Archbishop Gilbert Deya, whose extradition Attorney General Amos Wako has requested, could use provisions in British law to avoid returning to Kenya for at least four months.
Deya is the 13th Kenyan on the Interpol’s Most Wanted list. Those who preceded Archbishop Deya to the list are former Kenya Pipeline Company boss Linus Cheruiyot, two lawyers and a banker, among others. Deya is wanted in Kenya to answer charges of child trafficking.
Aside from the costs involved, the extradition process is often long and tortuous, forcing delays in the delivery of justice.
Mr Gideon Kibunja, a Senior Superintendent of Police at the Criminal Investigations Department, says extraditions usually take time; first, investigators have to build a case before the order is issued.
Although the CID has already made extradition requests for all the 13 Kenyans, who are all currently living abroad, and four Ugandan nationals for various crimes committed in Kenya between 2002 and 2004, none has been brought back home to face charges. They are wanted for crimes ranging from car theft to financial scams and child trafficking.
In Britain, where Archbishop Deya lives, the extradition section processes requests for the United Kingdom, advising ministers on individual cases and on individual country’s policies.
After a request for the provisional arrest of a fugitive, he is taken before a UK District Judge, who sets an initial period – ranging from 40 to 60 days, depending on the relevant scheme – for receipt of a formal extradition request, supporting documents and the signing of authority to proceed by the Secretary of State.
Once the court procedures have been completed, the Secretary of State has two months to decide whether or not to surrender the fugitive.
Extradition from the UK is barred by law in cases where the requirement for dual criminality is not satisfied (this requires that the offence be a crime in both the requesting and requested states), the offence is of a political nature and in military offences. Other examples are where the fugitive had previously been acquitted or convicted of the same crime or where the request is seen as punishing the individual on account of his race, faith and nationality and may for these reasons be denied a fair trial.
The UK does not extradite people facing charges for offences carrying the death penalty in the requesting state.
The overall time taken to complete a case depends on factors such as its complexity or whether the fugitive contests the extradition.
Britain has general extradition relations with over 100 countries. An appeal to extradite a suspect from the UK can be made through a provisional arrest request or a full extradition order request. The former is used in urgent cases, with the police facilitating arrests on the basis of domestic warrants while the latter requires submission of completed paperwork through diplomatic channels in advance of the arrest.
Once the AG authenticates extradition documents, he sends them to the Foreign Affairs Ministry, which then forwards them. The papers bearing the charges are produced in court where the alleged criminal must also be positively identified.
Under Kenyan law, the Attorney General must arrange for the return of an individual acquitted of an offence for which he or she was extradited from a designated Commonwealth country – free of charge and with as little delay as possible.
Getting any detail of an extradition process wrong could end in defeating justice. Usually, every nation strives to ensure its citizens get a fair hearing before they are shipped off to another country to stand trial.
In June 2000, Mr Moses Omweno was extradited to Kosovo to face theft charges.
It was alleged that the 24-year-old man, jointly with an Angolan citizen, had stolen $90,000 (about Sh6.8 million at the time) from his employer, the International Office for Migration (IOM) at the mission’s office in Pristina. He was employed as an information technology officer between November 1999 and April 2000.
Kosovo, at the time, was a stateless territory managed by the United Nations Interim Administration Mission.
The absence of a defence lawyer meant he had to be interrogated by the UN mission in Kosovo and the UNMIK police.
Five days after he was extradited, Omweno appeared before a judge of the Pristina District Court, who extended his detention for a month. He was eventually released and returned to Kenya on July 28, 2000.
He later sued the Attorney General and the Commissioner of Police for Sh1.8 million as compensation for the embarrassment, humiliation and mental torture he underwent as his rights were violated. The case is yet to be determined.
In Omweno’s case, spirited efforts by Nairobi lawyers Dr John Khaminwa and Mr Daniel Maanzo eventually secured his release.
Maanzo says his extradition was not procedural as Kenya has no extradition treaty with Kosovo. The process had therefore been carried out in violation of existing laws.
The lawyer also argued that Omweno had been taken out of the country without his passport and did not pass through the immigration desk at the Kenyan point of exit as is required.
In addition, Maanzo says his client was arrested without a court warrant, as required by law, and was never taken to court or informed of his right to apply for Habaes Corpus orders. Furthermore, he was flown out of Kenya after four days instead of the mandatory 15.
According to Maanzo, it is crucial for the due process of the law to be followed before any suspect is extradited.
“The government should not be quick in extraditing its nationals to other countries for trial without following laid down procedures”, he says.
Maanzo says political goodwill between the countries involved in the extradition request is of great importance, especially where no formal treaties exist.