No extradition’ if no death penalty pledge

SA MAY not extradite suspects to a country where they might face the death penalty unless that country has given an assurance that they would not be sentenced to death, a court held yesterday. The full bench judgment of the South Gauteng High Court is a strong affirmation of the constitutional right to life and emphasises that preserving good relations with other states cannot come at the expense of rights.

The judgment will not improve already fragile relations between SA and Botswana as it is scathing about Botswana’s human rights record on the death penalty.

It consolidated two cases — of Emmanuel Tsebe and Jerry Phale — both wanted for murder in Botswana and arrested in SA. Botswana refused to give an assurance that they would not be put to death if extradited. They remained in custody and Mr Tsebe died in prison, before the case was heard.

The idea that SA could not extradite, without an assurance that the penalty would not be death, was believed to be settled law after the Constitutional Court said as much in the Mohamed case in 2001. Khalfan Mohamed was extradited to the US, without that assurance, and faced several capital charges arising out of the bombing of the US embassy in Dar es Salaam in 1998.

The government argued that the Mohamed judgment did not apply in this case — because SA had asked for an assurance from Botswana, which had been refused. Deputy Judge President Phineas Mojapelo, Judge Neels Claassen and acting judge George Bizos dismissed this point as "a minor factual difference". They said the Mohamed judgment was very clear that an assurance must be obtained and not merely requested.

The judges said the right to life applied to all. I t did not matter, as argued by the government, that there might be an impression created that SA was a "haven" for fugitive criminals from abroad. "SA would not stand as a safe haven to criminals if requesting states (states requesting extradition) were prepared to give assurances against the death penalty," the judges said.

The judges did not pull punches about Botswana’s human rights record on the death penalty. "It is out of synchrony with the trend worldwide to abolish the death penalty; it has an appalling history of secret executions; ... international investigative reports as to the quality and fairness of its judicial system when dealing with capital crimes are less than complimentary."

Franny Rabkin

rabkinf [at] bdfm [dot] co [dot] za