ExtraditionGroup 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.

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.

Example;

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