Attorney-General Kihara Kariuki and Director of Public Prosecutions Noordin Haji are locked in a legal tussle over who has the mandate for extradition proceedings against graft suspects Samuel Gichuru and Chris Okemo.
The two are wanted in the island of Jersey for prosecution over theft of public funds and money laundering. Their extradition has been delayed for 10 years due to legal challenges and territorial fights between the two offices.
The AG claims the DPP has no legal authority to trigger extradition proceedings, since the process entails international relations that fall within the constitutional remit of the executive.
He wants the Supreme Court to uphold a March 2, 2018 Court of Appeal decision that invalidated the extradition process instituted by the DPP in 2011. It was held that the process was initiated by an unauthorised person.
On the other hand, the DPP wants the court to approve the proceedings he initiated in July 2011. The DPP contends that since the proceedings are criminal in nature, the AG has no role to play.
Further, under Article 156 of the Constitution, the AG has no powers in relation to criminal proceedings that include extradition proceedings.
Article 157(10) provides that the DPP shall not require the consent of any person or authority for commencement of criminal proceedings, adding that he shall not be under the direction or control of any authority in exercise of his powers or functions.
Court of appeal squashes extradition order for Okemo, Gichuru
Through lawyer Ali Taib, the DPP told the court yesterday that he has the extradition request received by the government on June 6, 2011. It was sent by the United Kingdom on behalf of the AG of Jersey.
However, the AG argues that the extradition proceedings or ‘proceedings for committal’ as described in the Act are not criminal in nature.
An extradition case is an issue of its own kind with an aspect of international cooperation based on reciprocity and originating from treaties, he said.
“The 2013 ODPP Act does not give the DPP power to conduct extradition or provide mutual legal assistance. Section 5(2) of the Mutual Legal Assistance Act designates the office of the AG as the central authority to perform the functions of mutual legal assistance,” said deputy chief state counsel Waigi Kamau.
He defended the Court of Appeal’s finding that neither the constitution nor the ODPP Act expressly confers the DPP the responsibility to conduct foreign relations on behalf of the republic.
Mr Kamau argued that the Court of Appeal was correct in holding that extradition contemplates a trial in another State in accordance with the laws of that country.
“The executive authority of the republic, which includes the protection of sovereignty of the republic and the performance of the international obligations and relations, is vested in the President. It is exercised with the assistance of the National Executive through allocation of functions to the members of the National Executive,” said the AG.
“The AG, being a Cabinet level member, performs executive functions either conferred by the constitution and statutes or as directed by the President.”
The DPP moved to the Supreme Court after the appellate court quashed the extradition of Mr Okemo and Mr Gichuru in March 2018, saying the process had been wrongly initiated.
The Royal Court of Jersey said the Gichuru-Okemo secret accounts received bribes in hard currency estimated at Sh997 million, but only half of the entire loot was seized.
Mr Gichuru and Mr Okemo had reportedly wired large sums from Jersey to other accounts in the years to 2002.
The authorities were only able to recover foreign currency amounting to Sh526 million and Sh444 million was to be wired back to Kenya after deducting court expenses.
Mr Okemo served in President Moi’s government as the Minister for Energy between 1999 and 2001, while Mr Gichuru was the managing director of Kenya Power & Lighting Company between November 1984 and February 2013.
A court in Jersey issued a warrant for the arrest of Mr Gichuru and Mr Okemo on April 20, 2011, but the two have challenged the move through multiple legal suits in courts.
They face a jail term of up to 14 years each if extradited and found guilty of the racketeering charges.
