DIRECTOR OF PUBLIC PROSECUTIONS v PETER ROLAND VOGEL 1987 TLR 4 (HC)

DIRECTOR OF PUBLIC PROSECUTIONS v PETER ROLAND VOGEL 1987 TLR 4 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapingano J

17th March, 1987 B

Flynote

Extradition Act, 1965 - Authority to extradite a person from the territory -

Agreement between Tanzania and Federal Republic of Germany - Whether any legal arrangements in place - Evidence of.

-Headnote

Peter Roland was claimed by the Federal Republic of Germany where he was required to carry out a custodial penalty following his conviction on a charge of rape. A formal requisition for his surrender was made by a competent representative of the Federal Republic of Germany and the Minister responsible for legal affairs signified to the lower court accordingly. The Minister requested the court to declare whether or not the Tanzanian Executive could, under the provisions of Part II of the Extradition Act, 1965, Cap. 585, authorise the claimed person to be extradited from the territory of Tanzania. The Magistrate held that the Executive had no such authority. The Minister was not satisfied and appealed to the High Court. The issues before the High Court were: Whether the learned Magistrate was at fault; and whether the proceedings can properly be remanded to the lower court to continue to adjudicate upon the issues and deal with other matters as provided under the Extradition Act, 1965.

Held: (i) Given the materials adduced, the decision of the learned Magistrate that there are no legal arrangements between Tanzania and the Federal Republic of Germany in relation to extradition of fugitive criminals cannot be upset;

(ii) the learned Magistrate exercised his discretion properly when he refused to grant the application for adjournment of the hearing on 9.3.87;

(iii) part II of the Extradition Act, 1965 pertaining to the surrender of fugitive criminals in pursuance of an existing agreement between Tanzania and another state does not apply to the Federal Republic of Germany and the court cannot substitute the old state of Germany, which appears in GN 125/32 with the state of Federal Republic of I Germany which came into being years after the making of GN 125/32.

Case Information

Appeal dismissed. A

Phillip and Shio, for the appellant.

Maira for the respondent.

[zJDz]Judgment

Mapigano, J.: Peter Roland Vogel is being claimed by the Federal Republic of Germany. It is said that he is wanted there in order that he may carry out a custodial penalty following his conviction on a charge of rape. However, the questions whether he was so convicted and so sentenced have yet to be determined by the lower court and they are not my concern in this appeal.

It is no longer in dispute that a formal requisition for his surrender has been made by the competent representative of the Federal Republic of Germany and that the Minister responsible for legal affairs has signified to the lower court accordingly. In effect, the said Minister wanted the lower court to declare whether or not the Tanzania Executive is, under the provisions of Part II of the Extradition Act, 1965, Cap. 585 of the Revised Laws, authorized to extradite the claimed person from the territory of Tanzania. In his Ruling dated 10th inst. the learned principal magistrate held that the said Executive  enjoyed no such authority. The Minister is dissatisfied and has post-haste come to this court on appeal. The question is whether the learned magistrate was at fault and whether the proceedings can properly be remanded to him for him to continue to adjudicate upon the other issues and deal with the other matters as prescribed by the provisions of the Extradition Act, 1965.

The appeal is dual-pronged. The decision of the learned magistrate that on the material before him no agreement between Tanzania and the Federal Republic of Germany in regard to the surrender of fugitive criminals exists is being challenged. In the alternative it is contended that the learned magistrate erred in not affording the Minister sufficient opportunity to adduce further evidence on the issue of existence or otherwise of such an agreement. Let me deal with this allegation of unfairness first.

It is trite to observe that any person who is charged with the duty of adjudicating upon disputes or the rights of others is enjoined to act fairly, in good faith and in a judicial temper. He is obliged to give each part the opportunity of adequately stating his case, and correcting or contradicting any relevant statement prejudicial to his case. And Mr. Mwanyika, counsel for the Minister, is right in pointing out that this is a matter of great I moment, in that it touches on inter-state relations', which therefore, calls for due seriousness, anxiety and patience. But can it be candidly said that the learned magistrate did not live A up to his duty?

I have gone through the record of the proceedings. I have noticed that on 6.3.1987 Mr. Marando, counsel for the claimed persons, made it abundantly clear that a preliminary point was being taken with regard to the existence of any legal extradition arrangements B between Tanzania and the Federal Republic of Germany, and he made a reference to the provisions of section B of the Extradition Act, 1965.

The learned magistrate adjourned the proceedings to 9.3.87 and he told the two counsel who appeared for the Minister that he expected them to assemble their evidence on that point and furnish it on that day. In theses circumstances, if some evidence was not tendered on 9.3.87 by the Minister, it cannot be true that the learned magistrate exercised his discretion improperly in refusing to grant a further adjournment to enable the Minister to produce the evidence which was not then at hand. But sauce for the goose is sauce for the gander. A sense of seriousness about which Mr. Mwanyika has addressed this court must, in my opinion, be equally shown by the bar. Quite clearly the point raised by Mr. Marando was a very vital one. It is a point that should have been anticipated by the Minister right from the very start.

After all what was actually the heart of the matter? What was the whole idea of going to the learned magistrate? Was it not to establish that extradition arrangements exists between Tanzania and the Federal Republic of Germany and to ask him to operate those arrangements in accordance with F our Municipal Law? On the facts demonstrated by the record I am not satisfied that the learned magistrate exercised his discretion improperly. In the event I dismiss the contention that the Minister was unfairly deprived of sufficient opportunity of being heard.

I turn to the other point, to wit, as stated, whether on the materials before him the learned magistrate was wrong in holding that there is no agreement to surrender fugitive criminals between Tanzania and the Federal Republic of Germany. The materials which the learned magistrate referred to are certain provisions of the Extradition Act, 1965, G.N 125/62 made under section 3 of the Fugitive Criminal Surrender Ordinance, 1922, Cap. 22, the Agreement between the Government of the Federal Republic of Germany and the Government of the United Kingdom of Great Britain and Northern Ireland for the extradition of fugitive criminals, which was concluded in Bonn on 30.8.1960 (hereinafter called "the Agreement of 1960"), and the declaration of the Prime Minister of Tanganyika of 9.12.1961.

I pause to deal with the point raised by Mr. Maira, counsel for the claimed person, in regard to the construction of extradition enactments. Relying on a certain passage which appears at p. 1939 of the Fifty Years Digest by Chitabey and Ramaratham, counsel has asked me to construe the provisions of the Extradition Act strictly. That passage reads as follows:

Extradition Act and Criminal Procedure Code both being penal enactments their terms must be strictly construed in favour of accused persons wherever such construction can be reasonably justified. On the other hand we have section 4 of the Penal Code to consider. That section provides thus:

Subject to the provisions of the Interpretation Act, 1972, and the expression specifically defined in this Code, the Code shall be construed according to the principles of construction which E may be applied to any written law, with regard to Tanzania conditions and without applying any principle of strict construction relating to penal legislation.

I put the question, and I think it is a pertinent question, whether a strict construction of the terms of the Extradition Act can be justified in Tanzania in view of the above section of the Penal Code. I put the question in other words, whether it is desirable to have two rules of construction in relation to penal matters, one being applicable to the provisions of the Penal Code and the other to the provisions of the other penal enactments. In my opinion I think not.

By Article 1 of the Agreement of 1960 the provision of Treaty of 1872 relating to the mutual surrender of fugitive criminals concluded by the erstwhile State of Germany and the United Kingdom were re-applied, as between the territory of the Federal Republic of Germany, on one hand, and the territories of the United Kingdom and other countries, including Tanganyika, for international relations of which the Government of the United Kingdom was then responsible, on the other hand. The question that poses is whether I that Agreement is valid in the court of Tanzania today. Counsel of the appellant says "yes" and his authority is section 28 (1) (b) of the Extradition Act, 1965. But counsel for the respondent says "no" and he has drawn my attention to the provision of Article 7 of the agreement of 1960, to the absence of any Order in Council in that regard and to the declaration made in 1961 by the Prime Minister of Tanganyika.

In my respectful opinion counsel for the respondent is right. Article, 7 of that Agreement stipulates, in language clear and plain, that the date on which the Agreement shall come into force shall be agreed upon by the exchange of notes.

There is no evidence that such an exchange has ever taken place. What's more, as counsel for the respondent pointed out, citing para. 1186 of Archbold, 38th edition, extradition agreements in the United Kingdom are brought into force, by Orders in Council. That is consistent with the constitutional law of that state. There the power of main treaties, languages and alliances with foreign states is vested in the Crown as part of its prerogative. There is nothing here to show that an Order in council in respect of that Agreement has ever been made. What all this comes down to is that there was no evidence before the learned magistrate that the agreement of 1960 has ever come into operation in the United Kingdom, let alone in the other territories listed in that Agreement.

Counsel for the respondent has taken the point a step further. He has argued that even if there was an exchange of notes, as stipulated in the Agreement, and an Order in Council, as required by the law of the United Kingdom, the Agreement would still be invalid in Tanzania today. When this argument was first put forth before the learned F magistrate counsel for the Minister sought to counter it by the production of what was described as a "Verbal Note", whatever that means. The said verbal note was ruled inadmissible on the ground that it lacked authentication, and in my view rightly so.

There is force in the argument of counsel for the respondent. Two factors are notable in this connection. The first factor is that Tanganyika did not enter into any devolution agreement with the United Kingdom, upon attaining its independence in 1961, in regard to treaties that had been validly concluded by the United Kingdom on behalf of the H territory of Tanganyika or validly applied or extended by the former to the latter. The second factor is the declaration of the Prime Minister of 9.12.1961, the day Tangayika emerged into independence. That declaration was transmitted to Secretary General of I the United Nations who was requested to arrange for the circulation of its text to all Members of that Organization. The relevant part of that declaration, for the purpose of this case, reads as A follows:

As regards bilateral treaties validly concluded by the United Kingdom on behalf of the territory of Tanganyika, revalidly applied or extended by the former to the territory of the latter, the B Government of Tanganyika is willingly to continue to apply within its territory, on a period of two years from the date of independence (i.e.. until December, 1963) unless abrogated or modified earlier by mutual consent.

At the expiry of that period, the Government of Tanganyika C will regard such of these treaties which could not by the application of the rules of customary international law be regarded as otherwise surviving, as having terminated.

It is the earnest hope of the Government of Tanganyika that during the aforementioned period of two years, the normal processes of diplomatic negotiations will enable it to read satisfactory accord with the states concerned upon the possibility of the continuance or modification of such treaties.

Other countries including Uganda, Kenya, Zambia, Malawi, Trinidad and Burundi subsequently adapted the same attitude. That stand has come to be called "the Nyerere Doctrine of State Succession" that is quite probable that the Prime Minister took a cut from Mr De Valera the First Prime Minister of the Irish Free State. As back as July, 11, F 1933, Mr. De Valera had declared, in his country's attainment of independence, as follows:

The present position of the Irish Free State with regard to treaties and conventions concluded G between the late United Kingdom and other countries is based upon the general international law practice in the matter when a new state is established. When a new state comes into existence which formerly formed part of another state, its acceptance or otherwise H of the treaty relationship of the older state is a matter for the new state to determine by express declaration or conduct (in the case of each individual treaty) as consideration of policy may require.

That is a quotation which appears in the text-book International Law and the New Africa States by Felix chuks Okoye, at page 50. That is by the way. And be the matter what it may, it appears that the doctrine in question is now an established component of the law of state succession.

It is overly clear that the declaration of the Prime Minister of Tanganyika made an exception of treaties which then bound Tanganyika in accordance with the rules of customary international law imposes no obligation upon a state to surrender criminals to other states and that it thus permits a state to protect them at its discretion. Indeed, as a number of text-writers on the subject have pointed out, the systematic surrender of such persons has essentially been either a matter of courtesy or a matter of subservience on C the part of one state towards another.

Now the position in this case, at the end of the day, is that there was no tangible material before the learned magistrate to show that the earnest hope of the Government of Tanganyika was at all realized. We do not know, assuming that the Agreement of 1960 was in operation in Tanganyika at the time of independence, that the said normal processes of negotiation for its continuance did actually take place within the stipulated period, and if they did take place whether or not they ever resulted into the continuance of that Agreement. It seems to me, therefore, that the learned magistrate was right in saying that if that Agreement was in force in Tanganyika immediately prior to independence it lapsed when the stipulated period expired on 8.12.1963.

As we have seen the suggestion has been made that the Agreement of 1960 has been revised or adopted by the exchange of notes between the Government of the Federal Republic of Germany and the Government of Tanganyika, which allegedly took place between 11.12.1963, i.e after the expiration of the stipulated period, and 14.4.1964. True it is that the two states had legal capacity to adopt the said Agreement. True it is G also that a defunct agreement can be reactivated by mutual consent. That is a transaction which some test-writers like Oppenheim have termed "Reconfirmation" or "Redentergration". However, the question that arises is whether there was any exchange of notes as alleged, I am sorry to say that there was, at the end of the day, only a bald H assertion by counsel for the Minister about it and, with respect, I cannot help but get amazed.

I now proceed to consider whether the surrender of the person claimed can be effected under the terms of section 28 (1) (b) of the Extradition Act, 1965, as contended by counsel for the appellant. That Act repealed the Fugitive Criminal surrender Ordinance, I Cap. 22, among other laws. By section 3 of that Ordinance read together with G.N 125 of 1932 made thereunder (the only statutory instrument relevant), Tanganyika and Germany had reciprocal obligation to surrender to each other all persons against whom the competent authorities of the requesting part were proceeding for certain offences, inclusive of rape, or who were wanted by the said authorities for suffering punishment for those offences. 

Section 28 of the Extradition Act, 1965 bears the marginal rubric "Transitional" and I confess, incidentally, that I do not understand why. By sub-section (1) (b) of that section, part II of the Act, which pertain to the surrender of fugitive criminals in pursuance of an existing agreement between Tanzania and another state, was made to apply to all the countries to which the Ordinance applied immediately before the commencement of that Act. And by sub-section (2)(b), the application of that part was made to have effect as if the terms of the relevant agreement and the conditions, exceptions and qualifications specified in any order made under the Ordinance and in force immediately before the commencement of the Act, had been specified by Order made under the Act. The question that is thrown up is whether Part II is applicable to the Federal Republic of Germany, or, in fine, whether it is open and valid for a court to E automatically substitute the old state of Germany, which appear in GN 125/32, with the state of Federal Republic of Germany, which came into being years after the making of GN 125/32. With due respect, I regret the answer must be "no".

The fact of the matter is that the state of Germany now exists only in history. It is no longer a legal entity. It is no longer a subject of international law. It was vanquished by the allied Forces in World War II and underwent the agony of dismemberment in the forties, with the result that the country formed separate states which came to be known as, respectively, the Federal Republic of Germany and the German Democratic G Republic, with distinct political systems and espousing differing ideologies. All this is a matter of public knowledge and a fact of history of which a court is entitled to take judicial notice.

It is well that it has not been directly contended that there was a transmission of the rights H and obligations of the old state of Germany to the new state of the Federal Republic of Germany. It would not accord with the general international law practice if it were so. As Casteen has written as quoted in Max Sorensen's Manual of Public International Law, 1963 edit. at p. 295:

When a state is dismembered into new independent states, its treat is as a rule become full A and void without descending to the new states. Treaties are generally personal in so far as they presuppose, in addition to territory, also the existence of a certain sovereign over the territory. To the succeeding states the treaties concluded by the former state are res internalios acta.

Indeed, that is probably why the Government of the United Kingdom came to enter into the Agreement of 1960 with the Government of the Federal Republic of Germany. Like the learned magistrate, I hold, that there is no room to operate the provision of section 28(1)(b) of the Extradition Act, 1965, in this case, on the materials that are available before the court.

In the final result, I hold that the decision of the learned magistrate that there are no legal arrangements between Tanzania and the Federal Republic of Germany, in relation to extradition of fugitive criminals, cannot be upset, given the material that were adduced or referred to. And I find that the learned magistrate exercised his discretion properly when he refused to grant the application for adjournment of the hearing on 9.3.87. I fully E appreciate, as I have already observed, that this is a matter of considerable moment. But in the final analysis the new law of this country must be allowed to take its course. Accordingly, this appeal fails and is dismissed in its entirety.

Appeal dismissed.

1987 TLR p12

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