Batswana pair back in court (The Star)

The justice department had requested an assurance from Botswana that Emmanuel Tsebe, once extradited to face charges of chopping up his common-law wife with a machete, would not face the death penalty. Botswana refused to give this reassurance.

 

Lawyers for Human Rights and counsel for the Society for the Abolition of the Death Penalty argued in court on Tuesday that it was unconstitutional and unlawful to deport people to countries where they faced the death penalty, done away in this country a long time ago.

“There’s no other country in the world which has abolished the death penalty, but yet (is) prepared to extradite people. They have failed to show a single country which have adopted such an approach,” argued Advocate Steven Budlender of the Society for the abolition of death penalty.

 

Counsel for the justice department and government, Advocate Michael Donen SC, argued that the Extradition Act did not prohibit extradition for purposes of criminal prosecution in which a death sentence was imminent. This was relevant to both Tsebe and Jerry Phale, another man sought by the government of Botswana for the death of his lover.

 

“The minister contends that he is authorised by the Constitution to order the extradition of the applicants in spite of the applicability of section 203 of the Botswana Penal Code to the offences with which they are charged,” said Donen. While the government was bound to seek assurance that the person extradited would not be executed, failure to extradite him on occasion that the country seeking him refuses to grant assurance would put South Africans’ lives at risk. South Africa would have to sit with a fugitive it could not prosecute due to jurisdictional issues.

 

“Because of the overriding duty upon the government of South Africa to protect the rights of all people in our country, as well as the facts and circumstances in and demonstrated by these two cases, the government contends that it is not unreasonable to extradite Mr Phale and other persons in the position of Mr Tsebe and Mr Phale, that is, in order to ensure that they do not evade trial for the crimes with which they are charged,” he said. Should the government fail to extradite people on the basis they could face the death penalty in their own countries, South Africa could be perceived to be a safe haven for criminals, Donen said.

 

But Acting Judge George Bizos, one of the three judges hearing the matter, told Donen he was “elevating” the issue to “a matter of national security”. “How is it that a person accused of murder in Botswana is a danger to the entire South African population? How many murderers are there in South Africa… people who cannot even be identified?” asked Bizos. He argued that if Botswana failed to give assurance that people extradited would not face the death penalty, then it was that country’s problem when South Africa refrained from extraditing fugitives. “Don’t ask the South African government to tailor its constitution to accommodate you,” said Bizos.

 

Tsebe has since died, but the Johannesburg High Court took a decision to consolidate his case with Phale’s case. Budlender asked Judge Bizos, Deputy Judge President Phineus Mojapelo and Judge Cornelius Claassen not to disregard Tsebe on account that he was already dead when making a decision.

 

“We don’t... want the court to rule on Phale (only). I’d ask this court to rule that the principle is unequivocally relevant to all people who might face extradition… to say the law would have applied to Mr Tsebe had he been alive,” he said.