Extradition laws out of tune with Constitution

By APOLLO MBOYA

Extradition laws should be aligned to the Constitution of Kenya. I am not surprised that the Director of Public Prosecution (DPP) has taken exceptions to the proposals in the Statute Law (Miscellaneous Amendment) Bill 2013 which he considers as intended to deprive his Office of the legal authority to handle extradition proceedings.

Extradition is a formal legal process by which persons accused or convicted of crime are surrendered from one State to another for trial or punishment. Generally, extradition takes place in accordance with bilateral treaties or multilateral conventions entered into by sovereign States.

These treaties and conventions ordinarily impose an obligation on the requested country to surrender to a requesting country, a person charged with or convicted of an offence of a certain specified gravity in that country, subject to conditions and exceptions.

Criminal conduct

Extradition is based on the principle that it is in the interest of all civilised communities that offenders should not be allowed to escape justice by crossing national borders and that States should facilitate the punishment of criminal conduct.

Without effective extradition arrangements those who commit crimes can seek safe havens without fear of prosecution. It is a form of international co-operation in criminal matters intended to promote justice, based on comity rather than any overarching obligation under international law. The extradition process is designed to provide assistance to criminal proceedings which have taken place or are yet to take place in the territorial jurisdiction of another State.

However, any extradition law must contain appropriate safeguards for individuals where they would in the event of extradition suffer manifest injustice or oppression. Achieving a balance between these competing considerations is by no means an easy task.

There are a number of laws governing extradition in Kenya. The Extradition (Commonwealth Countries) Act (Cap 77) make provisions for Kenya to surrender to other Commonwealth countries on a reciprocal basis persons accused or convicted of offences in those countries. The Extradition (Contiguous and Foreign Countries) Act (Cap 76) consolidates the law concerning the extradition of offenders and related matters, where Kenya has an agreement with a non-Commonwealth country.

The Fugitive Offenders Pursuit Act (Cap 87) authorises the police of Uganda and Tanzania to pursue within Kenya offenders fugitive from those countries where there are reciprocal arrangements with Kenya. It is a requirement under this law that any person arrested pursuant to this Act must be delivered to a magistrate with a view to being surrendered to Uganda or Tanzania.

These laws anchor the international criminal law obligation to extradite, including full cooperation on reciprocal basis to a foreign State to deal with criminals while safeguarding individual liberty and the right of asylum of a person. Under the law, a number of crimes are listed as extraditable including fraud, bribery and corruption as contemplated in the statute. In addition, other organized crimes are included through bilateral and multi-lateral treaties between Kenya and other countries.

Article 157 of the Constitution, establishes the Office of Director of Public Prosecutions. The DPP has the power to direct the Inspector General of Police to investigate any information or allegation of criminal conduct including those that may lead to a request for extradition through diplomatic channels.

Whenever an extradition request is received the DPP is the one to commence proceedings for extradition orders. In commencing the extradition proceedings, the DPP exercises his constitutional powers under Article 157.

While I agree with the DPP that extradition proceedings are “criminal proceedings of a very special kind”, our laws still give the Attorney General a central role in the proceedings.

The two extradition statutes make provisions on the conditions which must be satisfied before a request for extradition can be granted. A request for surrender may be denied if it appears to the court or the Attorney General, that the alleged offender would, if charged with that offence in Kenya, be entitled to discharge under any rule of law relating to the previous acquittal or conviction.

Further extradition will not be granted if the Minister is of the opinion the offence is one of a political character.

Under Article 124(5) of the East African Community Treaty, the Partner States agree to enhance co-operation in the handling of cross border crime, provision of mutual assistance in criminal matters including the arrest and repatriation of fugitive offenders.

Prior to the promulgation of the Constitution 2010, all prosecutorial functions and all those related to the conduct of a request for extradition were carried out by the office of the Attorney-General.

The distinction of the Office of the DPP and that of the AG has further been clarified by the enactment of the Office of the Attorney-General Act 2012 and the Office of Director of Public Prosecution Act of 2013.

Kenya must now quickly review all the extradition statutes to align them with the new constitutional dispensation. 

The writer is Secretary/CEO of the Law Society of Kenyamboya@lsk.or.ke