By John Kamau
A blunder by former Attorney-General Amos Wako and differences between his office and the Directorate of Public Prosecutions over who was to extradite billionaire Samuel Gichuru and former Cabinet minister Chris Okemo to the Island of Jersey to face money laundering charges almost let them free, the Nation has learnt.
And now Attorney-General Githu Muigai says he will restart the extradition process as ordered by the Court of Appeal, and that, he says, will be his last deed in office.
The legal battle staged by Mr Gichuru and Mr Okemo to avoid their extradition brought to the fore what appeared to be a battle of supremacy between former DPP Keriako Tobiko — now a Cabinet Secretary — and Prof Muigai.
“My argument was that this is a diplomatic issue, and Tobiko insisted that this was his docket,” says Prof Muigai.
Mr Gichuru and Mr Okemo had all along wanted to persuade the judges to drop the case, and that explains why, seven years after the Island of Jersey asked Kenya to extradite them, they are still in the country.
On Friday, the Court of Appeal sided with Prof Githu’s position and gave him the green light to begin extradition proceedings against Mr Gichuru and Mr Okemo, thus removing the authority from the DPP’s office who had received the files from Mr Wako, when the DPP office was a department within the AG’s chambers.
“The burden remains with the Attorney-General to deal with the request for extradition in accordance with the law,” the Court of Appeal ruled.
When the matter first came to the High Court, Justice Isaac Lenaola, now a Supreme Court judge, sided with Mr Tobiko and argued that extradition was a criminal matter that should be handled by the DPP.
“Justice Lenaola tried to moderate the thinking that we were having turf wars,” the AG told the Nation in an interview.
But as both offices differed, Mr Gichuru and Mr Okemo found solace in the waiting game.
The two are wanted in the self-governing island of Jersey — which one writer described as “half-British, half something else” — where they stashed millions of dollars that, the authorities say, they received as kickbacks from contractors when Mr Gichuru was the managing director of Kenya Power and Mr Okemo was former President Daniel arap Moi’s Finance minister.
Mr Gichuru’s offshore company, Windward Trading Ltd, has already pleaded guilty in a Jersey court to crediting £1 million and $2.9 million to its bank accounts on July 29, 1999, knowing the money was from Mr Gichuru’s corrupt dealings.
The company also pleaded guilty to transferring £449,988 to its bank account on May 12, 2000, and £450,000 on August 15, 2000.
Another £599,994 was transferred to its bank account on October 19, 2000.
Jersey is one of the British-controlled safe-havens that has historically been used by tax cheats and dodgers who open offshore accounts via dummy companies with pseudo-directors.
It came to the attention of wealthy British in the 1970s when they realised that once they invested their millions there, the UK exchequer could not touch them.
From then on, it joined the other Crown dependencies of Guernsey and Isle of Man — now fighting to get out of a blacklist of notorious tax havens issued by the European Union in December 2017.
Had he not lodged a case in Jersey demanding his money, Mr Gichuru’s loot would not have become public knowledge.
He had written a protest letter to the Solicitor-General of Jersey insisting that persons unknown to him represented Windward in a court process that took only 16 days before his assets were taken.
But the Jersey Court wrote back saying Windward pleaded guilty to bribery charges.
Jersey’s Attorney-General, Robert MacRae, then commenced the forfeiture proceedings against Windward Trading, and in March last year Kenya and Jersey signed an agreement for the return of assets valued at more than £3 million stolen through Mr Gichuru’s company.
But the extradition of Mr Gichuru and Mr Okemo to face the law faced hiccups after they questioned the role played by DPP, until the Court of Appeal decision last week.
When Mr Wako received a verbal note on June 6, 2011 from then Attorney-General of Jersey through the British High Commissioner, requesting the extradition of Mr Gichuru and Mr Okemo, he handed it over to the then office of Deputy Public Prosecutor, which was a department within his office.
A month later, on July 6, 2017, the DPP issued an “authority to proceed” which the Court of Appeal has now quashed because that was not his docket.
Through his lawyer Fred Ngatia, Mr Gichuru had argued that in the absence of “authority to proceed” under the hand of the AG, the extradition proceedings were invalid in law.
When the matter was brought to the High Court, Justice Lenaola ruled that the DPP was the valid authority to issue the authority since extradition was a “criminal matter”.
The Court of Appeal now says that Justice Lenaola was wrong and agreed with Mr Ngatia that extradition proceedings are not criminal, but special international legal proceedings that only recognise the office of the AG as the authority to undertake them.
Mr Tobiko, for his part, had told the Court of Appeal that Prof Muigai’s office was wrong to argue that it had authority on extradition proceedings.
“Other ministries and departments of government, including the Ministry of Foreign Affairs, have continued to refer extradition requests to the office of the DPP and acknowledge the office of the DPP as competent authority in such matters,” Ms Dorcas Oduor, the Deputy DPP, said.
It was Mr Ngatia who had told the Court of Appeal that “extradition is a process and not a prosecution”.
He got the support of the Attorney-General in a case where two government bodies could not agree.
From the onset, Mr Gichuru and Mr Okemo had questioned the legality of the proceedings, arguing that Mr Tobiko had no constitutional mandate to issue orders of extradition.
Justice Lenaola had argued in his High Court ruling that the Constitution had taken away the responsibility of extradition from the AG and conferred it on the DPP.
When the National Assembly enacted the Office of the Director of Public Prosecutions Act in 2013, it did not give him powers to conduct extradition or provide mutual legal assistance.
“We hold that extradition proceedings or proceedings for committal as described in the Extradition Act are not criminal proceedings but rather sui generis having been brought into being by the Extradition Act, which is itself a sui generis legislation,” ruled the Court of Appeal.
“The Authority to Proceed should be understood in its international law context. It is not a consent by a State to prosecute any person. It expresses the consent of the requested State to be bound by the treaty or other extradition arrangement entered by Kenya and other Commonwealth countries. Since it is the National Executive which conducts Kenya’s foreign relations… the AG… properly assigned the responsibility to conduct extradition.”
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