Is extradition a political process masquerading as law?

Last week, the Supreme Court of Kenya made a decision on an extradition case that has been pending  for about a decade. The case was about an extradition request by Jersey Island in respect of two persons who are wanted in that country for trial in relation to some economic crimes including money laundering.

Jersey Island had sometime in the year 2011 made an extradition request for the two Kenyans to be arrested and handed over to them for trial in that country. The process generally is that upon receipt of the request, the recipient government begins proceedings in court to authorise handing over of the citizens to the foreign government for the trial.

However, as soon as the request was made, a dispute arose between the Attorney-General and the Director of Public Prosecutions (DPP) as to who should take the lead in processing the request through the courts of Kenya. The differences between the two offices found their way to the Supreme Court and culminated in last week’s decision. The Supreme Court declared that the issue of extradition is a function of criminal law and falls squarely within the domain of the DPP.

Facing trial

Extradition is the process by which a person who is suspected of having committed an offence in one country and sought refuge in or escaped to another country is rendered back to the country in which the offence is alleged to have been committed for the purpose of facing trial for his crime.

Extraditions are not unfamiliar in the world in which the crossing of borders is common. It is a process often based on treaties between countries to facilitate rendition of fugitives from one country to the other country for trial purposes. The process is, therefore, a combination of international law, diplomacy and even raw politics.

One issue that demonstrates this was the case of Hezekiah Ochuka. While serving in the Kenya Air Force as a Senior Private, Ochuka organised a group of his fellow officers in an attempt at overthrowing the government in 1982. When the bid was foiled, he hijacked a fellow air force officer who was a pilot to fly him to Tanzania, where he sought political asylum.

A few days later, the Kenyan government made an application in a Tanzanian court for extradition of Ochuka. Interestingly, the charges on the extradition request were for kidnapping of the crew who flew the coup plotters to Tanzania.

Attempted coup

The Tanzanian judicial officer presiding over the extradition proceedings found no evidence that the crew had been forced to fly the coup plotters to Tanzania and dismissed Kenya’s request for Ochuka’s extradition. But the legal failure did not bring an end to the matter. Diplomacy and politics prevailed and Ochuka and a co-plotter were brought back to Kenya in 1983. They were then tried by a court martial for treason for the attempted coup and convicted.

But Kenyans have also been extradited from Kenya to face trial for offences committed outside the country.

One such was Abubaker Mansur Mohamed, who was extradited to New York earlier this year following his arrest at Moi International airport in Mombasa for poaching and drug trafficking. Mansur was wanted in the US for offences of smuggling and distribution of animal trophies, mainly elephant ivory and rhino horns into the US. He is now facing these alongside money-laundering charges in a New York Court.

Extradition does not only target ordinary criminals. Following his indictment by the Special Court for Sierra Leone (SCSL), Charles Taylor resigned as president of Liberia and went into exile in Nigeria in 2003. In 2006, the newly elected administration of Liberia sought Charles Taylor’s extradition to face trial at the SCSL. Taylor was then handed over to the United Nations office in Sierra Leone and ultimately to The Hague, where he was tried for war crimes and crimes against humanity, for which he was convicted and sentenced to 50 years in jail. .

But countries do not always resist requests for extradition of their citizens. Sometimes they may be too eager to get rid of deadly offenders by having them tried abroad.

In 2017, former leader of one of the world’s biggest organised crime and drug-trafficking group known as the Sinaloa Cartel was extradited to the United States for drug trafficking, money laundering and murder. Joaquin Guzman, also known as El Chapo, had twice escaped from prison in Mexico while awaiting trial. His lawyers made serious challenges to prevent his extradition to the US but without success. His own country Mexico was so anxious about El Chapo that it delivered him to the US rather than waiting for the US authorities to pick him up. He was convicted in 2019 and is serving a lifetime prison sentence.

It is never a guarantee that any extradition request by one country will always be honoured by the other despite the existence of a treaty.

The case of Gilen Sebastian Burns and Atif Rafay illustrates the political nature of the extradition process. The two had been involved in murdering members of the latter’s family in the US, before they fled to Canada. They then confessed to these murders to a Canadian police officer.

Overcrowded prisons

However, the intended extradition to the US did not succeed because under Canadian law, the Minister for Justice was required to seek assurances as a condition for effecting the extradition that the fugitives would not be subjected to the death penalty.

When Burns and Rafay challenged the intended extradition on the grounds that the Justice Minister had not sought assurances against capital punishment, the court agreed with them on the ground that capital punishment was not justifiable under Canada’s Charter of Human rights and that a fugitive who risked capital punishment would not be extradited.

Extradition dispute

Another extradition dispute with a somewhat similar dimension was that of the Government of India’s request for extradition of Sanjay Chawla, a British national. Mr Chawla was suspected to have acted as a link between betting firms and compromised south African cricketer Hansie Cronje to fix the results of cricket matches. This constituted the offence of cheating under India’s penal code.

The prison conditions in India became an issue during the extradition treaties. Mr Chawla’s legal counsel argued that the conditions in India prisons were so bad as to constitute inhuman and degrading treatment should he be sent there while awaiting trial in India.

The arguments were based on a report that had indicated that India’s prisons were overcrowded, violent and had no medical facilities for inmates. The first court declined to permit the extradition on these grounds.

On appeal by India’s government, the High Court in the United Kingdom held that the conditions were indeed bad but ordered India to file alternative assurances that Mr Chawla would be placed in better conditions. India provided a third assurance that the fugitive would be placed in an exclusive cell and given all the medical attention he would require. On this basis the court permitted the extradition and Mr Chawla was extradited to India in February, 2020.

Evidence of wrongdoing

These are but illustrations that extradition depends on more than just the facts and evidence of wrongdoing by the targeted fugitives. They carry with them a whole load of international politics as well. That is why the constant refrain in law school lessons about extradition is that it is a process of politics masquerading as law.