Francistown Chief Magistrate, Makati Lesang, has ruled that the Directorate of Public Prosecution has failed to comply with the Extradition Act when acting on behalf of the Zimbabwean DPP in asking for the extradition of Eleanor Kuedza Tembure to her home country allegedly to face charges of double murder and attempted murder.
Lesang, in her ruling, said that when she pondered the issue of whether the state should be granted its relief when it had failed to follow the laid down procedures of extradition, she considered two positions.
First, that of the human being in her, which says that the fugitive criminal has to go and face murder charges in her country but that her judicial view is that the state should only get the relief if it follows the procedure laid down by the law.
Second, that, in her view, the DPP has not complied with Section 9 (1) of the Extradition Act which states that the requisition for the surrender of a fugitive criminal shall be made to the Minister by a diplomatic representative or consular of the country seeking extradition. This, she said, was not done in this case because the requisition was made to our DPP and not the Minister.
Besides that, she also said that the state had failed to comply with Section 8(1) which provides that a fugitive criminal shall not be surrendered to any country unless the country has a law which provides that she shall not be tried for any other offence except the one she is extradited for.
On this issue, Lesang said that the state had failed to show that there is a legal provision in the requesting country, which is Zimbabwe, protecting the fugitive against prosecution for any other offence except the one she is extradited for. Further that they have not attached any documents or undertakings made by the Zimbabwean Attorney General showing that they will not prosecute her for any other offences apart from the one the extradition is being sought.
Lesang also said that she has not seen any authority to rely upon to derogate from applying the law as stated in the statute.
Finally, Lesang said that she accepts that the state has shown reasonable grounds for the arrest and continued detention of the fugitive criminal and that the Court will entertain the application again if the state has complied with provisions of the Act.
Tembure is currently held at the Francistown Center for Illegal Immigrants.