ISLAMIC UNIVERSITY IN UGANDA

KAMPALA-CAMPUS
LLB III 2024/2025

EXTRADITION

BY
MUYUNGA ASHIRAF
(LLB, LLM (IUIU), DP-LP (LDC), PhD Researcher (KIU))
Definition
The term extradition has been derived from two Latin words ex and traditum.
Ordinarily it may mean ‘delivery of criminals’, ‘surrender of Fugitive’, or ‘handover
of fugitives’.
There is no definition of the term under the Uganda Extradition Act (1964).
However, The United Nations Model Law on Extradition (2004) defines extradition
to mean the ‘surrender of any person who is sought by the requesting
State for criminal prosecution for an extraditable offence or for the
imposition or enforcement of a sentence in respect of such an offence’.
Ordinarily under international law, states are under no obligation to surrender the
fugitive offender to his country of origin or residence based on the principle of
sovereignty. Certainly, the country of origin or residence of the fugitive cannot
exercise criminal jurisdiction over him/her while he/she is in the custody of the
host state as this will tantamount to a breach of its sovereignty.
Extradition therefore provides an orderly way in which a fugitive offender can be
handed over to the requesting state by the host country for which he or she is
suspected to have committed or convicted of an extraditable offense.
In a situation where a fugitive is forcefully taken from the country where he has taken refuge
without the observance of the due process of extraditions, an extraordinary rendition is said to
have occurred. Extraordinary rendition refers to the capture, abduction or kidnap of a
fugitive by a country seeking his trial or punishment without a recourse to the extradition laws
of the country where the fugitive is found or the procedures recognized by international law.
This process is of course outlawed in international law but still happens from time to time.
It is worth to note that extradition lies within the realm of international law which Uganda is
part of. Uganda being a dualistic state, international treaties are only enforceable if they are
ratified and domesticated so that they become part of the domestic or municipal law.
Currently, Uganda has the Extradition Act of 1964 as the principle legislation dealing with
extradition. Further, Uganda concluded an extradition treaty with Rwanda (2005). Other
relevant extradition arrangements include:-
The London Scheme for Extradition within the Common Wealth 1966 with its amendments
1990, 2002 & 2005.
The Inter Governmental Authority on Development (IGAD) Convention on Extradition.
The Protocol on Judicial Cooperation (01/12/2006).
The Uganda’s Extradition Act is a colonial statute which was inherited from the
colonial masters (Great Britain) before it attained independence. Despite the passage
of time, no amendments have so far been registered within the statute. This is so
despite the UK having passed the UK Extradition Act of 2003 different from Fugitive
Offenders Act, 1881, (UK-Law) which the Uganda’s Extradition Act was modelled.
This therefore calls for the urgent reform of the law to be update with the current
trends.
Purpose of extradition
A criminal is extradited to the requesting state for the following reasons:-
Suppression of crime- extradition is a process towards the suppression of crime.
Normally a person cannot be punished or prosecuted in a state where he has fled
away because of lack of jurisdiction or because of some technical rules of criminal
law. Criminals are therefore extradited so that their crimes may not go unpunished
Deterrent effect- extradition acts as a warning to the criminals that they can’t
escape punishment by fleeing to another state. Extradition therefore has a
deterrent effect.
Safeguarding the interests of Territorial state- Criminals are surrendered
as it safeguards the interest of the territorial state. If a particular state adopts a
policy of non-extradition of criminals they would like to flee to that state only.
The state therefore would become a place for international criminals, which
dangerous for it, which indeed would be dangerous for it because they may
again commit a crime there, if they would left Free.
Reciprocity – extradition is based on reciprocity. A state which is requested to
surrender the criminal today may have to request for extradition of a criminal on
some future date.
International co-operation- extradition is done because it is a step towards
the achievement of international co-operation in solving international problems
of a social character. Thus it fulfils one of the purposes of UN as provided under
para 3 of article 1 of the charter.
Evidence- the state on whose territory the crime has been Committed is in a
better position to try the offender because the evidence is more freely available
in that state only.
Types of Extradition under the Ugandan Law
Under the Extradition Act, extradition can be granted under two categories:
Extradition under Part I of the Act
This applies where extradition agreement exists between Uganda (host country) and
the requesting country. Accordingly, a country to which part I of the Fugitive Offences
Act 1881 of the United Kingdom applied will be a country to which part I of the
Uganda Extradition Act applies. These include:- Argentina, Belgium, Bolivia, Chile,
Colombia, Cuba, Czechoslovakia, Ecuador, El Salvador, Finland, France, Germany,
Greece, Guatemala, Haiti, Hungary, Iraq, Israel, Italy, Liberia, Luxembourg, Monaco,
Netherlands, Panama, Paraguay, Peru, Poland, Romania, San Marino, Spain,
Switzerland, USA, Uruguay and Yugoslavia. (See: The Extradition (Arrangements)
(Enfoncement) Instrument)
Extradition under Part II of the Act
This is based on reciprocal backing of warrants. The countries to which Part II of the
Act are Kenya and Tanzania. (See: The Extradition (Reciprocal Backing of
Warrants) Instrument)
Commencement of Extradition Proceedings under Part I
• Where an agreement/arrangement has been made with any country to surrender
any fugitive criminal, the minister may by statutory instrument, order that Part I of
the Act apply in case of that country subject to such conditions, exceptions and
qualifications as may be specified in the order. (Sec. 2 (1))
• A requisition for the surrender of a fugitive criminal of any country who is in or
suspected of being in Uganda shall be made to the Minister by a diplomatic
representative or consular officer of that country. The Minister may, upon a
requisition being made signify in writing to a magistrate that a requisition has
been made and require the magistrate to issue his or her warrant for the
apprehension of the fugitive criminal. Where the Minister is of the opinion that the
offence is one of a political character, he or she may refuse to make an order and
may also at any time order a fugitive criminal accused or convicted of the offence
to be discharged from custody. (Sec. 8)
• Procedure before the Magistrate
• The magistrate may proceed to issue a warrant for the apprehension of the fugitive offender on such
evidence in whose opinion would justify the issue of a warrant if the crime had been committed or the
criminal convicted in the district or area in which he or she exercises his or her jurisdiction. (Sec. 9(1))
• A fugitive criminal when apprehended on a warrant will then be brought before a magistrate within the
next twenty-four hours. (Sec. 9 (3))
• 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 he or she has in the
exercise of criminal jurisdiction. (Sec. 10 (1))
• If the magistrate finds sufficient evidence, which would justify the committal for trial of the prisoner
according to the Uganda law, i.e. a prima facie case, then the magistrate shall commit him for trial.
Where the magistrate is not satisfied with the evidence, he or she must order the prisoner to be
discharged. (Sec. 11 (1) & (2))
• A prisoner is not to be surrendered until after the expiration of 15 days as he has a right to apply for an
order of habeas corpus. After the expiration of 15days or after decision of magistrate on application for
habeas corpus, the Minister may by warrant order the fugitive criminal to be surrendered to a person
authorised to receive him or her on behalf of the country from which the requisition was received. (Sec.
12)
Commencement of the Extradition proceedings under Part II of the Act
The process of extradition under this part commences with a warrant being issued for the apprehension
of a person accused of an offense punishable by law in that country who is supposed of being in
Uganda. (Sec. 17(1)).
The requisition for endorsement of the warrant is made in the first instance by a diplomatic
representative, consular officer or other appropriate authority of the country concerned to the Minister
who transmits it to a magistrate to proceed with the process of extradition. (Sec. 22)
The Minister must not transmit a requisition and a warrant shall not be issued where the offense
committed was one of the a political character. (Sec. 23)
Endorsement of Warrant
If the magistrate in Uganda is satisfied that the warrant was issued by the proper authority, he or she
will endorse the warrant by signing it. The warrant authorises all persons named in the endorsement
and all those to whom the warrant was originally directed and every police officer, to execute the
warrant by arresting the person named in it, and bringing him or her before that or any other
magistrate. (Sec. 17)
Provisional Warrant
A magistrate may also issue a provisional warrant for the arrest of any person before the
endorsement of a warrant issued by a requesting state. A person so arrested must be
discharged unless the original warrant is produced and endorsed within a specified time. (Sec.
19).
Surrender of Prisoner
A magistrate may order the prisoner to be returned to the country in which the warrant was
issued if he or she is satisfied:-
a) That the warrant is duly authenticated and was issued by lawful authority; and
b) On oath that the prisoner is the person named in the warrant.
The magistrate will order the prisoner to be delivered to the custody of the persons to whom
the warrant is directed, and conveyed to that country where the warrant was issued. (Sec. 18)
NB: In practice the request for extradition can be made through the Ministry of Foreign Affairs
or directly through the Attorney General. It is the Attorney General who reviews the request
on whether it means the legal criteria and forwards it to the Magistrate. After the entire
process has been concluded, it is then the Minister of Internal Affairs who is responsible to
surrender the fugitive offender.
Principles of Extradition Law
Extraditable Offense
The very first requirement for a successful extradition is that the offence committed must be an
extraditable offence. The schedule to the extradition Act provides for the offenses that can be
extraditable in Uganda. These include:- Murder and attempt and conspiracy to murder, Manslaughter,
Wounding or inflicting grievous bodily harm, Assault occasioning actual bodily harm, Assault, Rape,
defilement, carnal knowledge, Indecent assault, Abortion and offences relating to abortion, Child-
stealing, Kidnapping and false imprisonment, Bigamy and procuration among others.
Double Criminality
Double criminality refers to the characterization of the relator's criminal conduct in so far as it
constitutes an offence under the laws of the two respective states. The general rule is that the
offence in respect of which extradition is requested must be an extraditable offence not only under
the law of the requesting state but also under the law of the requested state. Hence, if any act is
considered a crime is the state requesting extradition both if it is not a crime in the country of refuge
extradition is not granted. Example, in Eisler vs. US 1949 the fugitive Eisler was convicted for being
member of CPUSA hut managed to flee and reach UK. He was arrested and produced For trail at the
English magistrate, held to be released on the ground that the offence for which he was convicted in
USA was not recognized as a crime in UK.
Double Jeopardy/Non bis in idem
In application of this principle, extradition must be refused if the individual whose extradition is
required has already been tried for the same offence. The Constitution of Uganda clearly provides:
A person who shows that he or she has been tried by a competent court for a criminal offence and
convicted or acquitted of that offence shall not be tried again
for the offence or for any other criminal offence of which he or she could have been convicted at the
trial for that offence. (Article 28 (9) of the Constitution)
In Yusuf Katana and Edward Kamulegeya vs. Uganda [1979] HCB 36, Ntabgoba J as (he
then was) dismissed the claim for the extradition of the accused to face the charge of holding stolen
property with which the accused were charged in Uganda, the stand as to the extradition offence was
the same as that with which the accused were charged in Uganda. Rule of Specialty
Evidentiary Test
The evidence adduced before the court should establish a prima facie case. (Sec. 11 (1))
Nationality
Many countries apply the principle of not extraditing their own nationals in such cases, a state may
undertake to place its nationals on trial under the conditions laid down in its own laws, in application
of the principle of Auttradere(dedere) aut judicare (either extradite or judge).
Speciality Rule
A state which has received a criminal defendant pursuant to an extradition treaty
may try the defendant only for those offenses for which he or she was extradited.
See: R versus Corrigan, (1931)
Political Character
There is an important principle in international law that the political criminal shall
not be extradited. For example Re Meunier case [1985] in which the accused
was an anarchist and was charged with causing two explosions in para café and
two barracks. After committing the offence, he fled to England. France demanded
his extradition. The accused contended that the nature of his crime was political
and therefore be could not be extradited. In order to constitute an offence of a
political character, there must be two parties in a state; one struggling to impose a
government on its own over the other and the offence must have been committed
in pursuance of that objective
Rule on Reciprocity
This provides for the equivalence of rights and duties between the two states in
Extradition treaties in determining whether to proceed with extradition.
Lapse of time
Where the offense for which the fugitive is sought is limited by statute. States
have been reluctant to go through with extradition where the offense for which he
or she is sought to be charged has been barred by time limitation.
Refugee, Human Rights and Non Discrimination
The principle of non-refoulement forms an essential protection under international
human rights, refugee, humanitarian and customary law. It prohibits States from
transfer-ring or removing individuals from their jurisdiction or effective control
when there are substantial grounds for believing that the person would be at risk
of irreparable harm upon return, including persecution, torture, ill-treatment or
other serious human rights violations. Sec. 42 Refugees Act 2006.