Three Johannesburg High Court judges launched a scathing attack on Botswana’s human rights record in a landmark judgment that prohibited South African authorities from deporting a murder suspect wanted in Botswana without first obtaining a written assurance that the suspect will not face the death penalty.
Botswana had proven itself a “flouter of human rights” as far as the death penalty was concerned, making it a “pariah state” out of step with the majority of African countries that no longer implemented the death penalty, stated the three judges ÔÇô Deputy Judge President Phineas Mojapelo, Judge Neels Claassen and Acting Judge George Bizos.
They pointed to the secret execution of a South African citizen Marietta Bosch in 2001 as well as other hangings, adding that extradition to Botswana could not be allowed on that basis alone.
The decision by the Johannesburg High Court follows attempts to extradite two men for trial in Botswana. One of the two died last year, but the court considered his case along with that of the second suspect in view of the importance of the matter.
The two, Emmanuel Tsebe and Jerry Pitsoe, known as Phale, escaped to South Africa when the police in Botswana tried to arrest them. Both had allegedly murdered their partners and could face the death penalty if convicted in Botswana.
Tsebe and Phale tried to ward off deportation, quoting a Constitutional Court ruling several years ago that South Africa could extradite someone for trial only under strict conditions ÔÇô if the country seeking a suspect guaranteed that the death penalty would not be imposed following a conviction. In the case of Tsebe and Phale, however, Botswana had refused to make such an undertaking.
Faced with this refusal, South African officials began the deportation process, prompting lawyers for the two men to bring the matter to court.
The three judges delivered their decision on Thursday, saying that deportation under these conditions was unconstitutional.
.South Africa’s constitution and judgments of the Constitutional Court made it clear that everyone ÔÇô “even the most abominable of human beings” ÔÇô had the right to life, and this right applied to everyone within South Africa.
“We are of the opinion that this includes protection from the imposition of the death penalty abroad.”
The judges quoted the example of the highest courts in Canada and Italy, which also forbid the extradition of a suspect to a country where the death penalty is carried out.