OCHAMI: Agnes Wanjiru murder case: Extradition order for suspect win for rule of law

Justice Alexander Muteti’s order on September 16 for the extradition of British former soldier Robert James Purkiss to be tried for murder is a victory for the rule of law and against foreigner impunity.

Muteti is a former prosecutor and leading expert on extradition law. With moral courage, he properly, laid out the legal and constitutional rationale under the Extradition (Commonwealth Countries) Act and the Constitution of Kenya to ensure justice for Agnes Wanjiru who was murdered 13 years ago.

It is expected that evidence relied on by the Director of Public Prosecutions in application for the warrant and extradition, together with the judge’s order have been forwarded to the Attorney General and Kenya’s Foreign Affairs ministry for transmission to the British authorities to commence extradition proceedings against Purkiss in British courts. 

Because the matter involves a former member of the British military, the Defence ministries of the two states will participate in negotiations. Interior Cabinet Secretary Kipchumba Murkomen alluded to the participation of the Kenya’s Defence ministry in the negotiations and added that Kenya expects cooperation from the British.

"We have good working relations between the two countries and l don't think we will struggle to find the right cooperation," he said.

Justice Muteti ruled that the DPP had established probable cause for murder indictment against Purkiss and that under the principle of dual criminality extradition is a logical option because murder is a crime in both countries. 

"Court is satisfied that the bundle presented before it has reasonable details as concerns the incident and therefore there is probable cause to order the arrest of the accused and his surrender before this court for trial."

Yet despite the judge’s moral courage, Kenyans should not expect a fast extradition. For reasons that are neither legal nor constitutional the British will not hand in Purkiss, easily.

Given the politics and power imbalance between the two nations, a physical translocation of the suspect remains a long shot. It may not occur at all or will not be effected in the traditional meaning of the terms contemplated by the Act.

Beyond politics there is also a lot of legal obstacles for Kenya to surmount that the British will erect in their courts to delay or forestall the extradition. The British will exploit gaps within Kenya’s own laws and juridical history.

Despite the principle of dual criminality and existence of an extradition treaty between the two nations, Kenya's own extradition law and policy prohibits extradition for crimes where the penalty is capital punishment. 

In 2019 the Supreme Court outlawed the mandatory death penalty for murder, allowing judges to exercise discretion for alternative sentences, based on evidence and circumstances. 

But the death penalty remains in Kenya’s laws. Purkiss' lawyers will exploit this window all the way to the British Supreme Court. They may launch proceedings in Kenyan courts on this very issue. 

Ironically Kenyan officials in the past fought extradition of suspects from the UK to Kenya on grounds that Kenyan prisons are deplorable and inhospitable.

There's also the controversial Anglo-Kenya military cooperation treaty that validates the presence of a British military barracks in Laikipia in which Purkiss served when he, allegedly, murdered his victim.

Kenya’s National Assembly ratified the latest version of the treaty last year.

It controversially indemnifies British soldiers present in Kenya from prosecution for murder in Kenyan courts. There's an unresolved legal question as to whether this indemnity violates Kenya’s constitution or if the purported immunity will apply for a murder that happened 13 years ago.

Defence lawyers are capable of exploiting conflict of laws and mount jurisdictional challenges to kill or delay a trial. The Anglo Kenya military pact provides a mechanism to try British criminal suspects under Kenyan law but jail them in the UK on conviction. 

There's a possibility a trial will be held, virtually, under Kenyan law, with Purkiss in British detention in the UK and, if convicted will be jailed in the UK. It is expected the British will require the Kenyans to guarantee a trial without the death penalty before acceding to other proposals.

The suspect could also be granted pretrial bail/bond (allowed under Kenyan law), brought to Kenya but placed under pretrial conditions guaranteed by the British High Commission to ensure he attends court. 

Being a very litigious country, it is inevitable that Kenyan rights groups will mount vigorous constitutional challenges to any plea bargains deemed to confer privilege and indemnity to Purkiss and abrogate judges' constitutional independence and discretion.

David Ochami is an advocate of the High Court. He can be reached at [email protected]