A Motswana fugitive, Jerry Phale, who two years ago allegedly murdered his girlfriend and then fled to South Africa, will this week be the subject of a South African extradition test case.
The court is expected to decide what Pretoria should do when a foreign state requests that a suspect be extradited for trial, even though that country – in this case Botswana – refuses to give assurances that the death penalty will not be imposed.
A few years ago, in the Khalfan Mohamed case, the Constitutional Court ruled that by handing him over to the US without assurances that he would not be executed, Pretoria had violated its obligation to respect the Bill of Rights. In today’s case, however, Pretoria will try to narrow the effect of the Mohamed ruling by arguing that the government’s duty is merely to request assurances that the death penalty not be imposed.
Abigail Hlabano, the Principal Public Relations Officer in the Directorate of Public Prosecution, confirmed this to the Telegraph, saying her office was informed of the dates by their South African counterparts.
It is not clear if Phale will be extradited to Botswana even if the South Africa Court that will hear his extradition case rules that he should be extradited.
This because in the past, a South African Court ruled that another Motswana, Emmanuel Tsebe Motswana, now late, be extradited.
The court ruled that Motswana, who had committed a similar crime of murdering his girlfriend then fleeing into South Africa, could be extradited to Botswana but he was released from jail after Botswana declined to give the assurance that he would not be executed if found guilty of murder.
Reports also say that he was given asylum in South Africa.
The Permanent Secretary in the Ministry of Defence and Security, Augustine Makgonatsotlhe, has in the past confirmed that they were concerned by the incidents of Batswana fleeing into South Africa after committing serious crimes, such as murder, and were working with their South African counterparts to amend the extradition treaty between Botswana and South Africa to make it easier for South Africa to extradite murder suspects to Botswana.