Extradition is an official process, regulated by treaties, where a nation surrenders a suspected or convicted criminal to another country. The suspects are sought for an offence over which the requesting State wishes to exercise jurisdiction.
Where extradition is compelled by law, it is known as rendition. Rendition is surrender or handing over of persons or property, particularly from one jurisdiction to another. Extraordinary rendition refers to an extrajudicial procedure in which criminal suspects are sent to other countries for imprisonment and interrogation with a view to extracting information.
An extradition request is based on existing extradition agreements or enabling law. The extraordinary or illegal extradition can occur where the treaty does not cover the alleged offence, the State of refuge is unable or unwilling to prosecute the alleged offender or due to widening reach of a State’s law in response to transnational crimes.
Under international law, a State cannot exercise jurisdiction in another State without consent. International law preserves the principles of state sovereignty and territorial integrity and prohibits enforcement functions, including abductions, without consent.
States are obligated to desist from interfering with internal and external affairs of other states under the UN Charter. The arrest in the territory of another State constitutes interference in the internal affairs of a State. Sovereignty denotes the authority of a State over persons within its borders. Where there is a violation of the international law, such State may seek reparation and demand cessation and demand return of the abducted individual.
However, no violation occurs where a State grants permission to the foreign agents to arrest a person within its borders. Extraordinary extraditions have been justified on the basis that use of force is not aimed against the political independence and territorial integrity of the State and hence there is no violation of State inviolability.
The apprehension of international criminal is consistent with the objective of promoting human rights and that the extraditions are a means to deterring future attacks against the State or its nationals. The war against terrorism and the ability of powerful States, like the US, to act unilaterally has undermined the rule of law in relation to rendition.
The extraordinary extradition is a violation of human rights due to actual physical abuse, violation of freedom of movement, threat to personal integrity, deprivation of liberty, subjecting the detainees to torture, inhuman and degrading treatment, arbitrary detention and abuse. This contravenes articles 7 and 9 of ICCPR and 6 of the African Charter on Human and Peoples Rights, which Kenya has ratified.
The articles provide for protection from torture and ill treatment and the right to liberty and security of a person.
Further, it contravenes customary international law, especially articles 3, 5, 8, 9 and 10 of UDHR. It undermines the right to a fair trial before an independent and impartial court. Article 2 (6) of the Constitution provides that any treaty ratified by Kenya shall be part of the laws of Kenya.
Renditions are only legal when they coincide with internationally accepted coincide with internationally accepted rules of law and are regulated by treaties. In extraditions, governments are culpable. Renditions disclose cooperation between intelligence services. The participation of the Executive ranges from limited knowledge to full complicity, resulting in presidential oversight and responsibility.
The US Attorney General opined in the aftermath of 9/11 that the Presidential had a broad constitutional mandate to take military action in response to terrorism. In Kenya, the High Court in Mohamed Aktar Kana vs the Attorney General has ruled the extraordinary renditions impugn the oath of office by the President to uphold and obey the Constitution, including the Bill of Rights. The court ordered that the applicant should not be extradited to Uganda and that the President should be served with the ruling through the office of the Secretary to the Cabinet.
National courts have held that a person abducted in violation of international law may be tried in the courts of the abducting State. Kenya has routinely carried out extraordinary renditions. Examples include the 1976 extradition of two Palestinian suspected terrorists handed over to Israel. The suspects were arrested near the Jomo Kenyatta International Airport in Nairobi for attempting to bomb a plane. Some terrorist attack suspects of the US Embassy in Nairobi were extradited to US in 1998.
Abdalla Ocalan was captured and extradited in Nairobi in 1999. About 100 men, women and children were extradited to Somalia in 2007 and 13 men were extradited to Uganda in 2010 without following due process. There were no warrants of arrest and no judicial hearings were conducted. The detainees were not given the remedy of habeas corpus before rendition.
Cross border crimes
There is an established but unofficial cooperation between East Africa States to exchange criminal without compliance with extradition laws since the establishment of the EAC in 1967. This has led to violation of the rights of the citizens. However, Tanzania has refused to extradite a suspect it is holding over the July 11, 2010 Kampala Bombings without compliance with the law.
International law requires that such cooperation must be defined by law clearly to ensure the rights of suspects are respected. The applicable law is the Extradition (Commonwealth Countries) Act. A fugitive is defined as any person who is in Kenya and whose surrender is requested under the Act on the ground that he is accused of an offence or has been convicted of an extradition offence committed within the jurisdiction of the requesting State.
Such an offence must be an offence punishable by imprisonment for more than 12 months. The offence should not be of a political character and the fugitive should not have been previously acquitted or convicted. The fugitive should not be punished on the basis of race, religion, nationality or political opinions. The request should be issued by the Attorney General on behalf of the requesting government accompanied by an overseas warrant of arrest and a certificate of conviction or sentence.
The fugitive shall be brought to court promptly and shall have the right to apply for habeas corpus. The court shall issue a notice of committal to the Attorney General. The fugitive shall not be surrendered before the expiry of 15 days from the date of arrest. On appeal, the High Court may discharge the fugitive due to the trivial nature of the offence, passage of time between the request and the conviction, and if the application is not made in good faith.
The East African States are separate and sovereign states. The laws applicable to extradition should be complied with. If a special mechanism is to be established, it must accord to international human rights treaties, which Kenya is party to.
The recent extradition of 13 Kenyans to Uganda has led to the violation of international human rights law and the Bill of Rights. This is due to the failure to follow the due process whereby the suspects have no opportunity to challenge the process in court, arbitrary arrests, illegal searches, incommunicado detention, and extradition to countries where they may be tortured.
The illegal extradition violates protection offered by the Extradition (Commonwealth Countries) Act. These are oversight by the independent and impartial court and not board room agreement on exchange of alleged fugitives, protection against extradition for political offences, the right to make an application for habeas corpus, the right not to be extradited before the expiry of 15 days and the right to appeal against the decision to extradite.
Before the warrant of arrest is issued, the court must be satisfied that an extraditable offence has been committed by the fugitive in the requesting State. The renditions have carried out swiftly where charges relate to terrorism.
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 High Court sitting in Mombasa in Republic vs Chief Magistrate, Mombasa Ex Parte Mohamud Mohamed Hashi alias Dhodi & 8 others 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 defence.
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.
The court defined the high seas as the equivalent of no-mans land, which is open to all states. Article 89 of the UN convention of the Law of the Sea provides that no State may validly purport to subject any part of the High Seas to its sovereignty. Section 5 of the Penal Code provides that the jurisdiction of courts of Kenya extends to every place in Kenya including territorial waters. The courts are not conferred with any jurisdiction to deal with matters which have taken place outside Kenya except where such jurisdiction is established clearly in the defining law.
The High Seas are not a place in Kenya or within the territorial waters of Kenya. High Seas are deemed to be outside jurisdiction of all states unless some law in the State brings it into their local jurisdiction, whether municipal law or international convention. The trial process was thus null and void ab initio. The defining section 5 of the Code is juristically paramount and overrides section 69 (1) of the Code to the extent of that inconsistency.
This does not affect the prosecution or trial of suspects of the offence in territorial waters. The judge did not consider that Article 2(6) of the Constitution provides that treaties which Kenya has ratified are part of Kenyan Law. Kenya has ratified the United Nations Treaty on the Law of the Sea.
THE WAY FORWARD
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.
Further, the suspects can seek declaratory orders that their rights have been infringed with the consent and acquiescence of the Government. Indeed, no rendition can be carried out without the tacit approval of the Government.
The declarations and the payment of reparations to the families will act as a deterrent to violation of the law by the Government. If the Commissioner of Police disobeys the orders of the court not to extradite the suspects, contempt of court proceedings can be filed against him.