Economy

Attorney-General, DPP tussle over powers to extradite Kenyans facing charges abroad 

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Attorney-General Paul Kihara Kariuki. FILE PHOTO | NMG

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Summary

  • Director of Public Prosecutions Noordin Haji has maintained that the powers to initiate extradition proceedings are vested in his office and not at the Attorney General’s office. 
  • Making submissions before the Supreme Court, the DPP through Victor Mule said extradition proceedings are criminal in nature and therefore fall under the mandate of the DPP.
  • He was making his submissions before a bench led by Chief Justice Martha Koome. 

Director of Public Prosecutions Noordin Haji has maintained that the powers to initiate extradition proceedings are vested in his office and not at the Attorney General’s office. 

Making submissions before the Supreme Court, the DPP through Victor Mule said extradition proceedings are criminal in nature and therefore fall under the mandate of the DPP. He was making his submissions before a bench led by Chief Justice Martha Koome. 

The senior assistant DPP faulted a decision delivered by three judges of the Court of Appeal in 2018, saying it has serious ramifications on the administration of justice in Kenya.

In the decision, the Appellate court quashed extradition proceedings against former Minister Chris Okemo and former Kenya Power and Lighting managing director Samuel Gichuru, saying the DPP has no powers to institute the case.

They are of accepting bribes from foreign businesses that were contracted by KPLC and hid the money in Jersey. It is alleged that they made the foreign contractors deposit payments into the bank accounts of a Jersey company known as Windward Trading limited.

It was further alleged that Mr Gichuru was the beneficial owner of the Jersey company which he controlled by using agents and money thereafter distributed as per his instructions.

Mr Okemo was charged in the Royal Court of Jersey with thirteen counts relating to the transactions in the accounts committed in the Island of Jersey July 1, 1999 and 2001. On the other hand, Gichuru is charged faced 40 counts for offences allegedly committed under Jersey law between 1991 and June 28, 2002.

Justices Erastus Githinji, Hannah Okwengu and Jamila Mohammed said that it is the Attorney General and not the DPP who has the powers to institute such proceedings.

“It would be anomalous and quite inconsistent with international law relating to extradition for the Director of Public Prosecution who is not a member of the National Executive nor a political appointee, a professional who is independent of the executive in his decision and who enjoys security of tenure to conduct part of Kenya’s foreign relations involving as it does sovereignty, political, economic and other national interest considerations,” the court says. 

According to the Judges, extradition is not part of Kenya’s criminal justice system and the Extradition Act assigns responsibility to the AG to decide whether a warrant should be issued.

They added that it would be quite inconsistent with international law for the DPP who is not a member of the Executive nor a political appointee, to conduct part of Kenya’s foreign relations.

But Mr Mule told the country’s apex court that several extradition cases are pending before courts and are at various stages.

“That the extradition cases were instituted in court pursuant to documents forwarded to the office of the DPP by the office of the Attorney General and the Department of Justice as well as the Ministry of Foreign Affairs,” he said in a statement.

Other than Mr Okemo and Mr Gichuru, other Kenyans wanted outside the country are former journalist Walter Barasa who is accused of interfering with International Criminal Court witnesses in the case against Deputy president William Ruto.

Mr Barasa is to face three counts of corruptly, or attempting to corruptly influence witnesses for them to withdraw as a witness. He allegedly committed the offence between May and July, 2013 and at or near Kampala, Uganda.

The request to extradite Mr Okemo and Mr Gichuru was forwarded to the DPP when it was a department in the AG’s office. The request was made on June 6, 2011 by the British High Commission. The request was made on behalf of the Attorney General of Island of Jersey.

But the Attorney General has maintained that neither the constitution nor the ODDP Act expressly confers on the DPP the responsibility to conduct extradition or to conduct foreign relations on behalf the Kenya.  

Mr Okemo through senior counsel Fred Ngatia, argued that the DPP has no power to institute extradition proceedings because they are special international legal proceedings, and public international legal processes only recognise the office of the AG.

On his part, Mr Gichuru through lawyer Waweru Gatonye submitted that extradition is merely administrative in character and that it is a matter of foreign relations conducted by the executive arm of the government and that DPP is not part of the Executive.