Extradition raises diplomatic hot potato
Lebogang Mosikare | Friday March 27, 2020 12:25
Last year in September, the DPP failed in its endeavour to repatriate a Tanzanian national who is charged with Kativa Diwanga of having killed a family of three in Gaborone.
The Tanzanian citizen is currently in the custody of Namibian authorities. The Namibian authorities want assurances that he will not be executed in the event that he is extradited to Botswana and found guilty of murder.
Namibia just like South Africa abolished the death penalty after gaining independence.
While opposing Diwanga’s bail application before the High Court in Francistown in September last year, Moffat Dick from the DPP implored the court to scrutinise whether the applicant was a flight risk or not.
He said: “We submit that the court should closely examine if the applicant is a flight risk and the allegations that he has relatives in Namibia. The applicant’s father is a Namibian. The applicant has relatives in Namibia. We therefore submit that flowing from that, he is likely to abscond to Namibia and not stand trial. We received the applicant’s replying affidavit this morning.” Attached to the replying affidavit, Dick said, is a form that was used by the accused when he applied for his national identity card (Omang).
“The applicant’s father’s name is not mentioned in the Omang documents. This however does not mean that he does not have a father. His father is a Namibian. The replying affidavit does not discount that fact. If the accused absconds to Namibia, it would take a long time to extradite him to Botswana. Extradition is a cumbersome process that involves various government departments of two countries,” said Dick.
Quoting from South African case law then, Dick explained that South Africa does not extradite murder accused where they are alleged to have committed offences unless there is an assurance that such people would not face capital punishment.
“The reason why we are quoting South African authorities is because they may persuade Namibian courts to adopt a similar approach although the Namibian courts are not compelled to adopt that approach. Just like South Africa, Namibia has also outlawed the death penalty. We submit that the accused has committed serious offences about three months ago and is a flight risk. We submit that the accused should be further incarcerated to allow the police investigations to continue without any interference. These are cross-border matters that are not simple to solve with immediate effect,” said Dick.
However, the court dismissed the state’s submissions that Diwanga was a flight risk just because he has relatives in South Africa amongst other reasons.
Diwanga was subsequently granted bail by the High Court after a magistrate court in Gaborone initially denied him one last year.
When Diwanga’s matter went before a magistrate court a few days back in Gaborone this month, the DPP told the court in Gaborone that it was having a problem of extraditing Diwanga’s co-accused from Namibia because Namibian authorities want assurances that he would not be executed once he is repatriated to Botswana even if he is found guilty.
Although the High Court in Francistown had ruled in the state’s favour by granting Diwanga bail, some observers interpret the DPP’s recent submissions in Gaborone that it was having problems to extradite Diwanga’s co-accused from Namibia as a victory for the prosecutions authority.
Proponents of that thinking are of the view that if Diwanga had managed to enter the borders of Namibia, it could also have been hard for the state to extradite him to Botswana just like it is currently obtaining with his co-accused.
This should however not be interpreted to mean that this publication does not respect court rulings. This publication will always respect the decisions of Botswana’s various courts of laws.
There are other examples were Botswana has failed in her bid to extradite murder accused persons from South Africa to stand trial.
A good example is the one relating to Edwin Samotse accused of murdering his girlfriend in 2011 in Francistown-but has now found a sanctuary in South Africa that is refusing to repatriate him.
The South African government is refusing to extradite Samotse because Botswana has not made assurances that Samotse would not be executed in Botswana after he repatriated even in the event that he is found guilty by the courts in Botswana.
For instance, a lecturer of law at the UB Dr Obonye Jonas said that the issue of countries that have abolished the death penalty handing over people who are accused of having murdered others in countries that still practice the death penalty is a complex one.
Jonas says that abolitionist states refuse to extradite murder-accused persons based on their laws.
“Countries that don’t practice the death penalty need an undertaking from the requesting countries that the murder accused persons would not face capital punishment once they are extradited to the requesting states. They need assurances that people who are extradited to requesting states will still enjoy the right to live in requesting countries just like they are currently enjoying in host countries,” said Jonas.
The UB don added: “International human rights requires that the liberty of individuals should be respected because human rights are considered as part of public order of the international community. Surely, the issue of extraditing people accused of murder from countries that have abolished capital punishment to countries that still practice it has caused diplomatic controversy between nations. This is so because host countries will require assurances that the people they repatriate would not be executed even if they were found guilty of murder.”
Botswana, Jonas posited, has refused to make any assurances that murder accused persons would not be executed once they are extradited to Botswana.
“Botswana’s position to execute people who are found guilty of murder is out of sync with global trends in so far as the death penalty is concerned.
This is so because we see an unmistakable trend among nations of the world to abolish the death penalty. Botswana is an outlier to what the community of nations is doing. The time of practicing the death penalty is gone. Botswana will not stick to her position forever because sooner or later, she would need to abide by international best standards and norms and abolish the death penalty,” said Jonas.
A political science lecturer at UB, Adam Mfundisi, shares Jonas’ sentiments.
“Namibia is violating neither Botswana’s sovereignty nor judicial processes. Namibia is adhering to its Constitution and its processes.
Countries that do not allow capital punishment do not allow extradition to countries that do administer the death penalty unless by written assurance that the death penalty will not be considered if the accused is found guilty. It is an international norm.
For example, Britain does not extradite any accused to countries such as USA that administer capital punishment unless with written assurance for non-application of the death penalty,” said Mfundisi.
The Joint Commission of Defence and Security, Mfundisi explained, covers broader security and defence issues.
“Extradition treaties may be one of them. But each country has to pursue its own national policies consistent with its Constitution. Constitutionalism refers to the adherence to the Rule of Law. Namibia has a constitutional obligation to protect anyone who may be subjected to capital punishment by a third party. The country is obligated to protect human rights of the accused facing death sentences from countries administering such. Any other way the Namibian government would be violating the fundamental law of their land by agreeing to handover a suspect on murder charges in Botswana,” he enunciated.
Botswana is an exception in Southern Africa, Mfundisi explained, still maintaining the death penalty which an affront to human rights.
“Capital punishment is an inhuman and degrading punishment. There is no violation of Botswana’s sovereignty here. Botswana must adopt modern international norms and obligations abhorring the death penalty in any situation. It must revoke the death sentence so as to align itself with its neighbours,” said Mfundisi.
“There are no repercussions of any kind for Namibia. The Botswana Government legal professionals must know that no country that does not have capital punishment for murder or any other crime will allow its jurisdiction to be allowed to extradite any suspect to it.
This is plain language they should communicate to their political masters. If Botswana continues to adopt the death penalty, it will not succeed in its extradition expedition anyway in the world except countries that are in its bracket. But such countries are shrinking,” Mfundisi continued.
“Murder is a crime but does it attract only capital punishment? If a person kills and seek refugee in any country, it is not the responsibility of that country. If they escape from custody or otherwise and seek sanctuary in any country it is their choice.
For Botswana to be able to receive cooperation from its neighbours, it must enter into extradition treaties that exclude capital punishment. Otherwise, any attempt on cases of murder that attracts capital punishment will fail,” the UB politics expert concluded.
Asked about the issue, Minister of Defence, Justice and Security Kagiso Mmusi said that Botswana would continue to engage her neighbours who have abolished the death penalty about why it is important for them to repatriate murder accused persons to Botswana.
He said: “We will continue to engage our neighbours about this issue but we will stick to our way of doing things.”