LHR to seek order declaring extradition to Botswana unlawful

The South Gauteng High Court will hear submissions from Lawyers for Human Rights over the next two days (23 and 24 May 2011) in the cases of Tsebe v Minister of Home Affairs and others and Phale v Minister of Home Affairs and Others regarding the lawfulness of an extradition to a country which still practices the death penalty, in this case Botswana. 

 

In both of these cases, the applicants were charged with murder in that country and were the subject of an extradition request. In both cases, however, the extradition application failed when the Government of Botswana refused to give assurances that the death penalty would not be imposed if the applicants were found guilty of the crimes with which they have been charged. It should be noted that neither applicant has been found guilty. 

 

Both applicants were held in immigration detention pending deportation back to Botswana despite a clear pronouncement by the Constitutional Court in Mohamed that such extraditions, deportations or removals to face the death penalty are invalid under South African law. 

 

The Minister of Justice will argue that his obligation is to seek assurances from the requesting government, but even in the event that such assurances are not granted, he retains a discretion whether to order the extradition.

 

Unfortunately, Mr. Tsebe passed away while in detention. However, the Society for the Abolition of the Death Penalty has also joined the hearing as an applicant. 

 

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