Press statement: Home Affairs thwarts law again – deports Botswana national at risk of death penalty

Lawyers for Human Rights is appalled at the Home Affairs Department’s latest blatant disregard for the rule of law by deporting a Botswana national facing the possibility of the death penalty. This is despite an order from the Justice Minister that he may not be extradited as well as clear and unambigous law prohibiting Home Affairs from doing so.

LHR will be joining Legal Aid South Africa in an urgent court application against Home Affairs after Botswana national Edwin Samotse was deported to Botswana from Polokwane Prison in August. Samotse faces charges of a capital offence in Botswana.

On 15 September, LHR and LegalAid SA will appear in the North Gauteng High Court in a bid to compel Home Affairs to locate Samotse, engage with the government of Botswana that he will not face the death penalty if convicted, report back on efforts to investigate how this deportation occurred and report what steps have been taken in implementing the clear Constititonal Court judgments from 2001 (Mohamed) and 2011 (Tsebe) barring this very conduct.

“Samotse remains untraceable at this time. We have no idea where he is or is being held,” said David Cote, coordinator of LHR’s Strategic Litigation Unit. “We are utteraly appalled that Home Affairs would simply ignore the very clear rulings made by the Constitutional Court in these types of cases.”

In the Tsebe judgment, Justice Yacoob stated that, “I must point out in conclusion that this judgment leaves the government in no doubt that deportation, extradition or any form of removal under these circumstances is wholly unacceptable.”

Like Samotse, Tsebe was arrested for being in South Africa illegally and was due to be sent back to Botswana but South African law requires the assurance from the Botswana government that he would not be executed if found guilty before any removal could take place. This is because our Constitutional democracy upholds the right to dignity, life and not to be subjcted to cruel, unusual or degrading treatment.

Botswana requested Samotse’s extradition to stand trial for murder roughly three years ago. The Justice Minister recently ordered that he could not be surrendered because the Botswana government declined to give the necessary assurances -  as required by the Tsebe judgment. Home Affairs officials proceeded with his deportation and handed him over to Botswana authorities. 

The Samotse matter raises serious constitutional issues, not only concerning South Africa’s obligations around extradition and deportation of a foreign national to a country where they are at risk of the death penalty but also about the government’s failure to comply with court orders. This disregard for constitutional precepts remains a systemic problem within Home Affairs. There are numerous examples demonstrating this blatant disregard, including most recently in last week’s judgment on Home Affairs’ failure to ensure lawful detention of illegal foreign nationals at the Lindela Repatriation Centre.

“This matter demonstrates Home Affairs’ utter failure to practically implement its minimum Constititonal obligations to all levels of staff to ensure adherence to its obligations,” Cote commented. “This is a concern for everyone who cares about rule of law – where government’s non-compliance with court orders undermines our constitutional democracy.”