EXTRADITION

TOPICS COVERED
Definition of extradition
The sources of law of extradition in Kenya
The basis of extradition
Extradition under the Extradition (Contiguous and Foreign countries) Act, Cap 76 Laws
of Kenya.
Extradition under the Extradition (Commonwealth Countries) Act Cap 77 Laws of
Kenya.
Some principles of extradition.
A summary of extradition process in Kenya. A practical Overview.
Other forms of surrender of Criminal Suspects, fugitives and aliens. An overview of
immigration Act, Cap 72 Laws of Kenya.
Deportation
Persona non grata
Rendition
Declaration of prohibited immigrant
Recommendations and Conclusions
Other forms interstate transfer of persons
Deportation: The act of a state in removing a non-citizen from its territory after refusal
of admission or termination of permission to remain

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 Rendition; The surrender or handing over of persons or property particularly from one
jurisdiction to another.
Extra ordinary rendition refers to an extra judicial procedure in which criminal
suspects are sent to other countries for imprisonment and interrogation with a view of
extracting information. This is common in countries where torture is not prohibited.
Expulsion: whether individual or collective refers to an act or failure to act, by the
authority of a state with the intention and with the effect of securing the removal of a
person or persons against their will from the territory of that state. Also may be defined
as that exercise of power by a state which secures removal, forcibly or under threat of
force, of an alien or a stateless person from national territory. The former definition is to
be preferred as nationals at times are victims of expulsion
The surrender by one state of a person present in its territory to another state that either
seeks the person for the purpose of prosecution or for the purpose of enforcing a
sentence.
Thus it involves a demand by one sovereign state upon another sovereign state for
surrender of an accused person or convicted person and the surrender of such person to
the demanding sovereign.
The object is to prevent the escape of persons accused or convicted of crime and to
secure their return for the purpose of trial and punishment to the demanding state.
Ultimately, it is an act of the executive not of the judicial authority.
Extradition presupposes that the individual is being prosecuted. If the person is sought
after to be heard as a witness, the issue has to be settled by a mutual legal assistance
request rather than by extradition.
An extradition request is based on existing extradition agreements or enabling law
Who is a fugitive?

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 A fugitive means any person accused or convicted of an extradition crime committed

within the jurisdiction of any other country who is in or is suspected of being in Kenya.
THE SOURCES OF LAW OF EXTRADITION IN KENYA
The Extradition (contiguous and Foreign Countries), Act, Cap 76 0f the Laws of Kenya
The preamble provides that, it is.An Act to amend and consolidate the law relating to
the extradition of criminals and for matters connected therewith and incidental thereto
The Extradition (Commonwealth countries) Act Cap 77 of the Laws of Kenya
The Preamble..An Act of Parliament to make provision for the surrender by Kenya to
other common wealth Countries of persons accused or convicted of offences in those
countries, to regulate the treatment of persons accused or convicted of offences in Kenya
who are returned to Kenya from such countries and for purposes incidental thereto and
connected therewith
NOTE; Though both Uganda and Tanzania are both Commonwealth Countries, the Act
governing extradition between the said countries is Cap 76 and not Cap 77
The Constitution
Article 2(5) &(6)
5. The general rules of International Law shall form part of the Law of Kenya
6. Any treaty or convention ratified by Kenya shall form part of the Law of Kenya under
this Constitution.
Common Law, doctrines of equity and statutes of general application in force in England
on 12th August 1897 and the procedure and practice observed in the courts of justice in
England as at the date in so far as the circumstances of Kenya and its inhabitants permit
and such qualifications as those circumstances may render necessary.
The Basis for Extradition

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 Rationale; Extradition is based on the principle that it is in the interest of all civilised
communities that offenders should not be allowed to escape justice by crossing national
borders and that States should facilitate the punishment of criminal conduct.
Bilateral extradition treaties; impose an obligation on the requested country to
surrender to a requesting country, a person charged with or convicted of an offence of a
certain specified gravity in that country, subject to conditions and exceptions.
Regional agreements and schemes: The inherent difficulties of negotiating bilateral
treaties have led to states opting for regional agreements and schemes for extradition. A
good example is the Commonwealth scheme.
Multilateral conventions: In the face of crimes with effects of international proportion, a
new approach to extradition developed in the form of multilateral conventions in respect
to particular crimes. Examples include genocide and war crimes conventions, Antiterrorism conventions and crime conventions.
Comity and reciprocity: Extradition may be granted by virtue of comity or where on the
basis of assurances given by the competent authority of the requesting state it can be
anticipated that this state would comply with a comparable request or where it is
otherwise deemed to be in interest of justice.
National legislation: Majority of states have opted to national laws as an alternative to
the above with or without a requirement for reciprocity. In Kenya the two pieces of
legislation on extradition are: The Extradition (Contiguous and Foreign Countries) Act
Chapter 76 and The Extradition (Commonwealth Countries) Act Chapter 77 Laws of
Kenya.
Advantages: provides for a broader base of extradition, placing countries in a much
better position to respond to the particular situations that may arise where extradition is a
necessity; the approach is of particular value to developing states and smaller
jurisdictions where resources of treaty negotiation are extremely limited and also by

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adopting a flexible piece of extradition legislation the state will be in a position to address
the various situation which may arise with minimum use of resources
Principles of Extradition
Dual criminality
Double jeopardy
Rule on specialty
Political offences exception
Death penalty exception
EXTRADITION UNDER THE EXTRADITION (CONTIGUOUS AND FOREIGN
COUNTRIES) ACT CAP. 76 LAWS OF KENYA
Prerequisite to surrender of fugitive criminal
Fugitive criminal: any person accused or convicted of an extradition crime committed
within the jurisdiction of any other country who is or is suspected of being in Kenya.
An agreement between any country other than the designated Commonwealth country
under Cap 77 with respect to surrender to that country of any fugitive criminal
An order published by the minister for the time being responsible for legal affairs
declaring that Part II of Cap 76 shall apply stating the conditions, exceptions and
qualifications
The order must recite or embody the terms of the agreement and must be laid before the
National Assembly for ratification.
The Act gives an obligation for surrender of every fugitive criminal of any country to
which the Act applies and who is in or suspected of being in Kenya to be arrested,
detained and surrendered in the manner provided under the Act. This applies whether
there is or is not any concurrent jurisdiction in a court in Kenya over that crime.
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THE PROCESS
Step 1 (Requisition)
A request is made by the requesting state through a diplomatic representative or consular
office for the surrender of the fugitive criminal to that country.
Request made to Minister for the time being responsible for legal affairs or some other
Minister.
In Kenya the requests are made to the Ministry of Foreign Affairs.
Contents of the request
Particulars of the fugitive
Facts of the case
Law under which he is accused or was convicted
Evidence sufficient
Step 2 (Order)
Upon receipt by the of the request, the Minister(in our case the Attorney General) may by
Order under his hand signify to a Magistrate that a request has been made.
The order is made pursuant to the provisions of Section 5 (1) of Cap 76 and requires the
magistrate to issue a warrant for the arrest and detention of the fugitive criminal.
Step 3 (Issuance of a warrant of arrest)
May be issued on two instances
Upon receipt of the order from the AG and on such evidence as would, in his/her
opinion, justify the issue of the warrant if the crime had been committed or the criminal
convicted is in Kenya

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 on such information or complaint and such evidence or after such proceedings as would,
in the opinion of the magistrate, justify the issue of a warrant if the crime had been
committed or the criminal convicted in Kenya. This is known as a provisional warrant.
Note: In the second instance there is no order from AG. If this happens the Magistrate is
to forward the report together with the evidence and information or complainant or
certified copies thereof to the Ag.
The Minister may order the warrant to be cancelled and fugitive criminal released
STEP 4(arraignment before a magistrate upon arrest)
STEP 5(hearing of the case and evidence)section 7
The magistrate has the jurisdiction and powers just like during a trial in the subordinate
courts.
Persons must be brought to court as soon as is reasonably practicable
Restrictions and evidence are considered.
In case of a provisional warrant and the court has not received authority to proceed, the
court may fix a reasonable period with notice to the A.G after which the fugitive shall be
discharged if authority to proceed is not received.
The Role of the magistrate during the extradition hearing is to merely ascertain that a
prima facie link exists between the fugitive and the criminal incident. This was well
captured in the case of Torroha Mohammed Torroha v Republic (1989) KLR 630 as
follows at page 635, paragraph 35: Before exercising his discretion to order the return of
the prisoner, the magistrate should peruse the entire evidence, and understand it, without
taking the position of a trial court. So the degree to which a magistrate is to be satisfied
is not expected to be high as if any such satisfaction was derived from an analysis and
evaluation of evidence adduced at a trial. The magistrate is under no duty to [inquire]
into the merits of the charge to be preferred

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 In further support of this argument, in Kinga v Republic (1975) EA 155 it was held that
the magistrate does not try or attempt to try any issue because there is no hearing
If the court is satisfied that;
1. The offence in the request is an extradition offence
2.Offence would warrant his trial for that offence in Kenya
3.There is no prohibition under the Act for his extradition.
The court commits him to custody to await his surrender.
The fugitive is entitled to be given his property if any at the time of surrender.
What is an extradition offence?
An offence that is against the law of the requesting state
It is punishable under the law with imprisonment for a term of twelve months or any
greater punishment
It is an act or omission constituting an offence under the laws of Kenya if it was
committed in Kenya.
It includes an attempt, conspiracy to commit, abetting, counseling or procuring the
commission of the offence or an accessory before or after the fact to the offence.
Includes impeding the arrest or prosecution of the persons guilty of those offences
Restrictions to surrender and arrest under Cap 76.
Offence specified in the warrant is of a political nature or character e.g human rights
activists, freedom fighters etc
The requisition is made with a view to punish the fugitive of an offence of a political
character.

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 Fugitive is accused of an offence triable by a court in Kenya.

If undergoing a sentence under any conviction in Kenya the fugitive must be discharged
by an acquittal or expiration of his sentence or otherwise e.g (appeal, revision,
commutation of sentence, clemency or pardon).
The fugitive is afforded an opportunity to return to Kenya by a Provision made in law or
agreement .
Shall not be tried for an offence other than the extradition crime for which he is
surrendered i.e he cannot be tried of an offence other than the one specified in the
request.
Afford the fugitive 15 days before surrender.
Where the case of a trivial nature.
Application for surrender is not made in good faith or in the interest of justice.
Unjust, severe and oppressive punishment to return the fugitive, having regard to the
distance, communication facilities etc.
Step 6(power of the court to committ or discharge of the prisoner.)sec 8 cap 76
Upon hearing the case i.e both the evidence and restrictions, the court may discharge or
commit of the suspect.
Upon committal the magistrate sends the minister a certificate of committal or any other
report of the case as he may think fit.
The minister then sends a Warrant of surrender. The purpose of committal was to await
the Minister to issue the warrant of surrender
Post Committal Proceedings
I.

At time of committal-fugitive must be notified of his right to make an application for

habeas corpus
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II.

Notice of committal shall then be given to the A.G

III.

Cannot be surrendered until the expiry of 15 days from the date of committal

IV.

Cannot be surrendered pending the hearing of the habeas corpus application if one
applied.

At the hearing of the application for habeas corpus, the High Court may order the fugitive
to be discharged if it appears that;
o The offence was of trivial nature
o Passage of time since the offence was committed or the time he became unlawfully at
large
o Accusation not made in good faith in the interests of justice.
o Having regard to the circumstances of the case it would be unjust or oppressive to
surrender him.
Surrender
The A.G issues a warrant for the surrender of the fugitive if High Court has not
discharged him to the police.
The police officers directed by the warrant of surrender have the authority to receive the
fugitive, keep him in custody and convey him into the jurisdiction of the requesting
country
A.G has discretion to issue or not to issue a warrant of surrender of the fugitive
If fugitive is serving another sentence in Kenya, he should first serve that to completion
If an offence does not carry a death penalty in Kenya and carries a death penalty in the
requesting state, the A.G may decline to issue a warrant of surrender.
The A.G should also consider danger to the life or prejudice to the health of the fugitive.

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 N/B. The fugitive must be notified that a warrant of his surrender has been issued.
Delay in surrender
After two months from the date he could have been surrendered if not surrendered, the
fugitive may apply to the High court to be discharged and give notice of such application
to the A.G..Sec 10 of Cap 76.
If High Court is satisfied that the said notice of one week was duly given to the A.G and
if sufficient cause is not shown, the High Court may discharge from custody and quash
the warrant of surrender.
Conclusions and recommendations
Article 157 of the Constitution, establishes the Office of Director of Public Prosecutions.
The DPP has the power to direct the Inspector General of Police to investigate any
information or allegation of criminal conduct including those that may lead to a request
for

extradition

through

diplomatic

channels.

Prior to the promulgation of the Constitution 2010, all prosecutorial functions and all
those related to the conduct of a request for extradition were carried out by the office of
the Attorney-General
Extradition proceedings are criminal proceedings of a very special kind hence the laws
should be amended to transfer the powers relating to extradition proceedings from the
A.G to the DPP.

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