The 11 accused, all Somali nationals, were charged with various counts of terrorism and piracy. It was alleged that on 6 December 2009, while being in two different skiffs on a part of the high seas which falls within the Seychelles Exclusive Economic Zone (EEZ), with common intention, they used firearms and explosives against the Seychelles Coast Guard patrol vessel Topaz and its crew.

The accused admitted being of Somali nationality and having come to Seychelles as a group of boats consisting of two skiffs and one mother ship, on which all of them depended for survival. They also claimed that they were fishers and used lines and hooks to fish. Further, that on the day of their arrest they were peacefully fishing when the Topaz forcefully attacked them. They never initiated any violence.

In addition, the defence counsel made submissions in respect of the terrorism counts, arguing that the prosecution's description of 'an act being intended or by its very nature and context could be reasonably regarded as being intended to compel the Government of Seychelles to limit or to stop patrolling, controlling and monitoring its Exclusive Economic zone' was farfetched and unsustainable. The alleged act was at best a criminal offence and not terrorism. Further, it was well known that 'Somali pirates' capture ships and hold them for financial ransom, nothing else. In other words, they were robbers at sea, with no other agenda which might fall into any definition of terrorism.

Held: The prosecution has failed to prove to the required standard the counts which stem from alleged terrorism activities. Accordingly, those counts are dismissed and all the accused acquitted. However, with regard to the piracy-related charges the Court finds counts 3 and 7 proved beyond a reasonable doubt. Accordingly, all the accused are found guilty and convicted as charged.

The intention of the legislature was to have a citizen or non-citizen of Seychelles whose circumstances, actions or facts tantamount to the offence of terrorism but committed outside the country against property belonging to the Government of Seychelles to be tried by the Supreme Court. This Court is seized with jurisdiction to entertain the terrorism charges herein. In this case, two categories of offences are charged, namely piracy and terrorism. It must be stressed at the outset that piracy deals with illegal acts of violence committed for private ends by the crew of a private ship on the high seas against another ship or persons or property on board, and does not include acts with governmental objectives. The definition of a terrorist act is found in s 4(b) read with s 2 of the Prevention of Terrorism Act 2004. Terrorism usually involves indiscriminate violence with the objective of influencing governments or international organisations for political ends. Does the evidence in this case disclose these objectives?

Pirates hijack ships for a financial ransom. On the fateful day they were on the high seas waiting to chance on any ship that came by and not in particular the Topaz. No evidence on record tends to suggest that the Topaz or the Government of Seychelles was being targeted. The Topaz was not even expected in that area at the time of the incident. It had been called upon and directed there by the maritime surveillance aircraft. It cannot therefore be strongly argued that the intention of the whole attack was to compel the Government of Seychelles to limit or to stop patrolling and monitoring its EEZ. Although one could attempt to say that the presence of the accused in a piracy-infested area combined with their subsequent attacks on the Topaz in a way impacted on the business of the Seychelles Government in its EEZ, it should be noted that this is too remote to hold the offenders criminally liable for. And even if it were so, it does not tantamount to terrorism. Not every use or firing of rifles is taken as terrorism. It is true that the Government of Seychelles may have suffered as a result in many aspects, ie, security, transport, fishing, tourism, and maritime business generally, but all this cannot be stretched and heaped on the accused in criminal charges of terrorism, as it was never their intention.

The accused also stand charged with the offence of piracy contrary to s 65 of the Seychelles Penal Code, Cap 158, as read with s 23 of the Penal Code and the common law of England. The provision goes on to state that 'any person who is guilty of piracy or any crime connected with or akin to piracy shall be liable to be tried and punished according to the law of England for the time being in force'. According to established principles and case law, the phrase 'for the time being in force' would refer to the law in force up to 29 June 1976 when Seychelles attained independence from Britain: see Jhundoo v Jhuree [1981] Mauritius Reports 111 and Kim Koon v Rep [1969] SCAR 60. Therefore, the English common law of piracy as it stood in June 1976 prevailed in Seychelles even at the time of the commission of the offences of piracy, and aiding and abetting the offence of piracy, on 6 December 2009.

However, s 65 of the Penal Code has now been amended to clarify issues such as jurisdiction and carries a more detailed definition of the offence of piracy in line with art 101 of the United Nations Convention on the Law of the Sea (UNCLOS).

The activities of eight of the accused were tantamount to assault and a frustrated attempt to commit a piratical robbery which, according to the authorities and definitions, constitutes the offence of piracy jure gentium. In doing all these activities the accused had no legal authority or any colour of right from any State. The prosecution has proved all the ingredients of this offence beyond a reasonable doubt. There is not even the slightest doubt that the remaining three accused were intentionally aiding the occupants of the two skiffs to commit the offence of piracy. They actively participated in the whole exercise and assisted voluntarily though at some point, from a distance. Each one's presence and contribution gave courage and confidence to the other in a way.