Extradition and the death penalty

South Africa stands by constitutional and international principles

The following is an extract from the Legal Resources Centre 2012 Annual Report

The LRC represented the Society for the Abolition of the Death Penalty earlier in 2012 in a Constitutional Court case concerning the extradition of two Botswana nationals on murder charges. Mr Tsebe and Mr Phale had, in separate incidents, fled to South Africa fearing the death penalty in their home country. A full bench of the High Court ordered that they could not be extradited to Botswana in the absence of a written assurance that, if the death penalty was imposed, it would not be carried out. Following the High Court order preventing South Africa from extraditing them, the government pursued the matter to the Constitutional Court.

The approach of the government in this matter was puzzling given the previous decisions of the Constitutional Court relating to the death penalty. In 1995, the LRC successfully fought to have the Constitutional Court declare the death penalty abolished in South Africa*. Six years later, the Constitutional Court heard a case dealing with the legality of the South African government’s decision to hand over a suspected criminal to the United States authorities**. The Court held that the government may not extradite any suspect who may face the death penalty without first seeking an assurance from the receiving country that the death penalty would not be carried out. Nonetheless, in this most recent case, the government appealed the High Court decision which clearly applied this principle.

Beyond these issues, the treatment of Mr Tsebe in the Lindela Holding Facility near Krugersdorp was indicative of the attitude of the Department of Home Affairs. He had been detained in South Africa for over a year awaiting an extradition enquiry, where it was ordered that he could not be extradited in the absence of an undertaking from Botswana not to impose the death penalty. After that decision was taken, he was held for another year in Lindela, despite the prior decision, and eventually died before the matter was decided in the Constitutional Court.

The matter was argued at the Constitutional Court in February 2012. In refusing the State’s application for leave to appeal, the court confirmed our submissions and reiterated the principle that the government may not extradite any suspect who may face the death penalty without first seeking an assurance from the receiving country that it will not be carried out. The judgment further ordered costs in favour of our client.

*State v Makwanyane and Another

** Mohamed and Another v President of the Republic of South Africa and Others


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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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