Kenya-USA-Iran at diplomatic and legal cross roads over drugs extradition case

Kenya-USA-Iran at diplomatic and legal cross roads over drugs extradition case.[Courtesy]

An Iranian national extradited by Kenya to the United States of America (USA) over narcotics has sued the government in a bid to short-circuit a conviction and subsequent imprisonment in his favour.

Malek Mohammed Balouchzehi, alias Malek Khan, was arrested in 2021 and flown to the USA to face charges in relation to a conspiracy to traffic heroin.

The process to nab Balouchzehi started with a letter written by the Drug Enforcement Administration (DEA) to the former Directorate of Criminal Investigations (DCI) boss George Kinoti on February 27, 2020, seeking assistance in arresting him over an alleged drug trafficking organization (DTO) that was operating in Asia, Africa, Australia, and North America. It also cited an alleged move to expand the network to the USA.

“It is believed there may be an opportunity to apprehend Baluchzai (Balouchzehi) in Kenya for expulsion or extradition to the U.S. Furthermore, efforts will be made to determine if, and to what extent, Baluchzai and the DTO may be utilizing venues in Kenya to facilitate their drug trafficking activities,” the letter read in part.

However, the COVID-19 pandemic hit and stalled the process. On September 16, 2021, DEA then wrote again to Kinoti, seeking permission and approvals to have its agents and the Sensitive Investigative Unit (SIU) carry out the investigations in an exercise that would be funded by the USA, including a chartered plane which would bring the then fugitive to its soil for trial.

In its press release, it referred to Balouchzehi as a drug trafficker,  with his interest allegedly being methamphetamine. It also indicated that he manufactures and distributes heroin.

However, according to the DEA, his proverbial 40 days ended with a conversation and subsequent meeting with an agent over transportation of heroin to the USA and distribution of crystal meth to Australia.

“Those individuals were, in fact, a confidential source working at the DEA’s direction, and an undercover DEA agent posing as a New York-based heroin distributor.  In December 2019, Balouchzehi caused a sample of approximately two kilograms of heroin to be delivered in Mozambique, with the understanding that those drugs would be transported to the United States for testing and sale.  Following this sample shipment, Balouchzehi planned to supply larger quantities of heroin for importation to and distribution within the United States, and in December 2019, Balouchzehi discussed providing as many as 400 kilograms of heroin for importation to the United States in the next transaction,” claimed DEA.

The District Court slapped him with 240 months’ imprisonment, in addition to five years’ supervised release.

In his case filed before High Court Judge David Mburu, Balouchzehi does not contest the evidence used against him in the USA. Instead, he went for the extradition process.

According to him, he was whisked to the USA without being subjected to the formal mutual legal assistance (MLA) process. He argued that he was required to be taken to a court of law for an order to be extradited to the USA.

He narrated that he arrived in Kenya through Jomo Kenyatta International Airport (JKIA), on October 5, 2021, at around 3 am. He claimed that there was no issue with his entry. However, the following day, he was arrested by persons he alleged were in plain clothes but who informed him they were police officers.

Balouchzehi alleged that there was no warrant, order or notice or any other legal document that was read to him in Persian.

The Iranian claimed that he was shown an occurrence book from Parklands Police Station which indicated that he was arrested following an Interpol red notice.

He said that he contacted the Commission for the Control of INTERPOL's Files ("CCF") seeking answers this year, but there were allegedly none forthcoming.

“I did not voluntarily surrender myself to the foreign officers and did not consent to my removal from Kenya or surrender to a third country. I had been led to believe that I was being taken to Iran, but only after the aircraft had departed Kenya did it become clear to me that I was not being taken to Iran as I had been told,” he claimed.

Balouchzehi claimed he also saw the USA government account of how he left Kenya. According to him, the authorities claimed the extradition was a lawful Kenyan expulsion. From the United States District Court for the Southern District of New York, he said, the prosecution alleged that the order of expulsion was received from a Kenyan Court. He argued this was incorrect.

In his affidavit signed in New Jersey, he said he was not interested in the court reopening the merits of criminal allegations made against him in the USA, but he wants the court to order the Kenyan government to account for the acts of omission during the extradition process.

“I further ask that the respondents identify the Kenyan officers who authorized, approved, participated in or facilitated my detention and transfer to United States custody and produce the written authority, operational instructions, command records and legal advice under which each such officer acted,” he urged.

He is also seeking an order for disclosure of his arrest, detention, movement, immigration status, visa cancellation, expulsion or removal, transfer to DEA, airport access and departure from Kenya, including any prior approval, arrest warrant, extradition or surrender order, removal or expulsion order, court proceedings, immigration decision, police custody records, Occurrence Book entries, vehicle and movement records, communications with foreign authorities, operational records and financing records.

He said that after years of hitting a deadlock, the Embassy of Iran in Nairobi created a channel through which he could pursue the Kenyan government.

He insisted that he did not willingly leave the country.

“I therefore did not deliberately or knowingly abandon, waive or acquiesce in my constitutional rights. The passage of time followed from my forcible removal from Kenya, my continuing incarceration abroad, my lack of practical access to Kenyan counsel and records, the dispersion of the relevant material across several agencies and jurisdictions, and the gradual emergence of the documentary record necessary to identify and particularize the present claim,” he argued.

He has sued the Attorney General (AG), the Directorate of Criminal Investigations (DCI), and the Cabinet Secretary.

The case will be mentioned on October 21, 2026.