EXTRADITION

Criminal procedure
 EXTRADITION
The Law applicable is the Extradition Act Cap 117.
This is an aspect of jurisdiction which deals with the process of surrendering a fugitive offender
from the surrendering country (Uganda) to the country where he committed the offence known
as the requesting country for the purpose of having him/her tried and sentenced for that offence.
 Extradition in Uganda is governed by the Extradition Act cap 117.
 
 It should be noted that extradition can only be demanded pursuant to an extradition treaty
between the two states i.e the requesting state and the surrendering state.
 There is no legal obligation to extradite in the absence of a treaty or an agreement between the
states. Look at section 4(1) on application to commonwealth countries or section 4(2) it
applies to any other country with which a reciprocal arrangement exists with Uganda.

s.5 on discontinuance; where the arrangement ceases to exist under s.4, the minister may by
statutory instrument, discontinue the application of the act to that country.
 EXTRADITION
 Who is a fugitive criminal for purposes of the Extradition Act?
 s.1 c) defines a fugitive criminal as any person accused or convicted of an
extradition crime within the jurisdiction of any other country who is in or
suspected of being in Uganda.

 What is an extraditable crime?

 
Question:
 Suppose an extradition agreement exists between the two countries, would this
make the extradition automatic?
 EXTRADITION
Under the extradition act cap 117, it is important first to establish if the offence is actually
extraditable or not. An Extraditable crime under section 28 of the Act is a crime which if
committed within the jurisdiction of Uganda, would be an indictable offence described in the
schedule to the act. For example, criminal homicide and similar offences, abduction, rape,
defilement, bigamy, etc… theft is not an extraditable offence.
Extraditable offences
a)      must be indictable in Uganda if committed here. i.e it must be an offence under our laws.
Eg, chewing gum on the street is not an offence in Uganda but it is in Singapore… so Uganda
would not extradite a Singaporean or any other fugitive for having chewed gum while on the
streets of Singapore.(not to flush after use of a public restroom)

b)      it must be an offence described in the schedule to the Act. It may be an indictable offence
in Uganda but not described in the schedule. i.e theft. (zimwe case… theft of money from the
bank).
 RESTRICTIONS ON SURRENDER OF
CRIMINALS
 What restrictions are there on the surrender of fugitive criminals by Uganda under the extradition Act? 
 Under section 3 of the Extradition Act,

a) a fugitive criminal shall not be surrendered if the offence in respect of which his or her surrender is sought is
one of a political character or if it appears to the court or the minister that the requisition for his or her surrender
has in fact been made with a view to try or punish him or her for an offence of a political character;
 
b) s.3 b) provides that the fugitive criminal shall not be surrendered unless it is proved that there exists a law or
arrangement in the country seeking his surrender that he shall not, unless he or she has been restored or has had an
opportunity of returning to Uganda be detained or tried in that country for any offence committed prior to his
surrender other than the extradition crime proved by the facts on which the surrender is grounded.
I.e it must be proved to Uganda that once the fugitive is extradited, he shall only be tried for the offence for which
the extradition was sought and granted. (If they come up with any other offence then the criminal must be given an
opportunity to be returned to Uganda)
 RESTRICTIONS ON SURRENDER OF
CRIMINALS
c) s.3 C) provides that if a fugitive criminal is being accused for having committed an offence
in Uganda, not being the offence for which his or her surrender is sought, or is undergoing
sentence under any conviction in Uganda, he shall not be surrendered until after he or she has
been discharged either by acquittal or by expiration of his sentence
 
d) finally under section 4 d), a fugitive criminal shall not be surrendered by the Ugandan
authorities until the expiration of fifteen days from the date of his or her being committed to
prison to await his or her surrender.

N.B Almost all the extradition treaties also adopt the double criminality element meaning that
an act or offence for which extradition is sought should be criminal in both states. Lk at s.28
extraditable crimes.
 WHO CAN BE EXTRADITED?
s.1 c) a fugitive criminal- any person accused of an extraditable crime committed outside Uganda.
Secondly, s.7, every person who is accused or convicted of;
a) counselling- to counsel is to advise someone into committing an offence, s.19(1)d) PCA, same
punishment as the person who actually commits the crime. It must be proved that it was the offence
counselled that was actually committed and not a different one. Rv saunders and Archer. Saunders
desiring to kill his wife so as to marry another woman consulted with Archer who advised him to put
poison in an apple which was then to be given to his wife. The wife after taking a bite from the
apple handed it to their child who ate it and died of poison…
b) Procurer- Blakely and Sutton v Dpp added vodka to her boyfriend’s tonic water.
c) Aidder and abettor- presently assisted and encouraged a person to commit the offence Rv Bourne
d) Accessory after the fact- assist the fugitive to evade justice by habouring him or her at your house
All the above categories of persons will be liable to extradition if the conditions in s.3 and s.4 are
proved.
 PROCEDURE FOR THE SURRENDER OF
CRIMINALS UNDER CAP 117.
A) Under section 8(1) of the E.Act a requisition for the surrender of a fugitive criminal 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. (Ambassador) which Minister? Justice Minister- attorney
general.
 
B) The Minister upon receipt of the requisition will signify in writing to a Magistrate informing
him or her that a requisition has been made and will require the Magistrate to issue a warrant
for the arrest/apprehension of the fugitive criminal. (a Magistrate in this case refers to a chief
magistrate or a Magistrate Grade I) s.8(2)
 
C) However where the Minister is of the opinion that the offence of which the fugitive is being
requested is one of a political character, he may refuse to make an order and may order the
Magistrate to have the criminal discharged from custody. S.8(3)
 PROCEDURE OF ISSUING A WARRANT OF
ARREST AGAINST A CRIMINAL 
A warrant of arrest against a fugitive criminal may be issued by magistrate under the
following circumstances;
1) S.9 1 a) on the receipt of orders of the minister, under s.8(2)or
2) on such evidence as would in his opinion justify the issue of a warrant if the crime had been
committed in Uganda. (i.e, where a complaint has been lodged and such evidence produced that
shows that a crime was committed outside Uganda)
3) S.9(2) a magistrate who issues a warrant of arrest without the orders of the minister shall be
required to send a report of the facts, together with the evidence and complaint to the minister
who may order for the cancellation of the warrant if dissatisfied with the evidence.
4) S.9(3) a fugitive criminal who is apprehended on a warrant must be produced before a
magistrate within twenty-four hours.
WHAT IS MEANT BY AN OFFENCE OF A POLITICAL
CHARACTER UNDER S.3 A) OF CAP 117?

How do you determine whether a particular offence is of a political

character?
  According to section 3a) a fugitive criminal shall not be surrendered if the
offence in respect of which his or her surrender is demanded is one of a political
character.
  Section 23 further states that the minister shall not transmit a requisition and or
endorse a warrant if the offence is one of a political character.
  The Extradition Act doesn’t define the expression political character but the
definition of an offence of a political character can be borrowed from a number
of old English cases.
 RE CASTIONI (1891) 1 QB 149
 Castioni was a swiss who escaped from Switzerland into England after shooting one Rossi a member of the
government of the canton. Castioni shot and killed Rossi during an uprising where a number of government
officials were arrested because the citizens of canton were dissatisfied with the manner in which the government
was being run. Castioni and others broke into the armoury, seized arms and went on a rampage. They went
straight for the municipal palace, broke it open and entered. Rossi who was standing in one of the corridors of
the palace was shot and killed by Castioni who then escaped to England where extradition proceedings started
against him.
  Castioni’s solicitor argued that this was an offence of a political character and that the shooting was incidental to
and formed part of a political disturbance. His lawyer further argued that Castioni had no political motives and
that he had done the shooting simply to gratify his personal malice.

 It was held that Castioni was an active participant in a political uprising and that the shooting was done in the
furtherance of the aim of getting rid of a government.
 It should be noted that not everything that is done during the period of a political uprising can be said to be of a
political character.
  According to Hawkins J, the expression “political character” means incidental to or forming part of a political
uprising
 R V MEUNIER (1891) 1 QB 149
 The accused was an anarchist in france. He was charged there with wilfully
causing two explosions killing two people in a café and another at a military
barracks after which he escaped to England where extradition proceedings were
started against him and he was arrested. It was argued that the incident at the
café was not an offence of a political character. The question to be answered was
whether the incident or the attack at the barracks amounted to an offence of a
political character.

 It was held that in order to constitute an offence of a political character, there

must be two parties in a state, one struggling to impose a government of its own
over the other and the offence must have been committed in pursuance of that
objective. Meunier’s conduct didn’t fall within this description.
 QUESTION
Kony attempts to murder the vice president of Uganda while in
Newyork. He flees the country and takes refuge in Sweden. The
United States government then institutes extradition
proceedings against Kony in a Swedish court.

In your view, do you think Kony’s lawyers would successfully

raise the defence of the offence being of a political character
against the extradition proceedings?
 CHENG V THE GOVERNOR OF
PENTOVILLE PRISON (1973) 2 WLR 746
 The accused had been convicted in Newyork of the attempted murder thereof of the vice
president of Taiwan. While on bail pending sentence, he fled the country and went to London
where the American government initiated proceedings for his extradition. Cheng argued that
the offence was one of a political character and therefore not an extradition crime.

 This argument was refused by the divisional court and it was held on further appeal that this
wasn’t an offence of a political character because the offender had not been taking political
action against the American government. It was further stated that the American government
was not concerned with its relation with Taiwan asking for extradition. The American
government was merely concerned with the enforcement of its American criminal laws.
 HEARING OF CASES AND EVIDENCE
 After a warrant of arrest has been issued, the magistrate will go ahead to hear the case in the same manner and
with the same powers and criminal jurisdiction as he would have exercised in a case committed within Uganda.
S.10
 The magistrate must receive and hear all the evidence which may be tendered to show that the crime of which
the prisoner is accused is an offence of a political character or is not an extradition crime. S.10 (2)
 After the magistrate has determined that the crime is an extradition crime, and has also proved that the foreign
warrant is duly authenticated, then the magistrate will commit the fugitive criminal to prison to await the warrant
of surrender from the minister. (s.11)
 The minister shall then send a report on the case and a certified copy of the warrant of apprehension to the
minister for his perusal.
 The magistrate shall then be required to inform the fugitive that he will not be surrendered until the expiration of
fifteen days and that he or she has a right to apply for an order of habeas corpus.
 Upon the expiration of the fifteen days, the minister shall if no other orders are made, may by warrant order the
fugitive criminal to be surrendered to such person duly authorised to receive the fugitive. S.12 (2)
 
 If the fugitive criminal is not surrendered and conveyed out of the country within two months after the
END