Death Penalty back in the spotlight of the Constitutional Court

The South African Government is appealing a High Court judgment that two Botswana nationals could not be deported or extradited to stand trial in Botswana - where they face the death penalty if convicted - without the requisite assurance that the death penalty will not be imposed or carried out under any circumstances.  

Lawyers for Human Rights brought this case for Emmanuel Tsebe and Jerry Phale in recognition that sending an individual to a country where they may face the death penalty is the ultimate denial of human rights:

• The death penalty was abolished in South Africa in 1995 as a result of Makwanyane judgment as it violates the rights to life, human dignity and not to be subjected to cruel and inhuman treatment.
• The Constitutional Court has in addition confirmed in Mohamed that South Africa as an abolitionist state cannot hand any person over to a retentionist state without the requisite assurance that the death penalty will not be imposed or carried out under any circumstances.

The Society for the Abolition of the Death Penalty joined the proceedings before the High Court, and Amnesty International has been admitted as amicus curiae before the Constitutional Court.

Emmanuel Tsebe was detained in South Africa in excess of one year pending an extradition enquiry. The extradition enquiry was finalised when the Minister of Justice ordered that he could not be surrendered to Botswana because Botswana refused to provide an undertaking against the death penalty. Mr Tsebe was then detained for another year at Lindela, the deportation centre in Krugersdorp. While at Lindela the Minister of Home Affairs attempted to deport him – notwithstanding the Justice Minister’s order. Lawyers for Human Rights prevented this deportation by bringing an urgent interim application to prevent his deportation or extradition pending the outcome of a High Court application to determine its lawfulness.

Once this interim order was secured, and after Mr Tsebe had already spent approximately two years in detention in South Africa, the Department of Home Affairs brought criminal charges against him for entering the country illegally – a crime which carries the maximum sentence of three months if convicted. It was in custody under supervision of Krugersdorp Correctional Services while awaiting trial on these charges, that Mr Tsebe passed away – arguably due to the inadequate medical treatment he received during these two years of detention.

Mr Phale is still in South Africa awaiting the outcome of the Constitutional Court appeal.

In the Constitutional Court government is arguing that South Africa will be become a safe-haven for criminals. It is urging the court to overturn Mohamed and give Government the discretion to extradite without an assurance, arguing that the individual’s right to life ought to be weighed against policy considerations such as diplomatic relations with other countries regional crime prevention strategies.

The High Court addressed this argument that fugitives from justice may be absolved from standing trial if the requesting state refuses to provide an assurance. The High Court was emphatic that it is the requesting state’s obligation to provide an assurance against the death penalty if it seeks to have people accused of capital offenses brought before its courts – as this is demanded by our Constitution and international law. The High Court went on to say that South Africa cannot revisit the principles it has enshrined in its Constitution to bend to a state that is out of sync with international law.

Lawyers for Human Rights is arguing that there is no basis to revisit the Mohamed decision, that the right to life, and not to be surrendered to another state without an assurance against the death penalty is absolute under our Constitution and international law. The European Court of Human Rights has taken the same approach in terrorism cases even post 9/11 – that the right is so absolute, that considerations of public opinion, security concerns and diplomatic relations can never undermine it.

Lawyers for Human Rights holds the view that for the exceptional instances when a country, such as Botswana, refuses to provide an assurance, there is no bar to South Africa implementing legislation for the people in these limited circumstances to be tried domestically – that the solution is not to compromise our Constitution.

Kaajal Ramjathan-Keogh - kaajal [at] lhr [dot] org [dot] za

David Cote - david [at] lhr [dot] org [dot] za