Concourt to rule on the noose
The Constitutional Court is to be asked to shed some legal certainty on the question whether our government can deport “undesirable” people facing a possible death penalty if sent back to the country from which they fled. Home Affairs will ask the court to review a Johannesburg High Court order which earlier this year ruled that the minister of home affairs may not deport Emmanual Tsebe and Jerry Phale, two Botswana citizens who fled to SA, from Botswana without an undertaking from that country’s government that the two would not face a possible death sentence.
Tsebe and Phale each faced a charge of murder in Botswana. Tsebe allegedly killed his common-law wife by hitting her with a machete and a stick. He fled to SA before he could be tried in Botswana, where the death penalty is practised. He was eventually arrested by police in SA for being in the country illegally. He was due to be deported but, with the help of Lawyers for Human Rights (LHR), obtained an order prohibiting Home Affairs from sending him back to Botswana without the assurance of the Botswana government that he would not be hanged.
During his detention in SA, Tsebe died of natural causes.
Phale’s case is similar. He fled to SA after allegedly killing his former girlfriend. He was arrested by the local police for having a fraudulent South African identity document. He too was due to be deported, but obtained a similar order to the one obtained by Tsebe. Despite Tsebe’s death and Phale’s incarceration, it is seen as important to rule on the details of his case, as it would allow the government to obtain clarity on how to deal with similar cases in future. Home Affairs Minister Nkosazana Dlamini-Zuma is to ask the Constitutional Court for leave to appeal the order by the Joburg court on the grounds that it prohibits her from implementing the Immigration Act in cases where “undesirable” people find refuge in SA and cannot be sent back as they face the possibility of the death sentence. The minister said the order restricted the government’s capacity to build sound relations with countries such as Botswana and also curbed crime prevention strategies, our borders and the SADC region as a whole.
Home Affairs will argue that the overall effect of the order is that it causes uncertainty as how to deal with such fugitives in future. The department did not want to harbour a fugitive and did not regard Phale’s continued presence in SA as being in the public interest. However, he could also not be held in jail indefinitely for fraud pertaining to his fake ID. The minister said the risk of his posing a danger to the SA public should be balanced against the fact that he might receive the death sentence in his own country.
Another concern is that while the high court judgment stays in force, it could encourage other fugitives, who possibly face the death penalty, to seek refuge in SA as it prevents the SA government from handing them over if no assurance regarding their possible death sentence can be obtained from their country.
LHR and a lobby group, the Society for the Abolition of the Death Penalty, will oppose the application by Home Affairs. The core of their argument will be that countries across the globe which, like SA, have abolished the death penalty don’t allow deportation if it exposes the person concerned to the risk of a death penalty. Home Affairs, however, says it cannot prescribe to a country such as Botswana as to its policies regarding capital punishment and it has a duty to respect that countries’ policies. - Zelda Venter
Pretoria News