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.
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