Court rules against extraditing suspects facing death penalty
FRIDAY’s Constitutional Court judgment that SA cannot deport people at risk of facing the death penalty unless their country of origin gives assurances that they would not face such sanction was not unexpected, as the same court had made a similar ruling 11 years ago.
The court on Friday dismissed an application by the ministers of justice and home affairs who were appealing against a South Gauteng High Court judgment passed in September last year. The judgment ruled that two Botswana murder accused should not be deported unless South African authorities received an assurance from their Botswana counterparts that a death penalty would not be imposed, and would not be implemented if imposed.
However, the court seemed to have taken to heart a concern by the justice minister that SA could be seen as a haven for illegal foreigners and fugitives from justice. The court on Friday suggested that SA could pass legislation to give its courts jurisdiction to try murder crimes that have been committed outside its borders.
SA has passed the Implementation of the Rome Statute of the International Criminal Court Act, which gives SA’s courts jurisdiction to try crimes against humanity committed outside the country.
In 2001, the Constitutional Court ruled that the handing over to the US of a man accused of involvement in the bombings of the US embassy in Kenya was unlawful, and said that it infringed on his right to life. The court at the time said that a prior undertaking was not obtained from the US government that the death sentence would not be imposed on Khalfan Mohamed or, if imposed, would not be executed.
The 2001 ruling came after SA’s authorities had handed Mr Mohamed — a Tanzanian national — to FBI agents who took him to the US to stand trial.
The decision of the Constitutional Court seemed to be settled law until 2008-09 when two Botswana nationals, Emmanuel Tsebe and Jerry Phale, who had been accused of murdering their life partners in that country, fled to SA. The then justice minister, Enver Surty, issued an order to the effect Mr Tsebe should not be surrendered to Botswana to face the charge of murder. Mr Surty based his decision on the interpretation of the Mohamed judgment.
However, Mr Tsebe was transferred to the Lindela holding facility pending deportation. This was because some officials in the Department of Home Affairs took the view he should be deported since he was an illegal foreigner in terms of the Immigration Act.
The change in stance from the justice ministry came in 2009 when Mr Surty’s successor, Jeff Radebe, opposed the men’s applications not to be deported. He contended that even though since Botswana had refused to give the requisite assurance that they would not face the death penalty, the government was en- titled to extradite Mr Tsebe. The South Gauteng High Court ruled in September last year that Mr Tsebe — who had died from an illness in 2010 while in custody — and Mr Phale should not be deported. The ministers of home affairs and justice appealed against the decision in the Constitutional Court.
The justice minister contended before the Constitutional Court that requiring assurance from Botswana that a death penalty would not be imposed negatively affected Botswana’s prosecutorial and judicial independence and the executive must be given the opportunity to negotiate delicate instances of this kind.
In a majority judgment on Friday dismissing the ministers’ application, acting Justice Raymond Zondo said the principle that the court in the Mohamed judgment established was that the government had no power to extradite or deport or in any way remove from SA, to a state that had retained the death penalty, any person who would face the real risk of the imposition and the execution of the death penalty.
Justice Zondo also said the Southern African Development Community Extradition Protocol entitled its signatories to refuse to extradite suspects if the requesting state did not furnish the requisite assurance.
Acting Deputy Chief Justice Zak Yacoob said he could not have agreed that leave to appeal should be granted. “One would have thought at the very least, government would have approached the high court for clarification before attempting to proceed with their removal in these circumstances.”
Justice Yacoob said that as was apparent from the high court judgment, the Mohamed judgment was simply not capable of the construction that it is permissible to extradite someone if a request for the necessary assurance was refused.