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Namibia: Supreme Court Declares Extradition Act Provision Unconstitutional

(Apr. 14, 2010) On April 9, 2010, the Supreme Court of Namibia declared a provision of the 1996 Namibian Extradition Act, which imposes unlimited detention on a person found eligible for extradition, unconstitutional. The ruling came as a result of a challenge lodged by one Jacob ('Kobi') Alexander, an Israeli wanted by the United States on 35 fraud-related charges. (Werner Menges, Kobi Wins Appeal on Extradition Act, THE NAMIBIAN, Apr. 12, 2010, available at

The provision that was declared unconstitutional provides that a person whom a Magistrate found extraditable and committed to prison to await an extradition order by the competent authority, whether or not the person appealed against the finding, or a person whose extradition order has already been issued, is not entitled to bail. (Extradition Act No. 11 of 1996, §21, SCRIBD, (last visited Apr. 12, 2010).)

Justice J.G.S. Strydom, who delivered the Court's judgment, found the wholesale and arbitrary denial of bail with no apparent justification unacceptable. Strydom wrote:

In its sweep it [§21] holds at ransom Namibian citizens as well as foreigners and draws no distinction between instances where the fear for flight by the person to be extradited is minimal or non-existent and instances where fear for flight would be a legitimate reason to detain such person and refuse bail. (Menges, supra)

The Court held that in order for the limitation on the right to liberty imposed by §21 to pass the test of being proportional limitation of a constitutional right, it must be fair, it must not be arbitrary, and it must limit the right as little as is reasonably possible. (Id.) Strydom remarked that the application of §21 could allow the detention of a person with no conviction for years, possibly longer than the prison term that such a person might face if convicted in the country requesting his/her extradition. (Id.) Strydom chastised the legislature for failing to consider instances in which the Namibian government does not need to keep a person in detention indefinitely in order to comply with its legal obligations. (Id.)