

Exclusive Interview With Somali ‘Pirate’ Lawyer, Francis Kadima

Evans Ojiambo Akelo: What is the background of your career as lawyer in Kenya. Starting with education the Birth of your firm and other engagements you have undertaken, even those charitable?

Francis Kadima: I attended Kenyan Schools up to Form Six and was admitted to the Faculty of Law University of Nairobi in 1980 and thereafter proceeded to the Kenya School of Law where I completed in 1985 and after a successful interview was appointed a District Magistrate and posted to Kerugoya Station thereafter I worked in various stations raising to the rank of Senior Resident Magistrate and later appointed a Children’s Magistrate to cover Coast Province and after Seventeen(17) and half years of service resigned from the Judiciary of Kenya and started a private Law practice under the name of OMWITSA WASUNA KADIMA and later KADIMA & COMPANY ADVOCATES. Located at Court Chamber Building, Opposite Old Law Courts, Nkrumah Road, Mombasa.

Evans Ojiambo Akelo: Your charitable work?

Francis Kadima: My other responsibilities have included being the board chairman and member of board of various schools including Lumakanda and St. Cecilia Secondary Schools. I also have been a patron of Rural Electrification Project Lugari District. Am also a Pro-bono lawyer on the Federation of Women Lawyers Kenya (FIDA Kenya) panel. I also do pauper briefs for murder suspects in the High Court.

Evans Ojiambo Akelo: What is your opinion on the alleged agreement signed between the UK and Kenya last December and later copied by the US and the EU, to prosecute and jail pirates in Kenya?

Francis Kadima: Regarding the alleged agreement signed between KENYA and UK last December and later copied by the USA and E. U. to prosecute jailed pirates in Kenya, I reserve my comments as you have never seen the said agreements and am not aware the same having been tabled in parliament for deliberation by parliamentary in order to give the said agreements legal effect (force of Law).

Evans Ojiambo Akelo: What do the laws of Kenya speak of on Piracy?

Francis Kadima: In Kenya the relevant statutes are THE MERCHANT SHIPPING ACT CHAPTER 389 LAWS OF KENYA whose commencement date was 1st December, 1967 and revised in 1983 and the PENAL CODE CHAPTER 63 OF LAWS OF KENYA. THE MERCHANT SHIPPING ACT is an act of Parliament to make provision for the control, regulation and orderly development of merchant shipping. While the penal code is an Act of Parliament to establish a code of criminal law. Under the Merchant Shipping Act though Kenya is a signatory to the UNITED NATIONS CONVENTION ON THE LAW OF THE SEA and ratified it the same is not domesticated into the MUNICIPAL LAW hence the Kenya SHIPPING ACT makes no mention of the same yet its the Parent Act as regards MERCHANT SHIPPING in Kenya. All that the PENAL CODE does is to define piracy as an offence and make it punishable with imprisonment for life (See Section 69(1), (2), (3). Though in the year 2006 a Kenyan Court at Mombasa tried and convicted Somali Pirates for Seven years for hijacking the M/V SAFIN AL-BIRSARAT – an Indian registered dhow – the incident raised substantial legal issues of how piracy is defined and whether a state has jurisdiction over alleged pirates which issues are yet to be resolved. As stated by MRS. NANCY KARIGITHU DIRECTOR-GENERAL MARITIME AUTHORITY in her presentation on the Role played by Kenya in the Fight Against Piracy and armed robbery against ships in waters off the Coast of Somali she acknowledges there is need to strengthen piracy legislation in Kenya and alluded to a new Merchant shipping bill yet to be enacted by Kenyan Parliament whose intention is to strengthen the law and include the provisions for piracy from the relevant UN Convention.

Evans Ojiambo Akelo: Many give you scornful look for defending pirates believing you are making big money?

Francis Kadima: On the issue of the public impression for making big money from the piracy, that is a non issue, as our company has a clear policy on charging legal fees in both criminal and civil cases and cases under the Admiralty Law. It is a policy based on sound business practice and is not dependant on isolated cases of public interest. Whilst public interest concerns may be one of the factors in determine legal fees, there are other more important factors like the complexity of the case . Obviously ransom money is not one of the factors to be considered.

Evans Ojiambo Akelo: Why defend pirates that have and continue shocking the international Community?

Francis Kadima: On why defend pirates despite international community condemnation, the issue for a lawyer is not piracy as an offence per se but the higher issue of due process (fair trial) which is a prerequisite for the Rule of law which we all defend as lawyers and the international community to jealously safe guards. Whether a pirate is convicted or acquitted is not the issue provided due process is followed. You should remember under the commonwealth of which Kenya is a member state, an accused person is presumed innocent until proved guilty.

Evans Ojiambo Akelo: In your defense what strategy are you employing to counter the prosecution?

Francis Kadima: As regards our defence strategy we will be raising jurisdictional issues and my instructions are that the seven suspected pirates were fisherman and never attacked the vessal M/V POLIARS.

Evans Ojiambo Akelo: Have you encountered a controversial case like the piracy case at hand? If one elaborate.

Francis Kadima: Yes I have encountered a controversial case apart CMCR NO. 791 OF 209 (PIRATES CASE) which is CMCR NO. 2979 OF 2008 REPUBLIC -VS- ANDREW M. MWANGURA who was charged with ALARMING PUBLICATION CONTRARY TO SECTION 66(1) AS READ WITH SECTION 36 OF THE PENAL CODE and faces a second count of being found in possession OF NARCOTIC DRUGS CONTRARY TO SECTION 3(1) AS READ WITH SUB-SECTION 2(A) OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES CONTROL ACT NO. 4 OF 1996 the case raised a lot of public interest from the international community and Kenya public as it was alleged ANDREW MONGINGETI MWANGURA had published a false statement on the Standard issue number 139 that the military hardware on hijacked ship MV Fain was destined to Southern Sudan. I represented him in court where he denied the offence, the case is still pending but the defence has raised certain seriously legal issues which have been referred to the Director of Public Prosecution of which we await a decision on 14th day of May, 2009.

Evans Ojiambo Akelo: Kenya has been accused by International Community like Human Rights Watch for having a flawed judicial system Will your clients receive justice?

Francis Kadima: As regards the concern of whether our client will receive justice under the Kenyan judicial system already accused of being flawed by the International community just to repeat the primary duty of a lawyer in any trial is to ensure his client receives a fair hear according to the laws of the land. If that does not happen at the court of first instance he has a right of first appeal in the High Court and second appeal in the Court of Appeal. It is premature at this stage to comment. I shall reserve my comments once the trial is complete.

http://cedricmuhammad.com/

Evans Ojiambo Akelo is a freelance Journalist-Writer-Researcher. His work can be found at: http//www.africanews.com/site/list_topics/813

[Join us live via Internet every Wednesday from Noon to 5pm Eastern Time for the Cedric Muhammad and Black Coffee Program" @ http://www.cedricmuhammad.com/media/]

8 Responses to “Exclusive Interview With Somali ‘Pirate’ Lawyer, Francis Kadima”

  1. pieface19 says:

    Great link. Thanks to Mr. Akelo for allowing the link to the interview. Mr. Kadima is very careful in what he speaks on yet clear and direct in his responses. I am learning a lot from this Pirate Series and its help in preparing me to properly react to inept discussions and remarks.

  2. Jean Damu says:

    There is no discussion here of Washington’s policy of linking the issue of Somali pirates to the War on Terrorism through which one Somali teenager to date has been hijacked to New York to stand trial. Nor does any mention in regards to Somali piracy take into account Bush and Rice’s criminal overthrow of the Islmaic Courts Union by proxy of the Ethiopian army. I found the interview somewhat irrelevant to the US situation and somewhat abstract politically in terms of the primary concern here that Kenya could be seen as providing a “fair trial.” Without any state structure in Somalia to offer counterweight, none of the “pirates” who ultimatley face trials will receive fairness, in my opinion.

  3. ramu says:

    I guess I have been spoiled over the years with exclusive interviews being conducted by Cedric. Don’t get me wrong, this interview was informative but I don’t think Akelo asked the right questions. Maybe there is a part 2. Anyways, I think that piracy has more to do with a lack of access to capital than anything else. The upcoming trial with the young “pirate” will be interesting…

  4. Yahya Sharif Shabaka says:

    I think the brothers interview with the lawyer is a bit shadlow,nonetheless, it beats a blank..Thankyou for all that you do to bring balance to this matter..I believe, like the toll roads of america which criscross the country,NJ TKP OR NJ PARKWAY, GEORGE WASH.BRIDGE,HOLLAND AND LINCOLN TUNNEL AND MANY OTHERS. These states exact money (ransome) from all of the people who enter their states(waters) SO WHY NOT THE SOMALIES? THE EUROPEAN POWERS (GOVERNMENTS) DON’T WANT TO BE RESPONSIBLE FOR THEIR ACTIONS.. I’VE READ WHERE TONS OF GARBAGE IS DROPPED OFF OF THEIR SHIPS ONTO THE SHORES OF THE SOMALI PEOPLES.. SO WHAT THE INTERNATIONAL COURTS NEEDS TO DECIDE IS HOW MUCH SHOULD THE TOLL BE FOR USING THE WATERS OF THE SOMALI PEOPLES… PEACE. YAHYA sharif shabaka

  5. Due to legal trappings i couldn’t ask questions that could have prejudice the case or amount to comtempt of court so i was to do it gentle so that i make my move into the lives of Pirates more revelations coming soon. watch this space.

  6. raghib says:

    Thanks Akelo. Looking foward to the future revelations.

  7. Big Has says:

    OK, very vague interview with even more vague answers. The issue is not the dumping of garbage on Somali shores. The issue is piracy. If these men were fisherman…why the guns (if there were any)? We know that the Western nations could care less about African countries, unless it benefits them, but again, piracy is the issue.
    Let’s not be quick to condemn, or accept a bogus defense of these young men. If they are innocent let it be known, and if they are guilty bring the proof.
    But fisherman with AK’s? Sounds a little fishy to me, and I don’t care what color, religion, or country they hail. Peace!

  8. Aleksandr Nuzhdin says:

    I write the monography on struggle against criminal bankruptcy. Help to find please the criminal code of Somalia, Djibouti, Malawi in any language.

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