THE EXTRADITION

PROCESS
CRIMINAL LITIGATION
PRESENTATION
ATP,

FIRM 3G
2016

INTRODUCTION
Definition of extradition

According to Chatham House Publication on extradition

processes, the term to extradite refers to the surrender of a
person by one state to another state so that the latter can
prosecute an alleged offender.
Accorded according to accepted principles of international law as
a mere matter of comity or more commonly under a treaty
stipulation between two or more nations hinged upon general
principles of international law( Revised Blacks Law Dictionary,
2nd Edition).

Extradition; the formal process within which the surrendering of a

fugitive by a foreign state to which he has fled for refuge from
prosecution to state within whose jurisdiction the crime is
committed.

Commenced upon demand of the latter state in order that he

may be dealt with according to the appropriate law in a process
which we are now calling the extradition process.

Who then is a fugitive?

A fugitive on the other hand in extradition
process is provided under the Extradition
acts(of Kenya) is 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.

ORIGINS OF EXTRADITION PROCESS IN

INTERNATIONAL LAW
Under international law states are obligated to extradite or
prosecute fugitive edged upon the international acceptance
of supporting international cooperation to fight impunity.
Recognized since the time of Dutch jurist and scholar, Hugo
Grotius, who postulated the extradition principle of aut
dedere aut punier :
when appealed to, a State should either punish the
guilty person as he deserves, or it should entrust him
to the discretion of the party making the appeal.
The surrender of which may be accorded as a mere matter
of international comity or by treaties. It is however largely
governed by international treaties, bilateral or multilateral,
under the legality principle, "nulla extraditio sine lege" ["no
extradition without a law"] as a version of "nullum crimine
nulla pena sine lege" ["no crime and no penalty without a
law).

States are however obligated to desist from interfering with

internal and external affairs of other states as per the UN
Charter. 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 however 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.

Treaties form the basis of extradition laws and

processes that impose upon states parties to
them an obligation to extradite or prosecute a
person found in their territory who is suspected
of certain specific offences.
The treaties cover crimes such as various acts
of terrorism, torture, enforced disappearances,
corruption and such organized crimes as
human trafficking and drugs trafficking.
Such as for example the Hague convention the
UN Convention against torture and other Cruel
or Inhuman or Degrading Treatment or
Punishment and the Geneva Conventions and
the Additional Protocol 1.

 If the State in whose territory the suspect is present has

received a request for extradition in any of the cases
envisaged in the provisions of the Convention, it can
relieve itself of its obligation to prosecute by acceding to
that request.
A state cannot justify its breach of the obligation under
Article 7(1) of the Torture Convention by invoking
provisions of its domestic laws, or by invoking financial
difficulties as a reason for failing to initiate proceedings
against the suspect. As was in the case of Belgium vs.
Senegal (2012) ICJ GL No 144, ICGJ 437:
This case was about a long-running attempt by Belgium to
persuade Senegal to prosecute Hissne Habr for torture
allegedly committed while he was president of Chad, or to
extradite him to Belgium for prosecution there.
In proceedings brought by Belgium, the International Court
of Justice (the ICJ) discussed the extent of the obligation to
extradite or prosecute contained in the UN Convention on
Torture, and decided that Senegal should prosecute
without further delay or extradite to another country.

Extradition laws, treaties and

proceedings from Kenya
In practice the Kenyan law accrued to the minister who
was in charge of immigration the power to make decisions
about extradition, returning, and mutual legal assistance
and deportation matters.
Often there was no independent review mechanism for
these decisions and the legal framework addressing
procedures in determining whether a person being
expelled, returned and extradited shall be exposed to
danger of being subjected to torture in the country of
destination.
This has partly been cured by the 2010 Constitution which
provides that any treaties ratified by Kenya as well as general
rules of international law shall form part of the laws of Kenya.

 Within East Africa however, there is an established but

unofficial cooperation between East Africa States to
exchange criminals without compliance with extradition
laws since the establishment of the EAC in 1967 this has
led to gross violation of human rights.
Being criminal proceedings the extradition proceedings
have to be commenced by the office of the Director of the
Public Prosecutions against the accused persons,
they also have to accord the accused person the rights to a
fair hearing as envisaged under Article 50 of the
Constitution.
Cooperation between states must be clearly defined by law
to ensure the rights of suspects are respected. 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 and in accordance with
general principles of rights of an accused as well as due
process.

Extradition laws and treaties

In Kenya
Under multilateral conventions and bilateral
extradition treaties Kenya has extradition relations
with a number of countries around the world.
The Constitution under article 2(6) provides that
any treaty or convention ratified by Kenya shall form
part of the law of Kenya under the Constitution.
Under the various regimes two main requirements
are required for the extradition to take place:
(i) An extradition treaty and;
(ii)dual criminal culpability implying that the
offence for which the individual(s) are being
sought for are crimes both in the state
requesting for extradition and the state in
which the individual resides.

Section 19 of the Extradition (Contiguous And Foreign Countries) Act,

Cap 76. 76 provides that,
where an agreement has been made with any country
other than a designated Commonwealth country within the
meaning of the Extradition (Commonwealth Countries) Act, with
respect to the surrender to that country of any fugitive
criminal, the Minister may, by order published in the Gazette,
declare that this Part shall apply in the case of that country
subject to such conditions, exceptions and qualifications as may
be specified in the order, and this Part shall apply accordingly..
Jurisdiction is also a key issue as regards to territorial jurisdiction. The
High Court sitting in Mombasa in Republic v Chief Magistrate, Mombasa
Ex Parte Mohamud Mohamed Hashi alias Dhodi & 8 others [2010] eKLR.
Misc. Application No 434 of 2009 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 applicants were charged with the offence of piracy
contrary to section 69 (1) as read with 69 (3) of the Penal Code.
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. At the close of the
prosecution case, the court put the applicants on their defense.

Initiating Proceedings

The extradition process commences when the minister

in charge receives a request from a diplomatic
representative of the requesting state makes a request
for the surrender of the fugitive criminal to that country.
Requests are transmitted through the diplomatic
channels such as Embassies to the Ministry of Foreign
Affairs.
Upon receipt of the request, the Minister may by order
under his hand signify to a magistrate that a request
has been made and the DPP may require the magistrate
to hear and issue warrant of arrest and detention of the
fugitive criminal. However, there are circumstances
under which the Minister in charge if convinced that the
request from the consular is motivated by political
reasons my decline to make the order.

Issue of Warrants

The warrant for the arrest of a fugitive criminal, whether accused

or convicted of a crime, who is in or suspected of being in Kenya,
may be issued by a magistrate under the terms outlined in Cap.
76.
The Extradition (Contiguous And Foreign Countries) Act , Cap. 76
defines Extraditible crime as a crime which if committed within the
jurisdiction of Kenya, would be an extraditable crime. Some of the
extraditable crimes include:
Criminal Homicide and Similar Offences
Injury to persons not amounting to homicide
Abduction, rape and similar offences
Narcotics and dangerous drugs
Damage to property
Forgery and similar offences
Falsification of currency
Forgery and similar offences
Misappropriation, fraud and similar offences, slave
dealing, piracy and other
offences.

In the case of a foreign warrant, the minister in

charge on receipt of the warrant endorses the
warrant and forwards the same to the magistrate
for further endorsement and execution. The
magistrate upon receipt of the order from the
DPP issues a warrant of arrest on the following
conditions:
On such evidence which in his opinion would
justify the issue of the warrant if the crime had
been committed or the criminal convicted in
Kenya.
The magistrate in charge may also decline to
issue a warrant incase where he is of the
opinion that the arrest is not justifiable.

BACKING OF WARRANTS
Backing of a warrant in extradition is a
common law concept where authorities of
the jurisdiction where the person is
wanted issue their normal warrant of
arrest, which is sent directly to the
authorities of the jurisdiction where he is,
the authorities endorse it if it appears to
be in order and give it to their policemen
to execute it as if it were their own.
Section 12 of the Extradition (Contiguous
and Foreign Countries Act) provides for
backing of warrants issued in another
country. The Act authorizes a magistrate
to back a warrant from an extradition

 The Act also applies to designate

Commonwealth countries as provided for
by The Extradition (Commonwealth
Countries) Act, Cap 77.
S 12. (1) where a warrant has been
issued in a country to which this Part
applies for the arrest of a person accused
of an offence punishable by law in that
country, and he is or is suspected of
being in or on the way to Kenya, a
magistrate may, if satisfied that the
warrant was issued by a person having
lawful authority to issue it, endorse such

 According to the act magistrate in extradition refers to

a chief magistrate, a senior principal magistrate, a
principal magistrate, a senior resident magistrate or a
resident magistrate.
By the language of the act the magistrate if satisfied
as regards the legitimacy of the warrant may choose
to endorse it. The law does not compel the magistrate
to back every warrant that is brought before him/her.
Endorsement of a warrant should be by means of a
signature of the magistrate authorizing all or any of
the persons named and every officer to execute the
warrant.
S.12. (2) after such an arrest, the person may be
returned to the requesting country subject to the
restrictions under Section 16 of the Act.

S 12. (3) The endorsed warrant itself is sufficient

authority to arrest the wanted person within the
jurisdiction of the endorsing magistrate.
In Samson v McInnes , the Federal Court in Australia held
that a warrant was not valid where the endorsement was
found on a separate piece of paper, with the
consequence that the actions flowing from the warrant
were likewise flawed.
Backing of a warrant may happen at any time and the
date of issue of the warrant is immaterial. Part III of the
Act shall apply in the case of Uganda and Tanzania.
Where the magistrate issues warrant of arrest without an
order from the DPP he is obligated to forward the report
of the same together with the evidence and information
or complaint or certified copies thereof to the DPP.

SEARCH WARRANTS
Section 20 of the Act provides for search warrants as may be issued by
the magistrate. Where a warrant for the arrest of a person accused of
an offence has been endorsed in pursuance of Part III, the magistrate
shall have the same power of issuing a warrant to search for any
property alleged to be stolen or otherwise unlawfully taken or obtained
by such person, or otherwise to be the subject of such offence.
The above provision is to the effect that a magistrate may issue a
search warrant if that there are reasonable grounds for suspecting that
there is, in any place, a thing which is of material evidence for the
offence or proceeds of the offence in respect of which a warrant has
been endorsed or a provisional warrant issued.
In Prince Buruji Kashamu Judgment Creditor/Applicant
Inspector-General Of Police Chairman Nig. Drug Law
EnforcementAgency (Ndlea)
The court emphasized on the need to have a provisional warrant
clearly signed with the name of the judge and the court making it. The
court also held that endorsement of a warrant should fulfill the same
requirements.
The minister may also order the warrant of arrest to be cancelled and
the fugitive criminal released.

SURRENDER OF FUGITIVES
At the time of committal of the fugitive, the magistrate shall inform him that:(i) He shall not be surrendered until after the expiry of fifteen days
(ii)He has a right to apply for the issue of directions in the nature of habeas
corpus.
Article 165 of the constitution establishes the High Court with among other
powers the jurisdiction to determine the question whether a right or
fundamental freedom in the bill of rights has been denied, violated, infringed
or threatened.
The High Court further has supervisory jurisdiction over the subordinate
courts and any person or authority exercising judicial or quasi-judicial
functions and may call for records of any proceedings before those bodies and
may make an order or give direction it considers appropriate to ensure fair
administration of justice.
By these provisions, it would therefore appear that the High Court is given
exclusive jurisdiction over an order of Habeas Corpus since it falls within the
fundamental rights and freedoms guaranteed by the constitution at liberty.
However, this may not be so if sufficient cause can be shown for the delay.

Habeas corpus is indeed a special jurisdiction

given to the High Court to enquire into the
circumstances under which a subject is detained
and to ensure his immediate release if his
detention is found to be unlawful or
unjustifiable.
This doctrine has been expressed as a
supervisory jurisdiction given to the high court
to supervise and control the Acts of the state in
any matter involving the liberty of the subject .
The criminal procedure code provides that the
directions that the high court may issue under
the habeas corpus.

THE EXTRADITION PROCESS

UNDER THE INTERNATIONAL
CRIMES
ACT,2008, KENYA
Under the international
legal framework, Kenyan State has no autonomous existence

outside the framework of the community of nations, and that on this account, its regime
of law and Constitutional order inter-face with the other states under the auspices of
international law. One of the beacons of international law is multilateral treaties, to
which Kenya and other states are parties. The Rome Statute is one such treaty.

It establishes the International Criminal Court [ICC], which prosecutes and judge, in the
event of the commission of certain named categories of offences referred to in Article 5
which are: crimes of genocide, crimes against humanity and war crimes. In relation to
such crimes, state parties, such as Kenya, have agreed to cede some of their jurisdiction
of crime. Kenyas International Crimes Act, 2008 provides in its preamble as follows;
All the law in force immediately before the effective date [27th August, 2010]
continues in force and Article 2 (5) and (6) of the same Constitution now strongly
supports the application of international law in Kenya and provides it forming part of the
laws of Kenya.
They should be construed with the alterations, adoptions, qualifications and exceptions
necessary to bring it into conformity with the Constitution
International Crimes Act entered into force on 1st January, 2009. Indeed the Constitution
of Kenya, 2010, which was promulgated on 27th August, 2010 carries a transitional
clause [sixth schedule, clause 7(1)]

EXTRADITION TO KENYA
Criminals Surrendered to Kenya
Subject to subsection (2) of Cap.76 , where in pursuance of
an agreement with another country any person accused or
convicted of any crime described in the Schedule is
surrendered by that country, that person shall not, until he
has been restored or had an opportunity of returning to that
country, be triable or tried for any offence committed before
his surrender to Kenya other than such of the crimes as may
be proved by the facts on which the surrender is grounded.
Nothing in this section however applies in relation to a person
surrendered or returned to Kenya by a country to which Part
III of The Act applies that has specific written agreements
between particular states an Kenya on how to conduct
extradition between each and Kenya .

CASE EXAMPLES
Extradition to Kenya : From a Foreign and Contiguous Country:
Extradition from the USA
For example in extraditing to the USA, the extradition treaty
that is currently in existence between Kenya and The USA is
similar to the rest of the extradition Treaties in The Extradition
(Contiguous and Foreign Countries) Act Chapter 76, in that, the
Extradition Treaty adopted between Kenya and the U.S.A is the
same treaty that was adopted between the British and the
Americans.
In fact most of the treaties if not all are adopted from the
treaties our various counterparts entered into with the British,
it being stated in the Treaty that:
WHEREAS an agreement has been made between the
Government of Kenya and the Government of the United
States of America that, pending the conclusion of a new
Agreement between the two Governments, the
Extradition Treaty concluded on 22nd May. 1931,
between the United States of America and Great Britain,
should continue to be applied between Kenya and the

 the treaty however is a bi-lateral one, binding both the

United States and Kenya to its terms. The Treaty
expressly states that Extradition shall be reciprocally
granted for the crimes in Article III.
The language of Article III being couched in mandatory
terms in that extradition shall be granted for
participation in any of the crimes or offences in Article
III, this is provided that such participation is punishable
by the laws of both High Contracting Parties. It is also
stated that as regards costs that all expenses
connected with the extradition shall be borne by the
High Contracting Party making the application.
The procedure that would thus be followed by the
Kenyan Government in applying for extradition of a
criminal from the United States, (assuming the above
conditions have been met) is as follows;

The trial is essentially in part to determine whether probable cause exists to

believe that the individual committed an offense covered by the extradition
treaty and therefore justify the holding of the accused and his surrender to
the demanding nation, as such the ordinary standards of criminal litigation
and rules of evidence are lowered.
Deciding whether to ask for provisional arrest.
It should be noted that there are times when a requesting nation is
concerned that the fugitive will take flight before it has time to make a
formal request, it may informally ask for extradition and provisional arrest
with the assurance that the full complement of necessary documentation will
follow.
In either case, the Secretary of State, at his discretion, may forward the
matter to the Department of Justice to begin the procedure for the arrest of
the fugitive to the end that the evidence of criminality may be heard and
considered.
Submitting the required documents in support of the formal request
for extradition.
Some courts have held that the Speedy Trial Clause of the Sixth Amendment
or the Speedy Trial Act require the government to make a diligent good-faith
effort. E.g. United States v. Blanco, 861 F.2d 773 (2d Cir. 1988), cert. denied,

The aforementioned process for extradition is regulated by the Treaty

between the U.S.A and Kenya previously mentioned and would be conducted
between the Federal Governments of the United States and the Government
of Kenya, this is because despite appearances, Extradition is not a judicial
function but an Executive one
In order for a State to make an Extradition request to the U.S.A the American
Extradition treaties in force (The treaty with Kenya Included) require that
such requests for extradition be submitted through diplomatic channels, such
diplomatic channels for Extradition of an individual from the U.S.A to Kenya
would involve similar steps as that of extraditing from Kenya:
Contacting the American Office of International Affairs; (OIA)
The Assistant United States Attorney assigned to the case would then obtain
a warrant leading to the arrest of the fugitive who would thereafter be
brought before A Magistrate, Judge or the District Judge. A hearing would
then be scheduled to determine whether he is extraditable. If the court finds
him to be extraditable, it enters an order of extraditability and certifies the
record to the Secretary of State, who then decides whether to surrender the
fugitive to the Kenyan government.
Making a preliminary determination of extraditability;
The Extradition Hearing would be dictated and decided upon with high regard
being given to by the applicable extradition treaty, in this case that being the

However, a common check list for a hearing for such a

hearing would include determinations that:
a) There exists a valid extradition treaty between the
United States and the Kenya
b) The accused is the person sought
c) The offense charged is extraditable
d) The offense charged satisfies the requirement of
double criminality
e) There is probable cause to believe the accused
committed the offense charged;
f) The documents required are presented in
accordance with United States law, subject to any
specific treaty requirements, translated and duly
authenticated. and;
g) Other treaty requirements and statutory procedures
are followed

BRITAIN TO KENYA:CASE EXAMPLE

FROM A COMMONWEALTH COUNTRY
Common wealth countries are those which were under the British spheres of
influence during the colonial and pre-colonial eras. Basically, they may be
termed as colonies of the Great Britain.
The proceedings for extradition are statutorily provided under the Extradition
(Common Wealth Countries) Act, Cap 77 Laws of Kenya where the state parties
are from the Common Wealth. The Act stipulates the necessary procedures and
guiding regulations pertaining to conduct of an extradition from designated
member states.
Member states are those states that the Attorney General designates as such.
The Attorney General wields immense powers in relation to affairs pertinent to
Extradition. The Office is mandated with amending the schedule in the Act and
pronouncing which offences fall under extradition and further still, makes
regulations as to the form of warrants.
Offences of rape, murder, manslaughter, bribery and others are stipulated as
extraditable offences. Extradition offences must be an offence in the requesting
country and would also constitute an offence if committed in Kenya, even in
extraterritorial circumstances. The Act stipulates that a fugitive returned to
Kenya shall not be tried for any other offence apart from that which resulted in
his or her return to Kenya. Furthermore, the person shall be sent back to the
country of origin if acquitted or trial does not take place within six months.
Case example from the United Kingdom, a Commonwealth Country:

EXTRADITING FROM A COMMONWEALTH COUNTRY:

EXTRADITION FROM THE UK

Kenya falls on category 2 Type B of the UK Extradition

Act and the following procedure is followed in the
extradition process form the UK, Kenya included:
Requests from these territories need decisions by
both the Secretary of State and the courts. The
extradition process to these territories follows these
steps:
An extradition request to the Secretary of State is
made and he decides whether to certify the request
the request or not. This is based on the satisfaction
that the requesting state wants the accused person
for the purpose of prosecuting or punishing. These
requests are made to the International Criminality
Unit at the Home Office.
If certified, it is presented to a judge who determines
if a warrant of arrest should be issued. The judge

 Furthermore, the judge must establish that the

action falls under the Dual Criminality Principle.
Such a request must be accompanied by:
details of the person
details of the offence of which they are accused
or convicted
if the person is accused of an offence: a warrant
for their arrest or provisional arrest (or an
authenticated copy)
if someone is unlawfully at large after conviction
of an offence: a certificate of the conviction and
sentence (or an authenticated copy), or for
provisional arrest, details of the conviction
evidence or information that justifies the issue of
a warrant for arrest in the UK, within the jurisdiction
of a judge of the court that would hold the

 Upon satisfaction of the above requirements the

warrant is endorsed and the accused person is brought
before the court.
This is followed by a preliminary hearing where a date
is set for the extradition hearing. Where the judge must
be satisfied that the conduct amounts to an extradition
offence (dual criminality), none of the bars to
extradition apply, where applicable, there is prima facie
evidence of guilt (in accusation cases), and whether
extradition would breach the persons human rights.
If the judge is satisfied that all of the procedural
requirements are met, and that none of the statutory
bars to extradition apply, he or she must send the case
to the Secretary of State for a decision to be taken on
whether to order extradition.
The judges decision can be appealed. The requested
person can ask for permission to appeal the judges
decision to send the case to the Secretary of State. This

 In the event that the court orders the discharge of the requested
person, then the requesting State may ask the High court
permission to appeal the decision. This should be made within 14
Days of the Judges decision.
If the High Court grants permission it will go on to consider the
appeal. If the High Court allows the appeal, it will quash the order
discharging the requested person and send the case back to the
District Judge for a fresh decision to be taken.
Secretary of States decision The Secretary of State must order
extradition unless the surrender of a person is prohibited by
certain statutory provisions in the 2003 Act. The requested person
may make any representations as to why they should not be
extradited within 4 weeks of the case being sent to the Secretary
of State. The Secretary of State is not required to consider any
representations received after the expiry of the 4 week period.
Extradition is prohibited by statute if:
The requested person will face the Capital Punishment which is
death . The UK being part of the European Union greatly believes
in the Right to life and has abolished the Death sentence. This
was seen in the case of Soering vs United Kingdom (Soering, a
West German national, murdered the girlfriends parents in
Virginia and fled to U.K., from where his extradition was

 The secretary of state has to get an assurance in writing form the

requesting country that the accused persons rights will not be
violated and that the death penalty will not be invoked .
The Secretary of State must also ensure that the requested person
is not going to be tried for any other offence other than that which
he is to be extradited for. If none of these prohibitions apply, the
Secretary of State must order extradition. Or, if surrender is
prohibited, the person must be discharged .
The Secretary of State has 2 months from the date of request to
make a decision otherwise the requested person may apply to be
discharged. However, the Secretary of State can apply to the High
Court for an extension of the decision date. There is no limit as to
the number of time an extension can be requested .
The decision of the secretary of state is subject to appeal to the
High court and to the Supreme Court by the requested person. In
the High court the appeal is sought within 14 Days from the day
that the extradition order was issued or when the discharge was
issued.
In the case of appealing in the Supreme Court a notice of appeal
should be given within 14 days of the High courts ruling by the

 Once all the avenues of appeal have been

exhausted, in the case of an extradition order,
the requested person must be extradited within
28 days of the Secretary of states order to
extradition
The UK also makes sure that some set
conditions are followed before the extradition
can take place. In the case of the Extradition of
Gilbert Deya , The United Kingdom would only
extradite him on the condition that he is held at
either Kamiti or Nairobi West Maximum Prison.
Britain also wants the government to give the
assurances in a sworn affidavit before it begins
the process of extraditing the bishop wanted
for Child trafficking offences.