Extradition

Group 6
Presented by; Mausam, Samuel, Esther, Camille
 QUESTION
 You are Counsels in DPPs office, and are reviewing Kenya’s
practice on Extradition, in order to bring it to current
international legal standards, and to inform future practice at
the DPP’s office. You are to make the presentation to the
Quarterly meeting of Counsels from the AGs and DPPs office
(with officers from Ministry of Foreign Affairs invited to this
one).
 Develop a presentation canvassing: The international practice
in regard to state’s surrender of criminals, schemes; A
treatment of Kenya’s practice including policy and legal
framework; Illustrative examples and case law; and make
Proposals for change if you find any desirable to render it
more in accord with international law and practice.
 What is extradition?

 Official process

 Regulated by treaties between countries

 One State surrenders a suspected or convicted

criminal to another

 Who has fled to the requested State’s territory

 Done to prevent evasion of justice

 Treaty laws are bilateral

 So there is no obligation on a State

 Where it is compelled by law, known as Rendition

 This is surrender or handing over of

persons/property from one jurisdiction to another

 General Principles

 The ‘Double Criminality’ Principle

› Crime should be committed in both jurisdictions

concerned

 The ‘Specialty’ Principle

› Person being surrendered can only be tried and

punished for the offence for which extradition was

sought
 Political Exception

 Offences of a political nature have been excluded

 A person must be prosecuted or persecuted for a
crime committed, not for his political opinion
 Therefore, reasons for extradition must be clearly
stated in the request
 However, terrorist activities are not covered by this exception.

 Art 1 of the European Convention on the Suppression of

Terrorism1977 provides a list of offences not regarded as

political offences or inspired by political motives

› Attack against the life of internationally protected persons, including

diplomats

› Kidnapping

› Using bombs, grenades and other ammunition

 Many States do not allow nationals to be extradited

 Usually, in circumstances where State has wide powers

to prosecute them for offences committed abroad

 Human Rights should also be noted – for instance,

extradition to a State which would torture the person

may violate (relevant) HR instruments

 Procedure

 Each member State must comply with a request form from the

court or prosecutor of another State for the arrest warrant

 The warrant for the accused must be for an offence carrying a 12

month minimum penalty

 Need only contain a description of circumstances of the offence

 Judicial authorities decide on the request.

 Extraditable and Non-extraditable
offences
 Extraditable offences
› Punishable under the laws of both States concerned by

imprisonment or deprivation of liberty

› See s.4 Extradition (Commonwealth Countries) Act

 Non-extraditable offences
› Where laws of both countries are not the same; or

› No established treaty of extradition between both countries

KENYAN
CONTEXT

CAP 76
 Crimes Under Extradition
 Criminal Homicide and Similar Offences
 Injury to Persons Not Amounting to Homicide
 Abduction, Rape and Similar Offences
 Narcotics and Dangerous Drug
 Damage to Property
 Falsification of Currency and Similar Offences
 Forgery and Similar Offences
 Continued;
 Misappropriation, Fraud and Similar Offences
 Piracy and Similar Offences
 Slave Dealings
 Offences against the Slave Trade Act 1873, or
otherwise in connexion with the slave trade,
committed on the high seas or on land, or
 partly on the high seas and partly on land.
 General
 Counselling, procuring, aiding and abetting, or
being an accessory before or after the fact to any
of the foregoing.
 Organized Criminal Group Offences
 Any offence that constitutes an offence of money
laundering under the Proceeds of Crime Anti-
Money Laundering Act, 2009.
 Section 3 – states that if an agreement exists
between countries other than common wealth
countries, with respect to the surrender to that
country of any fugitive criminal, the minister
may, by order published in the gazette, declare
that this part apply…to such conditions,
exceptions and qualifications as may be specified
in the order
 Section 5 – if a fugitive of any country is
arrested the country (Kenya) an application is to
be made to the Minister by the consular officer
or diplomatic representative of that country.
 The minister may by an order by his hand, after
receiving a requisition, signify to a magistrate
that a requisition has been made and require the
magistrate to issue his warrant of arrest and
detention of the fugitive criminal
 Section 8- (committal or discharge of prisoner)
 Section 6 and 7 provide that if a criminal
fugitive is arrested, he shall be brought before a
court, and evidence is presented (that shows that
the crimes are not section 16 crimes )in the
hearing of a case shall commit him to prison, but
otherwise shall order him discharged.
 Section 9
 -When a criminal fugitive is committed to prison,
the prisoner is to be informed that they shall not be
surrendered until the expiry of 15 days and that they
have a right to apply for habeas corpus.
 -After which a minister may by warrant under his
hand order the fugitive criminal, if not set at liberty
on the decision of the court, to be surrendered to
such person as is his opinion, duly authorized to
receive the fugitive criminal by the country from
which the requisition for the surrender proceed, and
the fugitive criminal shall be surrendered
accordingly.
 Section 10
 If a person has been committed to prison and is
not surrendered and conveyed out Kenya within
2 months after the committal, or if the directions
of habeas corpus are issued, after the directions,
any judge of the High Court may order the
criminal be discharged unless sufficient cause of
the contrary is given.
 Backing Of Warrants Issued In
Other Countries
 Section 12
 It works where a warrant is issued to a country
where there is believe or reasonable suspicion
that this criminal is/ going to be/ going to go
through.
 The warrant is endorsed by the magistrate from
that jurisdiction.
 Republic vs Chief Magistrate, Mombasa Ex Parte
Mohamud Mohamed Hashi alias Dhodi & 8
others
 The High Court sitting in this case has ruled that
Kenya courts do not have jurisdiction to try
persons for acts of piracy committed in the
High Seas.
 Until September, 2009 the Penal Code provided
for the offence of piracy jus gentium.
 The section was repealed by the Merchant
Shipping Act, 2009 without a saving clause. The
2009 Act is not applicable to this case since it
came into force after the offences were
committed.
 The applicants were charged with the offence of
piracy contrary to section 69 (1) as read with 69
(3) of the Penal Code. At the close of the
prosecution case, the court put the applicants on
their defense.
 During trial, the applicants objected that the court
did not have jurisdiction to try them since the
offence was committed in high seas in the Gulf of
Aden outside the territory of Kenya.
 The court ruled that it had jurisdiction and
continued hearing the case.
 The High Court held that the alleged offence of
piracy jure gentium was not committed in
territorial waters within the territorial waters
within the territorial jurisdiction of Kenya
Courts.
ILLUSTRATIVE CASES AND
CASE LAW
 US v. Dr. Humberto Alvarez-
Machain
 FACTS – A Mexican national had been forcibly
kidnapped and brought to the U.S to stand trial for
crimes in connection with the kidnapping and
murder of a U.S Drug Enforcement Administration
Special Agent and his pilot.
 He moved to dismiss his indictment at the trial
claiming that his abduction constituted outrageous
government conduct, and that the District Court
lacked jurisdiction to try him because he was
abducted in violation of the extradition treaty
between the US and Mexico.
 Held;
 The District Court dismissed the indictment on
the ground that it violated the Extradition Treaty,
discharged him and ordered his repatriation.
 The Court of Appeals affirmed the decision of the
District Court, finding that the jurisdiction was
improper, based on the fact that the US had
authorized the abduction and the Mexican
Government had protested the Treaty
violation.
 However,

 The Supreme Court reversed the Court of

Appeals decision.
 It held that a court in the US had jurisdiction to
try a Mexican national who had been forcibly
kidnapped and brought to the US for
violations of the criminal law of the United
States.
 It further held that a defendant may not be
prosecuted in violation of the terms on an
extradition treaty that requires that he should
be prosecuted for only those offences for
which he was extradited.
 However, when a treaty has not been invoked, a
court may properly exercise jurisdiction even
though the defendant’s presence is procured
by means of a forcible abduction.
 It was stated “The question of how far his forcible
seizure in another country, and transfer by violence,
force, or fraud, to this country, could be made
available to resist trial in the State court, for the
offence now charged upon him, is one which we do
not feel called upon to decide, for in that transaction
we do not see that the Constitution, or laws, or
treaties, of the United States guarantee him any
protection. There are authorities of the highest
respectability which hold that such forcible
abduction is no sufficient reason why the party
should not answer when brought within the
jurisdiction of the court which has the right to try
him for such an offence, and presents no valid
objection to this trial in such court.”
 State v. Ibrahim
 The South African Court of Appeals allowed an Appeal
against the conviction of the appellant for treason.
 The appellant, a member of the military wing of the African
National Congress who had fled South Africa while under a
restriction order, had been abducted from his home in
Mbabane, Swaziland, by persons acting as agents of the
South African State and taken back to South Africa,
where he was handed over to police and detained in terms
of the security legislation.
 He was subsequently charged with treason in a Circuit Local
Division.
 The appellant had, prior to pleading, applied for
an order that the court lacked jurisdiction to
try the case as his abduction was in breach of
international law and thus unlawful. The
application was dismissed and the trial continued.
He was convicted and sentenced to 20 years’
imprisonment. On appeal against the dismissal
of the application, the South African Court of
Appeals, upheld the objection to the trial.
 Held;
 The Court stated that according to Roman Dutch
law, as adapted to the local circumstances of
South Africa (Roman Dutch Common Law), one
of the limitations to a court’s exercise of
jurisdiction in criminal cases is that even if an
offence was committed within the area of
jurisdiction of the court, a court had no
jurisdiction to try a person who was abducted
from another jurisdiction by agents of the State
authority exercising power in the area of the
jurisdiction of the court.
 It was stated “Several fundamental legal principles are implicit
in those rules (of the Roman Dutch law), namely, the
preservation and promotion of human rights, good
international relations, and the sound administration of
justice. The individual must be protected against unlawful
detention and against abduction, the boundaries of jurisdiction
must not be violated, state sovereignty must be respected, the
legal process must be fair towards those who are affected by it
and the misuse of the legal process must be avoided in order to
protect and promote the dignity and integrity of the
administration of justice. The state is also bound thereby.
When the state itself is a party to a case, as for example in
criminal cases, it must as it were come to court with ‘clean
hands’. When the state is itself involved in abduction over
territorial boundaries, as in the present case, its hands are not
clean(emphasis added). Rules such as those mentioned are
evidence of sound legal development of high quality.”
 Beahan v. State
 The appellant in this case was arraigned in the
High Court of Zimbabwe on a charge of
contravening section 50(1) of the Law and Order
(Maintenance) Act (cap 65). He was convicted of
terrorism. He appealed against the conviction.
 Facts;
 The appellant was the leader of a group of armed
terrorists. The indictment alleged that the appellant,
acting in concert with other persons and with intent
to endanger the maintenance of law and order in
Zimbabwe, attempted to commit an act of terrorism
or sabotage when he conspired with others to
forcibly effect the release from the lawful custody
of the Zimbabwe certain South African agents
detained on the charges relating to their involvement
in acts of terrorism, sabotage or espionage, and to
remove them outside the borders of Zimbabwe.
 It was further alleged that in pursuance of the plan, he
entered Zimbabwe on June 27, 1988 at Kazungula
border post, and acted in a manner that was likely to
cause serious bodily injury to or endanger the safety of
any person within Zimbabwe, and did cause such
serious bodily injury.
 In pursuance of the conspiracy, it was alleged, the
appellant entered Zimbabwe with a co-conspirator. On
being questioned by the Zimbabwean Police and
immigration officials, he fled to Botswana.
 The other members of the group remained in Zimbabwe
and attempted by force to effect the release of the South
African agents, but were thwarted by the Zimbabwe
security agencies
 At the time of his arrest, the appellant was a
resident of South Africa and a citizen of the
United Kingdom. He was arrested in Botswana
and remained in the custody of the Botswana
Police for 5 days. During that period, he did not
appear in court nor did he have access to legal
representation. He was handed to the Zimbabwe
Republic Police on the 5th day.
 There was no extradition treaty between
Zimbabwe and Botswana. The government of
Zimbabwe did not make a request to the
Government of Botswana for the extradition of
the appellant from Botswana to Zimbabwe.
 He was found guilty of the involvement in the
shooting of a security guard at the ZISCO
Airstrip at Kwe Kwe and deliberate damage to
the National Air Force's Bell helicopter and
sentenced to life imprisonment with labor. One of
the issues on appeal was whether the High Court
had jurisdiction to try the appellant
 The court however distinguished the circumstances
under which the appellant had been brought to
Zimbabwe from the case of State v. Ibrahim and
noted the following facts.
 The appellant in the Zimbabwe case was a fugitive
from Zimbabwe, who had entered Botswana
illegally in transgression of the immigration laws.
 He was apprehended by members of the Botswana
defense force and handed over to the Botswana
police, who were aware that the authorities in
Zimbabwe were anxious that he be returned to
stand trial.
 The appellant was conveyed in the custody of the
Botswana police to the border between the two
countries and voluntarily surrendered to the
Zimbabwe Republic police, who then promptly
arrested him. The agents of Zimbabwe did not
use force or deception to recover the appellant
from Botswana.
 The Court concluded that the failure by the
Botswana authorities to have recourse to proper
deportation procedures did not constitute a bar to
the High Court in Zimbabwe exercising
jurisdiction over him
 It was stated that “In my opinion it is essential that in order to
promote confidence in and respect for the administration of
justice and preserve the judicial process from contamination, a
court should decline to compel an accused person to undergo a
trial in circumstances where his appearance before it has been
facilitated by an act of abduction undertaken by the
prosecuting state. (Emphasis ours).There is an inherent
objection to such a course both on grounds of public policy
pertaining to international ethical norms and because it
imperils and corrodes the peaceful co-existence and mutual
respect of sovereign nations. For abduction is illegal under
international law, provided the abductor was not acting on his
own initiative and without authority or connivance of his
government (sic). A contrary view would amount to a
declaration that the end justifies the means, thereby
encouraging states to become law-breakers in order to secure
the conviction of a private individual”.
 Canada v. Shmidt
 The defendant was a Canadian citizen named
Helen Susan Schmidt, who along with her son
Charles Gress and his friend Paul Hildebrand had
kidnapped a young girl in Cleveland, Ohio.
Schmidt claimed to believe the girl was her
granddaughter and that the girl's biological
mother kept her in a home ill suited for a child.
 They were arrested in New York on 1982
 She was charged with kidnapping (a federal
offence in the United States) and with child-
stealing (an offence in Ohio). That same year she
was acquitted of kidnapping, but she fled to
Canada before her state trial commenced. She
was captured in Ontario and was prepared to be
extradited.
 Held;
 After the Supreme Court found it had jurisdiction to
review the case, it considered whether extradition law
was violated.
 Under extradition law, a hearing in Canada would
ascertain if there was sufficient evidence of a crime
that could be criminal in Canada as well as in the
other nation.
 It was decided that Schmidt "failed to establish that
the offence in Ohio is the same offence as the
offence under the United States Code. The majority
found that the charge would be in accordance with
"traditional procedures" in Ohio.
 Republic v Wilfred Onyango
Nganyi & another
 Wilfred Onyango and Patrick Ayisi Ingoi were wanted by law
enforcement agencies in Tanzania for allegedly stealing money in
excess of Tshs. 5 billion from the National Bank of commerce at
Moshi on 21st May 2004. Subsequent investigations led to arrests
of certain Tanzanian suspects inside Tanzania and the two Kenya
respondents concerned with the instant ruling inside Kenya.

 **QUESTION ANSWERED IN THIS CASE - To what degree

should the magistrate's court be satisfied before it can release an
accused person alleged to have committed an offence in a foreign
country to the law enforcement agencies of that country? **
 The magistrate had anchored her ruling mainly
on the grounds that the alleged criminals were
not guaranteed to receive a fair hearing in
Tanzania and the supposition that subsidiary
legislation governing the extradition had not been
laid before the National Assembly after
publication.
 In pursuit of the judicial process for those
arrested, the Tanzanian Government made a
request for the extradition of the Kenyan
respondents. However after the said discharge by
the subordinate court one of them ventured
abroad and ended up under arrest in Tanzania.
 Eventually, in an appellate court, the court
concurred that the mandate of the Magistrate
during the extradition hearing, was to ascertain
merely that a prima facie link existed between the
respondents and the criminal incident; full
ascertainment of that linkage belonged to the
arena of trial, which would result in conviction or
acquittal.
 Although some witnesses had said they did not see
the suspects at the scene of the event, the veracity
of their statements was something for trial in
Tanzania to determine.
 The court noted that trial and the dispensation of justice, in the
first place, is the remit of the Courts, and not of witnesses.
Such witnesses are themselves subject to Court procedures, and
stand checked by the Court's exercise of the contempt
jurisdiction, in a proper case; and at the very minimal level, the
Court is bound to determine, during the hearing, which witnesses
have told the truth, from those who may had lied.

 The fact that the Tanzanian Courts, shared one appellate structure
in the shape of the East African Court of Appeal, have always
been guided by the principles of common law and equity which
are the heritage of the common law countries, as well as by
constitutional and legal principles associated with membership
of the Commonwealth, the court had no doubts that the trial
procedures adopted in the Tanzanian Courts would be the
same mould as those applicable in the Kenyan Courts.
 Accordingly the court ordered the each of the
suspects to be extradited to United Republic of
Tanzania, to be tried in a criminal court, in
accordance with the laws of that country.
PROPOSALS FOR CHANGE
 To render Kenya’s laws on extradition to be more
in accord with international law and practice,
here are some proposals;
 Compliance with Domestic
Extradition Laws
 There is an established but unofficial
cooperation between East Africa States to
exchange criminals without compliance with
extradition laws since the establishment of the
EAC in 1967.
 This has led to violation of the rights of the
citizens.
 Example;
 Fairly recent extradition of 13 Kenyans to Uganda - Led to the
violation of International human rights law and the Bill of Rights in
The Constitution.
 The Ugandan government should have issued a warrant of arrest
and communicated its intention to Kenya (This should have been
done through the Ugandan High Commission which would then
inform the Attorney General who would take the matter to the
Magistrates’ Courts. It would be up to the Magistrate’s Court to
determine whether or not Kenya would accept or decline the
request by Uganda)
 The Kenyan court would then determine whether the said Kenyans
would stand a fair trial in Uganda and whether the crimes preferred
against them were in accordance with the Extradition Act.
 Extradition cannot proceed where there is failure
to fulfill dual criminality, that is the offence
must be an offence in the country of refuge and
the requesting State, political nature of the
offence, where the suspect may be subjected to
ill treatment, for example torture, where the
requesting State lacks jurisdictions to punish the
suspect and citizenship of alleged offender.

 States prefer to hold trials for their citizens rather

than extradite them to foreign countries.
 The suspects illegally extradited to Uganda can
claim damages from the Government of Kenya
since there is a glaring failure on the part of the
Government to accord with the law.
 Promptness in Fulfilling the
Requests for Evidence
 One of the major problems in mutual legal
assistance world-wide is that the requested State
is often slow in replying, and suspects must be
freed due to absence of evidence.
 Solution to Lack of Promptness?
 The Palermo Convention is emphatic about the
importance of promptness, and makes the point
in two separate provisions;
 Art. 8(13) of the Convention provides that, if the
central authority itself responds to the request, it
should ensure its speedy and prompt execution. If
the central authority transmits the request on to,
for example, the competent court, the central
authority is required to encourage the speedy
and proper execution of the request.
 Art. 18(24) provides that the request is to be
executed “as soon as possible” and that the
requested State is to take “as full account as
possible of any deadlines suggested by the
requesting State Party and for which reasons are
given”.
 Flexibility of Dual Criminality
Principle
 In order to enhance international cooperation, in
cases of extradition, it is recommended to
interpret the principle of dual criminality in a
flexible manner.
 Flexibility Expanded;
 To solve practical problems created by the dual
criminality requirement, the harmonization of
domestic criminal law is recommended.
 This could be achieved through elaborating and
ratifying an international instrument.
 An example can be found in the Draft United Nations
Convention against Transnational Organized
Crime whose Article 4 criminalizes laundering
offences.
 By ratifying this Convention, State Parties will adopt
an identical definition of this offence and its
constituent elements
 Video Conferencing
 Art. 18(18) of the Palermo Convention adds the
possibility of the hearing of witnesses or experts
by means of video conference
 Even though this possibility requires an initial
investment in the necessary equipment, video
technology can considerably facilitate the hearing
of witnesses and experts, since they would no
longer have to travel from one country to another.
 It can also serve to protect witnesses or experts, if
they fear to reveal their location or fear travelling
to a court hearing in the requesting State.
End Of Presentation. Thank You
For Listening