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Why country totters on issues of extradition, fugitives threat

During last week’s Jamhuri Day celebrations at Uhuru Gardens, 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 which has had associations with fugitives, risking a label from the international community.

From political associations, security lapses and easily compromised 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.

Belgut MP Nelson Koech. [File, Standard]

Two interviewees

In this interview, we speak to two individuals. One is the Belgut MP Nelson Koech, who holds a constitutional role of ensuring the country gets laws that clean it of an image of being sympathetic to international jail-birds and fugitives. The other is lawyer Cliff Ombeta, who has received the flak for representing individuals who are pursued by international organs of justice.

Koech, the National Assembly Defense and Foreign Affairs Committee chairman believes that Kenya is no longer a preferred destination for those running away from justice.

To what extent is Kenya a preferred destination/hideout for fugitives (local and foreign)?

Koech: Kenya may have once been a hideout of fugitives but I can confidently say it is no longer a preferred destination given the watertight legislation Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) Act, 2023. We can’t rule out the possibility of a few elements being in the country, especially given the proliferation of AirBnB accommodations which are being taken advantage of by illegal immigrants trying to live anonymously.

Kenya seeks to relax extradition rules to eliminate lengthy procedures and facilitate repatriation or tracing of cash stashed in foreign lands. How does this imperil Kenya’s efforts to extradite fugitives?

Koech: Through legislation, our efforts will enhance the extradition of foreign fugitives by eliminating any room for delay of criminal justice without justification. Kenya is not trying to relax extradition rules, it is trying to eliminate needless red tape and the potential for extraneous litigation on behalf of criminals to block their legitimate extradition.

We are actually trying to conform to the required international standards of extradition to avoid abuse of our court process to frustrate the prosecution of suspects for crimes committed in other lands.

Is the money laundering problem to do with legislation or the lack of political goodwill?

Koech: Money laundering is a very complex organised crime which takes different manifestations depending on the actors involved and the amount and source of dirty money. There is no lack of political goodwill to combat money laundering but that is not to say the laundered money does not find its way into the political mainstream to influence decisions in favour of money launderers.

We have many people with dubious sources of wealth who are currently active in politics. 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, it is even in developed countries like the USA.

The rendition of the Akasha brothers, Musur, Juma to the US; what’s the message here? Is it an indictment on the country’s judicial and prosecutorial capacity?

Koech: It is in public domain that the extradition of these persons was frustrated and delayed in large part with help of senior officials in Judiciary and law enforcement. Our judicial and prosecutorial capacity is world class.

What we need to address is how to tame corruption and political influence, especially in those sensitive cases where big money can change hands. Even our media can do well to advance the depth of their reporting of these high-profile cases to raise public interests in the cases and to bind the hands of officials involved in the cases to do the right thing.

What about the Gichuru and Okemo cases? Is it the incapacity of the law and justice system or just plain corruption? And if it’s corruption, what does this therefore say about our courts?

Koech: In the case of Gichuru and Okemo, I think it is a case of everyone involved knowing well that the two are not the real culprits, they were likely just mere proxies. The Gichuru and Okemo case has to be looked at from the perspective of the Pandora Papers revelations. We can’t fry small fish and let big sharks go scot-free. It is only fair that any and every public official, current or former, who has accounts in foreign lands be held to account.

This is the only way we are going to hold responsible people who looted the coffers dry, days before President William Ruto took office. Before we worry ourselves with what was allegedly done by Gichuru and Okemo in the 1990s, there is need to deal with the looters in the former regime, especially during the handshake, who are responsible for our current predicament.

The major problem isn’t the law; it is political goodwill and enforcement. How true is this statement?

Koech: Law follows society and the society follows the law. What it means is you can have the best laws in the statute books, but you need a commitment from the public to deal with these crimes. The truth is most of these crimes do not have victims in our midst the same way murder or rape has.

It thus becomes very difficult to handle them, especially where the suspect has political clout and enjoys a sizeable public following and opts to play victim and politicise the case. We have a long way to go in educating the public on the impact of these organised international crimes and how they affect wananchi as a way to garner both public and political goodwill required for seamless enforcement.

To what extent are fugitives a threat to national security?

Koech: Most of the fugitives for organised international crimes tend to have a lot of unaccounted for money and are inclined to build a criminal ring around them as a way to insulate and protect themselves. In other words, fugitives end up compromising national security to avoid justice. Others import their criminal network to the country and end up posing more danger than our regular chicken thieves.

Some fugitives are even known to apply their laundered money to influence political decisions and compromise government operations. As such, I would say fugitives are a big threat to our national security and that is why we are working hard as a committee, alongside our national security agencies, to make Kenya the most feared destination for any fugitive.

How does the absence of an election campaign financing law provide an avenue for fugitives to contribute to campaign funds and thus influence election outcomes?

Koech: The absence of a proper election campaign financing law is a big element in dirty money finding its way into our politics, but I don’t think it is the main factor. The problem is largely one of proliferation of the cash economy and informal banking sector. If we encourage financial inclusion and the adoption of a cashless economy, especially for big transactions, it will be easier to trace money trail and huge withdrawals and deposits would be frowned upon.

But as it is, even if we had campaign financing law in place, it would be relevant in controlling the money that is officially acknowledged and documented. If we invest in making it unattractive and illegal to keep large sums of unaccounted money in the house, we would have to worry less about illegal money finding its way into our formal economy and our political campaigns.

Lawyer Cliff Ombeta

How many extradition cases (involving Kenyans and/or foreigners) have you handled since you started practicing, or in the past 10 years? Which ones stand out and why?

Ombeta: I have dealt with six cases but there are two that stood out. The one of the Akashas; Ibrahim and Baktash Akasha, and a number of Dorothy Manju and the sister Susan Kaloki.

The Akasha brothers case stood out because we were waiting for a ruling of a court case on 30th of January then the two were kidnapped on 28th of January. The United States had tried all tricks to pick them but the courts had made several rulings in their favour and they feared that the ruling would not go into their favour.

I was with Baktash at City Mall. They kidnapped him and took him to the basement of the building. When I followed him, the local and US security officers cocked their guns on me. A local police officer told me to keep off because it could turn ugly for me.

On the Dorothy and the Susan matter, they were picked at Lang’ata when we were still going on with their cases.

Kindly explain the frustrations you undergo trying to fight injustices against fugitives. Have you ever been threatened to surrender a case, and by whom?

Ombeta: Good examples I have given you above, the cases of the siblings had not been exhausted when they were forcefully picked for the US.

Before they were kidnapped, the courts, right from the magistrates, chief magistrates and High Court, had all 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.

During the period of the case for the Akashas, the US sent an emissary asking me not to appear in court for the two brothers and instead they would pay me 250,000 US dollars. At that time, that amount would have translated to Sh25 million. I declined and went ahead to court. I knew I was winning the case because the US had botched the matter and there were no exhibits of drugs to be presented to court.

Kenya has on many occasions extra-judicially surrendered its citizens to US. In so doing, dealing a blow to extradition cases in court. Does this bespeak of surrendering sovereignty?

Ombeta: Sometimes I feel like the Kenyan government feels subservient to the US as far as extradition of its nationals is concerned. When they were arresting the Akashas, they accused them of planning, kindly note, planning to sell 100 kilogrammes of drugs to the US. How do you accuse someone of an offence that he has not committed?

Is there a lacuna in the extradition law that allows the State to spirit away its citizens to a foreign land without following due process? Cite the lacuna and explain how it’s been abused.

Ombeta: There is no legal lacuna in Kenya on the matter of handling fugitives and extradition. All there is, is impunity and subservience.

How does Kenya allow a foreign national to come and kidnap their citizens and spirit them away?

Ombeta: Look at the case of Dorothy Manju and her sister Susan Kaloki. The two were picked at midnight at Lang’ata Prisons when US sheriffs found the gates open.

What kind of injustice does a Kenyan charged in a foreign land face? What’s the remedy, if any?

Ombeta: Kenya should only extradite its nationals to a country where it shares almost similar laws of justice. For instance, if you extradite someone to China for a crime committed, may be in Kenya he or she would have got 10 years jail term but in China the same person is hanged or their hands chopped. Will you say that person (Kenyan) has gotten justice?

Like in the case of my clients Baktash and Ibrahim Akasha, they were kidnapped by the US for allegations of drug selling. When they got to the US, other charges of handling and selling guns were introduced. Not even exhibits of drugs were provided to prove their involvement in drug trafficking.

But don’t you also think the court is the weakest link in extradition of fugitives – that suspects have used courts to forestall extraditions, e.g Okemo and Gichuru?

Ombeta: Unlike in the United States who are bullies and break the law with impunity like in the case of my other clients who were kidnapped either during the day or at midnight, other countries like the United Kingdom that are now pursuing Okemo and Gichuru follow the law.

The two have not exhausted their appeal process and that is why they are still walking scot-free. And by the way, there is absolutely no problem using the court to argue your case. That is why the courts are there to offer justice.

To what extent are fugitives a threat to national security?

Ombeta: It is only a threat if it is a case that involves terrorists because they will probably plan something evil.