examining the applicability of the extradition law in
TRANSCRIPT
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
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
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)
ii
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.
iii
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.
iv
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.
v
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
vi
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
vii
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
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
ix
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).
1
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}
2
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"
3
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
4
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
5
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.
6
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
7
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
8
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
9
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
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
11
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
12
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)
13
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.
14
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.
15
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).
16
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
17
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).
18
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
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
20
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
21
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"
22
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
23
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).
24
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
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
26
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
27
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
28
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
29
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
30
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.
31
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.
32
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.
33
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
34
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).
35
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"
36
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.
37
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).
38
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
39
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.
40
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.
41
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
42
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.
43
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
44
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.
45
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
46
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.
47
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.
48
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.
49
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.
so
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
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
52
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.
53
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
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
55
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
56
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.
57
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)
58
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