Why country totters on issues of extradition, fugitives threat

During last week's Jamhuri Day celebrations at Uhuru Gardens, President William Ruto declared that Kenya was going to be visa-free from January 1, 2024.

The move could possibly complicate further the position of Kenya which has had associations with fugitives, risking a label from the international community.

From political associations, security lapses and easily compromised officers, a tedious court system and weak extradition laws, the country has become a hideout for possible fugitives on the run to or out of the country.

Lawyer Cliff Ombeta. [Kelvin Karani, Standard]

Lawyer Cliff Ombeta

How many extradition cases (involving Kenyans and/or foreigners) have you handled since you started practicing, or in the past 10 years? Which ones stand out and why?

Ombeta: I have dealt with six cases but there are two that stood out. The one of the Akashas; Ibrahim and Baktash Akasha, and a number of Dorothy Manju and the sister Susan Kaloki.

The Akasha brothers case stood out because we were waiting for a ruling of a court case on 30th of January then the two were kidnapped on 28th of January. The United States had tried all tricks to pick them but the courts had made several rulings in their favour and they feared that the ruling would not go into their favour.

I was with Baktash at City Mall. They kidnapped him and took him to the basement of the building. When I followed him, the local and US security officers cocked their guns on me. A local police officer told me to keep off because it could turn ugly for me.

On the Dorothy and the Susan matter, they were picked at Lang'ata when we were still going on with their cases.

Kindly explain the frustrations you undergo trying to fight injustices against fugitives. Have you ever been threatened to surrender a case, and by whom?

Ombeta: Good examples I have given you above, the cases of the siblings had not been exhausted when they were forcefully picked for the US.

Before they were kidnapped, the courts, right from the magistrates, chief magistrates and High Court, had all ruled for the Akashas to be given bail but through the complicity of the Kenyan government, they were frustrated and for two years they were never released on bond.

During the period of the case for the Akashas, the US sent an emissary asking me not to appear in court for the two brothers and instead they would pay me 250,000 US dollars. At that time, that amount would have translated to Sh25 million. I declined and went ahead to court. I knew I was winning the case because the US had botched the matter and there were no exhibits of drugs to be presented to court.

Kenya has on many occasions extra-judicially surrendered its citizens to US. In so doing, dealing a blow to extradition cases in court. Does this bespeak of surrendering sovereignty?

Ombeta: Sometimes I feel like the Kenyan government feels subservient to the US as far as extradition of its nationals is concerned. When they were arresting the Akashas, they accused them of planning, kindly note, planning to sell 100 kilogrammes of drugs to the US. How do you accuse someone of an offence that he has not committed?

Is there a lacuna in the extradition law that allows the State to spirit away its citizens to a foreign land without following due process? Cite the lacuna and explain how it's been abused.

Ombeta: There is no legal lacuna in Kenya on the matter of handling fugitives and extradition. All there is, is impunity and subservience.

How does Kenya allow a foreign national to come and kidnap their citizens and spirit them away?

Ombeta: Look at the case of Dorothy Manju and her sister Susan Kaloki. The two were picked at midnight at Lang'ata Prisons when US sheriffs found the gates open.

What kind of injustice does a Kenyan charged in a foreign land face? What's the remedy, if any?

Ombeta: Kenya should only extradite its nationals to a country where it shares almost similar laws of justice. For instance, if you extradite someone to China for a crime committed, may be in Kenya he or she would have got 10 years jail term but in China the same person is hanged or their hands chopped. Will you say that person (Kenyan) has gotten justice?

Like in the case of my clients Baktash and Ibrahim Akasha, they were kidnapped by the US for allegations of drug selling. When they got to the US, other charges of handling and selling guns were introduced. Not even exhibits of drugs were provided to prove their involvement in drug trafficking.

But don't you also think the court is the weakest link in extradition of fugitives - that suspects have used courts to forestall extraditions, e.g Okemo and Gichuru?

Ombeta: Unlike in the United States who are bullies and break the law with impunity like in the case of my other clients who were kidnapped either during the day or at midnight, other countries like the United Kingdom that are now pursuing Okemo and Gichuru follow the law.

The two have not exhausted their appeal process and that is why they are still walking scot-free. And by the way, there is absolutely no problem using the court to argue your case. That is why the courts are there to offer justice.

To what extent are fugitives a threat to national security?

Ombeta: It is only a threat if it is a case that involves terrorists because they will probably plan something evil.