International Law and Extradition: Fair Process Or Legal Nightmare? The Case For Lt. Katungi!
By Barrister Peter Magomu Mashate
The United Kingdom and the United States maintain a formal and active extradition arrangement governed by the UK–US Extradition Treaty of 2003, which was ratified by the United States Senate and implemented in the United Kingdom through the Extradition Act 2003.
The treaty enables the reciprocal surrender of individuals sought for prosecution or the enforcement of criminal sentences for serious offences. Although the framework applies to citizens of both states, the extradition process between the U.S. and UK has at times attracted criticism over perceived imbalances, particularly because the United States is not required to establish a prima facie case when requesting extradition from the UK.
Yet the extradition request made by the United States in relation to Ugandan Lt. Katungi appears to amount to a request made without any obligation to present a prima facie case. This raises fundamental questions regarding national sovereignty. Even if such a request were fully grounded in law—which itself remains debatable—it would still face constitutional limitations and exceptions, as illustrated by landmark cases involving former Chilean President Gen. Augusto Pinochet and WikiLeaks founder Julian Assange.
As a matter of record, unlike the United Kingdom, Uganda has no extradition treaty with the United States. The two countries do not have a formal bilateral extradition agreement.
Because no such treaty exists, legal and political debate frequently arises in Uganda whenever Washington seeks the surrender of an individual.
For example, high-profile extradition matters, including the United States’ request involving Ugandan citizen Lt. Katungi, have generated considerable scrutiny regarding whether Ugandan courts possess an adequate statutory basis to proceed in the absence of a signed and domesticated bilateral treaty.
Indeed, the only binding non-surrender arrangement between the two countries is the Article 98 Agreement signed in 2003, which prevents Uganda and the United States from surrendering each other’s citizens to the International Criminal Court without the consent of the other party. In practical terms, the United States occupies the stronger position in this arrangement because Uganda is a State Party to the ICC while the United States has consistently declined to join the court.
Uganda also lacks a formal prisoner transfer or exchange treaty with the United States. Although Uganda enacted the Transfer of Convicted Offenders Act to facilitate the repatriation of prisoners, no bilateral framework exists with Washington. Uganda instead maintains such arrangements with countries including the United Kingdom, China, Turkey and South Korea.
Although no prisoner exchange treaty exists between Uganda and the United States, the two countries do cooperate in immigration matters, including arrangements under which Uganda receives deported asylum seekers and migrants from the United States.
The late Kampala Mayor, His Worship Nasser Ntege Sebaggala, was imprisoned in the United States and served his full sentence there because no prisoner transfer treaty existed between the two countries. Consequently, should Lt. Katungi or any other Ugandan citizen be extradited to the United States, that would effectively be the end of Uganda’s involvement. This presents what many would regard 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 a landmark principle in international law: that former heads of state do not enjoy absolute immunity from prosecution for grave human rights violations such as torture and crimes against humanity, and that the doctrine of universal jurisdiction can apply.
In October 1998, Spanish Judge Baltasar Garzón issued an international arrest warrant for former Chilean ruler Augusto Pinochet while he was receiving medical treatment in London.
Spain sought his extradition to stand trial for 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 although former leaders may enjoy immunity for legitimate official acts, international crimes such as torture cannot be regarded as lawful functions of government. Consequently, Pinochet could not claim immunity.
This historic ruling pierced the shield of impunity for international crimes. It established that individuals accused of jus cogens offences can be held accountable before foreign domestic courts, even when the alleged conduct occurred outside those jurisdictions. Although Pinochet was eventually allowed to return to Chile on medical grounds and died before any final conviction, the case transformed international criminal law.
Furthermore, the Pinochet proceedings empowered victims worldwide to seek justice beyond their borders and reinforced the principle that serious human rights violations constitute a recognized exception to diplomatic and sovereign immunity.
However, this is not the only exception recognized under international law. Uganda has its own constitutional exceptions and should not hesitate to rely upon them where appropriate.
Uganda & Citizen Sovereignty
Article 1 of Uganda’s Constitution provides that all power belongs to the people and shall be exercised in accordance with their will.
This includes the principle that where the people, acting through their elected representatives, have not expressly waived a measure of sovereignty, that sovereignty remains intact and courts must give due consideration to that reality.
It is true that ordinary citizens generally do not enjoy sovereign immunity in extradition proceedings, particularly where clear extradition treaties exist. Sovereign and diplomatic immunities are ordinarily reserved for senior state officials acting in an official capacity on behalf of their governments, though even such immunities are subject to recognized exceptions.
For ordinary citizens, extradition is generally treated as a standard criminal justice process. However, understanding how citizenship and constitutional rights intersect with extradition requires careful consideration of several important distinctions.
Nationality Exceptions:
While private citizens do not enjoy sovereign immunity, many jurisdictions recognize a nationality exception. Under this principle, a country’s constitution or domestic laws may prohibit or restrict the extradition of its own nationals. Where such protections apply, the state may elect to prosecute the individual domestically rather than surrender them to a foreign jurisdiction.
No Immunity for Private Crimes:
Sovereign immunity exists to protect the sovereignty of states rather than shield individuals from criminal liability for personal conduct. If a person is accused of an offence that falls within the scope of extraditable crimes under applicable laws or treaties, citizenship alone does not provide protection. However, it is respectfully submitted that no extradition treaty exists between Uganda and the United States regarding Lt. Katungi. Furthermore, the American practice of not being required to establish a prima facie case before seeking extradition should not be ignored by Ugandan courts. In any event, the nationality exception remains relevant because Lt. Katungi is a Ugandan citizen, no extradition treaty exists, and the United States is under no obligation to present a prima facie case and has not done so. The proper course, therefore, would be for any evidence to first be examined within Uganda’s jurisdiction before a Ugandan citizen is committed to a foreign legal process. This concern becomes more pronounced when one considers that the United States rejects ICC jurisdiction over its own citizens while Uganda takes the opposite position as a State Party to the Rome Statute.
Political Offence Exceptions:
Most extradition treaties and international legal principles permit the requested state to refuse extradition where the alleged offence is political in nature, such as treason or politically motivated conduct. This exception featured prominently in the extradition proceedings involving Julian Assange, first in relation to Sweden and later the United States after he sought refuge in the Embassy of Ecuador in London. The merits of Assange’s case are not the focus here; rather, the principle and process involved. Importantly, Assange’s case arose within an established treaty framework, whereas no such treaty exists between Uganda and the United States.
Human Rights Protections:
Extradition may also be refused where there are substantial grounds for believing that the individual would face violations of fundamental human rights, torture, inhumane treatment, or the death penalty in the requesting state.
Without commenting on the merits of Lt. Katungi’s case, it is noteworthy that the death penalty remains part of United States law. The allegations appear to involve multiple jurisdictions, and the complete facts and intentions of all interested states may never be fully presented before a U.S. court. If the ultimate outcome could involve a punishment still recognized under U.S. law, Ugandan courts must proceed cautiously before surrendering a citizen to that jurisdiction. To do otherwise may risk injustice and raise constitutional concerns. In such circumstances, caution, balance and adherence to constitutional principles are both necessary and desirable.
THE WRITER IS A CONSTITUTIONAL & HUMAN RIGHTS BARRISTER-AT-LAW OF THE HONOURABLE SOCIETY OF LINCOLN’S INN OF COURT, LONDON.
