Ugly past: Why the country was once a haven and hub for fugitives

Felicien Kabuga of Rwanda during his first appearance before the Mechanism for International Tribunals on November 11, 2020, in The Hague. [Courtesy: UN IRMCT] One evening in 1999, Turkish Intelligence Service (MIT) officers arrested Abdullah Ocalan, the leader of the Kurdistan Workers' Party (PKK), at the Jomo Kenyatta International Airport in Nairobi. Ocalan was considered a global fugitive who had used the PKK in civil disobedience against the Turkish government which slowly spiraled into violence as it demanded political space for the Kurdish people in Turkey. The fugitive was on the way to board a plane to the Netherlands before he was intercepted by the MIT alongside Kenyan police and was detained for some days before he was flown to Turkey. There he was arraigned and after a three-month trial, he was sentenced to death for treason and separatism. The arrest received global accolades and condemnation, marking Kenya as a country that would easily compromise with fugitives. Four years before, the country had been accused of harbouring Rwandan fugitive Felicien Kabuga, who was believed to have been among the masterminds of the genocide. Kabuga was arrested on May 16, 2020, at a flat in Asnieres-sur-Seine, on the outskirts of Paris at the age of 84 having been on the run for 26 years, much of it believed to have been spent in Kenya. In an interview with Al Jazeera, two years ago, a former chief prosecutor at the International Criminal Tribunal for Rwanda, said Kabuga, who the US had put a bounty of $5 million on his head dead or alive, could have spent 18 years in Kenya. Hassan Bubacar Jallow, who was the chief prosecutor for the International Criminal Tribunal for Rwanda, from 2003 to 2015, told Al Jazeera that they evidence that he left Rwanda after the genocide and went to Kenya'. Jallow noted that they had immigration records and Kabuga's bank accounts in Kenya confirmed that he was in Nairobi and had been granted a visa. "We had been advised by the Kenyans that he had left the country at some point. We became aware of this quite late in 2012. But there was no information on where he went and in which direction he had gone. Our tracking team went to Kenya many times," Jallow told Aljazeera. He said in their investigations in Nairobi, dubbed Operation NAKI, they arrested many fugitives whom they transferred to Arusha for trial and it was only Kabuga who escaped arrest at that time. The Ocalan and Kabuga cases earned Kenya infamy as a hideout for fugitives. During Jamhuri Day celebrations at Uhuru Gardens, on Tuesday, President William Ruto declared that Kenya was going to be visa-free from January 1, 2024. The move could possibly complicate further the position of Kenya as a haven for fugitives. From political associations, security lapses or some easily comprisable officers, a tedious court system and weak extradition laws, the country has become a hideout for possible fugitives on the run to or out of the country. According to Nelson Koech, the National Assembly Defence and Foreign Affairs Committee chairman, Kenya is no longer a preferred destination for those running away from justice. Koech, the MP for Belgut, says that with watertight legislation such as the recently enacted Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) Act, 2023 and robust intelligence, fugitives are giving the country a wide berth. "Our bilateral extradition treaty arrangements is also among the most advanced in the Horn of Africa region and so any criminal, foreign or local, knows they are living on borrowed time," he says. He, however, said he could not rule out the possibility of a few elements being in the country, especially given the proliferation of AirBnB accommodation which are being taken advantage of by illegal immigrants trying to live anonymously. "But our intelligence network can be trusted to nip them in the bud." Koech notes that Kenya was trying to eliminate, through Parliament, needless red tape on extradition of suspects. "We are actually trying to conform to the required international standards of extradition to avoid abuse of our court processes to frustrate the prosecution of suspects for crimes committed in other lands. The move will enhance the extradition of local and foreign fugitives by eliminating any room for delay of criminal justice without justification," says Koech. The Belgut MP observes that in their war to weed the country of criminals and fugitives involved in money laundering, though there was political goodwill to combat money laundering, some of the laundered money could have found its way into the political mainstream to influence decisions in favour of money launderers. "Money laundering is a complex organised crime which takes different manifestations depending on the actors involved and the amount and source of dirty money. We have many people with dubious sources of wealth who are currently active in politics," says the legislator. "You can't rule out the possibility of such characters being interested in undermining anti-money laundering efforts to protect their ill-gotten cash. And this is not a problem unique to Kenya, even in developed countries like the US, you have seen organised crime syndicates actively influence political decisions in cities and states in their favour." He notes that Kenya however had well-spelt out international commitments to the standard expected of its money laundering legislative framework that it has to comply with in the quest to attract foreign investments into the country. Criminal lawyer Cliff Ombeta however notes that the problem with Kenya was not extradition laws but the processes of handing over perceived fugitives to foreign countries. "There is no legal lacuna in Kenya on the matter of handling fugitives and extradition, all that there is impunity and subservience. That is the outright problem in this country," he says. "How does Kenya allow a foreign national to come and kidnap their citizens and spirit them away?" he poses. Ombeta was a lawyer for the Akasha brothers, Ibrahim Akasha and Baktash Akash who were extradited to the US and later jailed there together with two others because of drug trafficking and arms dealings. Ombeta notes that the extradition of the two brothers and two others was an indictment of the country's leadership and a clear sign that Kenya lacked sovereignty. "Before they were kidnapped the courts from the magistrates, chief magistrates and high court all had ruled for the Akashas to be given bail but through the complicity of the Kenyan government, they were frustrated and for two years they were never released on bond." "They were kidnapped two days before the court was to give a ruling on the case on drug trafficking." Just like other Kenyans who have been extradited to the US, the criminal lawyer said that it was not about justice but yielding of sovereignty. "We have foreigners here involved in all manner of dubious businesses but the government is not doing anything but they are easy to give out to Kenyans when the US wants," says Ombeta. On the long-awaited extradition of former finance Minister Chris Okemo and former Kenya Power CEO Samuel Gichuru, Ombeta says that the UK had followed the due process of extradition unlike in the cases of the US. Okemo and Gichuru face a jail term of up to 14 years each in the UK for theft and money laundering charges at Jersey Island. The two have been fighting extradition after the Royal Court of Jersey found them guilty of accepting bribes from foreign businesses that won tenders at Kenya Power and the loot wired to the Islands Territory. City lawyer Soyinka Lempaa notes that Kenya is a free country and foreigners are living the way they want. "Kenyans are friendly even to foreigners and this has been abused. Kenya was a haven of corruption and money laundering because it was a good place to hide. It was simple to bribe a few security officers and that's why fugitives found it easy to live in the country," says Lempaa. "With money in Kenya you can buy your way. Your value decreases with your decreasing fortunes, you can easily buy citizenship because of money, that is the sad bit." newsdesk@standardmedia.co.ke

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