Hurdles as State ponders Khama extradition
Mompati Tlhankane | Monday June 13, 2022 06:00
The former president is currently in a self-imposed exile in South Africa (SA). Last month, Khama was charged with 14 offences becoming the first former president in Botswana to be charged with criminal offences. Khama has been charged with criminal offences, which include amongst others, unlawful possession of a firearm, receiving stolen property, procuring the registration of a firearm by false pretence, aiding and abetting unlawful possession of a firearm and ownership of a firearm not registered in accordance with the Arms and Ammunition Act of 2018.
He was supposed to appear before the Broadhurst Regional Court this past Monday but as expected, he was a no show. Khama’s court absence has since pushed the State to consider an extradition request.
The State is aware that Khama is in the neighbouring SA, but for now it cannot get him because no warrant of arrest has been issued against him and there is no decision on whether to extradite him or not. This week, Khama told Mmegi that he would welcome an extradition request should the State go ahead with it. "I would very much welcome an extradition request because that would give me and my associates an opportunity to expose the lies and fabrications that President Mokgweetsi Masisi and his cronies have been embarking on against me,” Khama said in an interview. He also said extradition doesn’t happen in a manner in which one applies today and the next day the subject is back in the country. “There is a legal process that has to be followed, which includes an appearance in a South African court and that is why I welcome it,” he said.
He added that what comes out in an SA court will be published widely therefore, that would work for him. Although Botswana has an extradition treaty with South Africa, getting Khama back is going to be a long fight for the involved parties. Delayed arrest and prosecution are, undeniably, threats to Botswana’s peace, safety and security therefore for the State, extradition might be the only option left considering Khama will not return voluntarily to face the charges. Khama has indicated that he will not come back because he fears for his own life. The former army general maintains that his successor and former ally, Masisi, plans to put him behind bars where he (Khama) could be easily assassinated. Khama said looking into all these factors, he welcomes extradition because SA courts will ensure that as the person concerned, he will not be victimised. Khama has told the media numerous times that the whole Botswana judiciary is captured therefore he will not get any justice should he return home to face his charges.
Extradition is the recognised international device for the judicious return of fugitives from foreign countries. In an interview, Dr Onkemetse Tshosa, a lecturer from University of Botswana (UB) Law Department told Mmegi that extradition is, in principle, based on a bilateral extradition treaty and there is no obligation to extradite in the absence of an extradition treaty. With an extradition treaty already there between Botswana and SA, Tshosa outlined that Botswana authorities will formally request the SA authorities to extradite the offender stating reasons for the extradition. “If the offence alleged to have been committed is extraditable and mentioned in the extradition treaty the SA authorities will decide whether to hand the offender over to the Botswana authorities. This is based on the double criminality principle, which means the offence must be an offence in both countries and listed as such in an extradition treaty,” he said. Normally extradition treaties follow a standard framework and specify the conditions under which a fugitive may or may not be extradited.
In the case of Khama, there are other scenarios where extradition can be refused and according to Tshosa if the offence carries a death penalty and the offender faces that possibility SA could refuse to extradite. He said SA could refuse to extradite where the alleged offence is not mentioned in the extradition treaty or is of a political nature.
In terms of the pace of proceedings in the extradition process, Tshosa said one could not really fix the period that it can take to extradite. “If the alleged offender challenges his/her extradition in courts it may take some time. In all probabilities if a request were to be made, it would be challenged,” he highlighted. Sometimes extradition procedures are further complicated by unreasonable delays and variance in documentary requirements of foreign countries. Tshosa pointed out that the extradition process could not be fast tracked and closed soon. He added that as soon as Khama challenges it before SA courts, everything would be in hands of the courts.
He said it may or may not end soon. However, Tshosa said if both Botswana and SA follow the strict extradition rules and processes, the extradition would be like any other despite the fact that Khama is a former head of State. “But if there is political influence on both sides, it may be different, how different it is not easy to tell,” he said.