examining the applicability of the extradition law in

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EXAMINING THE APPLICABILITY OF THE EXTRADITION LAW IN UGANDA'S JUDICIAL SYSTEM BY TWEBAZE FORTUNATE LLB/42213/133/DU A DISSERTATION SUBMffiED TO THE SCHOOL OF LAW IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE WARD OF DEGREE OF BACHELOR OF LAWS OF KAMPALA INTERNATIONAL UNIVERSITY AUGUST, 2017

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Page 1: EXAMINING THE APPLICABILITY OF THE EXTRADITION LAW IN

EXAMINING THE APPLICABILITY OF THE EXTRADITION LAW IN UGANDA'S

JUDICIAL SYSTEM

BY

TWEBAZE FORTUNATE

LLB/42213/133/DU

A DISSERTATION SUBMffiED TO THE SCHOOL OF LAW IN

PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR

THE WARD OF DEGREE OF BACHELOR OF

LAWS OF KAMPALA INTERNATIONAL

UNIVERSITY

AUGUST, 2017

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DECLARATION

I, Twebaze Fortunate do hereby declare to the best of my knowledge that

this research is my own work and has never been presented to any

institution for any award.

\lll}\ - - - . Signature: ... ~~ .................. . Date: .. R!~!.~.f. .(~f.1- ·

TWEBAZE FORTUNATE

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APPROVAL

I certify that this report has been organized under my supervision and it's

ready for submission to the School of Law at Kampala International

University.

Signature: ~ •.....••.••••••••.••...•....... Date: 2:1.\ .. {JJ?.:?EJ: ..... MR. KAHAMA DICKSON

(SUPERVISOR)

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DEDICATION

I dedicate this piece of work to the Almighty God for having given me

favour to have my course pursued, the Gakyaro family which has supported

me financially, morally and career guidance.

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ACKNOWLEDGEMENT

I would like to thank the Almighty God for having given me this precious

gift of life and favour to have my course pursued.

Special thanks goes to the Gakyaro family who supported and encouraged

me financially, morally and career guidance, Lukonge William, Akanyijuka

Denis, Birungi Rosemary, Andama Jonathan for having mentored me in line

with my course.

My greatest appreciation goes to the entire school of law, you pushed me

into my destination, without you, I would not be where I am.

I must say God can do anything, and nothing can limit Him.

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DEFINITION OF TERMS

Extradition offence" means-

(i) in relation to a foreign State, being a treaty State, an offence

provided for in the extradition treaty with that State(s)

(ii) (ii) in relation to a foreign State other than a treaty State an

offence punishable with imprisonment for a term which shall not

be less than one year under the laws of Uganda or of a foreign

State and includes a composite offence;

"Extradition treaty" means a treaty; agreement or arrangement made by

Uganda with a foreign State relating to the extradition of fugitive criminals,

and includes any

"Foreign State" means any State other than Uganda

, "fugitive criminal" means a person who is accused or convicted of an

extradition offence within the jurisdiction of a foreign State and

include a person who, while in Uganda, conspires, attempts to commit or

incites or participates as an accomplice in the commission of an

extradition offence in a foreign State.

"Notified order" means an order notified in the Official Gazette;

"Prescribed" means prescribed by rules made under this Act; and

"Treaty State" means a foreign State with which an extradition treaty is

in operation.

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As used in this Law, "treaty of extradition" means a treaty concluded

between Uganda and a foreign country conceding the surrender of

offenders.

"Requesting country" means a foreign country which has requested Uganda

to surrender an offender.

"Offense for which extradition is requested" means any offense which a

requesting country mentions in its request for surrender of an offender as

being an offense which the offender has committed.

"Fugitive" means a person against whom any measures in connection

with a criminal case have been taken by a requesting country for an

offense for which extradition is requested· 1

"Accused person" includes a person convicted for contumacy;

"Conviction" and "convicted" do not include or refer to a conviction which

under foreign law is a conviction for contumacy

"Magistrate" means a chief magistrate and a magistrate grade I;

"Warrant", in the case of any country, includes any judicial document

authorising the arrest of a person accused or convicted of a crime 6

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TABLE OF CONTENTS

DEClARATION ....................................................................................... i

APPROVAL. ........................................................................................... ii

DEDICATION ........................................................................................ iii

ACKNOWLEDGEMENT ............................................................................ iv

DEFINITION OF TERMS ......................................................................... v

TABLE OF CONTENTS ........................................................................... vii

CHAPTER ONE .................................................................................... 1

INTRODUCTION TO THE STUDY ....................................................... 1

1.0 Background to the Study .................................................................. 1

1.1Statement of the Problem ................................................................. 4

1.2 Significance of the Study .................................................................. 4

1.3 Scope of the Study .......................................................................... 5

1.4 Main Objective of the Study ............................................................. 5

1.4.1 Objectives of the Study ................................................................. 5

1.5 Research Questions to the Study ...................................................... 6

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1.6 Methodology ................................................................................... 6

1.7 Literature Review ............................................................................ 7

1.7.1 Who can be extradited? ................................................................ 8

1.7.2 Extradition procedure for surrendering a criminal ............................ 9

1.7.3 Review and decision phase of extradition ...................................... 11

1.8 Research Organization ................................................................... 13

CHAPTER TWO ................................................................................. 15

INTERNATIONAL PERSPECTIVE ON EXTRADITION ....................... 15

2.0 Introduction .................................................................................. 15

2.1 Principles of International Law ........................................................ 20

2.2 The Commonwealth Scheme .......................................................... 23

2.3 The Application of National Extradition Laws under the ICC Statute ... 24

2.4 The Existence of a Treaty & Extraditable Offenses ........................... 25

2.5 Extradition of Political Offenders ..................................................... 27

2.6 The Common Law States ............................................................... 31

2.6.1 The Civil Law States .................................................................... 33

2.6.2 The tradition is also largely followed in Latin America .................... 34 viii

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CHAPTER THREE .............................................................................. 36

UGANDA AND EXTRADITION .......................................................... 36

3.0 Introduction .................................................................................. 36

3.1 Extradition and Pursuant of Extradition ........................................... 36

3.2 Who is a fugitive criminal for purposes of the Extradition Act? ........... 43

3.3 Restrictions on Surrender of Criminals ............................................. 46

3.4 Procedure for the Surrender of Criminals is captured Under Cap 117. 48

3.5 Procedure of Issuing a Warrant of Arrest against a Criminal .............. 49

CHAPTER FOUR ............................................................................... 51

CONCLUSION AND RECOMMENDATION ......................................... 51

4.0 Introduction .................................................................................. 51

4.1 Conclusion .................................................................................... 51

4.2 Recommendation .......................................................................... 54

BIBILIOGRAPHY ........................................................................................ 58

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CHAPTER ONE

INTRODUCTION TO THE STUDY

1.0 Background to the Study

Extradition is one of the most intriguing and enigmatic legal process

between sovereign countries regarding to transferring a suspect or

convicted criminal to a country where crime/crimes have committed for

trial. Though this practice looks recent it is ancient it dates back in 13th

century BC, when an Egyptian Pharaoh, Ramesses II, negotiated an

extradition treaty with a Hittite King, Hattusili III . In Europe, the 1174AD

Treaty of Falaise officially made provisions for extradition where Henry II

and William of Scotland set out a mutual extradition agreement between

the Scots and the English. The extradition treaties were later used by

European monarch to gain custody over fugitive offenders. In 19th century

sovereign countries began to concentrate on extradition treaties for

common crimes because of the development of new, better and

quicker forms of transportation, which allowed criminals greater ability to

commit crimes over larger region1•

1Siska Katalin, "Historical and Legal Perspectives of the Right of Asylum and Extradition until the 19th centwy", I Miskolc Journal of International Law 188-197(2004).

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Recently extradition is becoming an international means of cooperation in

suppression of common criminality in the world. Most countries are

parties to bilateral treaties where even some of the countries are

parties to multilateral regional arrangements. Such Regional

Conventions contribute to trend of creating general rules of extradition

which can finally lead to the Universal Codification of the law of extradition

by the consistent efforts of international community though present system

of bilateral treaties is not fully effective as almost every country's treaty

network is both loose and full of loopholes.2

In African countries traditionally extradition was envisaged in traditional

legal systems where suspects or convicts were extradited among kingdoms

or traditional societies basing on certain mutual agreements. With the

coming of the foreigners the traditional judicial systems were broken down

a phenomenon which catapulted into adoption of the foreign laws. For

example in Uganda in 1966 it adopted The Common Wealth Countries

treaty-'The London Scheme on Rendition of Fugitive offenders' which set

precedence of legislating, signing and ratifying of treaties, protocols and

2Apurv_Karmaka, "The Practices of Extradition" available at: http:/ljurison/ine.in/2009105/the-practices- of extradition (visited on July 29, 2010}

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conventions of extradition.3 In The 1995 Constitution extradition was

espoused in which is governed by the Extradition Act cap 1174.

Though the Act holds the extradition of fugitive it can only be demanded

pursuant to an extradition treaty between the two states: the requesting

state and the surrendering state. Currently there is no legal obligation to

extradite in the absence of a treaty or an agreement in Common Law

countries as general rule do not extradite in the absence of an

extradition treaty because under the laws, a pre-existence of a

treaty, Convention or arrangement with a foreign country is condition

precedent before a person claimed can be extradited5. In Uganda and

some countries like United States require the existence of a treaty or

convention for extradition and similarly the extradition legislation of

Great Britain also applies only where a formal arrangement has been

made with any foreign State.

On the other hand, States on the European continent and in Latin

America which follow the Civil Law system generally extradite the fugitive

criminals even in the absence of the specific treaty on the subject

3 Siska Kata/in, "Historical and Legal Perspectives of the Right of Asylum and Extradition until the 19th centwy ", 1 Miskolc Journal of International Law 188-197(2004). 4 Extradition Act 1964 5 Sunil Kumar Gupta, "Sanctum for the War Criminal: Extradition Law and the Criminal Court"

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between the States concerned depending on their national laws6. This

study seeks to find whether it is possible in Uganda extradite in the

absence of treaty or convention and if what are the benefits and if not what

are the dangers?

1.1Statement of the Problem

The principle of extradition proceedings have mutated from mutual

agreements to signing and ratification of treaties where its executions differ

from state to state depending on the ratified treaties, countries' legal

systems and mutual understanding7• What puzzles the researcher is how

extradition proceedings are executed in Ugandan legal context and the

legal gaps that need to be sealed off hence the need for this study.

1.2 Significance of the Study

It is hoped that the information that will be generated through this study

will create an appropriate awareness among different stake holders to

enable them legislate effective and appropriately laws which are focused

and responsive to the interests of different states in signing extradition

treaties.

6 Apurv _ Karmaka, "The Practices of Extradition" available at: http:l/jurison/ine.in/2009/05/the-practices- of extradition (visited on July 29, 2010)

7 Siska Katalin, "Historical and Legal Perspectives of the Right of Asylum and Extradition until the 19th century", 1 Miskalc Journal of International Lmv 188-197(2004

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The study will also create alertness among the citizens on legitimation of

suspects or convicts hiding in other countries thus provide a milestone in

curbing down crimes against humanity.

The study is also expected to make contribution to the existing body of

knowledge where students, policy makers, and other researchers can make

reference on this topic which has paucity literature.

1.3 Scope of the Study

The research will cover the extradition proceedings, legislation and

execution. The conceptual scope will enable the researcher to deeply

assess the applicability and relevance of the law of extradition, weaknesses

of the law of extradition and implications of signing extradition treaties.

1.4 Main Objective of the Study

The purpose of this study is to assess how the extradition law is applied, its

relevance, weaknesses and implications of signing extradition treaties.

1.4.1 Objectives of the Study

i. To establish how extradition law is applied?

ii. To find out the relevance and weaknesses of the extradition law

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iii. To find out the implications of signing and ratifying extradition law

1.5 Research Questions to the Study

i. What are the procedures followed extraditing fugitives in Uganda?

ii. What is the relevance and weaknesses of extradition law?

iii. What are the implications of signing and ratifying extradition law?

1.6 Methodology

The study will adopt a purely qualitative design. The design fits the

research approaches because the researcher is interested in the review of

the legal documents; Statutes, Acts, Protocols, Convections, The

Constitution, Cases and other related publications to analyze them and

form justification for the study. This in-depth information gathering,

organization, analysis and presentation can best be expressed in a

descriptive qualitative design.

The researcher will heavily rely on related documents to collect data.

Documentation review tool will be used to derive information by carefully

studying written documents, or visual information.

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Data will be analyzed through phenomenological approach which

emphasizes deep understanding of the information presented in documents

and collaborative approach which emphasizes "reflexivity" in which the

researcher remains in an asking or questioning stance for more clarification.

The meanings will then be organized into themes according to chapters

from where the report will be written.

1.7 literature Review

According to Marjorie Whiteman she expounded extradition as;

the process by which persons charged with or convicted of crime

against the law of a State and found in a foreign State are

returned by the latter to the former for trial or punishment. It

applies to those who are merely charged with an offense but have

not been brought to trial; to those who have been tried and

convicted and have subsequently escaped from custody; and to

those who have been convicted in absentia. It does not apply to

persons merely suspected of having committed an offense but

against whom no charge has been laid or to a person whose

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presence is desired as a witness or for obtaining or enforcing a

civil judgmenf.

Marjorie's definition conjured with Fernand de Cardaillac 1878 who defined

extradition as "the right for a State on the territory of which an accused

or convicted person has taken refuge/ to deliver him up to another State

which has requisitioned his return and is competent to judge and

punish him.'<9 All the definitions they conceptualize the procedure by

which a sovereign state, the requested state, accepts to deliver an

individual who is found on the latter's territory to another state, the

requesting state, to permit the latter to judge the subject or, if he has

already been convicted, to have it execute its sentence. In this study all

definitions and interpretations will apply.

1.7.1 Who can be extradited?

A fugitive criminal- any person accused of an extraditable crime or assisted

and encouraged a person to commit the extraditable offence or assist the

fugitive to evade justice by habouring him or her at his/her house10• This

8 Christopher L. Blakesley, The Practice of Extradition ji·om Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l & Camp. L. Rev. 39 (1981), http://lawdigitalcommons.bc.edu/iclrlvol4/issl/3 9 Siska Kala/in, "Historical and Legal Perspectives of the Right of Asylum and Extradition until the 19th century", I Miskolc Journal of International Law/88-197(2004) 1° Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive Offenders Act, 1881, of the United Kingdom. Slave Trade Act, !873, of the United Kingdom

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study is tailored to indentify the extraditable persons in Uganda and their

criminal proceedings. 11

1.7 .2 Extradition procedure for surrendering a criminal

The way the extradition process proceeds is governed by the national law

of the requested State. The procedure therefore varies from one country to

another, to a greater or lesser extent, according to each country's legal

tradition. Common-law countries share similarities in their procedures, but

these differ from those of civil-law countries. This results in many

differences in the positive law and procedural law of each country,

differences that impede efficient extradition. This study is aimed at

establishing the Ugandan extradition procedure and suggests how best it

can be improved12• According to 1964 Act, the extradition procedure begins

with pre-extradition phase which is proceeded by procedural requirements,

transmission of requests, and review and decision phase of extradition and

ends with the surrender of the criminal as expounded below:

General considerations- the extradition request itself is often preceded by

a request for the provisional arrest of the person sought to prevent that

person from taking advantage of the length of the extradition process to

11 ICC Statute, supra note 1, at art. 59(1). 12 Extradition Act 1964

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evade justice. 13 Provisional arrest is a detention measure applied on a

temporary basis, through the application of an extradition treaty and/or

national legislation, prior to the submission of an extradition request.

Procedural requirements; this is a document that requires that the person

be arrested before the extradition request is formally submitted and is

therefore less comprehensive than the extradition request. It is the basis

for the extradition request, but does not replace it14

Transmission of requests - the request for provisional arrest can generally

be made by any means providing a written trace or materially equivalent

record. In most cases, it is sent directly to the competent authorities or

through the International Criminal Police Organization (INTERPOL). 15

In the latter case, the request may be transmitted in two ways: either

directly to the National Central Bureau (NCB) through the I-24/7 network,

or through a "red notice" issued by the General Secretariat of INTERPOL, at

the request of the NCB of the requesting State, acting on the request of the

13 Extradition Act I 964 f.l Apurv_Karmaka, "The Practices of Extradition" available at: http:/!jurison/ine.in/2009105/the-practices- of extradition (visited on July 29, 2010)

15 Sunil Kumar Gupta, "Sanctum for the War Criminal: Extradition Law and the Criminal Court" 10

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judicial authority. Unlike transmission, the red notice is a legal act of

INTERPOL. 16

1.7.3 Review and decision phase of extradition

In most countries of the world, the extradition procedure involves the

executive and judicial branches of governments. At the executive level, this

includes ministers for foreign affairs, justice ministers and/or interior

ministers. The extradition request thus passes through a succession of

official levels, between which there may be a lack of coordination, which

can cause significant delays17•

Traditionally, the extradition request is made through diplomatic channels

to the Ministry of Foreign Affairs of the requested State. The requested

State then decides, in accordance with its law, whether all the matters

relating to the extradition procedure should be dealt with by the executive

branch or assigned wholly or partly to the judiciary. Of the two bodies, the

judiciary seems better suited than the executive to deciding on matters

affecting the civil liberties of persons. However, this is not always the case

and some governments continue to assign extradition matters to the

executive only, while other countries give exclusive jurisdiction to the

16 Vinod K La/1 and Khem Chand Dania/, Encyclopedia of International Law vo/.8,96 (Anmol Publications New Delhi, 1997). 17 Extradition Act 1964

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judicial authorities18• This study is tailored to underneath the effectiveness

and efficiency of Ugandan extradition procedure and suggests

recommendations of improving it.

After extradition is authorized by the judicial authority, it is up to the

executive authority to decide whether or not the person sought should be

surrendered to the requesting State. The decision whether to grant

extradition will be purely a question of political judiciousness relating to the

handling of external relations by each State though this decision is subject

to review for possible exceeding of powers. 19

Lastly the extradition procedure is climaxed with the surrender of the

person where upon the agreement the requested State notifies the

competent authority of the requesting State in order to organize the

surrender of the person sought. In cases where the person has to travel

through the territory of a State or several States that are neither the

requested State nor the requesting State, it is advisable for the requesting

State to arrange the transit so as to avoid any risk of jeopardizing the

surrender of the person to that State20• In practice, for example, making

the person pass through a country that does not extradite its own nationals

18 MCherif Bussoni, International Criminal Law: Multilateral and Bilateral Enforcement Mechanism 414 (Brill, Netherland, 3rd edn. , volii, 2008) 19 ICC Statute, supra note I, at art. 59(1). 20 Extradition Act 1964

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and permanent residents could compromise the surrender21, if there is a

risk that he or she might claim citizenship there22•

1.8 Research Organization

The dissertation will comprise of four chapters:

Chapter one consists of; General introduction, background of the Study,

Statement of the Problem, Objectives of the Study, Major Objective, Scope

of the Study, Significance of the Study, Review of the Literature,

Methodology and lastly Organization of the Dissertation.

Chapter two will present; International Perspective on Extradition-

Entailing Principles of International Law, Applicability and relevance of the

law of extradition, Weaknesses of the law of extradition and Implications of

signing extradition treaties.

Chapter three presents Uganda and Extradition

Chapter four will present the Conclusions and Recommendations

21 MCherif Bussoni, International Criminal Law: Multilateral and Bilateral Enforcement Mechanism414 (Brill, Netherland, 3rd edn. , vo/11, 2008) 22 Apurv _ Karmaka, "The Practices of Extradition" available at: http:/!jurisonline.in/2009/05/the-practices- of extradition (visited on July 29, 20 I 0)

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Conclusion

The study in this chapter examined the applicability of the extradition law in

Uganda's Judicial System in which it covered Background to the Study,

Statement of the Problem, Significance of the Study, Objective of the

Study, Methodology and Literature Review. Presently the Roll of Advocates

and CSO's feel the weight of the challenges of access to justice in Uganda.

It is crucial that the pressure these two groups experience does not

undermine the mission to improve access to justice. Advocates must not

resent the duty of pro bono service that is an obligation within the legal

profession. Instead, advocates must recognize their duty to the public and

take up the mantle of service with enthusiasm and drive.

At the end of the day, both the people of Uganda and the government of

Uganda must embrace a larger role. For the people it comes back to

capacity building and legal empowerment on the citizen level. For the

government it comes down to prioritizing legal aid provision by increasing

funding levels in a manner that treats access to justice as a human right. It

will not be an easy road for any of these key players. However, it is a road

we must take so that Uganda can realize her full potential.

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CHAPTER TWO

INTERNATIONAL PERSPECTIVE ON EXTRADITION

2.0 Introduction

This chapter discusses the Principles of International Law, Applicability and

relevance of the law of extradition, Weaknesses of the law of extradition

and Implications of signing extradition treaties.

Extradition is the legal process by which a person is transferred from one

place to another without the person's consent. This is a legal method to

prevent people from evading justice. When a person commits a crime in a

state and then goes to a different one, the person can be sent back to face

charges in the state where the crime was committed. Generally, a

country's power to arrest a fugitive only extends within its borders. If there

is no provision for extradition, people can evade justice by moving from

one place to another.

International extradition is the formal process by which a person found in

one country is surrendered to another country for trial or punishment. The

process is regulated by treaty and conducted between the federal

government of the U.S. and the government of a foreign country.

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Extradition is not a judicial function23• It is an executive function under the

U.S. President's power to conduct foreign affairs24. The Extradition Clause

of the U.S. government only applies to interstate extradition. International

extradition can only be based on international comity or extradition treaties

between nations.

When a criminal tries to evade justice by escaping to another nation, the

nation from where the person escapes justice can make a request to the

nation where the fugitive escaped. Extradition treaties are signed between

nations with the intention to transfer criminals from a requested country to

a requesting country. However, this transfer of criminals can only be done

by keeping in mind the territorial sovereignty of other nations.

An extradition treaty between the U.S. and any other nation shows that the

executive and legislative branches of the U.S. government consider that

nation's justice system fair enough to send an accused person there for

trial.

When a person is expelled from a country as an undesirable alien it would

not come under extradition. People getting into the U.S. without proper

documentation would also not come under international extradition.

23 Pajkanovic v. United States, 353 Fed. Appx. 183 (I Ith Cir. Fla. 2009). 24 Mwphyv. United States, 1998 U.S. Dist. LEX1S22642 (N.D.N.YNov. 30, 1998).

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International extradition is allowed by nations only after imposing

conditions to the process. When an extradition treaty is formed, the parties

to the treaty provide the offenses for which an individual can be extradited.

The legislative policies of one country can be imposed upon another

country through the conditions set in the treaty. However, the treaty

should be signed by all the party nations for imposing the legislative

policies.

Generally, the federal government of the U.S. deals with matters regarding

foreign relations. Therefore, all international extradition matters are

negotiated by the executive branch of federal government. The U.S.

Secretary of State has the power to decline to surrender a suspect for

extradition on any number of discretionary grounds, including humanitarian

and foreign policy considerations. The Secretary of State can also attach

conditions to a suspect's surrender. However, even if the executive branch

is in favor of the foreign nation's request, extradition requests can be

turned down by the judicial branch. The judiciary can dismiss an

extradition request if the charges the foreign government leveled against

the captive are not crimes in the U.S. The judicial branch can also dismiss

an extradition request if the captive has a reasonable fear of facing cruel

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and unusual punishment if s/he was extradited, or if the captive had a

reasonable fear that s/he would not face a fair trial.

A nation cannot surrender a fugitive to another nation or demand return of

an offender from the nation if it is against the constitution of the nation25•

If there is no valid treaty between the nations, international law does not

require surrender of a fugitive to a foreign nation. When a nation requests

the surrender of a fugitive, the nation should make a proper written

request that should be forwarded through diplomatic channels to the

justice ministry or other appropriate agency. There should be warrants,

sentences, and all relevant evidence attached along with the request.

Nations create laws on extradition based on the treaty of extradition with

the foreign government. However, the statute on extradition in a country

is valid only during the existence of a treaty of extradition. In certain

cases, international comity can be exercised to surrender persons, who are

not citizens, nationals, or permanent residents of the U.S., and who have

committed crimes of violence against nationals of the U.S. in foreign

countries. Such surrenders are permitted even without the existence of

any treaty of extradition with such foreign government26• This is permitted

25 Pettibone v. Nichols, 203 U.S. 192 (U.S. 1906). 26 Cadle v. Cauthron, 266 Ark. 419 (Ark. 1979).

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only when the Attorney General certifies that evidence from a foreign

government shows that if the offenses were committed in the U.S. they

would constitute a crime, and that the offenses are not of a political nature.

The Secretary of State can also exercise discretion in surrendering captives

even if there is no treaty between nations. The Secretary of State can

grant discretion if all the other requirements of extradition treaties are met.

However, federal authorities have power to surrender a U.S. citizen to a

foreign government, whose extradition is sought in the absence of a treaty

authorizing extradition, only if a federal statute allows it. Even when an

extradition treaty is present, international comity can be exercised.

An extradition treaty is self-executing and a criminal can be arrested under

the terms of the treaty alone. The statutes enacted by the legislatures are

not necessary to implement a treaty. The treaty can be considered as

binding as a statute. Treaties are made for the benefit of the party

nations. Therefore, only a foreign government has standing to assert a

flaw in extradition proceedings.

International extradition treaties have a continuing effect. The treaties will

be valid even if it was signed by a former sovereign of a nation, or if it was

ratified by two nations before they declared war on each other. In some

cases, countries can also continue with the treaty obligations made when

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they were colonies. Extradition treaties can be replaced by new treaties.

Generally, old treaties cover only offenses prior to its termination.

However, this is only applicable when there is no clause to the contrary27 •

Extradition treaties are binding on federal and state courts. Treaties can be

given the force of federal statutes even where there is no implementing

statute. This is because the U.S. constitution considers treaties as law of

2.1 Principles of International Law

Similarly there is no specific prohibition in Norwegian law, in practice

a treaty is regarded as an indispensable part for the surrender of

fugitive criminals from Norway to countries outside the Nordic treaty areas.

The French Extradition Law of 1927 expressly applies in the absence of

treaty; in fact the law was designed principally to regulate such

extradition since French treaties, duly approved and promulgated,

operated without the need of legislative implementation.29

This is due to the fact that France adheres to the monistic view of

International Law. Unlike France and several other countries, the

27 Markham v. Pitchess, 605 F.2d 436 (9th Cir. Cal. 1979). 28 American Express Co. v. United States, 4 Ct. Cust. 146 (Ct. Cust. App. 1913). 29 Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive Offenders Act, 1881, of the United Kingdom. Slave Trade Act, 1873, of the United Kingdom

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extradition legislation of a number of States requires the giving of a

guarantee of reciprocity as a condition precedent to its operation in

the absence of a formal treaty. The German Extradition Law of

1929, for example, provided that extradition is not permissible unless

reciprocity is guaranteed.30

Similar provisions are contained in the laws of Argentina, Austria,

Belgium, Iraq, Japan, Luxemburg, Mexico, Peru, Spain, Switzerland and

Convincing arguments may be addressed against a policy of non-extradition

in the absence of a treaty. The members of the Royal Commission on

Extradition in Great Britain in 1878 pointed out that no State could

desire that its territory should become a place of refuge for the

malefactors (criminals) of other countries and that it was obviously in

its interest to get rid of them. 32

Moreover every State is supreme in its territory, each State under the very

notion of sovereignty, is completely free to grant or refuse extradition of

aliens even though it is not legally bound to do so in the absence of

30 ICC Statute, supra note I, at art. 59(1). 31 MCherif Bussoni, International Criminal Law: Multilateral and Bilateral Enforcement Mechanism 414 (Brill, Netherland, 3rd edn. , vol II, 2008) 32 Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive Offenders Act, 1881, of the United Kingdom. Slave Trade Act, 1873, of the United Kingdom

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a treaty creating binding obligation between the States involved.

Expulsion and reception of aliens has been considered as an

attribute of sovereignty.33

For example Egypt surrendered John. H. Suratt charged with the

assassination of Lincoln to the United States of America at the request of

the latter without the existence of a treaty. Again the United States

surrendered one William H. Adsetts in the absence of a treaty who was

tried and executed in Hong-Kong34•

Thus it can be concluded from the foresaid examples that the States

have the right to extradite even in the absence of treaty. Moreover,

States as sovereigns are exclusively and absolutely free in the exercise of

their powers unobstructed by any other authority. As a consequence, they

have the right to grant extradition or refuse it, irrespective of the

existence of a treaty on this subject matter. As it is generally

accepted that while a treaty creates certain rights between the

States being Parties to it, which can be invoked by one State against

the other. 35

33 MCherif Bussom·, International Criminal Law: Multilateral and Bilateral Enforcement Mechanism 414 (Brill, Netherland, 3rd edn. , val II, 2008) 34 Supra note 3 at 20. 78 !d. 79 35 Sunil Kumar Gupta, "Sanctum for the War Criminal: Extradition Law and the Criminal Court"

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2.2 The Commonwealth Scheme

It was in 1966 when Law Ministers of Commonwealth in response

to the recognized need to remedy the situation, developed, 'The London

Scheme on Rendition of Fugitive Offenders36

The genesis of the present scheme lies as far back as 1843 when the first

statute providing for the surrender of fugitive criminals between

British possessions was passed by the Imperial Parliament. This

measure was replaced by the Fugitive Offender's Act in 1881

Although some important changes were made in the 1966 Scheme,

reflecting the evolution of the British Empire into the Commonwealth

Nations, the Scheme retain many of the features of the Act of 1881.37

Under Commonwealth Nations and mutual discussions arrangement

Tanzania extradited the Uganda's Jamil Mukulu notorious ADF leader to be

tried in courts of Uganda where levied crimes have been committed38. The

study seeks to study the applicability and relevance of the law of

extradition, weaknesses of the law of extradition and implications of signing

extradition treaties.

36 Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive Offenders Act, 1881, of the United Kingdom. Slave Trade Act, 1873, of the United Kingdom 37 Report of the International Law Commission on the Work of its Forty-Fifth Session, Annex: Report of the Working Group on a Draft Statute for an International Criminal Court, U.N. GAOR, 48th Sess., Supp. 38 http:llwww.csmonitor.com/World!Aji-ica/2015/0625/Tanzania-court-orders-extradition-of-1slamist-rebel­leader-to-Uganda

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2.3 The Application of National Extradition Laws under the ICC

Statute

Despite the seriousness of the crimes over which the Court has jurisdiction,

the ICC statute contains a number of provisions deferring to national laws

where an indicted suspect is arrested and transfer is sought to the Court.

A state party who has received a request for arrest and surrender has an

obligation to "immediately take steps to arrest the person in question in

accordance with its laws ... "39

The custodial state must bring the accused before "before the competent

judicial authority" in that state which will determine whether: "The warrant

applies to that person"; "the person has been arrested in accordance with

the proper process"; and "the person's rights have been respected."40

All three of these determinations will be conducted "in accordance with the

law of that State" (emphasis added). This provision, in particular, is

especially problematic because many extradition laws are for the stated

goal of protecting a person's rights; and, therefore, may be deemed

applicable under the ICC statute.

39 ICC Statute, supra note I, at art. 59(1). 40 ICC Statute, supra note 1, at art. 59(1).

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Article 89, more crucially reiterates the fact that, once the Court transmits

the arrest warrant, "States Parties shall, in accordance with the provisions

of this Part and the procedure under their national law, comply with

requests for arrest and surrender".41 While there are provisions regarding

international cooperation and judicial assistance which emphasize that

"States Parties shall ensure that there are procedures available under their

national law for all of the forms of cooperation ... " and "States Parties shall,

in accordance with the provisions of this Statute, cooperate fully with the

Court in its investigation and prosecution of crimes within the jurisdiction of

the Court"42 the language of article 89 is troubling. While it could be argued

that the ability to apply "procedure under their national law" might not

attach to the substantive laws of extradition, the legislative history of article

89 reveals a different intention, if not43

2.4 The Existence of a Treaty & Extraditable Offenses

Many states prohibit extradition in the absence of a prior treaty or

agreement. Therefore, if the ICC issues an arrest warrant to a non-state

party, surrender may not be possible under domestic law. This is especially

41 See Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A!Conf 183/9 (1998) [hereinafter ICC Statute} 41 M Cheri[ Bassiouni, International Extradition and World Public Order] (A. W Sijtho.IJ, Chicago, 1974). 43 Supra note I at 3.

A Shearer, Starkes International Law 14(ButterWorths, London,! Ith edn., 1994). 25

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important since, under the ICC statute, it is possible for the Court to have

jurisdiction over a case even though the defendant may be present in a

state that is not party to the statute.44

As touched on earlier, in order to trigger the ICC's jurisdiction over a crime,

any of three conditions must be present. First, the crime must have

occurred in the territory of a state party or a state that has accepted the

Court's jurisdiction with respect to the crime45• For example, if a defendant

commits a war crime in state X and flees to state Y, as long as state X has

consented to the jurisdiction of the Court (by ratification or by adhoc

consent), it does not matter if the custodial state Y is a party to the statute

or not. State Y has an obligation to surrender the defendant.

Second, jurisdiction can be triggered where the state of the nationality of

the accused is a state party or a state that has accepted the Court's

jurisdiction with respect to the crime46• For example, if a defendant is living

in state Y but is a national of state X, as long as state X has consented to

the Court's jurisdiction, then it does not matter if the custodial state Y is a

party to the statute or not. State Y has an obligation to surrender the

defendant.

"ICC Statute, supra note I, at art. 12(1). 45 ICC Statute, supra note I, at art. 12(1) 46 Supra note 2 at 17

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Finally, jurisdiction is triggered whenever the UN Security Council refers a

case to the prosecutor under Chapter VII of the UN Charter47• For example,

a defendant may have committed a crime in state X, fled to state Y, and is

a national of state Z. However, if the Security Council refers the case to a

prosecutor, the fact that states X, Y, and Z are all non-parties is irrelevant.

State Y, or any other state where the defendant is present, has an

obligation to surrender the defendant. Therefore, the state in which the

accused is present does not have to be a state party or accept the

jurisdiction of the Court in order for the Court to begin an investigation and

prosecution. However, if non-state parties are called on by the Court to

surrender an accused on its soil, the absence of an extradition treaty or

surrender agreement may poses serious obstacles48

2.5 Extradition of Political Offenders

In the criticized matter of Karadzole vs. Artukovic, the Government of

Yugoslavia sought to extradite a former Minister of the Interior Croatia,

which took over a part of Yugoslavia after the German invasion in April

1941, from United States. After the war Artukovic fled to United States

after having been charged with war crime of direction of murders of

"ICC Statute, supra note I, at art. I 2(1). 48 Extradition Act I 964

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hundreds of thousands civilians in concentration camps between April 1941

and October 1942. The Ninth Circuit Court of Appeals rejected the

argument that war crimes are so barbaric and atrocious that they cannot be

considered as political crimes. United States Supreme Court vacated this

decision and remanded the case for an extradition hearing.

The Supreme Court did not comment on any of the substantive issues . The

critics assert that the exception is pure haven for terrorists and offenders as

there was no clear line of demarcation established in the case, between

political violence that furthers a political uprising and violence that is merely

contemporaneous with such uprising.

It is an established rule in customary practice under International law that

political offenders are not extradited. They are granted an asylum in the

territorial State. The Indian Extradition Act of 1962 lays down a similar

provision under Section 31(a).

Currently, therefore, non-extradition of political offenders is a norm of

International Law and hence, one of the exceptions of extradition.

Humanitarian grounds, fear of unfair-treatment of political offenders,

measure of extra legal character by requesting state and the object of

taking shelter is different from ordinary criminals, are few considerations on

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which the rule of non- extradition of political offenders is based upon.

Lastly, political offenders aren't dangerous to the territorial state in a similar

manner to any ordinary criminal.

But there are always two sides to a coin. Henceforth, the fugitives may take

undue advantage of non-extradition of political offenders by imitating as

political offenders. For instance, Belgium attempted to avoid and restrict

such abuse by introducing an 'attentat' clause in its extradition law under

Article VI which provided that an attempt on life of the head of a foreign

Government or of members of his family shall not be considered as a

political offence.

Similar to it are the following provisions and clauses;

Article 4(2) of the Extradition Treaty between Germany and Turkey in 1930,

Article 4(2) of the Extradition Treaty between France and Czecoslovakia in

1928 and Article 6 of the Extradition Treaty between Belgium and Poland in

1931. By means of multilateral treaties and bilateral treaties, States have

excluded the exception of Political offence in cases of some purely localized

criminal offences.

Moreover, it has also not protected former Government officials being

guilty of abuses in matters of human rights. Although the non-extradition

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principle of political offenders is accepted widely, still there is lack of a rule

of customary International Law preventing their extradition.

The Extradition treaty between India and Britain that was concluded in the

year 1992 prevents the suspected terrorists from arguing that their crimes

are political so as to avoid extradition of the offender. For instance, the

treaty of extradition between India and U.SA., concluded on September

14,1999 under Article 4 Para 2 and the treaty between India and U.A.E,

concluded on July 20, 2000 under Article 6 Para 1.

Re Castioni and Re Meunier are the leading landmark cases on this issue

whereby in the former Castioni had committed a murder of Rossi, a

member of the Government in Switzerland, and he pleaded that it was a

political offence for which extradition was unavailable. His extradition was

refused as his motive for the act was political.

In the latter case, a French anarchist was charged with causing explosions

at a cafe and in certain barracks in France, resulting in the death of two

individuals. The Court upheld the extradition.

According to the decisions, an offence is considered to be political if it is

directed hereby, against the State or the Constitutional Order, or be

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otherwise ,inextricably involved in conditions disturbing the constitutional

life" of the country.

It should be committed through an organized movement in order to secure

and preserve power in the State against the established prevailing regime.

2.6 The Common law States

Most common law countries generally do not extradite in the absence of a

treaty. Therefore, if the Court calls on a common law state to surrender an

accused and that state has not ratified the ICC treaty, there may be serious

legal impediments. Great Britain only allows extradition "where an

arrangement has been made with any foreign state."49

The United States also does not grant extradition unless bound to do so by

a treaty. The applicability of this common law rule to international tribunals

became very clear in December 1997 when the United States tried to

extradite Elizaphan Ntakirutimana to the International Criminal Tribunal for

Rwanda. In this case, the United States sought to extradite Ntakirutimana

to the ICTR for participating in the Rwanda genocide of 1994. However, the

federal district court in Texas ruled that the extradition was invalid as a

49 Legal Assistance in Civil, Family and Criminal Law Matters among European Communist Countries, VIII Highlights of Current Legislation and Activation Mid Europe Nos.J2(1960) Librmy of Congress Pub.) as cited by Supra note I 8 at 63.

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matter of United States law because the extradition agreement in force

between the United States and the Tribunal had not been ratified with the

advice and consent of the Senate under a two-thirds majority50

The extradition agreement was not a treaty, but a statute, which Congress

passed under a simple majority and the President signed into law.

Therefore, without a valid, full-fledged treaty in effect, the court refused to

authorize Ntakirutimana's extradition, and he was released51.

However, the US re-filed its request for extradition in another federal

district court and successfully argued that either a treaty or a statute

constituted sufficient congressional authorization for the extradition to

proceed52• The 5th U.S. Circuit Court of Appeals reversed finding that that

the authority to surrender a person to a foreign government must be

granted by law, either by the terms of a treaty or by an act of Congress.

Therefore, the President had the authority to extradite Ntakirutimana

without a full-fledged treaty but through a congressional statute. The

Supreme Court just recently upheld this decision.

50 Supra note 3 at 21-22. 51 0. Higgins , "The European Convention on Extradition" 9 International Law and Comparative Law Quarterly ( JL&Com. LQJ 497(1960) 52 Legal Assistance in Civil, Family and Criminal Law Matters among European Communist Countries, Vl/1 Highlights of Current Legislation and Activation Mid Europe Nos.12(1960) Librmy of Congress Pub.) as cited by Supra note 18 at 63.

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However, the likelihood of a state not ratifying the ICC treaty, but

instituting domestic legislation to provide for surrenders is virtually non-

existent and would indeed be paradoxical. It would be self-contradictory for

a state to refuse to ratify, but yet freely agree to surrender individuals on

its soil to the court. The Ntakirutimana case was unique because the UN

Security Council created the Rwanda Tribunal via a binding resolution and

did not utilize a treaty mechanism to bind states. As a result, all states had

an obligation to implement legislation to abide by the UN Resolution

establishing the court53•

A few common law states do allow extradition in the absence of a treaty.

Canadian law permitted extradition without treaty with the approval of the

Governor General; however, this provision has never been utilized and may

have been superseded by a 197054

2.6.1 The Civil law States

A failure to ratify the ICC treaty will not render a surrender request fatal in

most civil law states. France, for example, has special extradition laws

53 0. Higgins, "The European Convention on Extradition" 9 International Law and Comparative Lcnv Quarterly ( IL&Com. LQJ 497(1960) 54 Supra note 3 at 21-22.

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designed to operate with countries with which no treaty obligation exists.

An analogous statute can be found in German law as well. 55

2.6.2 The tradition is also largely followed in Latin America

However, a few civil law states prohibit extradition in the absence of a

treaty and may pose problems for the ICC. These states include the

Netherlands, therefore, in general, an arrest warrant issued to a civil law

state that has not ratified the ICC statute will most likely not automatically

render the surrender request fatal. 56

Pure political offences include crimes such as treason, espionage and

sediction. In most cases, there is no duty to extradite for political offences,

and there is agreement that the political offences exception applies to these

offences.

Conclusion

In observation, there is no State intends to become a haven of

fugitive offenders by giving them shelter as it would tarnish its

reputation in international affairs. Therefore States do not hesitate in

surrendering the malefactor who has sought the asylum within their

ss MCherif Bussoni, International Criminal Law: Multilateral and Bilateral Enforcement Mechanism 414 (Brill, Netherland, 3rd edn. , vol II, 2008) 56 Supra note 2 at 17

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territories even in the absence of treaties. The political consideration

involved in aid lies in the realm of international diplomacy ('high politics').

The generosity of the U.S. government toward Israel and Egypt provides an

example of this sort of aid, intended to bring other governments around to

supporting the U.S. government view on international security issues. That

the U.S. government frequently supported anticommunist dictatorships in

the Third World during the Cold War is well known. However, U.S. aid still

seems to be motivated more by 'state interest' than altruism in the post­

Cold War period. Alesina and Weder's finding that U.S. aid goes more often

to more corrupt governments than less corrupt ones has already been

mentioned (the authors do note that U.S. aid goes more often to

democracies than dictatorships, however).

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CHAPTER THREE

UGANDA AND EXTRADITION

3.0 Introduction

The criminal procedure of the extradition law in Uganda is espoused in the

Extradition Act Cap 117, the Penal Code and the Constitution of the

Republic of Uganda. This chapter explorers the application of Extradition

Law in Uganda in relation to international criminal procedure;

3.1 Extradition and Pursuant of Extradition

The criminal procedure on the extradition involves the aspect of jurisdiction

which deals with the process of surrendering a fugitive offender from the

surrendering country (Uganda) to the country where he committed the

offence known as the the requesting country for the purpose of having

him/her tried and sentenced for that offence57• This interpretation agrees

with Fernand de Cardaillac 1878 who defined extradition as "the right for

a State on the territory of which an accused or convicted person has

taken refuge, to deliver him up to another State which has

requisitioned his return and is competent to judge and punish him"58

" Extradition Act, 1964, & I, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000), available at http:!lwww.ulii.org/ug/legislation!consolidated- act/117. 58 Sunil Kumar Gupta, "Sanctum for the War Criminal: Extradition Law and the Criminal Court"

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According to the Act extradition can only be demanded pursuant to an

extradition treaty between the two states that is the requesting state and

the surrendering state. Thus there is no legal obligation to extradite in the

absence of a treaty or an agreement between the states. However,

according to section 4(1) on application to commonwealth countries or

section 4(2) it applies to any other country with which a reciprocal

arrangement exists with Uganda.59

On discontinuance of the extradition is capsulated in section 5 of the Act;

where the arrangement ceases to exist under section.4, the minister may

by statutory instrument, discontinue the application of the act to that

country this is in agreement with the ICC's jurisdiction over a crime states

that any of three conditions must be present; the crime must have occurred

in the territory of a state party or a state that has accepted the Court's

jurisdiction with respect to the crime60•

59 Extradition Act, 1964, & I, 6 LAWS OF UGANDA, Cap. I 17 (rev. ed. 2000), available at http:l!www.ulii.org!ugllegislation!consolidated- act! I 17. 60 Extradition Act, 1964, & I, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000), available at http:!lwww.ulii.org!ugllegislation/consolidated- act! I 17.

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Secondly, jurisdiction can be triggered where the state of the nationality of

the accused is a state party or a state that has accepted the Court's

jurisdiction with respect to the crime. 61

Thirdly, jurisdiction is triggered whenever the UN Security Council refers a

case to the prosecutor under Chapter VII of the UN Charter.62

THE CASE STUDY OF JAMIL MUKULU

Jamil Mukulu was born in Uganda in 1964. From the mid-1990s, when the

ADF was formed, Mr. Mukulu has been at the helm of the Islamist rebel

force; initially based in western Uganda in the early years before it was

driven by the Uganda People's Defence Forces into Democratic Republic of

Congo, from where it made deadly incursions into Uganda the biggest

attack was in 1998 when the rebel force burnt to death 80 students in their

dormitory at Kichwamba Technical College. The rebel force is responsible

for the executions, kidnappings, torture and rape both in Uganda and the

Democratic Republic of Congo. Security dossier on assassinations of Muslim

clerics in Uganda documented the killings as a handiwork of ADF which

targeted Shia Muslims who were opposed to the activities and violent

fundamentalist Jihadist Salafist Muslims to which Mukulu subscribes. The

61 ICC Statute, supra note 1, at art. 12(1}. 62 ICC Statute, supra note 1, at art. 12(1).

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Police Chief asked the Director of Public Prosecutions Joan Kagezi then to

issue an international arrest warrant for Mukulu over the series of

assassinations of Muslim clerics.

Jamil Mukulu the head of the rebel force was arrested in Tanzania over

immigration issues when he was travelling on forged Tanzanian passport

and that the rebel leader has previously assumed multiple nationalities and

used different passports. Jamil Mukulu's possession of different passports

raised controversy over his nationality. The controversy was debunked by

the DNA tests which confirmed that the fugitive was the wanted Ugandan

ADFieader.

Upon his arrest, he was taken to Tanzanian court which sent him on

remand prison in Tanzania. His extradition became a hostage of a complex

web of international law and geopolitical interests. Howeve0 the Tanzanian

and Ugandan Foreign Affairs Ministries assumed the lead role in the

extradition process_ while security agencies remain in the background

working on operational matters.

During the Court process_ "Uganda is treading carefuii}J anxious not to

breach international legal processes" Fred Enanga Police spokesman

averred. Jamil Mukulu was taken to Tanzanian court which allowed his

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extradition to Ugandcf3 ''I hereby •••• order the respondent to be

returned to the Republic of Uganda to stand trial for offenses"

Cyprian Mkeha, principal magistrate at the Kisutu Resident Magistrate's

court in Dares Salaam, said at the hearing.

The security agencies especially the Police arranged for his extradition to

Uganda where he was tried in the High Court for the offenses he

committec/4

Commonwealth Nations where Uganda belongs and mutual discussions

arrangement Tanzania extradited the Uganda's Jamil Mukulu notorious ADF

leader to be tried in courts of Uganda where levied crimes were committed.

This indicates that Uganda adheres to international law procedure in the

extradition process which is supplemented by treaties and mutual

diplomatic discussions among states taking into consideration of geopolitics

and international security.

However, according to 1964 Act the offenses should not be of a criminal

character so what is meant by an offence of a political character under

63 http:/!www.csmonitor.com!World/A.frico/2015/0625/Tanzania-court-orders-extradition-of-Islamist-rebel­/eader-to- Uganda 64 Extradition Act, 1965, &2, 4 & 11, IX LAWS OF TANZANIA, Cap. 368 (rev. ed 2002), Law Reform Commission of Tanzania website at http://www.lrct. go.tzl?wpjb_dl= 152.

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section 3 of cap 117? And how do you determine whether a particular

offence is of a political character?

According to section (3a) a fugitive criminal shall not be surrendered if the

offence in respect of which his or her surrender is demanded is one of a

political character.

Section 23 further states that the minister shall not transmit a requisition

and or endorse a warrant if the offence is one of a political character·65

The Extradition Act doesn't define the expression political character but the

definition of an offence of a political character can be borrowed from a

number of old English cases.

In Re Castioni {1.891) 1. QB 149

Castioni was a swiss who escaped from Switzerland into England after

shooting one Rossi a member of the government of the canton. Castioni

shot and killed Rossi during an uprising where a number of government

officials were arrested because the citizens of canton were dissatisfied with

the manner in which the government was being run. Castioni and others

broke into the armoury, seized arms and went on a rampage. They went

65 Extradition Act, 1964, & I, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000), available at http://www.ulii.org!ug!legislation/consolidated- act// 17.

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straight for the municipal palace, broke it open and entered Rossi who was

standing in one of the corridors of the palace was shot and killed by

Castioni who then escaped to England where extradition proceedings

started against him.

Castionis solicitor argued that this was an offence of a political character

and that the shooting was incidental to and formed part of a political

disturbance. His lawyer further argued that Castioni had no political motives

and that he had done the shooting simply to gratify his personal malice.

It was held that Castioni was an active participant in a political uprising and

that the shooting was done in the furtherance of the aim of getting rid of a

government

It should be noted that not everything that is done during the period of a

political uprising can be said to be of a political character. 66

According to Hawkins J, the expression "political character" means

incidental to or forming part of a political uprising.67

Conclusively, the court reserves the right to determine whether the fugitive

criminal committed extraditable crimes or not and whether should be

66 Apurv_Karmaka, "The Practices of Extradition" available at: http:l/jurisonline.in/2009/05/the-practices­of extradition (visited on July 29, 201 0) 67 Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive Offenders Act, 1881, of the United Kingdom. Slave Trade Act, 1873, of the United Kingdom

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extradited or not. Like in Jamil Mukulu's case where the Tanzanian court

decided which nature of the offenses whether should be extradited or not.

3.2 Who is a fugitive criminal for purposes of the Extradition Act?

The Extradition Act (s.l c) defines "fugitive criminal" means a person who

is accused or convicted of an extradition offence within the

jurisdiction of a foreign State and include a person who, while in Uganda,

conspires, attempts to commit or incites or participates as an

accomplice in the commission of an extradition offence in a foreign

State. The extraditable crimes according to 1964 Act include: Criminal

homicide and similar offence-Murder and attempt and conspiracy to

murder- Manslaughter Injury to persons not amounting to homicide-

Wounding or inflicting grievous bodily harm Assault occasioning actual

bodily harm68

Assault Abduction, rape and similar offences-Rape, defilement, carnal

knowledge Indecent assault

Abortion and offences relating to abortion

Child-stealing Kidnapping and false imprisonment

68 Extradition Act, 1964, & 1, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000), available at http://www.ulii.orgiug!Jegislation/consolidated- act/117.

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Bigamy and procuration Narcotics and dangerous drugs-Offences relating to

narcotics

Offences relating to traffic in dangerous drugs Damage to property­

Malicious damage to property including aircraft

Malicious damage to property including aircraft endangering safety of life

Falsification of currency and similar offences-Counterfeiting and altering

money, and uttering counterfeit or altered money Offences relating to

counterfeiting Forgery and similar offences-

Forgery-counterfeiting and altering, and uttering what is forged or

counterfeited or altered Misappropriation, fraud and similar offences­

Embezzlement and larceny, and offences relating to embezzlement and

larceny Fraudulent conversion

Arson, burglary and housebreaking, robbery, robbery with violence Threats

by letter or otherwise with intent to extort; intimidation Obtaining money or

goods by false pretences Perjury and subornation of perjury Bribery

Offences by bankrupts against bankruptcy law, or any indictable offence

under the laws relating to bankruptcy Fraudulent misappropriations and

fraud Piracy and similar offences Piracy by law of nations Sinking or

destroying a vessel at sea or an aircraft in the air, or attempting or

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conspiring to do so Assault on board a ship on the high seas or an aircraft

in the air with intent to destroy life or to do grievous bodily harm- Revolt or

conspiracy to revolt, by two or more persons, on board a ship on the high

seas or an aircraft in the air against the authority of the master, or captain

of the aircraft Slave dealings 69

Offences against the Slave Trade Act, 1873, of the United Kingdom, or

otherwise in connection with the slave trade, committed on the high seas

or on land, or partly on the high seas and partly on land

Though the 1964 Act describes a number of extraditable crimes there are a

number of crimes that might not be extraditable for example abortion and

offences relating to abortion according to some countries like United States

of America, and China where abortion is legal.

Imperatively, to note ought to a number of legislations coupled with the

provision for the amendment of the Constitution any additions or

subtractions can be on the extraditable crimes which might connect with or

disconnect with the internationallaw.70

69 Extradition Act, I964, & I, 6 LAWS OF UGANDA, Cap. ll7 (rev. ed 2000), available at http://www.ulii.orglug/legislationlconsolidated- act/ II7. 70 Extradition Act, I964, & I, 6 LAWS OF UGANDA, Cap. Il7 (rev. ed 2000), available at http:!/www.ulii.org!ugllegislation/conso/idated- act/II7.

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3.3 Restrictions on Surrender of Criminals

The surrender of criminals is captured in section 3 of the 1964 Extradition

Act,

A fugitive criminal shall not be surrendered if the offence in respect of

which his or her surrender is sought is one of a political character or it

appears to the court or a minister that the requisition for his/her surrender

has in fact been made with a view to try or punish him/her for an offence

of a political character;

Section.3 (b) provides that the fugitive criminal shall not be surrendered

unless it is proved that there exists a law or arrangement in the country

seeking his surrender that he shall not, unless he or she has been restored

or has had an opportunity of returning to Uganda be detained or tried in

that country for any offence committed prior to his surrender other than

the extradition crime proved by the facts on which the surrender is

grounded. That is it must be proved to Uganda that once the fugitive is

extradited, he/she shall only be tried for the offence for which the

extradition was sought and granted. (If they come up with any other

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offence then the criminal must be given an opportunity to be returned to

Uganda/1

Section 3 (C) provides that if a fugitive criminal is being accused for having

committed an offence in Uganda, not being the offence for which his or her

surrender is sought, or is undergoing sentence under any conviction in

Uganda, he shall not be surrendered until after he or she has been

discharged either by acquittal or by expiration of his sentence

Finally under section 4 (d), a fugitive criminal shall not be surrendered by

the Ugandan authorities until the expiration of fifteen days from the date of

his or her being committed to prison to await his or her surrender.66

During Jamil Mukulu's extradition case the Police spokesman Fred Enanga

noted adherence of the international legal process to avoid the mistakes

which were made after 2010 bombings in Kampala where terrorist suspects

were arrested and extradited to Uganda from Kenya without any court

hearing to determine whether they should be extradited or not. From

connotation it is evident that Uganda presently observes the section 3 of

the 1964 Extradition Act on surrender of criminals as captured above.

71 Extradition Act, 1964, & 1, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000), available at http:!lwww.ulii.org/ug!legislation/consolidated- act/ 11 7.

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3.4 Procedure for the Surrender of Criminals is captured Under

Cap 117

Under section 8(1) of the E.A a requisition for the surrender of a fugitive

criminal who is in or suspected of being in Uganda shall be made to the

minister by a diplomatic representation or consular officer of that country

(Ambassador) which minister? Justice Minister or Attorney General.

The minister upon receipt of the requisition will signify in writing to a

magistrate informing him or her that a requisition has been made and will

require the magistrate to issue a warrant for the apprehension of the

fugitive criminal. (a magistrate in this case refers to a chief magistrate or a

magistrate grade I section 8(2) 66

However where the minister is of the opinion that the offence for which the

fugitive is being requested is one of a political character, he may refuse to

make an order and may order the magistrate to have the criminal

discharged from custody. In case of spoilt diplomatic relationships can a

minister deny or accept the request of the requesting country? This

phenomenon is yet to be underneathed though the incidence of President

Bashir of Sudan predisposed Uganda to a number of prejudicial questions in

honouring ICC order.

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3.5 Procedure of Issuing a Warrant of Arrest against a Criminal

According 1964 Act a warrant of arrest against a fugitive criminal may be

issued by magistrate under the following circumstances;

Section 9 (1 a) on the receipt of orders of the minister, under

section.8(2)or on such evidence as would in his opinion justify the issue of

a warrant if the crime had been committed in Uganda. (i.e, where a

complaint has been lodged and such evidence produced that shows that a

crime was committed outside Uganda)

Section 9 (2) a magistrate who issues a warrant of arrest without the

orders of the minister shall be required to send a report of the facts,

together with the evidence and complaint to the minister who may order

for the cancellation of the warrant if dissatisfied with the evidence.

Section 9(3) a fugitive criminal who is apprehended on a warrant must be

produced before a magistrate within twenty-four hours.72

72 Extradition Act, 1964, & 1, 6 LAWS OF UGANDA, Cap. J17 (rev. ed. 2000), available at http://www.ulii.orglugllegislation!consolidated- act/117.

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Conclusion

The law creates a hierarchy of culpability by distinguishing between mental

states. In this sense, one cannot separate legal from moral reasoning.

Changing police procedure during the early 1980s gave rise to interesting

questions of legal responsibility, such as where an accused was prevented

by law enforcement authorities from actually succeeding in a criminal

offence (eg, by confiscating prohibited imports at customs) but, to their

knowledge, believes they have succeeded.

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CHAPTER FOUR

CONClUSION AND RECOMMENDATION

4.0 Introduction

The study in this chapter examined the applicability of the extradition law in

Uganda's Judicial System in which it covered Background to the Study,

Statement of the Problem, Significance of the Study, Objective of the

Study, Methodology and Literature Review.

4.1 Conclusion

For Uganda to fulfill its national and international human rights obligations

including an effective remedy to victims parts of the amnesty act should be

repealed or amended so those who commit the most serious crimes do not

escape the reach of the law.

During its meetings and interviews the delegation noted a tendency to

judge the government's actions leniently by comparing it with past

dictatorships that have ruled the country. Many pointed out the current

government's background as a former revolutionary movement explains

why things might not always run smoothly in today's democracy. As one

interviewee said, the President is not only elected by the people, he also

holds 'a mandate from the bush'. Similarly the delegation heard statements 51

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from officials brushing off infringements on the independence of the

Judiciary as inevitable mishaps of a young democracy.

Presently the Roll of Advocates and CSO's feel the weight of the challenges

of access to justice in Uganda. It is crucial that the pressure these two

groups experience does not undermine the mission to improve access to

justice. Advocates must not resent the duty of pro bono service that is an

obligation within the legal profession. Instead, advocates must recognize

their duty to the public and take up the mantle of service with enthusiasm

and drive.

At the end of the day, both the people of Uganda and the government of

Uganda must embrace a larger role. For the people it comes back to

capacity building and legal empowerment on the citizen level. For the

government it comes down to prioritizing legal aid provision by increasing

funding levels in a manner that treats access to justice as a human right. It

will not be an easy road for any of these key players. However, it is a road

we must take so that Uganda can realize her full potential.

In observation, there is no State intends to become a haven of

fugitive offenders by giving them shelter as it would tarnish its

reputation in international affairs. Therefore States do not hesitate in

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surrendering the malefactor who has sought the asylum within their

territories even in the absence of treaties. The political consideration

involved in aid lies in the realm of international diplomacy ('high politics').

The generosity of the U.S. government toward Israel and Egypt provides an

example of this sort of aid, intended to bring other governments around to

supporting the U.S. government view on international security issues. That

the U.S. government frequently supported anticommunist dictatorships in

the Third World during the Cold War is well known. However, U.S. aid still

seems to be motivated more by 'state interest' than altruism in the post­

Cold War period. Alesina and Weder's finding that U.S. aid goes more often

to more corrupt governments than less corrupt ones has already been

mentioned (the authors do note that U.S. aid goes more often to

democracies than dictatorships, however).

The law creates a hierarchy of culpability by distinguishing between mental

states. In this sense, one cannot separate legal from moral reasoning.

Changing police procedure during the early 1980s gave rise to interesting

questions of legal responsibility, such as where an accused was prevented

by law enforcement authorities from actually succeeding in a criminal

offence (eg, by confiscating prohibited imports at customs) but, to their

knowledge, believes they have succeeded.

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4.2 Recommendation

Undoubtedly Uganda's current government is to be commended for

bringing a degree of peace and stability to a country beset by decades of

strife, for boosting the country's economy, for combating the scourge of

AIDS, for instituting major constitutional reforms and ultimately for relaxing

the grip on power that the National Resistance Movement had held for a

generation. However, the IBAHRI is of the view that judging the

Government by the poor standards of previous regimes is not the proper

benchmark against which to assess its performance. The Ugandan people

should assess their government's performance by the standards reflected in

the Constitution and the human rights treaties the government has

undertaken to respect. A history of past atrocities should not limit the

horizons of Ugandan society or the aspirations of the government in

bringing about democracy.

The IBAHRI urges the government of Uganda to abide by judicial decisions

which is fundamental to the maintenance of the rule of law. Any

disagreement over court decisions should be settled within the channels

provided for by law. Whilst criticism of judicial decisions should be possible

in a democratic society, the Executive should respect the boundaries of the

separation of powers and the independence of the judiciary. Any criticism 54

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of judicial decisions should not amount to pressure, influence or

harassment of the judiciary. The IBAHRI urges the government to refrain

from attacking judges personally.

The researcher urges the government, the Judicial Service Commission and

the Judiciary to investigate alleged collusion between the police and judicial

officers. In any event, the Judiciary should take precautions so as not to

become an (unwilling) participant in what might amount to arbitrary

detention. As an immediate measure, the Judiciary should allow the

deposition of sureties to the court to prevent a possible abuse of the bail

procedure.

The researcher recommends in the strongest terms that the Executive and

government desist from direct interferences with decisions of the court

especially in such circumstances where their actions were designed to

intimidate and frighten those present. The government is urged to

investigate the circumstances surrounding the deployment of forces to the

High Court as a matter of urgency and publish its findings.

The researcher urges the government to accord the Judiciary the monetary

and human resources which will enable it to function without the risk of

having its independence curtailed, and which will allow it to clear the

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backlog of cases. The procedure for the identification of candidates for

judicial office should be conducted in a transparent manner from outset to

completion. The criteria for potential candidates should be in-line with the

UN Basic Principles on the Independence of the Judiciary.

Countries should recognise money laundering as an extraditable offence.

Each country should either extradite its own nationals, or where a country

does not do so solely on the grounds of nationality, that country should, at

the request of the country seeking extradition, submit the case without

undue delay to its competent authorities for the purpose of prosecution of

the offences set forth in the request. Those authorities should take their

decision and conduct their proceedings in the same manner as in the case

of any other offence of a serious nature under the domestic law of that

country.

The countries concerned should cooperate with each other, in particular on

procedural and evidentiary aspects, to ensure the efficiency of such

prosecutions.

The Committee recommends that the Minister for Foreign Affairs write to all

other ministers to remind them that, when they are planning to enter into a

treaty, they must factor in the agreed 15 to 20 sitting day timeframe for

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the Committee to conduct its inquiry. The Government agrees with the

Committee that requests for the expeditious consideration of a treaty

should be reserved for exceptional circumstances.

The Committee recommends that new and revised extradition agreements

should explicitly provide a requirement that the requesting country provide

annual information concerning the trial status and health of extradited

persons and the conditions of the detention facilities in which they are held.

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BIBLIOGRAPHY

Extradition Act, 1964, & 1, 6 LAWS OF UGANDA, Cap. 117 (rev. ed. 2000),

available at http://www.ulii.org/ugjlegislation/consolidated- act/117.

Extradition Act, 1965, §§ 2, 4 & 11, IX LAWS OF TANZANIA, Cap. 368 (rev.

ed. 2002), Law Reform Commission of Tanzania website at http://www.lrct.

go.tz/?wpfb_dl=152.

The East African News Paper accessed on:

http://www.theeastafrican.co.ke/news/kampala--Dar-diplomats-take-over­

extradition-of-Mukulu-/2558-2711140-i8hi3nz/indexhtml

http:f!www.csmonitor.com/World/Africa/2015/0625/Tanzania-court-orders­

extradition-of-Islamist-rebel-leader-to-Uganda

Fugitive Criminals Surrender Ordinance, 1951 Revision, Cap. 26. Fugitive

Offenders Act, 1881, of the United Kingdom. Slave Trade Act, 1873, of the

United Kingdom

Apurv_Karmaka,"The Practices of Extradition" available at:

http://jurisonline.in/2009/05/the-practices- of extradition (visited on July

29, 2010)

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Sunil Kumar Gupta, "Sanctum for the War Criminal: Extradition Law and the

Criminal Court"

Vinod K Lall and Khem Chand Dania! , Encyclopedia of International Law

vol.8,96 (Anmol Publications New Delhi, 1997). 93Legal Assistance in Civil,

Family and Criminal Law Matters among European Communist Countries

,VIII Highlights of Current Legislation and Activation Mid Europe

Nos.12(1960) Library of Congress Pub.) as cited by Supra note 18 at 63.

Report of the International Law Commission on the Work of its Forty-Fifth

Session, Annex: Report of the Working Group on a Draft Statute for an

International Criminal Court, U.N. GAOR, 48th Sess., Supp.

Subs. & omitted by Act 66 of 1993, s. 4 (w.e.f. 18-12-1993)

Subs. by s. 5 ibid (w.e.f. 18-12-1993)

M. Whiteman, 6 Digest Of Int'l Law 727 (1968) [hereinafter cited as

Whitemanj Fernand De Cardaillac, De L' Extradition 3-4 (1878)

[hereinafter cited as Fernand De Cardaillacj Author's translation.

R. Merle & a. Vitu, traite de droit criminel: problemes Generaux De La

Science Criminelle 320 (2d ed. 1973) hereinafter cited as Merle & Vltuj.

Author's translation.

59