The South African Constitutional Court has prevailed over Botswana Government to make an undertaking that murder suspects extradited from SA to Botswana would not face death penalty.
The two countries have for a time been embroiled in a diplomatic spat over South Africa’s refusal to extradite murder suspects to Botswana.
Botswana practises death penalty, while South Africa has long abolished it.
Committing to not implement the death penalty was a key point before a new extradition could be signed by two countries.
This week The Telegraph obtained information indicating that Botswana is beginning to take steps towards committing itself to a new extradition treaty with its neighbour.
The new treaty to be signed soon will see Botswana making a written assurance that murder suspects extradited from South Africa will not face hangman even if death penalty is imposed by the local courts.
According to the 2012 proposal document to amend extradition treaty between the two countries, a copy of which has been passed to The Telegraph, “extradition may be refused if the requesting party (Botswana) does not give assurance that extradition if imposed would not be carried out.”
The documents also show that Botswana refused saying it would “not be dedicated to from the outside and as a sovereign state it would not be obliged to issue assurance to anyone.”
But The Telegraph has learnt that Botswana has since backtracked and will instead give assurances to South Africa that death penalty even if imposed by the courts would not be carried out.
Responding to The Telegraph queries, South Africa’s ambassador to Botswana Mdu Lembede confirmed that the issue of demanding assurances by the South African government in addition to Article 6 of the original extradition treaty that was signed in 1969 was a proposal by the South African side when negotiation between the two countries to amend the existing treaty started in 2012.
“This proposal was made in line with a decision of our Constitutional Court,” explained Lembede.
South Africa’s Constitutional Court 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.
Lembede explained that initially Botswana was not happy with this proposal (as an addition to Article 6) and it became a sticky point.
“I must point out by the way that even in the original treaty between Botswana and Apartheid South Africa in 1969, there was no provision to extradite people who would face the death penalty in a requesting country. The new issue was a demand for assurances which Botswana objected to,” he explained further.
Lembede revealed that in a letter dated 31st October 2014, the “Botswana Ministry of Defence, Justice and Security wrote to South Africa informing us that the additional text of the revised treaty that included the demand for “written assurances” was now acceptable to them, which is what broke the logjam revised text from Botswana side.”
According to the diplomat “in a nutshell yes Botswana has accepted the text (Article 3 of the revised treaty), which includes the written assurances that death penalty would not be imposed and if imposed would not be carried out.”
Lembede believes that the amended treaty offers a win-win situation for the two neighbouring countries.
“I must caution against focusing too much on judging this matter as if there is a loser or a winner in this decision. It certainly is not about who blinked first. The truth of the matter is that the extradition treaty that has always existed between the two countries for more than 47 years, has always stipulated that South Africa would not extradite to Botswana people if offence they had committed would lead to a death penalty and Botswana has always accepted this stipulation,” he said.
Lembede said due to some constitutional changes in South Africa after 1994, there was a need to revisit the contents of the original treaty.
“It was then that South Africa suggested the addition of the assurance that the death penalty would not be imposed and if imposed would not be carried out before acceding to extradite, a condition that was demanded by our constitutional court. This applies to all countries that apply this kind of capital punishment,” he said.
South Africa, Lembede said, was not prescribing to Botswana on its adherence to the death penalty; it can never do that because Botswana is a sovereign state and we respect that sovereignty.
““Section 11 of the South African constitution allows for the right to life and the prohibition of cruel, inhuman and degrading punishment Section 12 (1) (e) as stated in the Bill of Rights which is the basis of the country abolishing the death penalty,” he said.
He said now that the legal scrubbing of the text of the amended treaty has been completed by both sides and both cabinets have ratified the document, it is ready for signature at the next Bi-National Commission, BNC (which is the highest bilateral mechanism between Botswana and South Africa) that is scheduled to be held in Pretoria towards the end of this year.
Last year the South African Legal AID launched a court application 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). But Botswana’s Court of Appeal has since ruled that the Botswana Government should provide foreign inmates who are HIV positive with ARVs.
Still last year Botswana and South Africa were at loggerheads over a case in which murder 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 had confirmed that they have received correspondence from South Africa on the issue.
Molokomme was quoted saying that South African officials know that they violated their own laws in sending Samotse to Botswana “hence their illegitimate accusations.”