Court dismisses Afghan national’s appeal against extradition to US

The High Court has dismissed an appeal by an Afghan national seeking to block his extradition to the United States over drug-related charges.

In a judgement delivered on April 22, 2026, Justice Alexander Muteti upheld a lower court decision that had authorised the extradition of Abdul Zahir Qadeer, who was arrested in Nairobi following a request by US authorities. 

The suspect is wanted in the United States to face charges of narcotics importation conspiracy, possession of machine guns and destructive devices, and conspiracy to possess those weapons, according to the court judgement.

He had challenged the magistrate’s ruling, arguing that Kenya lacks a valid legal framework to extradite him to the United States, submitting that there is no existing treaty between the two countries. 

Through his lawyer, he maintained that reliance on a 1931 treaty between the US and the United Kingdom—previously extended to colonial Kenya—was legally untenable, as the agreement had long lapsed. 

"The Learned Magistrate erred in law by endorsing the extradition request and granting the surrender of the Appellant to the United States of America despite compelling evidence showing that the charges against the Appellant are politically motivated, contrary to Section 16 of the Extradition(Contiguous and Foreign Countries) Act, Cap 76 Laws of Kenya," the judgement states.

He further contended that without a fresh bilateral treaty, any attempt to extradite him would be unconstitutional and amount to unlawful detention.

However, the High Court rejected this argument, finding that the absence of a direct extradition treaty does not bar Kenya from cooperating with other states in criminal matters.

Central to the court’s determination was the applicability of international law, particularly the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, to which Kenya is a signatory. 

Justice Muteti held that the convention provides a sufficient legal basis for extradition in drug-related cases, even where no bilateral treaty exists between the requesting and requested states.

The court emphasised that under Article 2(6) of the Constitution, international treaties ratified by Kenya form part of domestic law, and the country cannot evade its obligations under such agreements.

"The treaty entered into by our colonial masters remained available for use by Kenya as an independent state but did not in anyway limit the capacity of Kenya as an independent state from charting its own path in international relations," the judge observed.

He also dismissed the appellant’s argument that the lapse of the 1931 treaty created a legal vacuum, stating that “the law abhors a vacuum” and that Kenya’s post-2010 constitutional framework allows for reliance on international conventions to fill such gaps. 

The prosecution had also conceded that no current bilateral extradition treaty exists between Kenya and the United States. 

Nonetheless, it argued that the 1988 convention permits extradition based on multilateral cooperation, a position the court ultimately endorsed. 

In its analysis, the court underscored the principle of reciprocity in international law, noting that states are expected to honour obligations arising from treaties and conventions they have ratified.

Declining extradition requests on purely technical grounds, the judge observed, would undermine global cooperation in combating transnational crime.

The court further noted that the offences facing Qadeer—linked to narcotics trafficking and firearms—are also criminalised under Kenyan law, thereby satisfying the principle of dual criminality, a key requirement in extradition proceedings. 

Justice Muteti also pointed out that Kenya had the option to prosecute the suspect locally but had instead opted to honour the US request, consistent with the international legal principle of “aut dedere aut judicare” (either extradite or prosecute). 

With no evidence presented to show that Qadeer would face persecution, torture, or an unfair trial if extradited, the court found no legal or constitutional barrier to his surrender.

As a result, this court finds that there is sufficient legal basis for the extradition of the appellant to the USA to face trial. The appeal therefore fails in its entirety and is hereby dismissed," the judge ruled.

The ruling now clears the way for Kenyan authorities to hand over the suspect to the United States to face trial, marking a significant affirmation of the role of international conventions in Kenya’s extradition framework.