CRIMINAL PROCEDURE

CLASS NOTES FOR LL.B III-2008

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.

Lk 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.

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?

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

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homicide and similar offences, abduction, rape, defilement, bigamy, etc… theft is
not an extraditable offence.

a) must be indictable in Uganda if committed there. i.e it must be an offence

under our laws- 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.
(zzimwe 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)

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

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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 archers 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 to
their child who ate it and died of poison…

b) Procuror- 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.A 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.

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 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 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 for 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.

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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.

In 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.

In 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

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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?

In 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.

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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 committal, any judge of the high court may order that the
criminal be discharged out of custody unless sufficient cause is shown to the
contrary. S.13.

Prepared by Lecturer