Business day OPINION: SA willing to sell out its founding values

IS SA revisiting its commitment against the death penalty? The government’s appeal to the Constitutional Court tomorrow suggest so. The government is appealing against the South Gauteng High Court’s decision that two Botswana nationals may not be deported or extradited to stand trial in Botswana — where they face the death penalty if convicted — without the assurance from Botswana that the death penalty will not be imposed or carried out under any circumstances.

In one of its first landmark decisions, in the 1995 Makwanyane judgment, the Constitutional Court abolished the death penalty in SA as it violates the rights to life, human dignity and not to be subjected to cruel and inhuman treatment. In 2003, the Mohamed decision confirmed that it is unconstitutional to execute people in SA, and they may not be handed over to a country that may execute them — unless the requesting country provides assurances to the contrary. These protections apply equally to every person in SA, regardless of their citizenship or status.

The solution dictated by our constitution is: where a retentionist state requests the return of a person from an abolitionist state, the requesting state must provide an assurance that the death penalty will not be imposed.

This achieves multiple purposes. For SA, it is in keeping with the decision we took in 1994 to be a constitutional state that upholds the right to life and human dignity of all people. It serves the purpose of regional advocacy of the rights we have enshrined in our constitution towards abolition in our neighbouring countries.

Demanding and obtaining an assurance also ensures that people charged with criminal offences will stand trial and, if convicted, will serve an appropriate sentence — just not a capital one. In short, it ensures that SA does not compromise its own values or law. Assurances of this kind are common in international law.

The Minister of Justice sought an assurance from the government of Botswana for one of the parties in this matter. Botswana, however, refused — and from this point, the government sought to compromise the integrity of our constitution. The ministers of justice and home affairs are seeking a ruling from the Constitutional Court that if a requesting state refuses to give an assurance that the death penalty will not be imposed or carried out, they may still extradite or deport the requested party. The high court dismissed this approach emphatically.

In the appeal before the Constitutional Court, the government is urging the court to overturn the Mohamed rule and to replace it with a balancing exercise, in effect giving the government the discretion to extradite without the requisite assurance from the requesting state on a case-by-case basis. The government argues that the individual’s right to life ought to be weighed against various policy considerations, including diplomatic relations with countries that have not abolished the death penalty, and regional crime-prevention strategies.

The government’s approach undermines our constitution and ought to alarm every South African. It is worrying when the government argues that our constitution be compromised to bend to a country that is out of sync with international law. The only concern of the government that merits discussion is whether fugitives from justice may be absolved from standing trial if the requesting state refuses to provide an assurance. But this onus lies on the requesting state to provide the requisite assurance, which is a norm in international law.

For the exceptional instances in which a country, such as Botswana, refuses to provide an assurance, there is no obstacle to SA implementing legislation that would allow for the people in these limited circumstances to be tried domestically.

The compromise can never be, as the government suggests, reinterpreting the decisions of our Constitutional Court, or tweaking a decision inconvenient to the government.

That SA has made a commitment to the abolition of the death penalty means that it must play a role in promoting abolition regionally by refusing to send people back to countries where they may face the death penalty. SA has a duty to ensure that no one is executed because of a decision our government has taken — and irrespective of whether that individual is a citizen of SA or not.

• Ramjathan-Keogh is programme manager of the Refugee and Migrants Rights Programme. Cote is head of the Strategic Litigation Unit at Lawyers for Human Rights.