International Law and Extradition: Justice Or Jurisdictional Nightmare? The Case Of Lt. Katungi!
By Barrister Peter Magomu Mashate
The United Kingdom and the United States maintain a formal and operational extradition framework under the UK–US Extradition Treaty of 2003, which was ratified by the United States Senate and incorporated into British law through the Extradition Act 2003.
The treaty provides for the reciprocal surrender of persons wanted for prosecution or the enforcement of criminal sentences for serious offences. Although the arrangement applies to nationals of both countries, criticism has occasionally emerged regarding perceived inequalities within the system, particularly because the United States is not required to establish a prima facie case when seeking extradition from the United Kingdom.
However, the extradition request made by the United States concerning Ugandan Lt. Katungi appears to amount to a request made without any demonstrated obligation to establish a prima facie case. This raises important questions regarding sovereignty and the protection of national jurisdiction. Even if the request were fully grounded in law—which itself remains a matter of debate—it would still be subject to constitutional safeguards and internationally recognized exceptions, as illustrated by the cases of former Chilean President Gen. Augusto Pinochet and WikiLeaks founder Julian Assange.
It is important to note that, unlike the United Kingdom, Uganda has no extradition treaty with the United States. The two countries do not currently share a formal bilateral extradition agreement.
In the absence of such a treaty, legal and political questions inevitably arise whenever the United States seeks the surrender of an individual from Uganda.
Indeed, high-profile extradition matters, including the request involving Ugandan citizen Lt. Katungi, have sparked debate over whether Ugandan courts possess sufficient statutory authority to authorize extradition where no signed and domesticated bilateral treaty exists.
In fact, the only legally binding non-surrender arrangement between Uganda and the United States is the Article 98 Agreement signed in 2003, which prevents either country from surrendering the other’s citizens to the International Criminal Court without consent. In practical terms, the stronger party in this arrangement is clearly the United States because Uganda is a member of the ICC while the United States has consistently declined to subject itself to the court’s jurisdiction.
Uganda also lacks a formal prisoner transfer or exchange agreement with the United States. Although Uganda enacted the Transfer of Convicted Offenders Act to facilitate prisoner repatriation, no bilateral arrangement exists with Washington. Similar arrangements have instead been established with countries such as the United Kingdom, China, Turkey and South Korea.
While no prisoner transfer treaty exists between Uganda and the United States, the two nations do cooperate in immigration matters, including arrangements under which Uganda accepts deported asylum seekers and migrants from the United States.
The late Kampala Mayor, Nasser Ntege Sebaggala, served his sentence in the United States because no prisoner transfer arrangement existed between the two countries. Consequently, if Lt. Katungi or any other Ugandan citizen were extradited to the United States, Uganda would have little practical ability to intervene thereafter. Many would regard this as an unequal relationship in the administration of justice.
EXAMPLES IN INTERNATIONAL LAW & THE EXTRADITION OF FORMER CHILEAN PRESIDENT GEN. AUGUSTO PINOCHET IN THE UK
The Pinochet case established one of the most significant precedents in modern international law by confirming that former heads of state do not enjoy absolute immunity where allegations involve grave human rights violations such as torture and crimes against humanity. The case also reinforced the principle of universal jurisdiction.
In October 1998, Spanish Judge Baltasar Garzón issued an international arrest warrant for former Chilean ruler Augusto Pinochet while he was undergoing medical treatment in London.
Spain sought his extradition to face charges relating to widespread human rights abuses, including torture and murder allegedly committed during his rule. The central legal issue was whether Pinochet could rely on sovereign immunity as a former Head of State. Ultimately, the House of Lords ruled that while immunity may apply to legitimate governmental functions, acts of torture cannot be considered lawful official conduct. Consequently, Pinochet could not rely on immunity to avoid legal proceedings.
This landmark decision significantly weakened the shield of impunity surrounding international crimes. It established that persons accused of jus cogens violations can be held accountable before foreign domestic courts even where the alleged offences occurred outside those jurisdictions. Although Pinochet was eventually allowed to return to Chile on medical grounds and died before a final verdict was reached, the case fundamentally altered the landscape of international criminal law.
Furthermore, the Pinochet proceedings provided encouragement to victims seeking justice across borders and reinforced the principle that serious human rights violations constitute a recognized exception to sovereign and diplomatic immunity.
However, this is not the only exception recognized by international legal practice. Uganda possesses constitutional principles and safeguards that may equally be relevant and should not be overlooked.
Uganda & Citizen Sovereignty
Article 1 of Uganda’s Constitution clearly provides that all power belongs to the people and shall be exercised in accordance with their wishes and consent.
This principle also means that where the people, acting through their elected representatives, have not expressly surrendered an aspect of national sovereignty, that sovereignty remains intact and should be respected by the courts.
While ordinary citizens generally do not enjoy sovereign immunity in extradition matters, particularly where valid extradition treaties exist, sovereign and diplomatic immunities are usually reserved for senior state officials acting in an official capacity on behalf of a government. Even then, such protections are subject to recognized exceptions.
For ordinary citizens, extradition is ordinarily treated as part of the criminal justice process. Nevertheless, the relationship between citizenship, constitutional rights and extradition requires careful consideration of several important legal distinctions.
Nationality Exceptions:
Although ordinary citizens do not enjoy sovereign immunity, many countries recognize nationality-based protections. Under this principle, domestic laws or constitutional provisions may prohibit or restrict the extradition of a country’s own citizens. In such circumstances, the state may choose to prosecute the individual locally instead of surrendering them to a foreign jurisdiction.
No Immunity For Private Crimes:
Sovereign immunity exists to protect states and governments rather than individuals accused of personal wrongdoing. Where an offence falls within the category of extraditable crimes, citizenship alone generally offers no protection. However, it is respectfully argued that no extradition treaty exists between Uganda and the United States concerning Lt. Katungi. Furthermore, the American position that it is not required to establish a prima facie case before seeking extradition should not be disregarded by Ugandan courts. Since Lt. Katungi is a Ugandan citizen and no bilateral extradition treaty exists, it is arguable that any evidence should first be subjected to scrutiny within Uganda’s jurisdiction before a citizen is surrendered to a foreign legal system. This argument gains further relevance when one considers that the United States rejects ICC jurisdiction over its citizens while Uganda accepts such jurisdiction as a State Party.
Political Offence Exceptions:
Most extradition treaties and principles of international law permit the refusal of extradition where the alleged offence is political in nature. This exception featured prominently during the prolonged legal battles involving Julian Assange, first concerning Sweden and later the United States after he sought refuge in the Embassy of Ecuador in London. Whatever one’s views on Assange, the key point concerns the principle and legal process involved. Importantly, those proceedings took place within a treaty framework, whereas no such framework exists between Uganda and the United States.
Human Rights Protections:
Extradition may also be refused where there are credible concerns that the individual could face torture, inhumane treatment, violations of fundamental rights, or the death penalty in the requesting state.
Without addressing the merits of the allegations against Lt. Katungi, it remains a fact that the death penalty continues to exist under United States law. The allegations appear to involve several jurisdictions, and not all relevant facts or interests of third countries may necessarily be placed before the court hearing the matter in the United States. If the possibility of a sentence authorized under U.S. law remains, Ugandan courts must exercise caution before surrendering one of their citizens. Failure to do so could raise questions of justice, constitutional responsibility and the protection owed to Ugandan nationals. In such circumstances, a careful and balanced approach is both prudent and necessary.
THE WRITER IS A CONSTITUTIONAL & HUMAN RIGHTS BARRISTER-AT-LAW OF THE HONOURABLE SOCIETY OF LINCOLN’S INN OF COURT, LONDON.
