Kenya: Extradition (Commonwealth Countries) Act, 1968

Date of entry into force:30 December 1968

Part I - PRELIMINARY

Article 2

(1)In this Act, unless the context otherwise requires -

"application for habeas corpus" means an application for the issue of directions in the nature of habeas corpus under subsection (1) of section 389 of the Criminal Procedure Code;

"authority to proceed" means a written authority issued under subsection (1) of section 7 of this Act;

"country" includes any state, territory or other part of the country concerned;

"the court" means the Resident Magistrate's Court;

"designated Commonwealth country" means a country designated for the purposes of this Act under section 3 of this Act;

"extradition offence" has the meaning assigned thereto in section 4 of this Act;

"fugitive" means any person who is, or is suspected of being, in or on his way to Kenya and whose surrender is requested under this Act on the ground that he is accused of, or is unlawfully at large after conviction for, an extradition offence committed within the jurisdiction of the requesting country;

"imprisonment" includes detention of any description by whatever name called;

"overseas warrant" means a judicial or other document, issued under the law of a requesting country, authorizing the arrest of a person accused or convicted of an offence;

"provisional warrant" means a warrant of arrest issued under paragraph (b) of subsection (1) of section 8 of this Act;

"race" includes tribe;

"request" means a request made under subsection (1) of section 7 of this Act by a designated Commonwealth country for the return of a fugitive, and

"requesting country" means a country making such a request;

"surrender" means the surrender of a fugitive to a requesting country in accordance with the provisions of this Act;

"warrant of arrest" means a warrant issued under subsection (1) of section 8 of this Act;

"warrant of surrender" means a warrant issued under subsection (1) of section 11 of this Act.

(2)For the purposes of this Act -

(a)a person convicted of an offence in his absence shall be treated as a person accused of an offence;

(b)a person shall be deemed not to have been convicted of an offence against the law of a requesting country where the conviction is, under the law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against the law.

Article 4

(1)For the purposes of this Act, an offence is an extradition offence if -

(a)it is an offence against the law of a requesting country which, however described in that law, falls within any of the descriptions contained in the Schedule to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment; and

(b)the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of Kenya if it took place within Kenya or, in the case of an extra-territorial offence, in corresponding circumstances outside Kenya.

(2)In determining for the purposes of this section whether an offence falls within a description contained in the Schedule of this Act, any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the relevant law shall be disregarded.

(3)The descriptions contained in the Schedule of this Act include in each case offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offence described, and of impeding the apprehension of prosecution of persons guilty of those offences.

Part II - RETURN OF FUGITIVES

Article 5

Every fugitive is liable, subject to this Act and to any limitations, exceptions, conditions or modifications to which the application of this Act in relation to the requesting country is subject, to be arrested, detained, and surrendered in the manner provided by this Act and is so liable whether the offence in respect of which the surrender is sought is alleged to have been committed, or was committed, before or after the commencement of this Act or the application of this Act to the requesting country.

Article 6

(1)A fugitive shall not be surrendered, or committed to or kept in custody for the purposes of surrender, if it appears to the court of committal, or to the High Court on an application for habeas corpus, or to the Attorney-General, that -

(a)the offence of which the fugitive is accused or was convicted is an offence of a political character; or

(b)the request for his surrender (though purporting to be made on account of an extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or

(c)that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

(2)A fugitive accused of an offence shall not be surrendered, or committed to or kept in custody for the purposes of surrender, if it appears to the court of committal, or to the High Court on an application for habeas corpus, or to the Attorney-General, that he would, if charged with that offence in Kenya, be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3)A fugitive shall not be surrendered, or committed to or kept in custody for the purposes of surrender, unless provision is made by the law of the requesting country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to Kenya, be dealt with in that country for or in respect of any offence committed before his surrender, other than -

(a)the offence in respect of which his surrender is requested; or

(b)any lesser offence proved by the facts proved before the court of committal; or

(c)any other extradition offence in respect of which the Attorney-General may consent to his being so dealt with.

(4)An arrangement of the kind mentioned in subsection (3) of this section may be an arrangement made for the particular case or an arrangement of a more general nature; and for the purposes of that subsection a certificate issued by or under the authority of the Attorney-General confirming the existence of an arrangement with any country and stating its terms shall be conclusive evidence of the matters contained in the certificate.