The recent surrender of fugitive Kevin Kang’ethe to the United States to face murder charges has shone a light on the laws governing extradition in Kenya. Kang’ethe was extradited after a successful process initiated by Director of Public Prosecutions Renson Ingonga.
According to an update by the Office of the Director of Public Prosecutions, Kang’ethe was arraigned before the Suffolk Superior Court in Pemberton Square, Boston, on September 3, 2024.
The Court of Appeal in Chrysanthus Barnabus Okemo & another v Attorney General & 3 others (2018) eKLR defined extradition as,
“… Extradition is the formal surrender by one country to another, based on reciprocal arrangements partly judicial and partly administrative, of an individual accused or convicted of a serious offence committed outside the territory of the extraditing county and within the jurisdiction of the requesting country which being competent by its own law to try and punish him, demands the fugitive’s surrender.”
Save for International Instruments two main guiding Acts of Parliament guide extradition; Extradition (Contiguous and Foreign Countries) Act, Cap 76 Laws of Kenya. The Act relates to extradition matters of non-Commonwealth Countries; and Extradition (Commonwealth Countries) Act, Cap 77 Laws of Kenya. The Act governs extradition matters related to countries within the Commonwealth.
The two Acts of Parliament provide for offences for which a fugitive may be extradited and contain certain restrictions on surrender. It is the constitutional duty of the DPP to file extradition proceedings.
The restrictions include; If the offence of which the fugitive is accused or was convicted is an offence of a political character; or the request for his surrender (though purporting to be made on account of an extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
There are several stages in an extradition process. These include: Request for extradition by the requesting country is transmitted to the Attorney General (AG) through diplomatic channels.
The AG forwards the request to the DPP for evaluation of the request and if satisfied that the request should be honoured, the DPP issues authority to proceed/order to the magistrate to signify the existence of a request for extradition and seeking warrant of arrest.
Issuance of a warrant of arrest by the magistrate and commencement of committal proceedings upon his or her arrest.
The application for extradition is canvassed before the magistrate who may either grant extradition orders or discharge the fugitive. If the extradition order is granted, the fugitive has 15 days within which to appeal the decision, and he cannot be surrendered within the period.
Upon expiry of the 15 days, the DPP issues a warrant of surrender, and the fugitive is surrendered to the requesting country.
It must be pointed out that a fugitive enjoys certain statutory rights as provided under the two Acts in addition to the rights guaranteed under the Bill of Rights enshrined in the Constitution of the Republic of Kenya, 2010 including the right to bail, fair hearing and habeas corpus.
It is the duty of the state to prove that the facts presented before court disclose an extraditable offence. The materials presented before the court must establish the identity of the fugitive and his/her link to the offence with which (s)he is accused of. The standard of proof is not beyond reasonable doubt as in any other criminal proceeding but that of balance of probability.
In Torroha Mohamed Torroha v Republic (1989) eKLR Court of Appeal held that,
“… So, the degree to which the Magistrate has to be satisfied’ is not expected to be as high as if any satisfaction was derived from an analysis and evaluation of evidence adduced at trial. The Magistrate is under no duty to enquire into the merits of the charges preferred…”
In Chrysanthus Barnabus Okemo & another v Attorney General & 3 others (Supra) the Court of Appeal held that,
“… Various reasons are given to show that extradition proceedings are sui generis including that extradition contemplates a trial in a requesting State in accordance with the laws of that country, there is no accused; or determination of guilt or innocence, the quality and quantum of evidence is different from a criminal trial, the standard of proof is not beyond reasonable doubt and that the nature of an extradition decision is different from a judicial decision as it is not binding.”
International cooperation mechanisms such as extradition is an important tool in ensuring that countries do not provide haven to criminals and that there is justice for the victims.
