The decisions being made by the judiciary with regards international law questions continue to raise concerns.[1] The latest in the series of cases raising eyebrows in the realm of international law are the Supreme Court and Magistrate court decisions on the Extradition requests by the United Kingdom for the rendering of Mr. Samuel Kimuchu Gichuru and Mr. Chrysanthus Barnabas Okemo who are wanted in relation to alleged money laundering and fraudulent transactions concerning offshore accounts in Jersey Island, a self-governing dependency under the sovereignty of the United Kingdom.
The Supreme Court decision was intended to resolve the question as to which office, between the Office of the Attorney General and the Office of the Director of Public Prosecution has the constitutional mandate on Extradition matters. The Supreme Court determined this question in favour of the Office of Director of Public Prosecutions. [2] Instructive to note in the reported Supreme Court decision was that apart from finding that the Directorate of Criminal Prosecutions was the responsible office for Extradition matters, the Supreme Court determined that Extradition proceedings were criminal in nature.[3]
The Magistrate Court dealt with a miscellaneous application by the Director of Public Prosecutions, pursuant to a formal request by the government of the United Kingdom. The Chief Magistrate dismissed the Extradition request on the grounds that no evidence had been tabled before the Court in order for it to assess, on criminal law standards, the request for extradition. It is worthwhile to note that the Magistrate Court relied on the holding by the Supreme Court that extradition proceedings ‘are criminal in nature’. [4]
Several issues emerge for consideration following the determination by the Supreme and Magistrate Courts on the Gichuru/ Okemo extradition matter: was the Supreme Court right in holding that extradition proceedings are criminal in nature? Did the Magistrate’s Court apply the correct principles in determining the extradition application by the Director of Public Prosecutions?
Extradition Law: A doctrinal thesis
In answering the question as to whether the Supreme Court was right in its position that extradition proceedings are criminal in nature, regard must be given to the conceptual understanding of Extradition Law.
The term extradition is said to denote ‘the process whereby, under treaty or upon a basis of reciprocity, one state surrenders to another state at its request, a person accused or convicted of a criminal offence against the laws of the requesting state, such requesting state having jurisdiction.’[5] Extradition is ‘ a procedure followed between nations…. And the laws of extradition have been derived wholly from treaty sources which have resulted in considerable uniformity in respect of certain important matters within bilateral treaties and municipal extradition statutes.’[6] Extradition has its etymological roots in Latin and French languages and is said to have been in use as a device for co-operation in France since the early 19th century.[7] The term extradition is said to have been a coinage of famous French Philosopher Voltaire and draws from the Latin term ‘ex’, meaning out or former and the French term ‘tradere’, meaning to hand over; to surrender; to deliver up.[8] Certain normative principles have coalesced into settled guidelines governing extradition generally. First, most states will not extradite suspects unless they have a treaty with the extraditing state.[9] The need for a treaty as a matter of law or policy of the requested state usually flows from the need to ensure that no person is sent to face imprisonment or trial in another state without showing some cause (normally, a prima facie case against the suspect) and without the person accused being given the opportunity to oppose the extradition.[10]
The processual merits of the extradition process have at times been undermined by illegal acts such as ‘irregular rendition’ or ‘extra-ordinary’ rendition, which amounts to the violation of international law principles of human rights and the principle of state sovereignty. Rendition involves the abduction and covertly sending to another state a suspect for purposes of interrogation and perhaps trial. The United States of America has been singled out for this illegal act and in the context of its municipal law, the United States rationalizes rendition on the basis of the so-called Ker-Frisbie doctrine, named for two decisions made by the U.S. Supreme Court Ker v. Illinois,[11] and Frisbie v. Collins,[12] where the Court endorsed the notion to the effect that , ‘ 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 his trial in such court’.[13] This doctrine, an aspect of American exceptionalism under international law has been sanitized in legal language as male captus, bene detentus (bad capture is still good detention), a contradiction of the international law position captured by the maxim male captus, male detentus ( bad capture is not good detention).
Kenya has also engaged in actions of rendition, contrary to municipal law and international law obligations.[14] To our embarrassment and shame, the Court of Appeal of the Federal Republic of Nigeria in the case of Nnamdi Kanu v. The Federal Republic of Nigeria,[15] the Court established that the lower court lacked jurisdiction to try the appellant who had been renditioned from Kenya, emphasising in its decision that a court is not only ‘ a court of law but also a court of justice.’[16] Kenya has also been accused of aiding in renditions to other countries such as Somalia, Ethiopia and to Guantanamo Bay.[17] On the international plane, the most often cited cases involving rendition are the 1990 case involving the abduction and rendition of Mexican physician Dr. Humberto Alvarez-Machain, who was accused of having been complicit in the kidnapping, torture and eventual killing of an American drug enforcement agent of its Drug Enforcement Agency (D.E.A.) Enrique Camprena Salazar, leading to Machain’s trial and conviction.[18] Another notorious case involving the rendition and trial of a suspect is the case of Adolf Eichmann, who was kidnapped in Argentina, tried and eventually executed by the Israeli government for the accusation of having taken part in the killing of Jews.[19]
Several (principle) elements are found common in extradition treaty regimes: first, the alleged crime must be couched in law; secondly, there should be sufficient evidence to suggest that a trial can go forward; thirdly, the rule of double-criminality, which requires that the sending state and the receiving state both recognize the same crime subject matter of the request and lastly, the speciality rule, which requires that a wanted person cannot be extradited on one charge only to be charged with another different matter.[20]
Therefore, the Supreme Court gets it wrong in making a sweeping, unsubstantiated and an unreasoned claim that extradition procedures are criminal in nature. Extradition procedures are international law procedures where states engage in reciprocal co-operation, which acts of co-operation were initially firmed on the principle of international comity but has lately been under the control of mostly bilateral treaty regimes.[21] This faux pas stands as an indictment on the highest court in Kenya, remembering that the Magistrate’s court relied on the position that extradition law is criminal in nature, hook, line and sinker to make its own decision. Legal Argumentation Scholar, Eveline T. Feteris in her text, Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions, makes a valid point: ‘everybody, (including judges-emphasis mine) who advances a legal standpoint and wishes this standpoint to be accepted by others, will have to present justifying arguments.’[22] The need to make cogent and well-reasoned decisions is particularly important for apex courts.
A principled province: What are the rules governing extradition?
The basic requirements applicable to extradition are referred to as “principles” or
“rules”, notwithstanding the legal implications that such a choice of words may have in a given national legal system. These requirements are usually embodied in bilateral extradition treaties, multilateral treaties or in national legislation and importantly,
they are a part of Customary International Law.[23]
Generally, there is no duty to extradite any person in the absence of a treaty to that effect.[24] However, the principles or rules governing extradition lay out a disciplined approach of dealing with extradition requests. The first requirement that any court must satisfy itself about is that there is an existing treaty between the requesting state and the requested state. In the absence of a treaty, a court should ensure that there is an existing practice of reciprocity or comity between the requesting state and the requested state or that there is existing legislation governing extradition matters.[25]
In the context of the miscellaneous application by the Director of Public Prosecutions in the Okemo/Gichuru matter, the court should have been satisfied as a matter of principle that a treaty does exist owing to the fact that the constitution obligates that any treaty or convention ratified by or on behalf of Kenya forms part of the law.[26] The requirement to be satisfied that a treaty on extradition is in place between the United Kingdom and Kenya has both substantive and procedural ramifications. Substantively, there is need to have evidence of a treaty in place because the general legislation, that is the Extradition (Commonwealth Countries) Act does not have the reveal the specific terms that bind Kenya in its bilateral agreement with the United Kingdom on extradition matters, for only through the wording of the treaty can a court be satisfied of the rights and obligations consented to by the parties should questions arise. Equally, the requirement to be satisfied that a treaty is in place (or in its absence practice that amounts to reciprocity or comity) is a procedural sine qua non in that once the existence is established can the court examine other principles which form the legal bases for extradition.
Secondly, the court must deal with the double criminality element. The double criminality element is usually contained in treaties or in statute, although it is not a requirement under general international law.[27] Double or dual criminality means that the alleged offense for which ‘extradition is being sought must be of a criminal offence in both the requesting and requested State’.[28]
The Extradition (Commonwealth Countries) Act has the requirement for dual criminality.[29] It therefore becomes necessary for the Court to read the extradition request or charge and to compare the same with the treaty and the provisions of the Extradition (Commonwealth Countries) Act so as to ascertain itself on the requirement of dual criminality.
Three aspects of the double criminality principle may lead to further interrogation. The first limb for interrogation is how to interpret ‘criminality’ of any offence and the degree of similarity between the penal laws of the requesting state and the requested state and further, comparing the laws to the impugned conduct and this aspect is called the Substantive Question of Double Criminality.[30] The second aspect of double criminality that ought to be interpreted is the Locational Aspect of Double Criminality which examines whether the place of criminal conduct and the subsequent assumption of extraterritorial is relevant.[31] The third aspect is the Temporal Aspect of Double Criminality, which examines the point in time when the impugned conduct was criminalized in the requested state.[32] If the crime subject matter of the extradition request is not recognized as punishable in the requested state (in this context, Kenya), it cannot satisfy the double criminality principle and hence cannot be an extraditable offense within the meaning of the Extradition (Commonwealth Countries) Act.
As a general rule, the Specialty Principle, which is codified in numerous bilateral extradition treaties and regional extradition schemes requires that ‘an extradited person shall not be tried, sentenced, detained, re‑extradited to a third State, or subjected to any other restriction of personal liberty in the territory of the requesting State for any offence committed before surrender other than offence for which extradition was granted or any other offence in respect of which the requested State consents.’[33] The Specialty Principle is a form of preclusion of prosecution for any offense other than the one for which the suspect was extradited, without the express approval of the surrendering(requested) state or a waiver by the suspect.[34] In the case of Washington v. Shaw Pang ,[35] the Washington State Supreme Court was called upon to decide on a matter that touched on the Speciality Principle. In this matter, the prime suspect in this matter, Martin Shaw Pang was indicted in 1995 following an arson incident that led to the death of four fire fighters. Mr. Pang fled to Brazil, whereupon his arrest and extradition to the United States, the Federal Supreme Court in Brazil endorsed his extradition only on the count of arson. Once back in the United States, the prosecutors sought to charge him for four felony counts of murder alongside the charge for arson. The Washington State Supreme Court agreed with Mr. Pang that the extradition order was clear and unambiguous. Mr. Pang could only be charged with arson and not any other charge. The Principle of Specialty thus is a substantive rule that relates to the very basis of the extradition process, and as such may require guarantees or diplomatic assurances from the requesting state so as to ensure that an individual’s rights are protected after the extradition to the requesting state.[36] The Specialty Principle has nonetheless been recognized under the Extradition (Commonwealth Countries) Act, making it a legal imperative under the laws of Kenya.[37]
The general principles governing the extradition process are in the Kenyan context, supplemented with an additional layer of guarantees. The Extradition (Commonwealth Countries) Act contains certain general conditions for restriction on extradition, restrictions that largely mirror the position in international law.[38] The Act restricts extradition for political offences; extradition based on race, religion, nationality or political opinion; that the extradition may lead to a prejudiced trial or otherwise punished or his/her personal liberty restricted by reason of one’s race, religion, nationality or political opinions.
Other grounds that have been identified as potentially resulting in a rejection for an extradition request include (in relation to the charge) military offences; (in relation to the suspect) a constitutional or statutory prohibition on extradition of nationals and claims of special immunity;[39] (in relation to the charge itself) legality of the offense, legality of the offence, double jeopardy, statute of limitations (where applicable) and (in relation to the penalty and nature of punishment) cruel, inhuman and degrading punishment or the death penalty.[40]
The question that must be asked then is this did the Chief Magistrate’s Court apply the correct principles in determining the extradition application by the Director of Public Prosecutions? The Magistrate’s Court reasoning was to the effect that to allow the Director of Public Prosecution to re-open proceedings that had been concluded in another court (a Resident Magistrate’s) would amount to unfairness to the Respondents and that by failing to call witnesses to adduce evidence in relation to the extradition request, the Prosecution failed to provide sufficient evidence to sustain the granting of the request.[41] These reasons do not fall within the rubric of reasons for rejection of an extradition request under the Extradition (Commonwealth Countries) Act.[42]
The Chief Magistrate’s Court did not apply the correct statutory or international law principles in dealing with the extradition application. A casual read of the Chief Magistrate’s Court’s decision lends the idea that the Court interrogated a totally different area of law other than the province of Extradition Law. The error is partly attributed to the per incuriam holding by the Supreme Court, in my view, that extradition processes are criminal in nature. They are not!
The Chief Magistrate’s Court hardly engaged the Extradition (Commonwealth Countries) Act, the general statute enumerating principles on extradition between Kenya and Commonwealth states in its decision. The Court does not explain or give the rationale for its requirement that it was necessary that evidence be adduced by way of witness presentment, never mind that extradition proceedings are not trials per se but merely means to procedures facilitate state cooperation in the realm of surrendering wanted suspects within prescribed rules in international law. In any case, the assessment of the request should have been limited to scrutinizing the documents presented and a determination only made on that basis. Not on the basis of common law procedural rituals for presentation of evidence.
The interrogation of the treatment extradition law processes this far brings into sharp focus the Supreme Court decision. The Supreme Court not only held that extradition proceedings are criminal in nature (erroneously in my view) but also used that limb of reasoning to state that the office responsible under the Constitution to deal with extradition matters is the Directorate of Public Prosecutions. Did the Supreme Court get it right by apportioning responsibility to the Director of Public Prosecutions on extradition matters, bearing in mind that extradition processes entail state cooperation and advice thereto must involve advice on aspects of international law? The jury is out on that question.
Conclusion
Judicial decisions are exceedingly powerful tools in legal practice at large today. Judicial decisions touching on international law appear comparatively more frequently in Kenya than in the past. The ramifications of the decisions are huge not only on state relations but also on individual interests as well as interests of other subjects of the province of international law.
The room for error is very limited and the judiciary must be alive to the fact that any errors can prove costly not only to its institutional image but also to the fortunes of the state or parties involved. We must get it right with international law adjudication.
Evans O. Ogada, LL. B (U.o.N), LL.M (U.o.N) (Public International Law) PGD (K.S.L.) is a Practicing Advocate, a Legal Researcher in international law areas and a Lecturer in among other areas, Jurisprudence and Public International Law at the University of Nairobi. He can be contacted through his email address which is ogadae@yahoo.com
[1] See Evans Ogada, The International Law Dimension: Analyzing The Case of Supreme Court Decision of The Attorney General & 2 Others V. David Ndii & 79 Others SC Petition No. 12 of 2021 (Consolidated with Petitions Nos. 11 & 13 Of 2021) in this publication, The Platform for Law, Justice & Society No. 76, May 2022; See also Evans Ogada, Examining Private International Law Adjudication Through The Lens of The High Court of Kenya Decision in Dari Limited & 5 Others versus The East African Development Bank High Court Commercial Cause Number 1 Of 2020 in The Platform for Law, Justice & Society No. 83 December 2022.
[2] Director of Public Prosecutions v Okemo & 4 others (Petition 14 of 2020) [2021] KESC 13 (KLR)
[3] Ibid
[4] Director of Public Prosecution v Samuel Kimuchu Gichuru & Another, Miscellaneous Application No. 9 of 2011 (Unreported), 4
[5] T. Hillier, Sourcebook on Public International Law, Cavendish Publishing Limited (1998), 283. See also J. H. Currie, Public International Law, Irwin Law Publishing (2008),337
[6] A. Chakraborty, Extradition Laws in the International and Indian Regime: Focusing on Global Terrorism, Palgrave Macmillan Publishing (2019), 1
[7] Ibid, 30
[8] Ibid
[9] A.V. Lowe, International Law, Oxford University Press (2007), 181
[10] Ibid
[11] 19 U.S. 436 (U.S. 1886
[12] 342 U.S. 519 (U.S. 1952)
[13] https://definitions.uslegal.com/k/ker-frisbie-doctrine/ accessed on 27/12/2022 at 5.42 hours
[14] In Kenya, extradition is governed by The Extradition (Contiguous and Foreign Countries) Act, the Extradition (Commonwealth Countries) Act and to a certain degree, the Fugitive Offenders Pursuit Act
[15] Appeal No. CA/ABJ/CR/625/2022
[16] Ibid, p.128
[17] https://www.reuters.com/article/us-kenya-renditions-idUSWAL61915220070706 accessed on 27/12/2022 at 6.06 hours
[18] See United States v. Alvarez-Machain, 504 U.S. 655 (1992)
[19] C.H. Henderson, Understanding International Law, Wiley-Blackwell Publishing (2010), 145
[20] Ibid, 143
[21] Ibid
[22] E. T. Feteris, Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions, Springer Science+Business Media Dordrecht BV Publishing (1999), 1
[23] M. C. Bassiouni, International Extradition: United States Law and Practice, Oxford University Press (2014), 497
[24] A. Orakhelashvili, Akehurst’s Introduction to International Law, Routledge Publishing (2019), 227
[25] Bassiouni n_24, 2
[26] Article 2(6), Constitution of Kenya, 2010.
[27] Orakhelashvili n_25, 227
[28] https://www.unodc.org/e4j/zh/organized-crime/module-11/key-issues/extradition.html#:~:text=Probably%20the%20most%20common%20principle,the%20requesting%20and%20requested%20State. accessed on 27/12/2022 at 16.06 hours
[29] Section 4(1) as read with the Schedule to the Act
[30] F.C. Blaas, Double Criminality in International Law, University of Stellenbosch Master of Law Thesis (2003), 29
[31] Ibid
[32] Ibid
[33] https://www.unodc.org/e4j/zh/organized-crime/module-11/key-issues/extradition.html#:~:text=Probably%20the%20most%20common%20principle,the%20requesting%20and%20requested%20State. accessed on 28/12/2022 at 1500 hours
[34] Bassiouni n_24, 546
[35] 940 P.2d 1293, 1330 (Wash. 1997).
[36] Bassiouni n_24, 599
[37] Section 6(3) a, the Extradition (Commonwealth Countries) Act, Chapter 77 of the Laws of Kenya
[38] Ibid, See section 6 generally
[39] For example, the Constitution of the Russian Federation contains a provision expressly barring the extradition of Russian nationals
[40] Bassiouni n_2, 664
[41] See Director of Public Prosecution v Samuel Kimuchu Gichuru & Another, Miscellaneous Application No. 9 of 2011 (Unreported), 6
[42] Supra, n_ 39
