Hopes for a possible diplomatic approach by Botswana to have fugitive murder suspects extradited from South Africa were dashed this week following a landmark ruling by the South African Costitutional Court confirming that the country cannot deport people at risk of death penalty.?In a key moment in South African law, the Constitutional Court in Johannesburg on Friday rejected an appeal brought by the government against an earlier ruling that any transfer of Jerry Phale and Emmanuel Tsebe to Botswana without prior assurances that the death penalty would not be applied, would be unlawful.
This followed an appeal lodged by the South African government against a judgement in favour of the two Botswana citizens, who in February successfully challenged the constitutionality of their extradition.
Tsebe and Phale were charged with murdering their partners, but fled to South Africa. They applied to the South Gauteng High Court to prevent their extradition unless Botswana gave South Africa a written assurance that the death penalty would not be imposed. Their order was granted, but South Africa’s ministers of Home Affairs and Justice and Constitutional Development appealed to the Constitutional Court, which heard the matter in February. Lawyers for the ministers argued the High Court had not paid attention to the relevant provisions of the Immigration Act in determining its ruling. Michael Donen, for the justice ministry, said there were three ways the matter could be dealt with. The immigrants could be allowed to walk free, the government could adopt legislation to deal with the matter, or a diplomatic approach could be followed.
This week’s ruling by South Africa’s highest court confirmed that the deportation of the duo to Botswana cannot go ahead because if deported they face a real risk of the death penalty in what Amnesty International has hailed as a “principled stance”.
“Today’s ruling by the Constitutional Court confirmed that a State that has abolished the death penalty may not hand over an individual to another State if there is a real risk of the death penalty being imposed,” said Noel Kututwa, Amnesty International’s Deputy Programme Director for Africa.?”The Constitutional Court should be commended for its continued principled stance against the death penalty. Also, it has once again shown exemplary judicial independence.”?”The judgment shows that the government of a state that has abolished the death penalty cannot simply wash its hands of its possible contribution to death sentences elsewhere,” Kututwa added.
During the ruling, Acting Justice Raymond Zondo, said when South Africa adopted its constitution, it affirmed its commitment to upholding the human rights of every person in everything that it did, and could not deport or extradite anyone where doing so would expose him or her to the real risk of the imposition and execution of the death penalty. Addressing the Government’s “legitimate” concern that South Africa could be perceived “as a safe haven for illegal foreigners and fugitives from justice”, Justice Zondo said that the situation would not arise “if countries seeking an extradition of someone in Mr Phale’s position would be prepared to give the requisite assurance”.
“Under international law, an abolitionist state is absolutely prohibited from forcibly transferring a person, who could be subject to the death penalty, to a retentionist State, unless reliable assurances have been obtained, which effectively eliminates that risk,” said Kututwa.??Justice Zondo concluded that “there can be no doubt that, if Mr Phale were deported or extradited to Botswana, he would face a real risk of the imposition of the death penalty if he were to be found guilty.”?Amnesty International intervened as an ‘Amicus Curiae’, or friend of the court, in the Constitutional Court hearing and was represented by South African counsel.
Both Phale and Tsebe were wanted in Botswana for the murder of their partners when they fled to South Africa. In September 2011, the South Gauteng High Court in Johannesburg had ruled that Phale and Tsebe – who died from an illness in 2010 while in custody – should not be deported. The reason Tsebe continued to be included in the process was because both his lawyers and the state wanted the original application to be heard.??The death penalty has been in force in Botswana since the country became independent in 1966. It is the only country in Southern Africa which still carries out executions. Most recently Zibani Thamo was hanged for murder on 31 January 2012. Botswana has executed people each year between 2006 and 2010.??The death penalty in Bostwana is used against those convicted for murder, treason, an attempt on the life of the head of state and the military offences of mutiny and desertion in the face of the enemy. Executions are often carried out unannounced to the public and the family members of the condemned prisoner. Families are not allowed to attend the burial of a condemned prisoner nor visit their graves once they are buried.
