Okemo and Gichuru should be tried on Kenyan soil

By Wilbur Wafula

An attempt by British authorities to arm-twist Kenya into handing over Nambale MP Chris Okemo and former KPLC boss Samuel Gichuru is misplaced and unacceptable.

Extradition is the process by which a fugitive or an accused person found in one country or state is surrendered to another country or state for trial or punishment.

Treaties between the parties usually regulate such a process.

The process, usually governed by law, is considerably different from the political way of swapping prisoners of war between countries.

Some countries grant extradition without a treaty. Every such nation requires an offer of reciprocity when extradition is accorded in the absence of a treaty.

The US allows extradition, without regard to the existence of a treaty, of persons (other than citizens, nationals or permanent residents of America), who have committed crimes of violence against its nationals in foreign countries.

Almost all countries exempt their citizens or even fugitives in their territories from extradition to countries where the standards of fair trial and just punishment set out in their constitutions cannot be realised.

A common example is where countries that don’t allow death penalty usually refuse to extradite suspects to those that do, opting instead to try such suspects in their own courts for crimes committed abroad.

A hard-fought 16-month legal battle in the House of Lords, the highest court of the United Kingdom, raged when Chilean military dictator Agusto Pinochet claimed immunity from prosecution as a former head of state.

This was rejected, as the Lords decreed that some international crimes, such as torture, could not be protected by former head of state immunity.

Even though the Lords eventually ruled extradition could proceed on other charges against him, they decided in March 1999 that Pinochet could only be prosecuted for crimes committed after 1988, the date during which the UK implemented legislation for the United Nations Convention Against Torture in the Criminal Justice Act 1988. This invalidated most, but not all, of the charges against him.

There were then questions about Pinochet’s allegedly fragile health. After medical tests, then Home Secretary Jack Straw ruled in January 2000 that he should not be extradited. Pinochet was then freed and allowed to return to Chile on March 3, 2000.

Coming when the new Constitution is being implemented, the requests for the extradition to the UK of Gichuru and Okemo is an opportunity to review the constitutionality of whatever extradition treaties Kenya has with the UK and other countries, to ensure they conform to the new laws. Article 2(4) of the Constitution technically voids all existing laws not compatible with the Constitution of Kenya. The supremacy of the Constitution over international treaties is absolute. Constitutionally protected rights are absolute, not tentative or conditional rights.

Within Kenya, the Constitution is superior to international agreements and the Government cannot ratify treaties of unconstitutional content. Nothing in the Constitution asserts that treaties are supreme. In effect, such construction would permit amendment of the Constitution in a manner not sanctioned by Articles 255, 256 and 257.

In democracies like Kenya, where the Constitution fiercely guarantees and protects the fundamental rights of all sorts of individuals, criminal and non-criminal, extradition treaties, like all treaties, must be subject to the Constitution.

Indeed, in Article 2(6), the Constitution is categorical that: "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution."

Unless a fugitive waives his or her right to a hearing, the courts in a democracy, not politicians, must determine whether the fugitive is extraditable.

They must follow due process to establish that the crime or crimes are extraditable offences, and that supporting documents are properly in place.

Further, being largely the practice of hiding the proceeds of corruption, money laundering is a crime secondary to corruption.

The key crime is corruption, which they allegedly committed against Kenyans on Kenyan soil, and for which they should be tried and, if convicted, sentenced in Kenya.

The fate of the Sh900 million allegedly stolen from Kenyan taxpayers by the two must be addressed. Public interest will be served only if the prosecution of the two can result in the recovery of the same. That can only happen if their trial is done locally. If it is held in the UK, then the money will be forfeited to the British.

—The writer is a communications expert studying law