By Michael SUMAILA
“Trouble” is a towering and a physically strong man. He campaigned tirelessly for his Party in a general elections. Luckily, his Party won the elections and he was assigned to head the Party’s security operations giving all the needed State resources.
But he was unguided in his line of duty. For example, in a by-election, he and other Party security personnel dressed in military apparels went on rampage and attacked, maimed and shot to death some voters.
Unfortunately, his party has lost the recent general elections and the new President of the country has tasked the Inspector General of Police (IGP) to cause an investigation into the violent attacks that took place in the by-election. It is believed that he (“Trouble”) is seeking refuge outside the country for fear of being arrested and prosecuted for alleged offences.
In this article, the focus is to explore the laws on extradition of political fugitive by examining the following enactments:
- Constitution of Ghana, 1992.
- Extradition Act, 1960 (Act 22)
- United Nations Model Law on Extradition (2004)
The article also considered some judgments of the court in the following cases:
- Republic v Director of Prisons; Ex Parte Allotey & Anor [1973] 2 GLR 480
- Republic v Director of Prisons; Ex Parte Yeboah [1984 – 86] 1 GLR 92
- State v Director of Prisons; Ex Parte Schumann [1966] GLR 703.
- R v Bow St Metropolitan Stipendiary Magistrate; Ex Parte Pinochet. [2000] 1 AC 61
- Austrian Supreme Court in the Austro-Hungarian (Deserter) 1868-1914
Definitions
For the purpose of clarification, the following definitions in the United Nations Model Law on Extradition, of which Ghana is a party to, shall apply:
- Extradition is the surrender of any person who is sought by the requesting State for criminal prosecution for an extraditable offence or for the imposition or enforcement of a sentence in respect of such an offence.
- Requesting State is the State which requests of the extradition of a person or the provisional arrest of a person with a view to extradition.
- Receiving State is the State to which a person is to be extradited.
- Transferring State is the State from which a person is being extradited to a requesting State.
- Extradition treaty is a bilateral treaty concluded between a country and another foreign country, or a multilateral treaty to which transferring state is a Party, which contains provisions governing extradition of persons who are present in the territory of the country transferring state.
- Fugitive criminal means any person accused or convicted of an extradition crime committed within the jurisdiction and who is in or is suspected of being in another country.
- Political fugitive is someone who has fled from a political regime in search for safety in another country after committing an offence inspired by politics.
Legal basis of extradition
The international practice of extradition is based on the Latin maxim aut punire aut dedere which means that offender must be punished by the State of refuge or surrendered to the State which could punish him. A person may be extradited in accordance with a state law, relevant extradition treaty or by an agreement on the request of a requesting State for the purpose of prosecution or imposition or enforcement of a sentence in respect of an extraditable offences.
Extradition is firmly backed by Ghanaian laws. According to article 14(f) of the 1992 Constitution, it provides in the manner that:
- Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law
- for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another.
Following the above, it needs stressing that apart from the obligation to extradite a person in fulfilment of a state law or a treaty, the use of diplomatic relation may cause an extradition request to be granted. Section 2(3) (a)(i) of the Extradition Act, 1960 (Act 22) states as follows: –
A fugitive criminal shall not be surrendered to any country unless provision is made by the law of that country or by arrangement: –
(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his surrender is requested except in the following cases—
(i) with the consent of the Government of Ghana
So, the idea that a State is requesting for a fugitive to be surrendered can be done by diplomatic arrangement, however, the request should state the particular sentence, detention, restriction or offence it is seeking to impose on the fugitive.
Ghana’s extradition treaties
According to the Institute for Security Studies (ISS), Ghana has extradition agreements with a number of countries including USA, Britain, Nigeria, Togo and Benin. Ghana has also signed the Convention on Extradition which is in force among the States within the Economic Community of West African States (ECOWAS). Hence a person, whether Ghanaian or not, living in any of these countries, may be extradited to Ghana through the diplomatic request by the Ghanaian Mission in the country.
Extraditable offences
Without prejudice to the terms of agreement in Ghana’s extradition treaties, Act 22 does not provide any list of offences which are extraditable. However, section 3 of the UN Model Law of Extradition gives the scope of extraditable offences. It states that a person is extraditable, if:
- the offence is punishable under the laws of the requesting state. This is also known as the principle of double criminality.
- The offence if committed in the transferring state is punishable by imprisonment.
However, it goes without saying that under section 4 of the UN Model Law of Extradition and section 2 of Act 22, a request for extradition involving an offence of a political character shall not be granted.
Extradition of Ghanaians
The condition for extradition process is that the act for which it is sought must constitute a crime punishable in both the requesting and receiving states. Despite the legal differences between nations, there are several principles on extradition that are common to most countries. Hence the Ghanaian laws permit a citizen of Ghana who is a fugitive criminal to be extradited. Section 30 of Act 22 defines a “fugitive criminal” as follows: –
fugitive criminal means any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Ghana.
Further, in the case Republic v Director of Prisons; Ex Parte Allotey & Anor [1973] 2 GLR at page 481, the High Court speaking through Apaloo Acting CJ (as he then was) held that: –
By section 30 of the Extradition Act, 1960, the definition of “fugitive criminal” was wide enough to include a citizen of Ghana who was on Ghanaian soil. The international practice of surrendering fugitive offenders was based on the maxim aut punire aut dedere which meant that the offender must be punished by the state of refuge or surrendered to the state which could and would punish him.
Ghana courts had no power to invoke criminal sanctions against Ghanaians who committed fraud by false pretences abroad in respect of property in which the Government of Ghana had no interest, and the government had by legislation opted for the British principle of no discrimination in favour of its own nationals. The first applicant therefore, although a Ghanaian, was liable to extradition.
The above statement reinforces the point that a Ghanaian can be extradited for an offence committed in another State. In the same vein, a Ghanaian living in another state can be extradited to Ghana for crimes committed in the country.
Extradition of non-Ghanaians
The process involving another State seeking the extradition of its national living in Ghana is allowed. This is either by way of treaty or diplomatic means. This is observed in the case of State v Director of Prisons; Ex Parte Schumann [1966] GLR 703, CA, where a German was extradited to face prosecution for a charge of murder with the Nazi regime during World War II. Following a diplomatic request to the Government of Ghana, extradition proceedings were commenced for his arrest as a fugitive criminal. He was brought before the court, and upon being satisfied that the provisions of the Extradition Act, 1960 (Act 22), the court ordered his extradition.
Extradition for international crime
In respect of the principle governing extradition, some States decline invitations to surrender their own citizens. These States include France, Russia, China, Japan, Israel, etc., To the extent there are constitutional provisions which prohibit the extradition of their citizens. Nonetheless, when it comes to public international law, it is mandatory for States to extradite or prosecute (aut dedere aut judicare) persons who commit serious international crimes (universal crimes).
This obligation is predicated on the extraterritorial nature of international crimes such as genocide, war crimes, torture. It reflects an attempt of the international community to ensure that perpetrators are prosecuted either by the national authorities of that State or by another State which indicates that it is willing to prosecute the case by requesting extradition.
In the case of R v Bow St Metropolitan Stipendiary Magistrate; Ex Parte Pinochet. [2000] 1 AC 61, the matter concerned the extradition of a former Chilean President to Spain to face prosecution for various international crimes. The House of Lords made the following remarks with respect to extradition request by Spain: –
In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries. If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain. The power to extradite from the United Kingdom for an “extradition crime” is now contained in the Extradition Act 1989.
That Act defines what constitutes an “extradition crime”. For the purposes of the present case, the most important requirement is that the conduct complained of must constitute a crime under the law both of Spain and of the United Kingdom. This is known as the double criminality rule. Since the Nazi atrocities and the Nuremberg trials, international law has recognised a number of offences as being international crimes. Individual states have taken jurisdiction to try some international crimes even in cases where such crimes were not committed within the geographical boundaries of such states.
Following this decision of the court, any person accused of international crime would either be liable and tried in the country within which jurisdiction he finds himself or would be extradited to the requested country.
Non-extradition of Political character
According to section 4 of the UN Model Law of Extradition, an extradition shall not be granted if the offence for which it is requested is an offence of a political nature. Relying on section 2 of Act 22, Ghana shall not surrender a fugitive criminal involved in a political crime. Subsection (2) of the section states as follows: –
A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is requested is one of a political character, or if it appears to the Court or the National Liberation Council that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.
What constitutes the offence of political crime was explained by the Austrian Supreme Court in the Austro-Hungarian (Deserter) 1868-1914 case. The court is reported to have said:
The political motive of a criminal offence does not in itself prove that the offence is political. The crime becomes a political offence only where it serves a political purpose; i.e., where the offence is intended to bring about a change of political circumstances, and not where it serves a personal purpose, albeit one influenced by political motives.
In this regard, any other criminal offence would not amount to political crime to refuse extradition. In the case of Republic v Director of Prisons; Ex Parte Yeboah [1984-86] 1 GLR at page 92, the Court of Appeal in dismissing the appeal proceeded to make these remarks regarding the offence of political crime: –
The charges brought against [the accused] only related to his office as a banker and the evidence showed that he engaged in dishonest activities which damnified his employers, namely the Security Pacific National Bank of Los Angeles and which activities amounted to punishable offence under Ghana’s law and the criminal code of the USA. Consequently, it would be plainly contrary to the facts to contend that Y’s extradition was sought because he had committed a political offence or that the true object of the US Government was to punish him for an offence of a political character.
In light of the foregoing, unless the offence is in the nature of a political character, a criminal fugitive will be extradited.
Conclusion
In summary, an extradition is for the mutual benefit of the comity of nations to promote peace and security. A number of factors are considered on extradition request. The request to extradite a fugitive are done according to State laws, treaties or diplomatic arrangements.
However, if the offence charged is in the nature of a political character, i.e., where the offence is intended to bring about a change of political circumstances, and not to serves a personal interest, a request for extradition.
>>>the writer is Private Legal Practitioner at Amissah, Amissah & Co, North Labone – Accra
