The South African Constitutional Court is expected to raise the human rights bar against Botswana officials seeking the extradition of fugitives, a process that has become increasingly politically sensitive.
This follows another landmark court application by South African Legal AID to block Botswana’s efforts to extradite its citizens from South Africa who are HIV positive to face criminal charges. At the centre of the legal stalemate is Botswana’s refusal to provide expatriate inmates who are HIV positive with antiretroviral drugs (ARVs).
This is expected to stoke the already tense diplomatic relation between the two countries over the extradition issue. There are already fears that Botswana’s relatively poor human rights’ standing is becoming an obstacle in the fights against transnational crime. The two countries are currently embroiled in a diplomatic spat over South Africa’s refusal to extradite murder suspects to Botswana.
South Africa’s Constitutional Court has since ruled that suspects residing in that country cannot be deported to Botswana before the South African government gets assurances they would not face the death penalty. Legal Aid SA’s chief legal executive, Patrick Hundermark is quoted as saying that Legal Aid SA is fighting the extradition of two South Africans to Botswana for trial because Botswana does not provide Aids treatment for non-Botswana citizens in its prisons.
“If the men ÔÇô one has Aids and the other a serious TB-related condition ÔÇô were convicted and sent to jail it would amount to a death penalty,” Hundermark said. Botswana and South Africa are currently at loggerheads over a case in which murders suspect Edwin Samotse was illegally extradited to face murder charges in Botswana. The South African government is unhappy with the illegal deportation of Samotse and is demanding his return. Attorney General, Athaliah Molokomme has confirmed that they have received correspondence from South Africa on the issue.
Molokomme is quoted saying that South African officials know that they violated their own laws in sending Samotse to Botswana “hence their illegitimate accusations.”
The Secretary of Ministry of Defence, Justice and Security, Augustine Makgonatsotlhe is quoted as saying that he was not in a position to say whether they will act on the demands of the South African government to hand Samotse back or not. “We cannot say for now that we will deliver him back, mind you he is a criminal and we want him just as much as the South African officials,” he said.
The South African government on the other hand is under pressure from its human rights organisations to have Samotse brought back. Hundermark, Legal Aid SA’s chief legal executive who also commented on Samotse’s issue, said his organisation took up Samotse’s case “because it is a crucial rule-of-law issue”. “If you have officials who do not comply with the rule of law, who undermine it, then the way is open for ordinary people to act the same way and take the law into their own hands,” he said. Achmed Mayet, who heads Legal Aid SA’s impact litigation unit, agrees: “Departmental officials took the law into their own hands when they extradited Samotse despite rulings of the Constitutional Court. The judges said there had to be an undertaking in writing not to seek or impose the death penalty (before there could be extradition).
And Botswana refuses to give this undertaking.” Mayet, who has been involved in similar cases, said Department of Home Affairs officials have shown “a pattern of ignoring the constitution and court judgments”. They wanted to deport Samotse regardless of the law ÔÇô and they did. “Some people might say we are defending criminals,” said Hundermark. “But at this stage, Samotse, for example, is merely a suspected criminal.” Like anyone else, he is entitled to a fair trial ÔÇô and he may be acquitted. The South African constitution protects “anyone in South Africa”, he added. Once the highest court has found the death penalty is unconstitutional, that’s it, said Hundermark. “We are legally obliged to deal with the consequences.” For David Cote of LHR, the Samotse case warranted involvement because LHR was “extremely concerned” by ongoing official action in direct contravention of two previous Constitutional Court judgments. “The rule of law was clearly implicated,” he said. LHR was also concerned about the department’s initial attempts to deny responsibility for the illegal extradition.
Samotse has since escaped once again from Botswana and his whereabouts are still unknown. He is reported to have escaped from Nyangabwe Hospital after he had been referred to the hospital claiming that he was sick.