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South Africa: Court Declares Extradition to Death Penalty Jurisdiction Illegal

(Sept. 25, 2014) On September 23, 2014, the High Court in Pretoria, South Africa, ruled that the extradition to Botswana of Edwin Samotse, a man sought on murder charges in that country, where he may face the death penalty, was a violation of the South African Constitution and illegal. (High Court Rules Botswana Deportation Illegal, TIMES LIVE (Sept. 23, 2014).)

Samotse was reportedly arrested in Botswana in 2010, but later fled to South Africa, where he was detained one year later and extradited to Botswana on August 13, 2014. (Id.; Christopher Torchia, South Africa Sends Murder Suspect to Botswana, THE BIG STORY (Sept. 16, 2014).) In extraditing Samotse, the Department of Home Affairs (DHA), in addition to violating South African law, is said to have disobeyed a specific court order against such actions. (Aarti J. Narsee, Judge Slams Illegal Deportation of Murder Accused, BUSINESS DAY LIVE (Sept. 18, 2014).)

Apparently this was not a case of misunderstanding of the laws of either country on the part of the DHA officials involved; in fact, prior to deporting Samotse, as required under the laws of South Africa, officials in the DHA have admitted to having sought to no avail an assurance from Botswana that he would not be executed should he be convicted. (Torchia, supra.) Samotse was extradited reportedly because a senior official at the DHA failed to circulate an email alerting the concerned personnel that the extradition was suspended due to Botswana’s refusal to provide the necessary assurance. (Narsee, supra.) Following the extradition, the DHA admitted the error and suspended three of the officials involved in the case. (Id.)

South African Extradition Law and the Death Penalty

South African law prohibits the extradition of persons to certain countries that impose the death penalty. This is based on a 2001 Constitutional Court case involving a man who was detained and deported to the United States to stand trial before a federal court in New York on a number of capital charges relating to the bombing of the U.S.embassy in Dar es Salaam, Tanzania. (William A. Shabas, Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice, 25 LOY. L. A. INT’L & COMP. L. REV. 600 (2002-2003).)

The Court held that the extradition of an accused person to a country that imposes the death penalty without obtaining an assurance that the person would not be executed was a violation of the South African Constitution. (Mohamed and Another v. President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18 (May 28, 2001), SOUTH AFRICAN LEGAL INFORMATION INSTITUTE (SAFLLI).) In a 2012 case involving two Botswana citizens sought in their home country on murder charges, the Court upheld its 2001 decision. (Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice andConstitutional Development and Another v Tsebe and Others (CCT 110/11, CCT 126/11) [2012] ZACC 16 (July 27, 2012), SAFLII.)

South Africa’s Constitutional Court abolished the death penalty in 1995. (S v. Makwanyane and Another(CCT3/94) [1995] ZACC 3 (June 6, 1995), SAFLII.)

Botswana Law on the Death Penalty

Capital punishment is legal in Botswana. The punishment applies to the most serious offenses, including treason, instigating invasion of Botswana by foreign armed forces, murder, or causing death during the commission of the crime of piracy. (Penal Code of 1964, §§ 34, 35, 63, & 203, II LAWS OF BOTSWANA, Cap. 08:01 (rev. ed., 2012); online text of Penal Code as amended up to Act No. 14 of 2005, available at World Intellectual Property Organization website.) It does not apply to children under the age of 18 or pregnant women. (Id. § 26.) Botswana has reportedly executed 47 persons since achieving its independence in 1966. (Tebogo Kgalemang, Botswana Hangs 47 Since Independence, BOTSWANA GAZETTE (June 23, 2013).)