Home Affairs fights for right to deport murder accused

2012-01-07 15:34

The Home Affairs department wants the Constitutional Court to “refine” one of its landmark decisions to give Minister Nkosazana Dlamini-Zuma the power to deport a murder accused to Botswana, where he faces possible execution.

The case is an appeal by the department against a decision of the South Gauteng High Court, ordering it to halt the deportation of Jerry Phale and finding that Botswana “has an appalling history of ‘secret executions’ in regard to its implementation of the death penalty”.

In an affidavit filed in support of the application, Modiri Matthews, a chief director at Home Affairs, said Dlamini-Zuma was “emasculated” by the ruling from performing her legal and constitutional duties.

Phale and another man, Emmanuel Tsebe (who has since died in custody), are accused of murdering their partners between 2008 and 2009 before fleeing to South Africa.

They were subsequently arrested as illegal immigrants in South Africa and requests for their extradition were made to the justice department by Botswana.

But Justice Minister Jeff Radebe did not grant the requests from the neighbouring country because the Botswana government refused to provide an undertaking that the men would not be executed if found guilty.

Such an undertaking is a globally accepted norm when a country with the death penalty requests a fugitive to be extradited from a country which has banned the death penalty.

While the justice department turned down the request for the extradition of the men, Home Affairs continued with the process of deportation to Botswana.

Lawyers for Human Rights and The Society for the Abolition of the Death Penalty in South Africa intervened, resulting in the high court decision last September.

The full bench of the court, including Deputy Judge President Phineas Mojapelo and human rights lawyer George Bizos (then an acting judge), found it was bound by the 2001 Constitutional Court case of Mohamed v President of the Republic of SA.

In that case, the court found that the right to life in the Bill of Rights was so important it obliged the South African government to obtain an assurance that a fugitive who faced the death penalty would not receive this sentence if found guilty.

In Matthews’s affidavit before the Constitutional Court, however, he said that the high court’s decision had created a legal anomaly for Home Affairs.

Phale cannot be deported nor can he be tried by a South African court because the alleged murder took place in Botswana.

This means the only option would be for the minister to release him.

Matthews said the risk to the South African public thus had to be “weighed against the individual rights of Phale to an assurance that he will not face the death penalty”.

Matthews said that Phale had not to his knowledge “presented substantial and sustainable evidence that he faces torture, or cruel, inhuman or degrading treatment or punishment should he be returned to Botswana”.

Radebe argues that the South African executive would take all necessary steps within the SADC to prevent the execution of Phale if necessary.

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