[2017] KEHC 9587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NUMBER 46 OF 2017

CELESTINE NTARWANDA

aliasEDOUARD NSENGIMANA...…………………………..APPLICANT

VERSUS

REPUBLIC………………...……………………………….….RESPONDENT

(Being an application for the revision of a ruling made in Milimani Criminal Court case Misc. Criminal Application 26 of 2015 made on 17th March 2017. )

RULING

Background

Celestine Ntarwanda alias Edouard Nsengimana, herein the applicant, filed this application seeking review via a letter dated 21st March 2017 in which he sought this court’s indulgence in reviewing the propriety, legality and correctness of a ruling made pursuant to a preliminary objection raised before the trial court questioning its jurisdiction. In the application he submits that the prosecution assertion that an extradition treaty signed between Kenya and Rwanda dated 30th September, 2009 was in effect had no force in law as it was never gazetted or tabled before Parliament as required by Sections 3 and 11 of the Extradition (Contiguous and Foreign Countries) Act, herein CAP 76. Further that the prior treaty between the two countries concluded in 1991 was not applicable to extradition offences relating to the crime the Applicant was charged with committing as per the International arrest warrant before the court. He thus urged for the file to be placed before this court for it to satisfy itself as to the legality of the proceedings before the trial court and invoke its supervisory powers in order to safeguard and promote the fair administration of justice.

The Applicant was represented by Mr. Olwal while Mr. Mule acted on behalf of the respondent. Both parties filed written submissions and a set of authorities which they relied upon. The matter was heard on 19th July 2017. Mr. Olwal submitted that the respondent was seeking the detention of the applicant and the endorsement of a warrant of arrest from the Republic of Rwanda against the applicant who was charged with committing crimes against humanity. He submitted that the Respondent had relied on Legal Notice 306 of 1991 which was a treaty between Rwanda and Kenya which is in force.

He submitted that the preliminary objection was raised on the ground that the warrant of arrest violated both Section 3 of the Extradition Act, Cap 76 and the Extradition Treaty. He submitted that the purpose of the preliminary objection was to draw the court’s attention the fact that the warrant of arrest did not meet the legal requirements set out in the treaty or in Section 3 of CAP 76. He submitted that Legal Notice 306 of 1991 provided for the extraditable offences committed in Rwanda. However the offences spelt out in the warrant of arrest issued against the applicant were not the offences for which the applicant could be extradited pursuant to Legal Notice No. 306 of 1991.

According to the applicant, the respondent produced a treaty between Kenya and Rwanda purportedly made on 30th September, 2009 which expanded the list of extraditable offences to include those set out in the warrant of arrest. He submitted that the treaty did not meet the legal requirements set out in Section 3 and 11 of CAP 76 as it had not been ratified by Parliament. He relied onCaroli Omondi v. African Trade Insuarance Agency[2011] eKLRto buttress this submission.To vindicate the submission that the Treaty had not been ratified by Parliament, counsel submitted that it did not appear in the Parliamentary treaty database. Had the contrary been the position, the Treaty would have been gazette and according to the cousel, no such treaty was gazette. Court was referred to the case of R(on the application of Miller and another) v. Secretary of State for Exiting the European Union[2017] UKSC 5 and Democratic Alliance v. Minister of International Relations and Cooperation and Others[2017] 2 All SA 123(GP) in this respect.

It was the counsel’s view that under Section11(4) of the Statutory Instruments Act, an instrument becomes void if it is not laid before Parliament as required and that Section 34 of the Interpretation and General Provisions Act made it mandatory that all rules and regulations made under an Act must be laid before Parliament. He submitted that Article 21 of the Treaty in question provided that the treaty must be exchanged and ratified and that no evidence of compliance with this clause was produced. Furthermore, if indeed the treaty was valid the respondent would not have initially relied on Legal Notice 306 of 1990.

He thus urged this court to revise the ruling made on 17th March 2017 and to stay the extradition proceedings initiated against the Applicant. He clarified the Applicant was currently in Kenya as an asylum seeker with an asylum seeker’s certificate pending the completion of an assessment to ascertain his suitability as a refugee.

Mr. Mule filed written submissions dated 10th July, 2017. He submitted that under CAP 76, proceedings could be conducted under either Part II or Part III with each part providing for its own distinct manner of initiating the extradition proceedings. He submitted that proceedings under Part II are instituted through an order of the Minister whereas under Part III they are instituted in accordance with the procedure set out at Section 12. The latter procedure applied in the instant case. That therefore Section 3 was not applicable. With respect to Rwanda, extradition proceedings were cemented when the Attorney General published Legal Notice No. 300 of 1991 a copy of which was filed in court.

He submitted that under Section 11 the designated officer is only supposed to be satisfied that a “reciprocal provision has been or will be made by or under the law of any contiguous country”. He submitted that the provision did not provide that a treaty or an agreement had to be entered into as condition precedent to an order being published in the Kenya Gazette. He submitted that the requirement of an agreement or treaty only applied to orders under Part II of the Act. He submitted that this notwithstanding the extradition treaty between Kenya and Rwanda, whose purpose was to provide for more effective cooperation between the countries in the suppression of crime, did not oust Legal Notice 300 of 1991 with respect to Rwanda.

Counsel submitted that the principle of Pacta Sunt Servanda should apply in light of Articles 2(5) and 2(6) of the Constitution and the fact that Kenya was a signatory to the Vienna Convention on the Law of Treaties. Thus, the extradition proceedings should be done in good faith. In this regard, counsel urged the court to uphold the provisions of Article 159(2) (d) &(e) of the Constitution by ensuring that justice is administered without undue regards to procedural technicality. In addition that the court should give effect to the United Nations Security Council resolution, number 2150 of 2014 that called on member states to investigate, arrest prosecute or extradite all fugitives accused of genocide. The said resolution was arrived at pursuant to Article 25 of the United Nations Charter. Accordingly, it was Mr. Mule’s view that the extradition proceedings were legally and properly before the magistrate’s court and urged that the application be dismissed.

Determination

The main arguments advanced by both parties is the applicability of a Treaty. And flowing from this is the question of how justiciable it is to litigate on a Treaty.

In J. H. Rayner v. Department of Trade:

“A treaty is a contract between the government of two or more sovereign states. International law regulates the relation between sovereign states and determines the validity, the interpretation and the enforcement of treaties.

…

Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact. The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders are not justiciable by municipal courts.”

The above excerpt makes it conclusive that the signing of treaties is undertaken under the prerogative granted to the Executive for the execution of its foreign policy and also that the exercise of prerogative powers falls outside the jurisdiction of the courts. The questions arising in this case do not question the exercise of the prerogative in the making of the extradition treaty between Kenya and Rwanda but rather concern the applicability of the treaty in Kenya. In the circumstances, the issues are justiciable.

The next issue for determination is whether the proceedings before the trial court were brought under Part II or Part III of the Extradition (Contiguous and Foreign Countries) Act, CAP 76. The Applicant submitted that the basis of the preliminary objection was because the international warrant of arrest issued by the Government of Rwanda did not disclose extraditable offences as per CAP 76. It was submitted that the offences which were subject to extradition were clearly set out in the Act pursuant to an agreement between Kenya and Rwanda under Section 3 of the Act which led to providing Part II of the Act. The respondent submitted that the extradition proceedings were not brought under Part II but under Part III of the Act.

Both Part II and III apply to Rwanda by dint of Legal Notices 306 and 300 of 1991 respectively. The respondent contends that the proceedings were brought under Sections 12, 13 and 14 which fall within Part III. These Sections relate to the backing of warrants issued by a country to whom the part applies by endorsement, issuing of provisional warrants pending the endorsement of the warrant and the return of the prisoner to the requesting nation. In this matter it is clear that the original application filed on 9th September, 2016 sought the issuing of a warrant of arrest pending the hearing of an application for the reciprocal backing of a warrant of arrest and an order seeking the detention of the Applicant pending the endorsement of warrants issued by Richard Muhumuza, the Prosecutor General of the Republic of Rwanda on 21st April, 2015. This clearly shows an intent by the respondent to rely on the provisions in question. In any case, the application was brought under Sections 6, 11,12,13 and 14 of the Act. Thus, the Respondent intended to rely on Part III of the Act.

The application in question was brought pursuant to an agreement between Kenya and Rwanda filed to give effect to Section 11 of the Act which provides that:

(1) Where the Minister is satisfied that reciprocal provision has been or will be made by or under the law of any contiguous country other than a designated Commonwealth country within the meaning of the Extradition (Commonwealth Countries) Act (Cap. 77), for the backing of warrants issued in Kenya and their execution in that country and that it is appropriate to do so, he may, by order published in the Gazette, declare that this Part of this Act shall apply in the case of that country subject to such conditions, exceptions and qualifications as may be specified in the order, and this Part shall apply accordingly.

(2) Every order made under this section shall be laid before the House of Representatives.

The Kenyan government through the Minister operationalized Section 11 between Kenya and Rwanda by publishing Legal Notice No.300 of 1991 which simply states that Part III shall apply to Rwanda.

The issue is complicated by the entry into an extradition agreement between Kenya and Rwanda on 30th September, 2009. The Treaty states at Article 21(3), that the Extradition Treaty entered into between the countries and signed at Nairobi on 28th May, 1990 shall cease to have any effect upon its entry into force. Article 21 also states that the treaty shall come into effect upon the exchange of instruments of ratification and that this should not occur more than 60 days after the date of signature. An instrument of ratification in line with this provision was signed on 12th May, 2010, many days after the expiration of 60 days. This court will proceed under the assumption that notwithstanding the failure to ratify the instrument within the time set out in the treaty it is proper under international law, as per the maxim omnia praesumuntur rite ac sollemniter esse acta- all things are presumed to be done in proper and regular fashion, to deem the treaty as ratified. The question then is, what is the effect of this treaty on municipal law?

I find guidance from J. H Rayner(supra),that:

“Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of … law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the context of foreign relations, which are a prerogative of the [Executive], but also because, as a source of rights and obligations, it is irrelevant.”

The same is buttressed by Blackburn v. Attorney General[1971] 1 WLR 1037, as follows:

“Even if a treaty is signed, it is elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament and then only to the extent that Parliament tells us.”

For purposes of the instant case, the question is whether the subject Treaty has been domesticated under our Kenyan Municipal law. The treaty set out how it would come into effect; which was, upon the exchange of instruments of ratification, an issue this court has already considered. The respondent submits that Legal Notice 300 of 1991 is still in force and that the treaty no longer in force is the one set out in Legal Notice 306 of 1991 allowing for the application of Part II to Rwanda. The treaty was silent on which of the two legal notices was to cease to exist upon its entry into force simply stating that the Extradition Treaty signed at Nairobi on 28th May, 1990. The court can only then settle the matter through necessary implication. The reliance on necessary implication was laid down in R(Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax & another[2003] 1 AC 563,that:

“A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.”

Although the application of ‘implication’ is mainly adopted in statutory interpretation nothing prevents a court in applying it in interpreting a treaty. In the present case, court would rely on any term providing for the cessation of the Treaty signed on 28th May, 1990 upon coming into force of the treaty signed in 2009. See J. H. Rayner(Supra)that:

“...[That] a treaty may be referred to where it is necessary to do so as part of a factual background against which a particular issue arises may seem a statement of the obvious. But it is, I think, necessary to stress that the purpose for which such reference can legitimately be made is purely an evidential one. Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact.”

A look at the subsidiary legislation to CAP 76 shows that the only treaty in existence between Kenya and Rwanda relates to Legal Notice 306 of 1991 which is titled, “Extradition Treaty between the Republic of Kenya and the Republic of Rwanda.” I then make the necessary implication that the entry into force of the Treaty of 2009 was meant to bring an end to the Treaty set out in Legal Notice 306 of 1991 and as a result the application of Part II of the Act to Rwanda to which the Treaty applied.

However, this leads to the issue of the effect of the Treaty pursuant to Section 11 of the Extradition Act, Cap 76. The provision in question clearly states that it applies to situations where “the Minister is satisfied that reciprocal provision has been or will be made by or under the law of any contiguous country”. It is my view that the treaty in question could not be implemented under Legal Notice 300 of 1991 given that each order under Section 11 is required to specify its conditions, exceptions and qualifications.

Considering that the order presented before Parliament pursuant to Legal Notice No. 300 of 1991 was express that “Part III of the Act shall apply to Rwanda’’ if follows that that Legal Notice could not be applied to give effect to the Treaty of 2009 entered into pursuant to Section 11 of the Act.

This is also buttressed by the fact that the Treaty in question was entered into under the old Constitutional dispensation which according to the Court of Appeal in Mukazitoni Josephine v. Attorney General of Kenya[2015] eKLR fell within the dualist theory of public international law which requires international law to be “specifically adopted and domesticated” before forming part of the municipal law. This therefore means that the treaty as an instrument of international law could not be properly relied upon until properly domesticated so as to bring it within the bounds of Section 11(1) of the Extradition Act. The need to domesticate it is further enhanced when one considers that the treaty’s entry into force would affect domestic legislation. Accordingly, the treaty should have been presented before the National Assembly pursuant to Section 11(2).

In the circumstances, it is my view that the Treaty this far is not part of our domestic law. Therefore in applying Part III of the Act to Rwanda there is no binding treaty. Part III would then be applicable to Rwanda pursuant to Section 2 of the Act which defines an extradition crime as “a crime which, if committed within the jurisdiction of Kenya, would be one of the crimes described in the Schedule” annexed.

The offences are set out in the Schedule at s. 2(1). What remains is to interrogate the offences set out in the warrants of arrest/indictment against the applicant to determine if they fall within extraditable crimes under the schedule. Such an interrogation may be undertaken using the conduct or ingredients test. This court will apply a conduct test in line with the critique of the ingredients test offered in Werner Kurt Rey v. Government of Switzerland & another[1998] 3 WLR ,that:

“It is now necessary to consider the question from the broader perspective of the undoubted purpose of the Act…, viz. to facilitate the extradition of persons accused of serious crimes. Two factors are of special importance. First, the ingredients test would often require a magistrate to hear and rule on evidence of foreign law. This consequence of the ingredients test complicates rather than facilitates extradition. Secondly, it must be taken into account that there are divergences in the definition of crimes between different national systems… A result of the strict application of an ingredients test would be that extradition would sometimes be refused despite the fact that the conduct of an accused amounts to an offence not only in the requesting state… but also in the state from which extradition is sought...”

I am of the view that the particulars set out in the indictment which forms the basis of the international warrant of arrest disclose an offence under schedule 2(1) of the Act; namely, general organized crime group offences. It is clear from the particulars of the first count; genocide, that, “the genocidal plan was elaborated by the genocidal regime which organized and trained the militia with the aim of preparing and executing the genocide”. This is coupled with particulars throughout the indictment alleging that the applicant interacted often with the interhamwe militia men. Obviously, the particulars of the offence disclose an offence under schedule namely, general organized crime group offences. Therefore, the applicant under Section 2 would be extradited to Rwanda to face trial for the offences set out under the International Warrant of Arrest. Needless to say then the extradition proceedings were properly instituted.

With regard to the issue of the application by Ms. Nyongesa, for UNHCR to have the extradition matter stayed, it’s the view of this court that the learned trial magistrate legally and properly addressed the issue. The point of departure is that if both the extradition proceedings and the refugee status determination proceed simultaneously there will arise an obvious prejudice. This is simply explained by the fact that should the refugee status determination be concluded in favour of the applicant the consequence would be that the applicant will not be extradited to Rwanda. Therefore, it is only prudent that the trial court first hears and determines the refugee status determination application filed by Ms. Nyongesa before the court. If the same does not succeed then the extradition proceedings could take their

I will not at this point address myself on the issue of bond to the applicant as parties were requested by the trial court to make substantive submissions on the same.

In the result this application partially succeeds, I set aside the order of the learned trial magistrate directing that both the extradition proceedings and the refugee status determination of the applicant proceed simultaneously. I substitute the same with an order that the court shall first proceed with the refugee status determination of the applicant. Depending on the outcome of the same the court shall rule about whether to proceed with the extradition proceedings. It is so ordered.

Mention before court number one at Milimani on 13th October 2017 for directions on the hearing.

Dated and Delivered at Nairobi this 10th day of October, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. ………………………………….. for the Applicant.

2. ………………………………………… for the Respondent.