POLITICAL COMMENTARY

Mr Jenkins's Enahoro?

By ALAN WATKINS

Prins week, for a change, let us turn our eyes from Mr Harold Wilson, Mr Edward Heath, the seamen's strike, the 1922 Committee and other troublesome matters; let us glance instead in the direction of Brixton prison. There Mr Kwesi Armah, the former High Commissioner for Ghana in London, is awaiting extradition to Accra on charges of extortion and corruption as a public officer. Last Tuesday also saw the pub- lication of a White Paper (Cmnd 3008) on the Government's proposals to amend the law relat- ing to fugitive offenders from the Common- wealth; so this is a particularly suitable time to have a look at Mr Armah's case.

The story begins towards the middle of March, when Mr Muhammad Fouad Fattal, a Lebanese merchant in Accra, alleged to the 011ennu Com- mission—the commission set up by the new regime in Ghana to investigate corruption in the old regime—that he had paid a bribe of £20,000 to Mr Armah. Mr Armah had previously re- turned from London to Accra to become ,Dr Nkrumah's Minister of Trade. In January (according to the present government of Ghana) Mr Fattal was called to the Ministry of Trade by Mr Armah after the ministry had closed for the day. Mr Armah said that it had been 'a diffi- cult year' for Ghana but that Mr Fattal's com- pany could be granted import licences worth £400,000 if 10 per cent were paid to the People's Convention Party. A week later (it is claimed) Mr Fattal handed over £20,000, agreeing to pay the other half of the money later. The licences were duly issued. In February, however, the regime was overthrown, all licences were revoked by the new government and Mr Fattal, believing that he had paid over the money in vain, went and complained to the police.

At the time of the February coup Mr Armah was out of Ghana. He was at Dr Nkrumah's side in Peking. Subsequently he travelled to Moscow, and from there made his way to London, where he lived (without any secrecy, it seems) in a bed- sitting-room at Mapesbury Road, Cricklewood. On April 27 he was arrested by two detectives on a provisional warrant under the Fugitive Offenders Act. The information on which the warrant was issued was laid by the current Ghanaian High Commissioner in London. Mr Armah was taken to Bow Street and remanded in custody. On May 19 Mr J. P. Barraclough, the magistrate, held that the Fugitive Offenders Act still applied to Ghana and that there was evidence of a case to answer. He committed Mr Armah to Brixton pending a decision by the Home Secretary.

However, Mr Roy Jenkins will not decide any- thing until after the Divisional Court has heard an application for a writ of habeas corpus on behalf of Mr Armah. At this stage I must watch my step. One false move, one word out of place, and I shall end up in .Brixton too. But without anticipating any decision that may be arrived at by the court, there cannot be any harm—there may even be some good—in giving an outline of the law and of the courses open to the court. Under Section 10 of the Fugitive Offenders Act, the Divisional Court has wider powers than a magistrate. It may refuse to order the return of a fugitive because (among other things) the application for his return was not `made in good faith in the interests of justice' or because it

would be `unjust or oppressive or too severe a punishment' to return him. If the court does so order—and it did not in - the case of Chief Enahoro—that is an end of the matter: the fugitive goes free. But if the court confirms the extradition, there are two further moves that can be made on behalf of the fugitive. There can be an attempt to appeal to the House of Lords. And there can be an appeal to the Home Secretary.

The Home Secretary's discretion on whether to return a Commonwealth fugitive offender is under the present law absolute. 'Section 6 of the Act,' said Lord Devlin in a previous extradition case, 'provides that within fifteen days after the court has decided, if it does, not to release the fugitive, the Secretary of State may, if he thinks it just, order the return of the fugitive. I have put these words in italics because they make it plain that the discretion given to the Secretary of State is as wide as that given to the court under Sec- tion 10. . . . There is a concurrent jurisdiction conferred on the Secretary of State. I cannot suppoie that it is intended that he should act as a second tribunal to consider only those matters Which a superior court has already pronounced upon. It is plain to me that one reason at least why the provision is there is because there may be considerations of a political or administrative character which go to the justice of the fugitive's return and are better inquired into by the execu- tive.'

In the Enahoro case Mr Henry Brooke refused to exercise his discretion in favour of the fugitive. Chief Enahoro, it will be recalled, was wanted in Nigeria for a political offence. If he had been wanted for the same offence by a country out- side. the Commonwealth he would have been safe. The statute applicable would have been the Extradition Act, 1870, which exempts political offences, and not the Fugitive Offenders Act, 1881. But Mr Brooke, under considerable pres- sure from Mr Harold Macmillan and the Com- monwealth Relations Office, decided that the sole consideration was whether Chief Enahoro would receive a fair trial in Nigeria.

This week's White Paper serves notice of the Government's intention to change the Fugitive Offenders Act. It will be brought much closer to the Extradition Act. Extradition for political offences will, if the White Paper's proposals be- come law, no longer be allowed inside the Com- monwealth. Chief Enahoro would have been given asylum even by Mr Brooke. Will Mr Armah now be given asylum by Mr Jenkins? It is by no means certain that he will be. As far as the Divisional Court's hearing of the habeas cor- pus application is concerned, the White Paper is presumably neither here nor there. The court,

we must assume, will still make its decision by reference to the old Fugitive. Offenders Act. Mr Jenkins, however, may well take the White Paper into account—rather as, in the recent past, Home Secretaries have granted reprieves to murderers at periods when abolitionist legislation has been promised but not finally passed.

And yet the case of Mr Armah is not exactly comparable to that of Chief Enahoro. The Offence of which Enahoro was accused was undoubtedly political in character. Is the offence of which Mr Armah is accused also political? The White Paper sets out a list of crimes which under the new law will be extraditable. One is bribery, or being an accomplice or an accessory in bribery; another is 'blackmail or extortion by means of threats or by abuse of authority.' But then, the White Paper also lays down that the return of a fugitive will be precluded if it appears (either to the court or to the Home Secretary) that the request for his surrender, though purporting to be made for an extraditable offence, was in fact made in order to punish him fcir his political opinions. Again, extradition will be precluded if the fugitive may be prejudiced at his trial on account of his political opinions. Since those of Mr Armah's former colleagues who were in Ghana when the coup took place , are now being detained, there is a fair piOspect that he would end up in jail whatever happened.

We should note, incidentally, that there is a sense in which the old law was more favourable to the Commonwealth fugitive than the proposed new law. The Home Secretary could do exactly as he pleased. He could extradite for a political offence; or he could refuse to extradite. Again, he could extradite for, say, theft; or he could refuse to extradite. He could consider whatever factors he chose to consider. Under the new law the Home Secretary's discretion may well be more limited. Suppose that in a future case similar to Mr Armah's—I assume that the'White Patter will not be translated into law for some time—the Divisional Court says that the charges are neither political nor brought for political motives. Is the Home Secretary then at liberty to disagree? Perhaps so: but the matter ought to be cleared up.

In the meantime, will the case of Mr Armah turn out to be as celebrated as that of Chief Eriahoro? Probably not. The climate of the time is against it. Mr Wilson is not in his last 'phase —not yet, anyway—as Mr Macmillan was in 1963. And Mr Jenkins does not have that doggedness in sticking to a wrong decision which Mr Brooke (the subject, by the' way, of a curious retrospective sentimentality) used always to show. Yet this is not to say that the Armah case is unimportant or that it cannot be mishandled by the normally sure-footed Mr Jenkins.

My own view is that (without prejudice to any decision the Divisional Court may arrive at) he should grant Mr Armah asylum in Britain. Objections are likely to be heard both from the right and froth the left. The right will tend to recall Mr Armah's extreme anti-colonialism. The left will tend to emphasise the importance of getting along well with the new regime in Ghana. There will be those, neither of the right nor of the left, who will claim that the offence Mr Armah is alleged to have committed is not politi- cal at all. And there will be others who will say that Mr. Armah is hardly a very apt choice as a

symbol of liberty. But the fact remains that if it were not for his political past Mr Armah would not have sought asylum. And the historical fact is that the heroes of liberty have rarely been those who would first spring to mind as the natural candidates.