Namibian fugitive loses extradition appeal

Baboki Kayawe | Thursday October 31, 2013 16:27

In January 2010, Van der Merwe was brought before the Magistrate Court in Lobatse for extradition as a fugitive criminal facing imprisonment for motor vehicle theft in Lusaka.

After his conviction in Lusaka and release on bail pending appeal, he fled to Botswana, as his passport was in the hands of authorities in Zambia.  

Subsequently, a Lusaka court issued a warrant for his apprehension in Botswana in 2010 and he was later held in custody pending extradition documents from Lusaka.

The bone of contention is that the Lobatse court did not file the transcript of the record of trial resulting in Van der Merwe arguing that the inquiring magistrate was required by law to have those as evidence in the extradition proceedings.

However, judges Isaac Lesetedi, Ian Kirby and Stephen Gaongalelwe were not mandatory in deciding whether or not to commit him for extradition according to the Extradition Act and custom of the doctrine of sovereignty of states.

They ruled: “...the receiving (requested) state should not, save in extreme cases, consider the lawfulness of the actions of a foreign (requesting) state as against of its own municipal law.”

They ruled that it would be incompetent of the local courts to question the propriety of the conviction save in the extreme cases, and the submission of the trial record would have been unnecessary in this case.

Justifying their decision, the judges said the fugitive was already found guilty, unlike where he is still suspected of committing a crime in which case the presumption of innocence still operates in his favour.   

The three also dismissed as unmeritorious the admission of the extradition papers and the judicial competence of the sitting magistrate. They said the handing over of those was a mere administrative step of placing the necessary record, which the enquiring magistrate would later regard at the substantive hearing.