Former President Ian Khama’s extradition looks eminent following a High Court ruling against his application for a stay of execution. The Directorate of Public Prosecutions (DPP) will proceed with the necessary legal processes to have the former president extradited from South Africa where he fled in 2021. Khama filed an urgent application earlier this month (January 2023) opposing a warrant of arrest issued against him in December. The warrant followed charges relating to ‘unlawful possession of firearms, procuring the registration of firearms by false pretences and ownership of unregistered firearms’.
Khama had already filed a review application earlier in 2022 against the DPP’s decision to charge him in relation to the firearms case. He argues that the DPP did not personally serve him with the charge sheet and summons as he was out of the jurisdiction of the Court. The same documents were served on his Attorneys. He contends that he has never been personally served with the charge sheet and the summons. Khama argued that owing to the pending review application against the firearms prosecution, the DPP should not have proceeded with the criminal proceedings that resulted in the warrant for arrest.
It was Khama’s contention that DPP should have waited for the decision of the High Court on the review application before approaching Regional Magistrate Mareledi Dipate for the warrant. Consequently the former president wanted the application challenging the warrant to be treated as an urgent. He also wanted the warrant to be reviewed and set aside or stayed pending the finalization the review application filed against his prosecution. Or, alternatively that the warrant be declared invalid and unlawful. Khama said, through his lawyers, that the warrant of arrest would be prejudicial to his constitutional rights. He argued that he has reasonable apprehension of harm as the warrant of arrest has already been issued against him and he may be arrested at any time.
That if the warrant is not stayed or set aside and the High Court quashes the decision to prosecute him, he would suffer irreparable harm that cannot be compensated in any form. That no amount of damages can compensate for the damage to his constitutional rights if it should be held that the DPP’s decision to prosecute is set aside, and the warrant of arrest had not been set aside. The DPP opposed Khama’s application against the warrant, arguing among other reasons that Khama left Botswana in November 2021 and has not returned to Botswana since and that he is resident in South Africa at a place unknown to them. The prosecution argues that being outside the jurisdiction of Botswana made it impossible for the summons and charge sheet to be served on him, regarding the firearms case.
The DPP argued that the only way to bring Khama to justice was to secure the warrant of arrest, which will lead to his extradition to Botswana. “Given that the Applicant (Khama) is outside the country it is a long process for him to be arrested. It takes time to request a foreign State to arrest a fugitive pending extradition to Botswana. The process commences with an application for a Provisional Warrant of Arrest, which is enforceable internationally. Given the process it will take to apply for the arrest of a fugitive internationally, the warrant of arrest the subject of this application could not be enforced against the Applicant immediately since the Applicant is outside the jurisdiction of the Court.”
They also argued Khama could always lay a claim for damages for unlawful arrest should it be determined at a later stage that the prosecution was unlawful. In his ruling at Gaborone High Court Justice Godfrey Radijeng found that Khama’s circumstances as deposed are not explicit in that he does not state if he fears only the execution of the warrant locally in Botswana. “Even if I am mistaken in that regard and he has set out that setting foot in Botswana would render his arrest eminent, he has not cast his intent to return to Botswana for the Court to assess the circumstances in context.”
He said Khama must demonstrate that the right which is the subject matter of the main action and which he seeks to protect is clear, that there is a well-grounded apprehension of irreparable harm to him if the interim relief is not granted and he ultimately succeeds in the review application against prosecution in the firearms case. “It is of considerable importance that the matter of irreparable harm be carefully dealt with in the papers before the court. It is not sufficient for an applicant to merely allege that he fears that, unless an interdict is granted, he will suffer irreparable loss.” Radijeng ruled in favour of the state, dismissing Khama’s application with costs.
