What is the legality or otherwise of holding a suspect in custody for more than 24 hours in an extradition proceeding?

From a healthy dose of research an accused person has the right to be brought to court as soon as is reasonably possible and not more than 24 hours after being arrested[1].

The Criminal procedure code under section 36A provides that the court can extend the period upon application and satisfaction of the need to do so by the prosecution. It is argued that this provision threatens an arrested person’s right to a fair and expeditious trial[2]. There are two conflicting sides; the wheels of justice need to roll further whereas an arrested person’s rights need to be protected.

It can be argued that the mere fact that the suspect is produced to court for a capable magistrate to either extend or cut off the detention is a necessary check and balance to the fear that the police may abuse their powers to detain an arrested for more than 24 hours. Furthermore the right to be arraigned in 24 hours is not absolute as such this would constitute a necessary and proportional legal limitation.

Lastly Section 36A (7) of the C.P.C allows the remand of such a suspect for more than 24 hours but not more than 30 days.

Section 36A is similar to clause 15 of the Security Laws Amendment Act, the same was challenged in the case Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another H.C Nairobi Constitutional and Human Rights Division petition nos. 628 & 630 of 2014. The honourable court ruled that the keeping of a person in custody for more than 24 hours subject to a court order is not unconstitutional[3].

The other side of the coin is bail and bond.

The Constitution of 2010 does not give a category for bail-able and non-bail-able offences as such it falls under the discretion of the magistrate who is then guided by sound principles on whether to grant bail or bond. These principles include but are not limited to; 

1.     Likelihood of appearance at the trial.

2.     Likelihood of interference with investigations.

3.     Likelihood of interfering with witnesses.

4.     The nature of the offence the accused is charged with. Etc.

It is also worthy to note that bail is not an absolute right.

The third side of the pyramid is bail in extradition proceedings.

In an extradition case the magistrate pursuant to section 14(3) of the Kenya Extradition (Contiguous and Foreign Countries) Act has powers to remand or grant bail to an arrested person, this is decided from authenticated[4] evidence that is adduced in court. 

It is submitted by persuasive authority that in an extradition proceeding the presumption is against bail United States –Vs– Messina 566 District Court ED New York, however a presumption may be rebutted in special circumstances.

In the case of Republic v Baktash Akasha Abdalla alias Baktash Akasha & 3 others CR appeal 178 of 2014, H.C Mombasa. The accused had been arrested for the importation of drugs, they were to face extradition justice Muya held that bail/bond is discretionary and that stiff bond terms and daily reporting to a police station alleviated the temptation to flee as such he released the accused on bond.

It is therefore submitted that in such a case of extradition, whether to release the suspect on stiff bond terms( and other requirements) or keep in custody for more than 24 hours but less than thirty days, subject to a court order, is legal and proper

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[1] Constitution of Kenya, Art, 49(1)(f)(i)

[2] Constitution of Kenya, Art, 49

[3] Para 178, Kenya extradition (Contiguous and Foreign Countries) Act

[4] Sec 17(1)