In the wake of a Kenyan High Court ruling against the illegal transfer of Kenyan terrorism suspects to Uganda for detention and trial, it has emerged that security chiefs have been trading high profile criminals in blatant disregard of extradition laws.  

Uganda’s Inspector General of Police, Maj-Gen Kale Kayihura, says extradition laws are not the only instruments that security agencies can use to transfer criminals.

The partner states have a common agreement on mutual extradition of nationals who are suspected or accused of organised crimes and corruption, said Tanzanian security sources.

It is not something that is done above board but a practice that has been in existence since 1967 when the first East African Community was established.

There is no protocol, but in police circles, it is assumed that the neighbouring countries will always co-operate when pursing criminals, the Kenyan side said.

The revelations came even as civil society and human rights groups were up in arms over the recent rendition of 13 Kenyans to Uganda on charges of terrorism.

Citing UN resolutions and other regional instruments of the East African Community, Maj-Gen Kayihura told the first executive meeting of counterterrorism agencies in East Africa sitting in Kampala last week that Kenyan Judge Mohamed Warsame’s ruling against extradition of terrorism suspects would not deter the exchange of criminals.

Tanzania’s Director of Criminal Investigations, Robert Manumba, said the agreement demonstrated the mutual determination to combat organised crime and would strengthen confidence among East African states.

The mutual agreement is in the interests of all East African countries who need to be complete allies in the fight against organised crime and corruption, which are increasingly becoming borderless.

Judicial Notices

The police in the region have been operating on the basis of Judicial Notices of Matters of Common Notoriety and Practice — which means something that is in public knowledge and need not be proved.

But that has not stopped human rights groups and other politicians from accusing the governments of rendering their citizens to countries where the observance of their human rights cannot be guaranteed.

Kenya’s police spokesman Eric Kiraithe confirmed that the practice of exchanging criminals who commit crimes in one country and flee to another has been going on for long and that Kenya is the main beneficiary of such exchanges.

Mr Kiraithe said human rights means equality before the law and Kenyans should not make a commotion once a suspected terrorist has been arrested because terrorism in itself is a violation of human rights.

“We are not disregarding the law, neither are we bent on abusing human rights, but the reality on the ground is different.

“Nobody complains when it is about a car thief, but when it comes to Al Qaeda, some people would like us to believe that they are more equal than other criminals and therefore we must follow the extradition procedure,” he said.

According to Mr Kiraithe, the mutual exchange has significantly reduced the number of cars stolen in Kenya and later taken to Tanzania, Rwanda, Uganda and Burundi, because the citizens of these four countries are often brought back to Kenya and tried without much fuss from their governments and civil society.

“Once a criminal is arrested, nobody bothers about his or her nationality.” 

Moreover, he contended, extradition procedures are long and tedious and “justice might never be achieved.”

The procedures involve the Kenyan police doing investigations in the country first.

Then the police have to cross over to the other country in question and present the file to the ministry of foreign affairs before being allowed to go to a court of law.

The concerned police officers will be cross-examined and it is the court that will decide whether the Kenyan police have proved the case, before allowing the suspect to be transported back to Kenya.

The main problem, according to the police spokesperson, is that these countries are not obliged to fast-track the application, especially if there is a backlog of cases.

However, the Kenya National Commission on Human Rights is not convinced.

It intends to go to court to force the government to stop further renditions and return the 13 Kenyans in Uganda to face trials in Kenya.

Parliamentary democracy

According to Commissioner Omar Hassan Omar, just because “a rogue government is handing over its citizens to Kenya does not compel Kenya to reciprocate because Kenya is a parliamentary democracy.

“Kenyans should be outraged that violations of human rights are being hidden under the guise of national security.

“The fear caused by the authorities on the basis of terrorism has always been invoked by other countries to justify violations of human rights,” he said.

But the police force argues that the number of criminals from other nationalities committing crimes in Kenya is greater than that of Kenyans committing crimes in the five East African Community member countries.

Therefore, Kenya must co-operate with these other countries. If Kenya does not allow other EAC member countries to arrest Kenyans who have committed crimes in their countries, then these countries will also do the same to Kenya.

As it is, governments in East Africa are obliged, under international law, to protect their nationals against terrorist attacks and bring perpetrators of such acts to justice.

But the manner in which counterterrorism efforts are conducted can have far-reaching effects on overall respect for human rights.

The African Union Convention on Prevention and Combating of Terrorism compels member states to co-operate in the war against terrorism.

In the convention, which was inspired by the 1998 bombing in Kenya and Tanzania, the members undertook to exchange information regarding crimes committed by terrorist groups, their leaders, training camps, their means and sources of funding and acquisition of arms.

Kenya, Uganda and Tanzania have a common legal background dating back to 1967 when the first East African Community was established.

The co-operation went on until 1977 when the community broke up, but was resumed in 1984.

Current negotiations

Tanzania’s Minister for Constitutional Affairs and Justice, Mathias Chikawe, explained that current negotiations between Uganda and Tanzania revolve around extradition of three suspects linked to the July 11 bombs in Kampala.

Mr Manumba said the EAC member states do not need to go through extradition trials to surrender cross-border criminal suspects who are arrested less than 100 kilometres from the common border.

The mutual agreement also enables criminal investigation authorities in the EAC countries to exchange information without going through diplomatic channels.

Tanzania police said the model has proven effective in combating cross-border criminals within the region.

“The time is gone when criminals co-operated better than the countries.”

Basilio Matei, Arusha Regional Police Commander, concurred with his investigations chief, saying the regional states have a common understanding on repatriating some cross-border criminals without going through extradition red-tape.

“For instance, when in hot pursuit of cross-border criminals, police officers from either side are allowed to arrest the suspects less than 100km from the border,” he said.

The counterterrorism meeting in Kampala brought together specialist police agencies from Uganda, Kenya, Tanzania, Burundi, Sudan, Comoros, Seychelles, Ethiopia and Djibouti.

Also in attendance were the British MI6 police, Interpol and the Federal Bureau of Investigation.  

The police in Kampala would not name any criminal who has been transferred under these arrangements, although most officers The EastAfrican spoke to confirmed that this happens.

“It is an old arrangement between the three police chiefs, but I can’t mention any name,” said Francis Rwego, head of the Uganda police’s Interpol division.  

Uganda police spokesman Vincent Sekatte confirmed that indeed there exists a data bank of criminals that have been transferred, under the care of Interpol.

He revealed that the exchanges involve “hardcore criminals and high profile cases like terrorism and fraud.”  

Transnational crimes

The first EAC peace and security conference that was held a year ago at the Commonwealth Resort, Munyonyo, in Kampala identified rampant transnational crimes such as fraud, money laundering, piracy, corruption, drug and human trafficking and arms dealing, as high profile and prejudicial to regional stability.

The conference resolved that EAC security agencies would work out “mechanisms to curtail these crimes.”

It is such instruments that Gen Kayihura referred to in his presentation.  

However, there have been several high-profile cases of fraud that have defied this arrangement.

In 2003, Ugandan businessman and two others were named in a $1 million fraud case.

The businessman, whose associates included powerful, politically connected people, is said to have made a fraudulent transfer of money from Kenya to his bank account in Uganda.

There were reports later that President Museveni directed the Attorney General and the Director of Public Prosecutions to clear the businessman and block his extradition after Kenya’s Attorney General Amos Wako had demanded it.  

Another Ugandan businessman remains a wanted man in Uganda for his role in the botched Nsimbe Housing Project in 2004.

Among other things, he is alleged to have offered a $350,000 bribe to be awarded a contract in the $225 million project.

He has since been lying low in Kenya, with powerful business associates.  

Reported by Fred Oluoch, Julius Barigaba, Mike Mande and Adam Ihucha