A CASE FOR THE EXTRADITION OF OKEMO AND GICHURU

By Richard Maina

The state of New Jersey has come calling for the former Kenya Power and
Lighting Company Managing Director James Gichuru and former Energy
Minister and currently Nambale MP Chris Okemo. The two are wanted to
answer to charges of money laundering. The two have moved to the high
court to fight the charges while political forces have been mobilised to add
impetus to efforts to oppose extradition.

Before delving on whether to extradite the two or not it is necessary to point

out that graft has tarnished Kenyas economy, stifled growth and
discouraged investors. Kenya was ranked 154 th out of 178 countries in
Transparency Internationals 2010 Corruption Perception Index. Despite this
adverse ranking, most perpetrators of these heinous crimes against the
people of Kenya are not prosecuted and the few who get to the dock have
high chances of being acquitted. Though controversial and demeaning, the
western countries view that African governments are places where normal
rationality of human behavior has ceased to function has some level of truth.

The request of extradition by New Jersey is not without foundation as Kenya

has ratified extradition treaties with Britain and the Constitution under article
2(6) provides that any treaty or convention ratified by Kenya shall form part
of the law of Kenya under the Constitution. Legally there are two main
requirements for the extradition to take place: an extradition treaty and
secondly dual criminal culpability implying that the offence for which the
individual(s) are being sought for are crimes both in the state requesting for
extradition and the state in which the individual resides. As the basic
conditions have been met and having established a strong basis to extradite
the two, the Director of Public Prosecutions moved to court to have the two
extradited.

Arguments for and against the extradition have been advanced; some are
not based on the law but on political expediency. There have been calls to
respect Kenyas sovereignity, the rule of the law and supremacy of the
Constitution by those opposed to the extradition. What the opponents of the
process have conveniently chosen to forget is that Kenya is not an island and
in efforts to be in community with other nations, she ratified and
domesticated not only the extradition treaty but other several conventions
aimed at fighting graft. Furthermore the argument that the passage of the
Constitution 2010 has provided an enabling environment for prosecuting
corruption-related cases does not hold water. Firstly ours is a situation akin
to that where there are sick people needing urgent medical attention but we
cannot take them to the next available medical facility, because its
construction is ongoing and the doctors are due for graduation.

Fundamental issues need to be addressed if the two are to be tried in Kenya:

Do the relevant state institutions have the capacity to gather the necessary
information to sustain a trial? Can they summon the key witnesses? Do they
have control over the subject matter of the charges? The answer is no. That
being the case then the extradition process has to go on. More importantly
corruption does not only harm Kenya but the entire world and Kenya cannot
fight graft in isolation.

The interest of Kenya on this front can be achieved if cooperation and

assistance is sought from developed nations where the siphoned public
resources have been stashed. In this regard, the extradition of the two shall
help dispel the notion that stealing and stashing the loot in foreign states is
the safest route. It will also serve as a warning to corruption barons that
they can run and run, but they cant hide forever.

However the planned extradition is an indictment for Kenya and concerted

efforts need to be put in place to entrench the Constitution and rebuild state
institutions to enhance corruption prevention, detection and prosecution.
The foreign partners can only handle a few cases and suffice to note that it
majorly happens in instances where they have vested interests.

The writer is Transparency International-Kenyas Advocacy and Legal

Advisory Centre (ALAC) Officer in Eldoret.