Tobiko and AG duel over extradition

Saturday November 16 2013

Director of Public Prosecution Keriako Tobiko. He has  opposed journalist Walter Barasa’s bid to stop his extradition to the International Criminal Court. Tobiko termed Mr Barasa’s contention that the offences he is accused of can be tried in Kenya as baseless and unfounded. PHOTO/FILE

Director of Public Prosecution Keriako Tobiko. PHOTO/FILE 

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The Attorney-General has moved to clip the powers of the Director of Public Prosecutions (DPP) over the extradition of Kenyans wanted for criminal charges in foreign countries or fugitives hiding in the country.

Proposals before Parliament, seek to remove the management of extraditions from the office of the DPP in a move that may set free fugitives such as Yagnesh Devani — who is wanted for the multi-billion Triton fuel scandal.

Keriako Tobiko has written to House Majority Leader Adan Duale asking that the contentious section be deleted.

“I take the proposed amendment as an attempt to prejudice the determination of constitutional petitions relating to extradition. My office is handling a number of extradition requests by Kenya to other countries and by other countries to Kenya, which request would be seriously compromised by the proposed amendment,” said Mr Tobiko. He accuses the Attorney-General, Prof Githu Muigai, of conspiring to “sneak” the management of extradition proceedings from his office back to the office of the AG.

“Extradition proceedings are by their nature criminal proceedings which under Article 157 of the Constitution are solely vested in my office.

The AG cannot handle criminal proceedings and any attempt to confer such functions upon his office would be unconstitutional,” said Mr Tobiko in the letter.

Apart from Mr Devani who is holed up in Britain, the DPP wants televangelist Gilbert Deya who is facing charges of child abduction sent back from London to face the law.

The DPP is also handling extradition requests against former Nambale MP Chris Okemo and former Kenya Power boss Samuel Gichuru who are wanted by the Island of Jersey to face charges of money laundering. The cases are pending in court.

Mr Tobiko says the AG only has constitutional powers to conduct civil proceedings on behalf of the government and that the proposed amendment will have negative implications on the administration of justice and additionally, undermine constitutional powers of his office.

“Moreover, the proposed amendment was initiated without consultation with me or my office when it proposes to take away a critical function of my office. Such radical amendment should not be sneaked in by way of a Miscellaneous Amendment Bill at any rate,” he said.

The proposals are likely to heighten a turf war between the two officers, who are already before Justice Isaac Lenaola over the same matter.

Mr Tobiko wants the High Court to determine the dispute, and the Justice Committee to investigate the matter before taking it to the House.

In the extradition proceedings regarding Mr Okemo and Mr Gichuru, both Mr Tobiko and Prof Muigai have filed affidavits to support their positions of who should be in charge.

Whereas the AG swore that the extradition proceedings against Mr Okemo and Mr Gichuru raised constitutional issues revolving around the fight against corruption and which ought to be handled by his office, the DPP maintains the request was criminal in nature and fell squarely on his jurisdiction.

“The AG deposits that extradition are special international legal proceedings and that my office should only conduct prosecutions with local courts and not in other countries. However to the contrary, extraditions are criminal proceedings conducted within municipal courts of requested states by which courts exercise criminal jurisdiction,” said Mr Tobiko in his affidavit.

But Prof Muigai said the DPP’s office did not have explicit provision to conduct extradition proceedings.

“Public International Legal processes only recognise the office of the AG and it is evident that the request was made to my office. The only basis upon which the DPP became seized of the matter is that at the time, public prosecution was a department at the AG’s office,” said Prof Muigai.

But Mr Tobiko says at the time the request was sent to the AG’s office, the Constitution had not established his office and that in any event; it was the former AG Amos Wako who received the request and forwarded it to him.

The DPP says it was ironic for the AG to seek to take charge of the Okemo and Gichuru extradition proceedings when his office and other government ministries continue to refer the cases to him.

“The position taken by the AG regarding my capacity to proceed with the matter if upheld would confer powers on the AG which he does not possess under the Constitution or any other applicable law and would have far reaching effects in relation to several extradition requests being handled by my office,” swore Tobiko.

If the Bill is passed, it would also affect the never-ending multi-billion- shilling Triton oil scandal in which the DPP has been trying to bring back Mr Devani who fled the country in 2009 soon after the scandal was exposed.