South Africa’s Constitutional Court issued a ruling on 27 July (Tsembe et al.) denying the Government’s attempt to extradite two individuals to Botswana where they might face the death penalty. Originally, South Africa had sought an assurance that the death penalty not be imposed, but Botswana refused to issue one. South Africa then took the view that it would extradite anyway. Lawyers for the two men (one of them has since died) took the case to the Constitutional Court, where they have prevailed.
The Government sought to make a number of petty distinctions with existing South African law on the subject, but the Court did not see anything in these arguments.
The judgment confirms that the standard to be applied in such refoulement cases is whether there is a real risk of capital punishment. There is some divergence in international human rights law on this point, to the extent that the expulsion, deportation or extradition involves the death penalty rather than torture. There is widespread support for the view that in torture cases, even diplomatic assurances are not sufficient. With respect to the death penalty, however, diplomatic assurances are sought (and generally obtained). Moreover, I know of no case where a State that provided such diplomatic assurances to to impose the death penalty has ever reneged on its commitment.
In answer to the charge that there was perhaps not a real risk of execution, the South African Court noted that Botswana has mandatory death penalty provisions, and that it had moreover refused to provide an assurance that the death penalty not be imposed.
Botswana is one of a handful of African states that still use capital punishment. It may be the only state in southern Africa to have used capital punishment in recent years.
This is another proud moment for the rule of law in South Africa, and another important contribution to international human rights law by its distinguished Constitutional Court.
Thanks to Max Du Plessis, who argued the case on behalf of the accused men for Lawyers for Human Rights, and who, along with his colleagues, deserves our congratulations.