Justice Alexander Muteti’s
order on September 16 for the extradition of British former soldier Robert
James Purkiss to be tried for murder is a victory for the rule of law and against
foreigner impunity.
Muteti is a former
prosecutor and leading expert on extradition law. With moral courage, he properly,
laid out the legal and constitutional rationale under the Extradition
(Commonwealth Countries) Act and the Constitution of Kenya to ensure justice
for Agnes Wanjiru who was murdered 13 years ago.
It is expected that
evidence relied on by the Director of Public Prosecutions in application for
the warrant and extradition, together with the judge’s order have been
forwarded to the Attorney General and Kenya’s Foreign Affairs ministry for
transmission to the British authorities to commence extradition proceedings
against Purkiss in British courts.
Because the matter
involves a former member of the British military, the Defence ministries of the
two states will participate in negotiations. Interior Cabinet Secretary
Kipchumba Murkomen alluded to the participation of the Kenya’s Defence ministry
in the negotiations and added that Kenya expects cooperation from the British.
"We have good
working relations between the two countries and l don't think we will struggle
to find the right cooperation," he said.
Justice Muteti ruled
that the DPP had established probable cause for murder indictment against
Purkiss and that under the principle of dual criminality extradition is a
logical option because murder is a crime in both countries.
"Court is
satisfied that the bundle presented before it has reasonable details as
concerns the incident and therefore there is probable cause to order the arrest
of the accused and his surrender before this court for trial."
Yet despite the
judge’s moral courage, Kenyans should not expect a fast extradition. For
reasons that are neither legal nor constitutional the British will not hand in
Purkiss, easily.
Given the politics
and power imbalance between the two nations, a physical translocation of the
suspect remains a long shot. It may not occur at all or will not be effected in
the traditional meaning of the terms contemplated by the Act.
Beyond politics there
is also a lot of legal obstacles for Kenya to surmount that the British will
erect in their courts to delay or forestall the extradition. The British will
exploit gaps within Kenya’s own laws and juridical history.
Despite the principle
of dual criminality and existence of an extradition treaty between the two
nations, Kenya's own extradition law and policy prohibits extradition for
crimes where the penalty is capital punishment.
In 2019 the Supreme
Court outlawed the mandatory death penalty for murder, allowing judges to
exercise discretion for alternative sentences, based on evidence and
circumstances.
But the death penalty
remains in Kenya’s laws. Purkiss' lawyers will exploit this window all the way
to the British Supreme Court. They may launch proceedings in Kenyan courts on
this very issue.
Ironically Kenyan
officials in the past fought extradition of suspects from the UK to Kenya on
grounds that Kenyan prisons are deplorable and inhospitable.
There's also the
controversial Anglo-Kenya military cooperation treaty that validates the
presence of a British military barracks in Laikipia in which Purkiss served
when he, allegedly, murdered his victim.
Kenya’s National
Assembly ratified the latest version of the treaty last year.
It controversially
indemnifies British soldiers present in Kenya from prosecution for murder in
Kenyan courts. There's an unresolved legal question as to whether this
indemnity violates Kenya’s constitution or if the purported immunity will apply
for a murder that happened 13 years ago.
Defence lawyers are
capable of exploiting conflict of laws and mount jurisdictional challenges to
kill or delay a trial. The Anglo Kenya military pact provides a mechanism to
try British criminal suspects under Kenyan law but jail them in the UK on
conviction.
There's a possibility
a trial will be held, virtually, under Kenyan law, with Purkiss in British
detention in the UK and, if convicted will be jailed in the UK. It is expected
the British will require the Kenyans to guarantee a trial without the death
penalty before acceding to other proposals.
The suspect could
also be granted pretrial bail/bond (allowed under Kenyan law), brought to Kenya
but placed under pretrial conditions guaranteed by the British High Commission
to ensure he attends court.
Being a very
litigious country, it is inevitable that Kenyan rights groups will mount
vigorous constitutional challenges to any plea bargains deemed to confer
privilege and indemnity to Purkiss and abrogate judges' constitutional independence
and discretion.
David Ochami is an advocate of the High
Court. He can be reached at [email protected]
