The two hurdles the government must cross

Nov 15, 2025 Features / Columnists, Peeping Tom

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(Kaieteur News) – In my opinion, to extradite a citizen from Guyana to the United States, at least two critical legal thresholds must be met. These are, in my estimation, not mere technicalities; they go to the heart of the rule of law and the protection of constitutional rights.

The first is that a prima facie case must be established. This means that there must be sufficient evidence to warrant a person being sent abroad to face trial. The second is that the offence for which extradition is sought must be a crime in both jurisdictions, the principle known as dual criminality. These two conditions form the foundation of any legitimate extradition process.

While extradition is not a criminal trial, it is not an administrative rubber stamp either. It is a process governed by law. A request from a foreign power cannot automatically trigger the surrender of a citizen. Before extradition can proceed, both the government and the courts must be satisfied that the evidentiary and legal requirements have been met. There must be due process.

The government cannot treat extradition as a mere procedural convenience A citizen of Guyana, even one accused of serious offences abroad, does not forfeit constitutional protection merely because the request comes with diplomatic formality. Extradition law, properly understood, requires the government to ensure that the request is backed by a prima facie case, that is, enough evidence that, if uncontradicted, would be sufficient to sustain a conviction were the matter tried locally.

The key question, therefore, is this: Has a prima facie case been made out?

In extradition law, the requesting state must supply prima facie evidence of the conduct alleged. It does not have to prove its case just provide prima facie evidence of it. This brings us squarely to the ongoing debate surrounding the U.S. extradition requests involving the Mohameds. Based upon the indictments in the U.S. courts, the Mohameds are accused of committing inter alia mail fraud, wire fraud, and money laundering, supposedly connected to the use of criminal proceeds from the smuggling of gold out of Guyana. It appears that the predicate conduct is the alleged illegal exportation of gold, while the derivative conduct is the subsequent use or concealment of the proceeds in ways that violate U.S. financial laws.

But herein lies a legal dilemma. The predicate offence—the smuggling of gold—is said to have occurred in Guyana. Without the predicate offence, there can be no derivative offence, because the latter depends upon the existence of the former. The U.S. case presupposes that gold was illegally exported from Guyana, generating proceeds that were later laundered or used in fraudulent transactions. Yet, the Mohameds have never been charged, much less convicted, of gold smuggling in Guyana.

This raises a fundamental question: On what basis can a court in Guyana accept that gold smuggling occurred, if that alleged conduct has never been established by any court within its own jurisdiction? Can a Guyanese citizen be extradited to face prosecution abroad for a derivative offence that depends on a predicate crime that no Guyanese court has ever found to exist?

If the answer to that question is uncertain, then the prima facie test is not satisfied. The courts cannot proceed on assumptions, nor can the executive act on diplomatic assurances alone. Extradition must rest on evidence, not presumption. To extradite without a clear evidentiary basis for the predicate act would be to allow a foreign jurisdiction to exercise authority over conduct that occurred within Guyana’s territory, thereby eroding the principle of territorial jurisdiction and constitutional sovereignty.

The second legal condition that must be met is dual criminality. This doctrine requires that the conduct alleged—not the name of the offence—must amount to a criminal act in both jurisdictions. The issue is not whether the offence carries the same title in both jurisdictions, or whether it has ever been prosecuted locally, but whether the conduct alleged would amount to a criminal offence if it had occurred in this country.

Therefore, if the U.S. requests extradition for “wire fraud,” the Guyanese court would examine whether the factual allegations correspond to a fraud-related offence under Guyanese law. If they do, extradition could still proceed — not because “wire fraud” is named, but because the underlying conduct constitutes a recognized crime in Guyana. What matters here is the substance of the act—the deceit, the conversion, or the laundering of proceeds. Under the Anti-Money Laundering and Countering the Financing of Terrorism Act (AML/CFT Act), Guyana criminalizes a wide range of conduct involving criminal proceeds. The provisions of the Act are broad enough to cover the handling or use of criminal proceeds. So, in principle, dual criminality may be satisfied, since the underlying conduct of dealing with illicit funds is criminal under both Guyanese and U.S. law. But the first condition remains far more troubling. If the predicate offence, gold smuggling, has never been proven, then the very basis of the derivative offences (wire fraud, mail fraud, money laundering) becomes shaky. Without evidence of the crime that generated the proceeds, can there truly be a prima facie case for laundering or fraud? Extradition must remain an act of law. The government of Guyana must therefore ask itself: Has a prima facie case really been made out? If the answer is no, then to proceed would offend constitutional due process.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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• Extradite, Government, hurdles, Peeping Tom

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