SOUTH AFRICA: HIGH COURT RULES BOTSWANA DEPORTATION ILLEGAL
September 23, 2014: the High Court in Pretoria ruled that South Africa wrongfully deported a wanted murder-accused back to his home country, Botswana, where he could face the death penalty. The deportation of Botswana national Edwin Samotse was illegal and unconstitutional, the court order stated.
Samotse was handed to officials in neighboring Botswana in violation of South African rules that bar the extradition or deportation of people whose countries have the death penalty, which was abolished in South Africa in 1995.
The Department of Home Affairs was attacked for wrongfully deporting Edwin Samotse, despite several attempts to draw its attention to a non-surrender order from the minister of justice and correctional services.
At the time of his deportation, Samotse was in custody at the Polokwane police station while the Botswana government sought his extradition.
After Botswana refused to give assurances that, if extradited, Samotse would not face the death penalty, a South African court order was issued to ensure he was not deported. It was alleged that two home affairs officials who have since been suspended, arranged Samotse‚Äôs unauthorised deportation, which apparently took place on 13 August.
On 18 September, Pretoria High Court Judge Eberhard Bertelsmann said he was ‚Äúconcerned‚ÄĚ that department officials were not aware that South Africa does not surrender people to another country if they face the possibility of the death penalty. Bertelsmann raised the question of whether the officials responsible should be charged with attempted murder. ‚ÄúIf they knew he was facing the death penalty and surrendered him voluntarily, why should this not surmount to attempted murder,‚ÄĚ he questioned.
Samotse was represented in court by Legal Aid and Lawyers for Human Rights (LHR). The LHR said it hoped the ruling would lead to the development of standard operating procedures to prevent such deportations in future. It also wanted the department of international relations to continue to seek assurances from the Botswana government that Samotse would not be executed.
South Africa abolished the death penalty in 1995 after the end of white minority rule.
On 27 July 2012, the Constitutional Court of South Africa ruled, in the Emmanuel Tsebe and Others case, that "deportation, extradition or any form of removal" of individuals who could face the death penalty in their home countries "is wholly unacceptable" since capital punishment is illegal and unconstitutional in South Africa. (Sources: SAPA and bdlive.co.za, 18/09/2014; SAPA, 23/09/2014)