This was an appeal against the conviction and sentence of the appellants in the Mombasa Chief Magistrate's Court. The appellants were charged with the offence of trafficking heroin on the Amin Darya, also known as the Al Noor. They were convicted and sentenced to life imprisonment on 10 March 2023, after a trial spanning close to 10 years.

One of the appeal grounds was that the trial was conducted without due regard to the provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

Held: The charge was defective and the elements thereof not proved. Further, there were too many breaches of the law. The appellants cannot be said to have had a fair trial. They cannot be described as minor breaches which can be ignored. Accordingly, the appeal succeeds. The conviction is quashed and the appellants are acquitted.

Many treaties apply at sea and in relation to the sea. UNCLOS is considered to be the fundamental expression of the rules governing general relationships and jurisdictions at sea. In effect, it is a 'constitution' for the sea. UNCLOS is clearly the most significant piece of international law that is specifically aimed at governing the sea and regulating conduct at sea. Another treaty which addresses a matter of universal concern to States and which contains some special additional rules for application at sea is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (the 1988 Convention.)

UNCLOS also contains a general rule on this issue. States have long recognised that the trafficking of drugs by sea is a major criminal enterprise and needs to be addressed in more detail than provided for in UNCLOS. As a consequence, when they came to negotiate the 1988 Convention, States took the opportunity to provide greater detail on how to implement the general authorisation found in UNCLOS.

The procedures regarding interception of a foreign vessel are clearly set out in UNCLOS. Here, it was not proved that the vessel was intercepted within the territorial sea so as to confer jurisdiction under art 27. The intercepting team did not produce the recording of the conversation with crew of the subject vessel and their own GPS co-ordinates at the time of interception. Their evidence was also at variance. The burden of proof lies upon the prosecution. Therefore, the exact point of interception was not proved.

The identity of the ship was not firmly established. It had no flag and even though that did not immediately translate into its being without nationality, the other indicia of nationality were not helpful as it had different registration details. Further, the owner was not availed and the vessel had no agent. That made it impossible to contact the flag State.

What are the obligations of the coastal State under such circumstances? Articles 108 and 110 of UNICLOS provide the answer. Having established that the ship had no flag and its identity and nationality was not established, and that Kenya has the requisite domestic legislation, the Court can safely conclude that the coastal State had the right to visit under arts 108 and 110, and consequently the coastal State had jurisdiction.

However, the investigations that followed were worrying. No-one seems to have followed the law. None of the investigators mentioned any search warrant or attempts to get one or any compliance. The package of heroin was recovered several days after the search had started; around the fourth or fifth day. By then all sorts of people had been on board this vessel. There were the captains who directed the ship to the anchorage and the escort team, the search unit, the crane operators, the marine inspector sifting through and repackaging the bulky cement with cranes, the investigating officers, and then suddenly, voila - the bag appears! There on the cargo deck. Not hidden nor camouflaged. It could be sheer luck, but the contradictions in the recovering officers' evidence raised a definite red flag in the evidence.

After the recovery of the first bag, more bags were recovered in the ballast and oil tank. This followed an alleged confession by either the captain or the other crew members. Then, despite a Court order to the contrary, the vessel was destroyed by the executive.

The case started with some intelligence, and it appears that someone out there was calling all the shots. That is the only explanation as to why all the rules of procedure were thrown out of the window. It was not due to want of experience, as some of the best officers were handling the matter.

The Court is, of course, aware of the international vice that is drugs and that all parties should pull together to wipe out the menace. However, on the facts of this particular case, the admission of the impugned evidence would render the trial unfair or otherwise bring the administration of justice into disrepute.

Likewise, in this case, the remedy can not be worse than the cure. We cannot rubbish all our procedural laws, say come what may, and damn the consequences. The appellants were elderly foreigners who could barely follow what was going on.

[See also Yaqoob v Republic [2019] eKLR (CMI691).]