Extradition and

Deportation
proceedings
• Extradition is the removal of a person from a requested
country to a requesting country for criminal prosecution or
punishment.
• Extradition procedures are normally determined by
agreements between countries
• In most jurisdictions, extradition will be granted only if the
alleged crime is also against the law in the requested
country
• Deportation usually happens because an illegal
immigrant is in a country without naturalization or
citizenship. When someone is in a country illegally, has
an expired visa or enters the country without the proper
channels or documentation, he or she could face
deportation eventually. The foreign national may even
commit a crime and face and arrest first before the
immigration offices file the appropriate paperwork to
deport the person
• However, while extradition is because the person from
another country committed a crime, deportation is
because the person is illegally in the country
• Under sec 3 of the Extradition Act, Cap 76, where an
agreement has been made with any country, with respect
to the surrender to that country of any fugitive criminal,
the Minister may, by order published in the Gazette,
authorize a person to be extradited
• If there is an extradition treaty, whether bilateral or
multilateral, between two states, then that treaty will
prescribe the requirements and process for extradition
between those two states.
• Any state can request extradition from another state even if
they are not parties to an international treaty
• Extradition proceedings usually contain the following:
• The extradition request must be for a felony offence and not a
misdemenor
• The conduct for which the person is sought must be a crime in
both countries (this is known as double criminality).
• The requesting state must send a formal extradition request
through diplomatic channels, attaching to that request various
documents like an arrest warrant.
• An extradition request must be refused if the requested state has
substantial grounds for believing that the sought person will be
prosecuted or punished because of (among others) their race,
religion, or political opinion.
• The request must also be refused if the person has not received or
would not receive a fair trial in the requesting state.
• The process of extradition involves an arrest, an appearance before a
judge or magistrate, and then a decision by the executive branch of
the government whether to surrender the sought person.
• Any decision to prosecute, arrest, or request an extradition must
also comply with the Constitution, which protects certain rights.
• If the person whose extradition is requested is a national of the
requested state, then extradition may be refused.
• While domestic law in part determines how extradition requests
play out, most extraditions inevitably also depend on the political
goodwill and diplomacy between the two states concerned.
• It usually tests diplomatic relations and demonstrates their
respective commitments to the rule of law, both internationally and
domestically, and more generally how they view their international
obligations to cooperate in criminal matters.
• It should be noted that under international human rights law, the
principle of non-refoulement guarantees that no one should be
returned to a country where they would face torture, cruel,
inhuman or degrading treatment or punishment and other
irreparable harm
• Under Sec 8 of the Immigration Act The Minister may, by
order in writing, direct that any person whose presence
in Kenya was, immediately before the making of that
order, unlawful under this Act, or in respect of whom a
recommendation has been made to him under section
26A of the Penal Code, shall be removed from and
remain out of Kenya either indefinitely or for such period
as may be specified in the order.