INTERPOL’s position on arrest of politicians like ‘Gawzela’
MBABANE –It may be a daunting task to extradite former MP Mduduzi ‘Gawzela’ Simelane to face his criminal charges in Eswatini.
Simelane was co-charged with Hosea MP Mduduzi Bacede Mabuza and Ngwemphisi MP Mthandeni Dube.
The former Siphofaneni MP is still at large. He is understood to be now living in the United Kingdom (UK).
Other people on social media say he is in Canada.
On the other hand, MP Mabuza and MP Dube are awaiting judgment on the charges that were preferred against them. Among other offences, they were charged under the Suppression of the Terrorism Act.
NATURE OF THE CHARGES
Based on Article 3 of the Interpol’s constitution, it is very unlikely for countries to surrender the former Siphofaneni MP to the country’s police and prosecution because of the nature of the charges preferred against him.
Sources within the police service stated that he might argue successfully that he participated in activities that were in line with his political mandate.
Article 3 of the constitution of the International Criminal Police Organisation (INTERPOL) reads: “It is strictly forbidden for the Organisation to undertake any intervention or activities of a political, military, religious or racial character.”
Interpol, headquartered in Lyon, France, facilitates worldwide police cooperation and crime control. It is the world’s largest international police organisation, with seven regional bureaus worldwide and a national central bureau in all 195 member States.
Eswatini is a member of the organisation.
In its repository of practice, which unpacked Article 3, INTERPOL states that its position on the application of this constitutional provision concerning politicians or former politicians has evolved over the years.
It is said that Resolution AGN/53/ RES/7 (1984) distinguished between offences committed by such individuals in connection with their political activities, on the one hand, and offences committed in their private capacity, on the other.
It means that offences committed by politicians and former politicians in connection with their political activities are covered in Article 3 – and they cannot be put on the Interpol’s Red Notice.
PENDING EXTRADITION
A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.
Interpol resolved that offences committed by politicians should be assessed to determine whether the political or the ordinary criminal law aspect was predominant, in the same way as offences committed by other people.
The international criminal police organisations listed a number of scenarios to simplify its position on cases involving politicians and former politicians. In case one, a red notice was published for an individual, a former president of another country, charged with terrorism, homicide, and kidnapping. Considering that no protest was made by the other country, publication was approved.
In case two, diffusions sent by a national central bureau (NCB) concerning former high officials of four other governments. Diffusion is an alert which notifies law enforcement authorities that another country seeks the arrest of a specific person.
In this particular case, the individuals were charged with serious crimes, such as murder of citizens of the country that issued the diffusion. These crimes took place in the context of an operation which was carried out against political dissidents by the regimes of the four countries.
It was concluded that there was no legal impediment to the data being recorded.
Yet, considering that a number of the wanted persons at the time held positions of head of State or minister of foreign affairs, the NCBs of the countries concerned were requested to notify the general secretariat within two weeks as to whether they objected to the data being recorded.
DATA WAS RECORDED
Since no objections were raised, the data was recorded in INTERPOL’s databases.
In case three, a blue notice request was sent by an NCB concerning the former minister of defence of another country for conducting, planning, coordinating and ordering a military operation carried out in the territory of the country that sought the publication of the blue notice.
A blue notice is to collect additional information about a person’s identity, location or activities in relation to a criminal investigation. On the other
hand, the black notice is to seek information on unidentified bodies.
It was determined that the case was predominantly political and military and, therefore, within the scope of Article 3. This was due to the fact that the request pertained to acts allegedly committed by a former minister for defence in his official capacity.
However, a red notice was published for an individual wanted for election fraud, extortion and abuse of political position. According to the facts provided, he allegedly directed local officials and their subordinates to vote for a particular presidential candidate on the eve of the presidential election. It was concluded that while the alleged illegal act was motivated by political objectives, it was carried out in his private capacity.
ELECTION FRAUD
Furthermore, despite its political elements, election fraud is recognised as an ordinary-law crime by the majority of Interpol member countries.
It is also stated in the INTERPOL documents that a red notice was published for an individual wanted, inter alia, for preventing his subordinates from voting. It was concluded that the red notice could be published in application of the principles identified in an analysis of election crimes.
TERRORISM
According to INTERPOL, a red notice requests were sent by an NCB for a group of individuals on charges of terrorism and armed uprising against the security and sovereignty of the State.
The subjects were accused of being part of a regional secessionist group striving for the independence of a specific region of the State. The NCB provided data on the case, from which it arose that there was a lack of evidence connecting the individuals to an alleged bomb attack.
Conversely, the data provided showed the individuals’ involvement in the political separatist activities of the secessionist movement.
It was, therefore, concluded that the case was akin to an attempt of unconstitutional seizure of power, or an attempted attack against the security of the State, rather than terrorism.
Hence, the red notices requested were not published.
INTERPOL notes that the terms ‘terrorist’ and ‘terrorism’ lack the benefits of an international legal definition and concerns have been raised (by United Nations human rights mechanisms inter alia) that they have sometimes been applied improperly to certain acts and organisations, for political purposes.
DEFINITION OF THE CRIME
In accordance with international law, reference may, therefore, be made to the various international counterterrorism conventions on the matter, which, collectively, are considered to go some way to providing a definition of the crime.
In cases of terrorism, according to the practice developed and approved by the above 2004 resolution, the source of data is required to provide evidence to demonstrate:
The terrorist nature of the organisation: This element requires the source to indicate the involvement of the said organisation in terrorist acts.
A decision by the general secretariat that this requirement was met may not be considered as a legal determination of INTERPOL that a given organisation is indeed a terrorist organisation.
No separate proof would be required if the particular group was included in a list issued by a recognised international entity such as the United Nations. Listing by a regional organisation such as the European Union may be taken into consideration together with other available information.
Examples of why a Red Notice may be non-compliant with INTERPOL’s rules It is contrary to Article 3 of INTERPOL’s constitution, i.e. the request is of a predominantly political, military, religious or racial character; It is contrary to Article 2(1) of INTERPOL’s constitution, according to which the organisation must conduct its activities in the spirit of the ‘Universal Declaration of Human Rights’. For example, a Red Notice may not be published for a refugee who has fled that country and fears persecution;
Failure to satisfy minimum penalty requirements;
The offence described in the Red Notice falls under one of the categories of excluded offences, e.g., prostitution or bigamy;
Former Siphofaneni MP Mduduzi ‘Gawzela’ Simelane said he was aware about talks that the State has been after him in many ways, but could not qualify how far they had attempted.
Chief Police Information and Communications Officer Superintendent Phindile Vilakati could not react to questions texted to her yesterday.
Vilakati did not answer telephone calls. At the time of compiling this report, she had not responded to the questions texted to her.