An evaluation of extradition between the Republic of Botswana and the Republic of South Africa

Abstract

The extradition process between the Republic of Botswana(hereinafter referred to as Botswana) and the Republic of South Africa(hereinafter referred to as South Africa) has proven to be less effective due to procedural disparities. There is a gap in the extradition treaty that has been overlooked. For extradition to run smoothly, countries ought to build a working relationship. Botswana‘s border with South Africa makes it easy for criminals to move between the two countries without detection. In most cases, criminals from both countries cross over the border without going through designated areas in order to escape justice. This has led to an increase in extradition requests between the two countries. An overview of the extradition arrangements between Botswana and South Africa has suggests that provisions in extradition agreements, whether bilateral or multilateral, should assist not only in the operation of international cooperation on criminal matters, but also in the protection of the rights of persons subject to an extradition request. The extradition treaty between Botswana and South Africa needs extensive evaluation and review in order to align it with international developments. This is a treaty that was entered into in May 1969. Delays have been identified as the major problem in the extradition arrangements between the two countries. Delays in extradition impede rather than promote justice and international relations. Extradition hearings by nature are meant to be speedy. This is so because it is not a substantive trial and the accused person is not called to his defence. These delays are due to a number of factors. As one of the factors, Interpretation of extradition statutes has proven to be problematic. Problems were found to result from lack of uniform interpretation of law methods used by the courts. Further Differing policies on capital punishment have been at the heart of delays in recent extradition cases between Botswana and South Africa where a fugitive is wanted for murder, which carries the death penalty. South Africa and Botswana are parties to most international human rights conventions which do not support the death penalty though Botswana still practices it and the decision whether to execute it lies with the Executive. It has been proven that getting the Executive to give an assurance not to execute is a battle that takes a long time. The treaty between the two countries and their Extradition Acts are ancient and overdue for amendment to rectify those acts that create technicalities used to fight extradition. Below are the proposed elements for a new Extradition Treaty between Botswana and South Africa The Preamble of the treaty should include that Botswana is a “foreign state” <ul> <li>1. Article 6 should be amended to read:</li> <c>Extradition shall be refused if under the laws of the requesting Party the offence for which extradition is requested is punishable by death unless there is an undertaking from the requesting state that if the accused is convicted, the death penalty will not be imposed or where it is imposed it will not be executed.</c> <c>An extradited convict sentenced to death shall not be held on death row for a period exceeding one year.</c> <li>2. Article 15 should be amended by adding the following:</li> <c>6. The Magistrate must ensure that extradition hearing is completed within six months of commencement.</c> <li>3. Article 16 should be added as follows:</li> <c>4. Expenses incurred by reason of non cooperation of the requesting party shall be borne by that party.</c> </ul>