On Thursday, Kenya formally filed extradition charges against wanted Kenyan suspect Kevin Adam Kinyanjui Kang'ethe, alias Kevin A, before Milimani Chief Magistrate Lucas Onyina.
Kang’ethe is wanted in the United States of America for the alleged murder of his girlfriend, Margaret Mbitu, on October 31, 2023.
He is believed to have stabbed her multiple times in the face and neck and left her in a locked automobile in a parking garage at Boston Logan International Airport before he fled the US.
But what exactly is extradition, and what is the process?
Extradition refers to the legal process through which one country surrenders a suspected or convicted criminal to another country for trial or punishment.
Process of extradition
According to the Extradition (Contagious and Foreign Countries) Act, the requesting country, for example, the United States of America, has to put in a formal request through diplomatic channels.
In Kang’ethe’s case, the DPP received the formal extradition request on Wednesday, January 31, from the US, through the Office of the Attorney General and Department of Justice, from the Office of International Affairs, Criminal Division, Department of Justice, USA, for the arrest and extradition of Kang'ethe.
Further, the Act provides that the request should include legal documents supporting the extradition.
These will include details of the charges and evidence, among others.
When the US requested the surrender, it notified Kenya that the man is wanted by the Chelsea District Court in the County of Suffolk, Commonwealth of Massachusetts, United States of America, for the prosecution of an alleged offence of first-degree murder in violation of Massachusetts General Law (G.L), chapter (c) 265, section 1 under the laws of the USA.
An arrest warrant was issued on November 2, after Massachusetts State Police found Margaret's body in the car at Boston’s Logan Airport Central Parking garage the night before.
On the issue of an arrest warrant, the Extradition (Contagious and Foreign Countries) Act Part II 6(5) states that, “The warrant of a magistrate issued in pursuance of this Part of this Act may be executed in any part of Kenya in the same manner as if it had been originally issued or subsequently endorsed by a magistrate having jurisdiction in the place where it is executed”.
Kenyan detectives had, on November 2023 received a request from the US authorities to arrest Kang'ethe for alleged murder in Massachusetts.
He would be arrested on Tuesday, January 30, 2024, within Parklands in Westlands, Nairobi County.
Back to the issue of documentation: after receiving the formal request of extradition, the Attorney General is required to review it to ensure it meets all legal specifications.
Court proceedings
If the Attorney General approves, the extradition case is presented before the court, as Kang’ethe’s was.
The court is then expected to proceed with the process of evidence evaluation and the legal aspects of the case.
Part II 7 of the Extradition (Contagious and Foreign Countries) Act observes that:
“(1) When a fugitive criminal is brought before a magistrate, the magistrate shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, as in a trial before a subordinate court”.
“(2) The magistrate shall receive any evidence which may be tendered to show that the case is one to which the relevant provisions of section 16 apply or that the crime of which the prisoner is accused is not an extradition crime.”
If the suspect ends up being convicted, the magistrate is to commit him to prison, but otherwise order him to be discharged.
Extradition Order
If the court finds the request valid, it issues an extradition order.
It then sends the same to the Cabinet Secretary of Foreign Affairs for final approval.
Surrender
Once approved, the person surrenders to the requesting country.
In the case that the suspect was convicted and is in prison under the Act, he is to be informed that he will not be surrendered until after the expiration of 15 days and that he has a right to apply for the issue of directions in the nature of habeas corpus.
Habeas corpus is a court order that a person may seek from a court to obtain immediate release from an unlawful confinement, as when the confinement occurred through a means that violated the person's constitutional rights.
The Act adds that once the 15 days expire, or if directions in the nature of habeas corpus are issued, the fugitive criminal shall be surrendered accordingly.
In the case that the person is not surrendered within two months after committal, the Act in Part II (10) states that;
“Whenever a fugitive criminal who has been committed to prison is not surrendered and conveyed out of Kenya within two months after the committal, or if directions in the nature of habeas corpus are issued, after the decision of the court upon the return to the directions, any judge of the High Court may—(a) upon application made to him by or on behalf of the criminal; and (b) upon proof that reasonable notice of the intention to make the application has been given to the Minister, order the criminal to be discharged out of custody unless sufficient cause is shown to the contrary.”
