Extradition powers: DPP takes fight to Supreme Court

Director of Public Prosecutions Noordin Haji has moved to the Supreme Court to challenge a decision blocking him from extraditing suspects wanted outside the country.

In an application certified urgent by Justice Jackton Ojwang’, Mr Haji, through senior assistant DPP Victor Mule, said a decision delivered by three Court of Appeal judges in March has serious ramifications on the administration of justice.

In the decision, the appellate court quashed extradition proceedings against former Minister Chris Okemo and former Kenya Power Managing Director Samuel Gichuru, saying the DPP has no powers to institute the case.

Justices Erastus Githinji, Hannah Okwengu and Jamila Mohammed said only the Attorney-General has such powers.

INTERNATIONAL LAW

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

They added that it would be inconsistent with international law for the DPP, who is neither a member of the Executive nor a political appointee, to conduct part of Kenya’s foreign affairs.

“It is the Executive which conducts Kenya’s foreign relations, and the AG is a member of the Executive and is in charge of the Justice Department,” they said.

But in the application, Mr Mule told the country’s apex court that several extradition cases are pending. “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.

FOREIGN BUSINESSES

Among Kenyans wanted outside the country are former journalist Walter Barasa, who is accused of interfering with International Criminal Court witnesses in a case against Deputy President William Ruto.

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

The DPP thereafter issued an “Authority to Proceed” to the chief magistrate. Before the request, the Jersey court had issued arrest warrants for the two on April 8, 2010 and April 20, 2011.

The two are accused of accepting bribes from foreign businesses that were contracted by Kenya Power and hiding 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 Ltd. It was further alleged that Mr Gichuru was the owner of the Jersey company.

STATUTORY POWER

Mr Okemo was charged in the Royal Court of Jersey with 13 counts while Mr Gichuru faces 40 counts.

Through lawyer Fred Ngatia, Mr Okemo argued that the DPP has no power to institute extradition proceedings.

Mr Gichuru, through lawyer Gershom Otachi, said extradition is merely administrative and that it is a matter of foreign relations conducted by the Executive, which the DPP is not part of.

The Judges ruled that the law does not give the DPP power to conduct extradition or provide mutual legal assistance. “We hold that the definition in ODPP alone, which was apparently retained through drafting error, without express statutory power cannot confer power on the ODPP to perform extradition proceedings,” they said.

They faulted the proceedings brought against Mr Gichuru and Mr Okemo, saying they were instituted without written authority from the AG and the proceedings were therefore a nullity.