Court name
Supreme Court
Case name
S v Mushwena and Others
Media neutral citation
[2004] NASC 2
















CASE NO.:
SA 6/2004












IN THE SUPREME COURT OF NAMIBIA







In the matter between


















THE
STATE



APPELLANT








versus






























































MOSES
LIMBO MUSHWENA



1ST
RESPONDENT (ACC 12)



FRED
MAEMELO ZIEZO



2ND
RESPONDENT (ACC 25)



ANDREAS
MULUPA



3RD
RESPONDENT (ACC 26)



RICHARD
LIBANO MISUHA



4TH
RESPONDENT (ACC 48)



OSCAR
MUYUKA KUSHALUKA PUTEHO



5TH
RESPONDENT (ACC 49)



RICHARD
JOHN SAMATI



6TH
RESPONDENT (ACC 53)



JOHN
SIKUNDEKO SAMBOMA



7TH
RESPONDENT (ACC 54)



OSBERT
MWENYI LIKANYI



8TH
RESPONDENT (ACC 57)



THADEUS
SIYOKA NDALA



9TH
RESPONDENT (ACC 70)



MARTIN
SIYANO TUBAUNDULE



10TH
RESPONDENT (ACC 71)



OSCAR
NYAMBE PUTEHO



11TH
RESPONDENT (ACC 72)



CHARLES
MAFENYAHO MUSHAKWA



12TH
RESPONDENT (ACC 73)



CHARLES
KALIPA SAMBOMA



13TH
RESPONDENT (ACC 119)












CORAM: Strydom, ACJ, O'Linn, AJA, Mtambanengwe, AJA, Gibson, AJA et
Chomba, AJA.







HEARD ON: 10-12/05/2004







DELIVERED ON:



____________________________________________________________________________







APPEAL JUDGMENT



____________________________________________________________________________







MTAMBANENGWE A.J.A.: The state appeals against Hoff J's
judgment in favour of the thirteen respondents that the court did not
have jurisdiction to try them.







The application leading to the court a quo's ruling began as
an application on notice of motion supported by various affidavits
deposed by the respondents. The notice of motion sought an order
declaring inter alia that the respondents apprehension
and abduction from Zambia and Botswana respectively, and their
subsequent transportation to Namibia and their arrest and detention
pursuant thereto was in breach of international law, unlawful and
that they had not been properly and lawfully arraigned before the
court for trial on the charge preferred against them. The court a
quo
directed that the notice of motion and the supporting
affidavits be regarded as respondents pleas in terms of section 106
(1) of the Criminal Procedure Act 57 of 1977, namely that the court
a quo
had not jurisdiction to try the 13 respondents.







The respondents, and 117 other persons were facing 278 charges of
which the most serious are high treason, murder, attempted murder
seduction, robbery with aggravating circumstances, public violence
unauthorized possession of firearms and ammunition, theft and
malicious damage to property. All the charges arise from an incident
at Katima Mulilo on 2 August 1999 when Government institutions,
including the Mpacha military base, the Kautonyana Special Field
Force base, the Wanela border post, the building housing the Namibian
Broadcasting Corporation, the Katima Mulilo Police Station, the
Central Business area of the town of Katima Mulilo and the house of a
police officer were attacked by groups of armed men resulting in the
death of several people and damage to properties. The respondents
and their co-accused were part of an exodus of people from the
Caprivi Region into neighbouring countries that took place as a
result of and prior to the incident. The state of emergency at the
time declared in the Caprivi Region was revoked on 26 August 1999
after order was restored by the Namibian Security Forces. Besides
the respondents a number of other people were arrested in the
country.







It is common cause that all the respondents left Namibia illegally
and were all granted asylum in Botswana where they were accommodated
at various refugee camps. It is also common cause that at various
dates during 1999 all except Osbert Likanyi left the refugee camps
illegally, and all had subsequently been apprehended at various
locations and at different times by Zambian authorities. At
different times subsequent to their apprehension and detention in
Zambia, they were handed over to the Namibian authorities.
Respondent Likanyi was handed to the Namibian authorities by the
Botswana authorities as an illegal immigrant.







All the respondent's claimed in their affidavits that they were
abducted by the Namibian authorities and unlawfully surrendered to
Namibia. In the proceedings before Hoff J to determine the
jurisdictional issue, the State, conceding it had the onus to prove
that the court had jurisdiction to try the respondents, led evidence
from various witnesses who on various occasions dealt with the
respondents. These included police and or Immigration officials from
Zambia and Botswana. Only two of the respondents testified, namely
Oscar Muyuka Kashaluka Puteho and Fred Maemelo Zieso. The evidence
dealt with the respondent as belonging to in all 5 groups according
to the way and dates they were apprehended and handed over to
Namibia.







The first group included Steven Mamili (since deceased) Moses Limbo
Mushwena, Thaddeus Siyoka Ndala, Martin Siyano Tubaundule, Charles
Mafenyaho Mushakwa and Oscar Nyambe Puteho. No one from this group
was called to testify. At this stage it is worth noting that
throughout the cross examination of state witnesses counsel for the
respondents devoted all his effort at trying to show that all the
respondent's were abducted from Zambia or Botswana and that the
Namibian authorities connived in the abduction. This was of course
in line with the allegations of respondent's as recorded in their
affidavits. The most explicit of the affidavits on that score was
that of Charles Mafenyaho Mushekwa and that of Charles Kalipa
Samboma, each of which details how they say they were abducted. They
read in part as follows:








  1. "We were separated and placed in different camps in Botswana.
    Others and myself were taken to Dukwe Refugee Camp. Although we had
    been granted political asylum we still reported to the Police
    Station three times a day, that is at 6 am, 2pm and 6pm. I was not
    happy with the treatment I received in the camp including the
    continuous routine of reporting to the Police Station. We were not
    given enough food so we were starving. Because of these
    difficulties I decided to leave the country to Zambia. I left with
    my friend Oscar Puteho for Zambia. We crossed the border into
    Zambia. When we were in Zambia we went to the Police Station and
    reported ourselves there. This was on the 18 of June 1999. We
    informed the police that we were claiming political asylum. We
    advised the police that we had previously been granted political
    asylum status in Botswana but had left because of hardship. We were
    later transferred to Mongu Prison. At Mongu prison we were
    interviewed by members of Zambian Intelligence Office. We told them
    the same story we had told the police the previous day. While we
    were being interviewed by the State Security Officers, the Namibian
    Police came and wanted to take us back to Namibia. The Commander of
    the Zambian Police refused. We had told him that United Nations
    Regulations do not allow the Namibian Police to take us to Namibia
    to leave the country. The Namibian High Commission requested to see
    us. Again the Zambian Police refused. We were taken to Lusaka
    Kamwala Remand Prison. Photographs were taken of us. On the 7th
    of August we were called by the prison officers to the prison
    reception where we were handed to an officer from the Office of the
    President of Zambia. We were initially asked to collect all our
    belonging as we were made to believe we were being taken to Europe.
    We then proceeded to the Zambian Airport. We boarded the plane.
    But before we boarded the plane we enquired whether the plane was
    suitable to take us all the way to Europe. The plane was a
    military plane and we were sure that it could not manage to fly all
    the way to Europe. The pilot assured us that we were right in
    thinking that the plane would not reach Europe on a single flight,
    but told us that we would be making a stop over in a number of
    countries to refuel and that our first stop was Uganda. When we
    were airborne we saw that we were going in the wrong direction. We
    landed at Sesheke Air Strip. We found the Zambian Police had
    surrounded the Air Strip. A few minutes later Namibia Police also
    arrived. At that time we were six of us. After disembarking from
    the plane we were surrounded by both Zambian and Namibian Police.
    One of my colleagues asked the Zambian Police why they had lied.
    The Zambian Police said that it was not their problem. The Namibian
    Police then forcibly took us into their custody. The Namibian
    Police then forcibly marched us to the Namibian side. During this
    period, I protested to both the Zambian and Namibian Police that
    their conduct was unlawful and contrary to the United Nation Charter
    on Status of Refugees. My protests fell on deaf ears. After
    crossing the border into Namibia we arrived at Katima Mulilo where
    our hands were tied by pieces of ropes. They started beating us
    using their hands and booted feet. I remember specifically being
    assaulted by Inspector Therone and Chief Inspector Erasmus
    Shishanda. They were shouting saying they were going to kill us
    because our people killed their officers. We told them that we had
    nothing to do with the killing of the officers.
    We were taken
    to Mpacha Military Base. At Mpacha Military Base we were handed to
    the army officers. We spent four days without food except water and
    we had our hands tied behind our backs.








On the 10th of August 1999 we were taken to Grootfontein
Military Base and late to Grootfontein Prison. I have been in Prison
since and appeared in other Magistrate Court and High Court more than
23 times.







I had been granted Political Asylum Status, which I held at the time
of abduction from Zambia territory.







I pray the Honourable court to grant me an order in terms of the
draft order.







I submit that I was unlawfully brought from the Zambian territory to
Namibia.







------------------------------------------------



CHARLES MAFENYAHO MUSHAKWA"







and,








  1. "I have read the Affidavit of Charles Mafenyaho Mushakwa and as
    far as it relates to me, I adopt its contents.









  1. Due to the harassment by the Namibian police and security officers I
    left for Zambia in 1999.









  1. I stayed with relatives in Zambia at Mutomena.









  1. I subsequently reported myself to Katima police control in Zambia on
    19th March 2001.









  1. Whilst I was still in the care of Zambian police officers at the
    Katima police control, at about 13:00 hours that afternoon, I was
    surprised to see two Namibina police officers one of whom I knew by
    the name of Sergeant Evans Simasiku.









  1. Later I saw the Namibian police leave the police post.









  1. The Namibian police officers returned to the police post later
    the same evening. Immediately thereafter, Zambia police officers
    took me from my cell and handed me to the Namibian police.









  1. I resisted because I was not aware of any documents authorizing
    my extradition from Zambia to Namibia.









  1. The two Namibian police officers forcibly sat me in between them
    in the front of the bakkie.









  1. The Zambian police officers jumped in the open back of the
    vehicle giving directions to their Namibian counterparts on how to
    escape immigration.









  1. The immigration gate was locked and the security guard guarding
    it refused to open the gate saying he had instructions from the
    Chief Immigration officer not to open without his authority.









  1. The Chief immigration officer finally came and questioned the
    Namibian police officers.









  1. One of the Namibian police officers I later came to know as
    Popyenawa pointed a pistol at me in the vehicle saying I should not
    say anything.









  1. Some discussion took place between the Namibian and the Zambian
    police officers and the Chief immigration officer. But no
    documentation was shown to the Chief immigration officer at all.
    The Chief immigration officer then instructed the watchman to open
    the gate.









  1. I was driven to Katima Mulilo Police station.









  1. Upon my arrival at Katima Mulilo Police station I was questioned
    by Biven Tuwelo the Chief of State security and Commissioner
    Maasdorp.









  1. Whilst still at Katima Police station I was severly beaten and
    forced to sign some statement
    .









  1. I spent about 14 days there confined alone in a cell. Thereafter I
    was taken to Grootfontein police station. I eventually appeared in
    the Magistrate Court and was detained at Grootfontein.









  1. It is submitted that my abduction from Zambia to the Republic of
    Namibia was unlawful as no extradition proceedings were ever
    instituted all that transpired was that I was simply and purely
    abducted from Zambia into Namibia.









  1. In the circumstances, I pray the honourable court for an order in
    terms of the draft order.








CHARLES KALIPA SAMBOMA"











The court a quo rightly identified the issue it was called
upon to determine:







"Whether the accused persons had been abducted by members of
the Namibian Police Force and or members of the Namibian Defence
Force". "The State's reply to this issue", he
continued, "is that the accused persons had been deported to
Namibia by the authorities in Zambia and in Botswana and that this
was done without any influence from the authorities in Namibia."
The learned Judge a quo then went on to describe what
deportation and extradition involved and how they relate or are
distinguished one from the other, before finally coming to describe
abduction of fugitives across international borders and referring to
a number of decisions on how such abduction impacts on the
jurisdictional issue. I will hereunder discuss some of the decisions
the judge a quo looked at. I must first note that at the end
Hoff J referred to the position taken by respondent's counsel,
namely:







"It was submitted by Mr. Kauta that if one considers the
circumstances under which the thirteen accused persons had been
brought into Namibia from neighbouring countries the only inference
to be drawn is that there was a collusion or connivance between the
respective authorities to abduct the accused persons."







However, the court went on to conclude that:







"Whatever suspicions there may be in this regard I am unable to
find on the facts represented to this Court that there was indeed a
connive or a collusion between the respective authorities to abduct
the accused persons."







In respect of those accused persons who alleged that they had been
abducted in the absence of evidence to the contrary, the evidence
presented by the state witness stand uncontradicted since they said
they had never been arrested by the Namibian authorities on foreign
soil.







In respect of those accused persons who allege that they had been
abducted the evidence presented by the State was that they had never
been arrested by the Namibian authorities on foreign soil.







This evidence stands uncontradicted.







I cannot find that those accused persons had been abducted, in the
sense used in the Ebrahim case, by members of the Namibian Police and
/ or members of the Namibian Defence Force. I come to this
conclusion with due consideration of the evidence presented by the
defence."







Because, despite this conclusion, the court a quo went on to
find that there was disguised extradition and, therefore, that the
court had no jurisdiction to try the respondents, and because before
us Mr. Kauta submitted that the court a quo erred in finding
that there was no collusion or connivance between Namibian and
Zambian authorities or between Namibian and Botswana authorities to
abduct the respondents, it becomes necessary to review the evidence
and the law on which the conclusion by the court and the arguments by
counsel are based.







In passing I would like to dispose of Mr. Gauntlet's submission on
behalf of the state to the effect that unless there was a cross
appeal by respondents they should not be allowed to rely on the issue
of disguised extradition. This of course is based on his submission
that: "the court held that a disguised extradition existed in
this case even though this aspect was never raised in argument before
it," and that the court a quo had not sought further
submission from counsel in accordance with Kuesa v Minister of Home
Affairs. I do not think that much turns on this submission. I say
so simply because the court a quo's conclusion, right or
wrong, is in my view based on the inference that the court drew from
the evidence, and which Mr. Kauta still maintained should be drawn.
Whether that inference is the only one that can be drawn from the
evidence is another matter. In a sense it is a matter of what label
you attach to the submissions by defence counsel in the court a
quo,
and the fact that Mr. Kauta appears to have exclusively
canvassed abduction in his cross examination of state witnesses and
in his submissions before the court a quo is neither here nor
there as long as evidence was led either in Chief or in cross
examination of witnesses, which would warrant the conclusion reached
by the court a quo and the raising of the issue on appeal.
The passage referred to in Kuesa v Minister of Home Affairs 1996(4)
SA 965 (MmSC) appears at 974J and says in part:







"It would be wrong for judicial officers to rely for their
decisions on matters not put before them by litigants either in
evidence
or in oral or written submissions."











While the present case is a criminal matter there are dicta in civil
judgments, where application is made on affidavits (evidence), to the
effect that a litigant will not be precluded from relying on a ground
of appeal raised first on appeal as long as the facts on which he
relies are covered by the evidence or are not disputed. (See Kruger
v Die Landboubank van Suid Afrika 1968(1) SA 67(9) (Headnote) Gimonis
No V Gilbert Ho and Co Ltd. 1963 (1) SA 897 (N) (Headnote); Van
Rensburg v Van Rensburg en Andere 1963(1) Sa 505 (A) (Headnote) and
Argus Printing and Publishing Co. Ltd. v Die Pers Korporasie van Suid
Afrika BPK 1975(4) SA 814 (Headnote).







In the present case the facts on which the court a quo came
to the legal conclusion that there was disguised extradition are not
really in dispute, they are listed in the judgment a quo as
follows:







(a) there are in existence extradition agreements or
treaties embodied in reciprocal statutory provisions, between Namibia
and Zambia and between Namibia and Botswana respectively. (See
Botswana Extradition Act 18 of 1990, the Zambian Extradition Act,
Chapter 94 of the laws of Zambia and the Namibian Extradition Act 11
of 1996).








  1. no proceedings were initiated by the Namibian State with the aim of
    having anyone of the accused persons extradited to Namibia;









  1. all thirteen accused persons, with the possible exception of Osbert
    Likanyi, were prohibited immigrants at the time of their respective
    arrest;









  1. no accused person had been asked by any State witness whether he
    voluntarily consented to return to Namibia;









  1. no State witness had informed any one of the accused persons that he
    would handed over to the Namibian authorities in order to face
    criminal charges in Namibia, and in particular on the charge of high
    treason;













  1. no State witness had informed any accused person of the procedures
    prescribed in terms of Zambian and Botswana immigration law;









  1. there is no documentary proof that any accused person had been
    deported to Namibia neither is there any proof which immigration
    official or other statutory body ordered such deportation;









  1. no accused person had been informed of his right to legal
    representation.













  1. The Namibian Police and Army Officers, prior to receiving the
    accused persons, had been aware of the fact that the accused persons
    would face criminal prosecution for specific crimes once returned to
    Namibia."












It was on these facts together with the evidence led by the state
that Mr. Kauta relied to advance respondent's main contention, namely
that they were abducted from Zambia and Botswana. I refer
particularly to the evidence of Major General Shali, which also forms
the basis of the learned judge, a quo's conclusion that there
was disguised extradition.







At this juncture I would like also to dispose of Mr. Kauta's argument
in reply to Mr. Gauntlet's submission that the court should not, save
in most extreme cases, embark on a determination of the lawfulness of
actions of functionaries of a foreign State in accordance with the
municipal laws of the state as the court a quo did. Mr.
Gauntlet described the principle involved in his submission as the
"act of state doctrine", and Mr. Kauta's response was that
-







"The arrest collection or removal of a person from foreign soil
by Namibian authorities is not a matter which falls outside the
competence of the Namibian courts because of the act of state
doctrine."











I understand this response to subsume that this was done in collusion
with Zambian and Botswana authorities. In other words Mr. Kauta
maintained that it was proper for the court a quo to determine
the legality of actions by functionaries of a foreign state as was
done in this case in regard to the deportation of the respondents.
That was the thrust of his submission. That a court, in accordance
with its municipal law, can inquire into the actions of the state's
own agents or functionaries to determine the legality of the role the
state played, if any, in securing a fugitive's return goes without
saying. The inquiry into the legality of a foreign state's actions
within its own territory is another matter. Various decided cases
seem to place what, in this case, is alleged to have been done by
Zambian or Botswana authorities within the doctrine.







The act of state doctrine was discussed by Lord Reid in Nissan v
Attorney-General (1970) AC 179 H.L. (E) at 211-213. His Lordship
described it as a 'loose phrase' used to denote various acts; suffice
to say that His Lordship did not come up with an "entirely
satisfactory' definition of the term. In that case the following
passage appears at 217 H-218 E (per Lord Morris of Borth -y-Gest, who
also discussed the doctrine):







"In his speech in Johnstone v Pedlar (1921) 2 A.C 262 Lord
Sumner (at p 290) said that Buron v Denman (1848) 2 Exch 167 was a
case rather of the inability of the court than of the disability of
the suitor:







'Municipal courts do not take it upon themselves to review dealings
of state with state or sovereign with sovereign. They do not control
the acts of a foreign state done within its own territory in the
execution of sovereign powers, so as to criticize their legality or
to require their justification."











He did also add that:







'What the crown does to foreigners by its agents without the realm
is state action also, and is beyond the scope of domestic
jurisdiction.'











Lord Kingsdown who delivered the Judgment of the Privy Council in
Secretary of State in Council of India v Kamahee Boye Sahaba (1859)
13 Mbo. Pa C.C. 22, 75 had this to say.







'The transactions of independent states between each other are
governed by other laws than those which municipal courts administer:
such courts have neither the means of deciding what is right, nor the
power of enforcing any decision which they may take.'











In Underhill v Hermandez 168 US 250 (1897) 252 the US Supreme Court
stated the same principle as follows:







"Every foreign state is bound to respect the independence of
every other sovereign state, and courts of one country will not sit
in judgment on the acts of the Government of another done within its
own territory. Redress of grievances by reason of such acts must be
obtained through the means open to be availed by sovereign powers as
between themselves."











In Buttes Gas & Oil Co v Hammer and Another (Nos 2 and 3);
Occidental Petroleum Corporation and Another V Buttes Gas & Oil
Co and Another (Nos 1 and 2)
(1981) 3 All ER 616 (HL), at 628
g-j, Lord Wilberforce held that "there exists in English law
a more general principle that the Courts will not adjudicate on the
transactions of foreign sovereign States.
Though I would prefer
to avoid argument on terminology, it seems desirable to consider this
principle, if existing, not as a variety of 'act of State' but one
for judicial restraint or abstention ...In my opinion there is, and
for long has been, such a general principle, starting in English law,
adopted and generalized in the law of USA, which is effective and
compelling in English Courts. This principle is not one of
discretion, but is inherent in the very nature of the judicial
process.







It would not be difficult to elaborate in these considerations, or to
perceive other important interstate issues and/or issues of
international law which would face the Court. They have only to
be stated to compel the conclusion that these are not issues in which
a municipal court can pass.
Leaving aside all possibility of
embarrassment in our foreign relations (which it can be said have not
been drawn to the attention of the Court by the Executive), there
are, to follow the Fifth Circuit Court of Appeals, no judicial or
manageable standards by which to judge these issues, or, to adopt
another
phrase (from a passage not quoted), the Court would be
in a judicial no man's land:
the Court would be asked to
review transactions in which four foreign States were involved, which
they had brought to a precarious settlement, after diplomacy and the
use of force,
and to say that at least part of these were
"unlawful" under international law. I would just add, in
answer to one of the respondents' arguments, that it is not to be
assumed that these matters have now passed into history, so that they
now can be examined with safe detachment."







See also a discussion of the doctrine in R v Bow Street Magistrates;
ex parte Pinochet Ugarte (1998) 4 All ER 897 (at 918-9 per Lord
Slynn)



The Court a quo found it necessary to investigate the conduct
of the Namibian authorities after finding:








  1. That there was not collusion or connivance by Namibian authorities
    with either Zambian or Botswana authorities to abduct the
    respondents.









  1. That the respondents "were not arrested by the Namibian
    authorities on foreign soil".








The court then proceeded thus:







"However the issue between the parties before Court cannot be
laid to rest on this finding.







I must in addition consider whether the conduct of the Namibian
authorities had not been in breach of the principles of public
international law. It is therefore in my view important to consider
whether the accused persons had been deported as claimed by the
State.







It is common cause that no extradition proceedings were initiated by
the Namibian authorities.







I remind myself in this regard that the State relying on the fact
that the accused persons had been deported must prove same in order
to prove the ultimate objective that the accused persons are lawfully
before Court and that this Court had jurisdiction to try them."











It is at this point that, in my respectful view, the court went off
on a tangent. It did so by initially asking the right question-
"whether the conduct of the Namibian authorities had not been in
breach of the principles of public international law," but then
by going on to lay the wrong premises on which to answer that
question, namely: "It is therefore in my view important to
consider whether the accused persons had been deported, as claimed by
the state." This in my view was the wrong premises first
because the state did not claim that the respondents were properly
deported whether in terms of Zambian municipal law or that of
Botswana; secondly because the inquiry the court a quo went on
to make involved the conduct by functionaries of two foreign states
acting on behalf of their state within their own territories; thirdly
because the allegations that they were unlawfully deported
(transported) to Namibia was made by respondents and it was incumbent
on them to prove on balance what they alleged. It was they who bore
the evidential burden.







In Ocalan v Turkey Ect HR APP No 46221/99 (at p. 325 par 92 the
European Court of Human rights stated:







"Independently of the question whether the arrest amounts to a
violation of the law of the state in which the fugitive has taken
refuge- it must be established to the court 'beyond reasonable doubt'
that the authorities of the state to which the applicant has been
transferred have acted extra-territorially in a manner that is
inconsistent with the sovereignty of the host state and therefore
contrary to international law." (See mutatis mutandis,
Stocke v Germany (App No 11755/85 12 October 1989 report of the
Commission at paragraph 54)







The applicant in that case was arrested by members of the Turkish
security police inside an aircraft in the international zone of
Nairobi Airport directly after he had been handed over by Kenyan
Officials to the Turkish Officials.







In the Stocke case the European Court of Human Rights referred (at
Par. 37) to the following statement by three judges of the German
Constitutional Court that refused to entertain Stocke's appeal on the
grounds it had no prospects of success:







"The court held that there was no rule of international law to
prevent a State's court from prosecuting a person brought before them
in breach of the territorial sovereignty of another state or of an
extradition treaty. It was apparent from American, Israeli, French
and British case law that in such an event a court did not decline
jurisdiction unless the other state had protested and sought the
return of the person concerned. The fact that there were a few
decisions in which courts ordered that the proceedings should be
stayed was not sufficient to establish a real practice to that
effect."











R v Staines Magistrates Court and Others, ex parte Westfallen, R v
Staines Magistrates Court and others, ex parte Soper, R v Swindon
Magistrates Court and others, ex parte Nangle (1998) 4 ALL ER 216 QBD
are cases where applicants were deported from foreign states (Norway
and Canada), and were arrested on arrival in the United Kingdom.
They alleged that they were brought within the jurisdiction by
improper collusion between the Norwegian and Canadian Authorities and
the British authorities. Lord Bingham CJ, who delivered the main
judgment, reviewed dicta in Bennett v Horseferry Road Magistrates
Court (1993) 3 All ER 138, (1994) AC 42 and referred to the fact that
when the case was remitted to the Divisional Court the facts were
rather different from those assumed by the House of Lords. At
221j-222a, he quoted the conclusion of Lord Justice General (Lord
Hope) from the case reported as Bennett v HM Advocate 1995 SLT 510,
as follows:







"In his conclusion he said (at 518):







'In our opinion it would be unreasonable where there has been no
collusion, to insist that the police must refrain from arresting a
person who is wanted for offences committed in this country when he
arrives here simply because he is in transit to another country form
where he could then be extradited. As Lord McLaren pointed out in
Sinclair v HM Advocate (1890) 17R(J)
38 at 43), we must be
careful to apply the rules about the transfer and delivery of persons
under arrest in a reasonable way.
The flouting of extradition
procedures by collusion with the foreign authorities is one thing.
To allow a person to escape prosecution and punishment for his
alleged offences in this country on the ground of the steps taken to
arrest him where there has been no such abuse is quite another.

It is of course necessary that the petitioner should receive a fair
trial if he is to be brought to trial in Scotland, but we are not
concerned with that question at this stage. We are concerned only
with the question whether to enforce the warrant would be an abuse of
the processes of the Scottish court." (emphasis supplied)







His Lordship continued at 222:











"Certain of the cases draw a contrast between official
kidnapping and extradition. In R v Governor of Brixton Prison, ex p
Soblen (1962) 3 ALL ER 641 at 661, (1963) 2 QB 243 at 302 Lord
Denning MR briefly expressed the difference between extradition and
deportation. He said:







'So there we have in this case the two principles: on the one hand
the principle arising out of the law of extradition under which the
officers of the Crown cannot and must not surrender a fugitive
criminal to another country at its request except in accordance with
the Extradition Acts duly fulfilled; on the other hand, the principle
arising out of the law of deportation, under which the Secretary of
State can deport an alien and put him on board a ship or aircraft for
his own country if he considers it conducive to the public good that
that should be done. How are we to decide between these two
principles? It seems to me that it depends on the purpose with which
the act is done. If it was done for an authorized purpose, it was
lawful. If it was done professedly for an authorised purpose, but in
fact for a different purpose with an ulterior object, it was
unlawful.'











Lord Denning MR was, of course, referring to deportation from this
country, but the same approach in principle must apply in the case
of deportation to this country,
and there must be grounds for
objection if the British authorities knowingly connive at or procure
an authorized deportation from a foreign country for some ulterior or
wrongful purpose.







The question in each of these cases is whether it appears that the
police of the prosecuting authorities have acted illegally or
procured or connived at unlawful procedures or violated international
law or the domestic law of foreign states or abused their powers in a
way that should lead this court to stay the proceedings against the
applicants."
(my emphasis)







Lord Bingham CJ's concluding remarks in these cases are interesting:







"The Norwegians were entitled under their own law to deport
these applicant.
The propriety of the deportations is
acknowledged and indeed could not be challenged.
It is difficult
to see why the Kingdom of Norway should be obliged to keep the
applicants whilst the British applied for extradition if they wished
to deport them. It was indeed a natural step for Norway to send
the applicants back to where they had come from. There is in the
material before us nothing to suggest that the British authorities
procured or influenced that decision. It is true
that they did
not in any way resist it, and there is no reason why they should have
resisted it. It is very probable that they welcomed the decision,
but in my judgment they would have been failing in their duty as law
enforcement agencies if they had not welcomed it.
In my judgment
there is nothing to suggest any impropriety such as would attract
application of the ratio in Bennett
v Horseferry Road
Magistrates' Court (1993) 3 ALL ER 138, (1994) 1 AC 42 in this case.











So far as the applicant Nangle is concerned, it is relevant to
remind oneself that the recommendation to deport him was made at the
time of conviction, and that the deportation order was made shortly
afterwards. The decision was taken to deport him to Ireland, which
is where the applicant wished to go, and the Canadian authorities
bought him a ticket to that destination.
They chose an
obvious route in the absence of a direct flight from Canada to
Ireland.
There were, as is pointed out, other possible ways
by which he could have reached Ireland without travelling through the
United Kingdom. But it is not suggested, and could not be suggested,
that the flight via Glasgow was in any way contrived or sinister or
other than an ordinary route to choose in order to reach that
destination. There is nothing whatever to suggest that the British
authorities influenced the Canadian authorities to deport or procured
the choice of route.
Again, they did not resist it and
probably welcomed the outcome. But again there is no reason why they
should have resisted that decision and no reason why they should not
have welcomed it. There was in my judgment no illegality, no
violation of international law, no violation of the domestic law of
Canada, and no abuse of power.
" (emphasis mine)







It is not necessary to quote the passages quoted by Hoff J from
Bennett's case supra, and from S v Beahan 1992(1) SA 307 (ZS), but
only to point out important passages that the Judge omitted. In
Bennett's case Lord Griffiths concluded his opinion as follows at
p151:







"In my view Your Lordships should now declare that where process
of law is available to return an accused to this country through
extradition procedures our courts will refuse to try him if he has
been forcibly brought within our jurisdiction in disregard of those
procedures by a process to which our own police, prosecuting or
other executive authorities have been a knowing party."

(emphasis mine)











In Beahan's case Gubbay CJ had this to say at 317h -318.







"Upon it being ascertained that the authorities in Zimbabwe
were anxious that he be returned to stand trial, he was conveyed in
the custody of the Botswana Police to the border between the two
countries and voluntarily surrendered to the Zimbabwe Republic
Police, who promptly arrested him. That conduct did not constitute a
violation of international law for it involved no affront to the
sovereignty of a foreign State.











Even if it were assumed that a member of the Zimbabwe Republic
Police had interrogated the appellant at the main police station in
Gaborone and thereafter requested that he be returned, such action
does not avail the appellant. It is irrelevant to the issue.











The immutable fact is that the appellant was recovered from
Botswana without any form of force or deception being practised by
the agents of this country.
The decision to convey him to
Zimbabwe was made, and could only have been made, by the Botswana
Police in whose custody he was.







Where agents of the State of refuge, without resort to
extradition or deportation proceedings, surrender the fugitive for
prosecution to another State, that receiving State, since it has not
exercised any force upon the territory of the refuge State and has in
no way violated its territorial sovereignty, is not abreach of
International law. See Morgenstein 1952 The British Year Book of
International Law 262 at 270-1; Oppenheim International Law 8th
ed vol 1 at 703. In O'Connell International Law 2nd ed
vol 2 at 834 the matter is put thus:







'The case of a voluntary surrender of the offender, but in violation
of the municipal law of the State which makes it, is different from
that just discussed (i.e. illegal seizure on foreign territory).
Even if the surrender is contrary to an extradition treaty it is
still not a violation of international law since no sovereign is
affronted, and the offender has no right other than in municipal
law.'











The proposition is well supported by authority. In the Savarker case
(cited fully in Harris cases and Materials on International Law 3rd
Ed at 233) an Indian revolutionary who was being returned to India
from Great Britain under the Fugitive Offenders act of 1881, escaped
and swam ashore in Marseilles harbour. A French policeman
arrested him and handed him over to the British policeman who had
come ashore in pursuit.
Although the French Police in Marseilles
had been informed of the presence of Savarkar on board, the French
policeman who made the arrest thought he was handing back a member of
the crew who had committed an offence on board. France alleged a
violation of its territorial sovereign and asked for the return of
Savarkar to it as restitution. The Permanent Court of Arbitration
decided in favour of Great Britain for the following reasons:







'..(I)t is manifest that the case is not one of recourse to fraud or
force in order to obtain possession of a person who had taken refuge
in foreign territory, and that there was not, in the circumstances
of the arrest and delivery of Savarkar to the British authorities and
of his removal to India, anything in the nature of a violation of the
sovereignty of France, and that all those who took part in the matter
certainly acted in good faith and had no thought of doing anything
unlawful. While admitting that an irregularity was committed by the
arrest of Savarkar and by his being handed over to the British
police, there is no rule of international law imposing in
circumstances such as those which have been set out above any
obligation on the Power which has in its custody a prisoner, to
restore him because of a mistake committed by the foreign agent who
delivered him up to that Power.'







In the case of Sinclair v H M Advocate (1890) 17R (JC) 38
(conveniently referred to in the judgment of Stephen Brown LJ in R v
Plymouth Magistrate's Court and Others: Ex parte Driver (supra at
692f-694j) Sinclair was found in Portugal and arrested by the
Portuguese authorities, who had been informed that a warrant had been
issued by a Scottish magistrate for his arrest on charges of breach
of trust and embezzlement. Although there was no extradition treaty
at the time between Portugal and Britain, Sinclair was detained for a
month by the Portuguese authorities without any charge being made
against him or inquiry instituted or warrant produced. They
ultimately placed him on a British ship and he was brought to
Scotland. Having been convicted by a court, Sinclair applied to the
Scottish Court of justiciary to have the proceedings quashed on the
ground, inter alia, that his arrest in Portugal was
unwarranted, illegal and oppressive. The application was dismissed.
Lord MacLaren, giving one of the judgments, said at 43:







'With regard to the competency of the proceedings in Portugal, I
think this is a matter with which we really have nothing to do. The
extradition of a fugitive is an act of sovereignty on the part of the
state that surrenders him. Each country has its own ideas and its
own rules in such matters. Generally, it is done under treaty
arrangements, but if a state refuses to bind itself by treaty, and
prefers to deal with each case on its merits, we must be content to
receive the fugitive on these conditions, and we have neither title
nor interest to inquire as to the regularity of proceedings under
which he is apprehended and given over to the official sent out to
receive him into custody.'











To the same effect is the decision of the Palestine Supreme Court
in; anpaYooussef Said Abu Dourrah v Attorney-General Annual Digest
1941-1942 case No 97, in which it was held that once a person has
been surrendered he cannot raise any irregularity in the procedure
adopted by the surrendering State as a bar to the courts of the
requesting State exercising criminal jurisdiction over him."







In the present case the evidence on how each group was handed over to
the Namibian authorities has been summarized in counsel's submissions
and in Hoff J's judgment. It shows that-








  1. The first group (already referred to above illegally entered Zambia
    and were all apprehended by the Zambian authorities on 18 June 1999,
    before the incident at Katima Mulilo on August 2, 1999. On 25th
    June 1999 Chief Inspector Goraseb Regional Commander of Police of
    the Caprivi Region went to Zambia (Mongu) to ascertain their
    presence there and requested the Zambians to heighten their
    vigilance. On his return he informed the Inspector General of the
    police. On 6th August 1999 a Zambian police delegation
    visited Chief Inspector Goraseb at Katima Mulilo Namibia to say they
    were aware of the attacks at Katima Mulilo and to seek ways in which
    they could assist in curbing the problem. On 7th August 1999 Chief
    Inspector Goraseb was instructed to receive this group at Katima
    Mulilo. The Zambian Police accompanied the Namibian authorities up
    to Mpacha Army Base in Zambia with this group. This group had been
    flown from Lusaka where they had been held in custody at Kamavala
    Prison. On an unspecified date Major General Shali of the Namibian
    Army asked the Zambian authority to hand over the people (the
    suspect) he was looking for. He said the Zambian authorities did
    exactly what they were asked to do.









  1. The second group - the Samboma Group comprised Richard Musuha, Oscar
    Muyuka Kushaluka Puteho, Richard John Samati and John Sikundeho
    Samboma. They were handed over according to state evidence at a
    no-mans-land - a strip of territory between the two countries border
    posts, on 6th November 1999. They had been arrested by
    Zambian authorities as illegal immigrants and held pending a
    decision to return them to Namibia.









  1. The third group was made up of Fred Maemelo Ziezo and Andreas
    Mulupa. They had also entered Zambia illegally from Botswana. They
    were handed over to the Namibian authorities at Katima Mulilo
    (Zambia).









  1. The fourth group comprised Charles Kalipa Samboma. He handed
    himself over to the Zambian Police and expressed regret for what he
    did. He was seen at Katima Mulilo Police station (Zambia) by
    Namibian Detective Sergeant Simasiku to whom he complained that he
    was unhappy in Zambia and stated that he wished to return to
    Namibia. Despite the allegations in his affidavit (partly
    reproduced herein) he did not testify in the proceedings before Hoff
    J. The evidence about his regret and that he was suffering in
    Zambia and wished to return was thus never challenged.








Two State witnesses a Zambian Police Officer and a Namibian Police
Officer gave evidence to that effect.








  1. The fifth group comprised Cobert Mwenyi Likanye. He was handed over
    by Botswana Police Officers to Inspector Goraseb. The handover took
    place at a Weigh Bridge. He had been arrested in Botswana.




The court a quo came to the conclusion that "twelve of
the accused persons are before this court through a process of
disguised extradition and that in respect of Charles Samboma, there
was no proper consent."







This conclusion is based on the fact that Hoff J was "not
persuaded that the evidence before me in any way proves that anyone
of the twelve accused had been deported form Zambia or Botswana to
Namibia in compliance with the relevant statutory provisions of those
countries. As regards Charles Samboma the conclusion was based on
the following statement by the court a quo:







"It is clear from the evidence that the Police Officer who
offered him this lift knew beforehand that (Osbert Likanyi) (sic) was
wanted by the Namibian Police on a charge of high treason.







He conveniently failed to inform him of the fact that he would
certainly be arrested and would face criminal prosecution once inside
Namibia on a charge of high treason.







By his silence he deceived (Osbert Likanyi) (sic) in believing that
he was not wanted by the Namibian Police.







This was nothing else but a stratagem to get Charles Samboma in
Namibia and cannot be regarded as consent in the legal sense of that
word and is unlawful."







As to the courts' conclusions regarding Charles Samboma it is my view
that the conclusion was not warranted by the evidence because Charles
Samboma was not called to dispute the evidence of Simasiku, namely-







"I came back to Charles Samboma, I greeted him for the second
time by shaking his hand. I further told him 'so you are also here.'
He said 'Yes but I want to go back to my country' I said 'Why do you
want to go back to your country.' He said he is suffering in Zambia
and he is in Zambia since the 2nd of August 1999 so he
want to be joined with is family. I further informed Shipango that
the colleague seated in their office or Charles Samboma seated in
their office wants to go with us to Namibia. Deleclute Sergeant
Shipango said we could come up with him to Namibia for the fact that
they've got nothing to do with him and he is not arrested by them.
We drove myself Sergeant Popyeninwa and Charles Samboma in the same
vehicle POL 5545 through Wenela Border Post to Katima Mulilo at our
Police station. At the time of leaving Zambia I did not arrest
Charles Samboma. I gave him a lift as a passenger -----"











In cross-examining Simasiku counsel put to him certain allegations,
Samboma would say in evidence; it was, however, never put to Simasiku
that Charles Samboma would deny the above evidence. Nor was Charles
Samboma called to deny the evidence of the Zambian Police Officer
Detective Sergeant Dick Shipango who testified:







"I asked this man 'what can I help you with' this man said,
'I'm handing myself over to the law'----I asked him 'what do you mean
handing yourself over to the law?'----he said, 'I'm a Namibian."----I
regretted what I did, so I want to hand over myself. 'I have
regretted what I had done, I want to hand over myself."











And further:







"He said, 'I am suffering in the bush. I myself I'm suffering
my children are suffering and my wife. So I have regretted what
happened on 2nd August."











Later Shipango testified:







"We told them (Simasiku & Popyenawa) 'there is your fellow
Namibians, you can go with him."











Simasiku's further evidence in cross-examination was that he
arrested Samboma not as soon as they entered Namibia 'but it was
later after further interrogation with him.' The record of the
proceedings shows that Shipango was not even cross-examined by Mr.
Kauta. In light of this evidence I find it incomprehensible that the
court a quo could come to the conclusion that Simboma did not
consent to come back to Namibia, let alone that he was deceived to
believe that he was not wanted by the Namibian Police.







In addition to what the learned judge a quo said about the
"twelve of the accused being before this court through a process
of disguised extradition", he went on later in the judgment to
link Namibia with that process by saying (before discussing the
issue):







"In my view on the facts of this case, the deportation of
twelve of the accused persons (the exception is (Charles Samboma) was
indeed a disguised extradition. Major General Shali requested his
counterparts in Zambia to immediately hand over specific fugitives
they were looking for and according to his testimony the Zambians
did exactly what they were asked to do.
"











This link led the learned judge to his ultimate conclusion namely:







"In my view the protest by the Namibian authorities that
they had no part in irregularities which occurred during the
deportation procedures in Zambia and Botswana, in itself, cannot come
to their rescue since their own initial conduct, by informally
requesting the handing over of fugitives and thus bypassing formal
extradition proceedings tainted those very deportation proceedings
they now want to put at a distance. Even if one accepts, in favour
of the State, that the accused persons had been arrested by the
respective neighbouring authorities, a decision had not been taken
and they had not been deported until some time after the Namibian
authorities had requested their return."
(my underlining)











I go along with appellant's counsel's submission that the court a
quo
erred both in fact and in law in reaching its conclusion that
the acts of the Namibian authorities in securing the return of the
respondents were tainted, more particularly given the fact that the
court concluded that no conspiracy or connivance was established
between Namibian authorities and Zambian or Botswana authorities.
This is so because the evidence does not establish that either
Botswana or Zambia rendered the fugitive respondents because of the
request by Mayor General Shali; no causal link is shown to have
existed between the request and the handing over of the respondents
by Zambia or Botswana. The inference sought to be drawn by
respondents' counsel from the evidence, and drawn by the court a
quo,
from the fact that some of the respondents had been arrested
by respective neighbouring countries authorities and a decision had
not been taken and they had not been deported until after the
Namibian authorities had requested their return, is not warranted on
a proper review of the evidence. While it is clear that the request
by Major General Shali took place after the attack on August 2, 1999
the court a quo itself puts no date to the request, nor could
Mr. Kauta for the respondents when specifically asked if he could do
so during his oral submission before this court. Major General
Shali's evidence that:











"I did exactly what I was supposed to do in my capacity as
Army Commander to immediately contact my counterparts on the other
side of the border and ask them to immediately hand over the group of
terrorists that I was looking for because I wanted them to be brought
to book.
",











cannot be read in isolation, it must be read in the context of the
totality of his evidence and that of other State witnesses on the
issue. His evidence starts where, in chief, he was asked to explain
how it happened that certain people were handed to the Namibian
authorities and he answered:







"It was simple, simple in the sense that Zambian authorities
informed us that they have, they are holding people we were looking
for as a result of which the Zambian authorities decided to hand them
over to the Namibian authorities and at no stage did we cross the
Zambian border.
"











He was again asked, "As a result of the information from Zambia
what did you do? And he answered:







"I did exactly what I was supposed to do. To get in charge
(touch) with my counterparts on the other side of the border and
immediately asked them to immediately to hand over those group of
terrorists that I was looking for and for them to be brought to book
as we are witnessing today."











In cross-examination he insisted that at no stage did the Namibian
authorities cross the border to arrest the fugitives. More
importantly he stated, when asked if extradition was requested:







"Your Honour I'll repeat that. I said there was no need to
ask for extradition because as far as the Zambian authorities are
concerned, they were holding illegal immigrants whom they were ready
to deport to Namibia. As for as we were concerned, this is a group
of terrorists that we so badly wanted to apprehend."











Asked what authority in law the Namibian authorities had to cross the
border and arrest Nationals in Zambia, he said:







"We did not cross the borders, even if it was few meters, to
arrest these people. We were not pursuit, it not an operation. The
Zambians were simply saying: "We are here, we have the people
you're looking for, come and collect them", and that's what we
did. Now what law have we broken? What law?
What act according
to the Namibian Constitution or indeed that of Zambian, have we
broken?
"











and again:







"Let me try to clarify this once more, to say that the
purpose, there are two things here, these are terrorists who are
wanted here in Namibia for crimes they have committed. Now they were
in the hands of the Zambian authorities who wanted to deport them as
illegal immigrants and the Zambian authorities asked us to go and
collect them and they were only arrested after they were on the
Namibian territory.
"











And further, asked if the police collected them before they were
deported, he stated:







"Nowhere in the law does it state that a person have to be
deported only on the borders. He could be deported right from
international airports in the centre of that particular territory.











"INTERPRETER: Sorry, can he repeat his
(intervention)---- 'Ja, I will repeat that. I was saying that we
went there to collect them during the process of deportation, that's
why I've mentioned to you to say that these are people who had no
choice in any case they had to be returned to Namibian authorities in
any case, whether it was legal, because they (were) in Zambia
illegally and the law does not say that the person has to be deported
form point A to point B of the country, it can be anywhere.
"











Lastly he clarified:







Yes, please. ----Okay. I said I don not know how much you know of
deportation processes. Before you deport any person or a group of
them, you communicate a list. It was when we got the list
that we realised that on that list indeed were this group of people
we're looking for and mind you, these were not the only people on the
deportation list, there were a lot more, but these were the only ones
that were on our terrorist list.
(all underlining mine)







In the course of that cross-examination Shali also denied that he
and his "counterparts" (in Zambia) had planned and prepared
that the respondents "must be arrested as illegal immigrants and
deported back to Namibia.







Colonel Henry Kaleji of the Zambian Defence Force was asked about
connivance between Zambia and Namibian authorities. He answered Mr.
Kauta as follows:







"All the actions which I took were not influenced by any
external authorities. We arrested them because they were a threat on
our side and that was one of my functions as Regional Commander to
protect the security of the country."











According to Kaleji's evidence under cross-examination it was a
Zambian decision to hand over the respondents in the first three
groups to Namibia. In cross-examination Kaleji's evidence went as
follows:







"The western side of Zambia is inhabited by Lozi's as well. Is
that correct? ----That's very correct, My Lord."







And in that region there has always been political tension with
respect to the Lozi's. Is that correct? ----That's correct, My
Lord.







As a senior ranking officer in the Army you knew full well that
what happened or what is alleged
to have happened in Katima
Mulilo in Namibia could have very well happened in western Zambia.
Is that correct? ----That's correct, My Lord.







There has been, will I be correct to say there has been propagation
especially among the Lozi's and western Zambia for
self-determination? ---My Lord, that self-determination was not very
serious for us in the Army Forces to take it seriously.







But it is nevertheless there. I'm talking about in western Zambian,
your region. ---Yes.







Can you say that again? Is your answer yes? ---Sorry, can you say
it again?







I am saying, nevertheless this issue of self-determination by Lozi's
and western Zambia is there? ---Well, I said so, yes. I would say
(no)."











Mr. Mundia, a Zambian Immigration Officer at Katima Mulilo (Zambia)
was cross-examined as follows:







"Now, Mr. Mundia, one last aspect. As an Immigration Officer
do you have knowledge of any specific Namibian person that caused
problems in the region where you were or in Zambia?
---My Lord,
yes.







Do you have a name? --- I wish not to mention names here for
security purposes. But I would like to elaborate that what was
happening on the Caprivi Region was also taking root in the western
province of Zambia.
And as an Immigration Officer who is an
integral part of security in my country would not allow the
foreigners to come and infiltrate my area to cause similar problems.
Easier (inaudible) in the bud than later.







As an officer, security officer, you say you were unhappy with
the spill-over effect that any secession may have in Caprivi to the
Western Province in Zambia? ---That's right.
"











These questions by counsel in cross-examination of course arises as
an acknowledgement of the fact that the state of insecurity in that
border area between Zambia and Namibia, arising from secessionist
aspiration or both sides of the border was notorious, and, looked at
in proper context, would explain why the Zambian authorities were
eager to cooperate with their Namibian counterparts and, on their own
accord, to take the decision to hand over the three groups of
fugitive Namibians found on their territory which they entered
illegally and carrying arms. The fact that Kaleji eventually said he
would not dispute Shali's evidence (already quoted) is colourless.
The statement was not made to him. The cross questioning of him on
that evidence also lacks any specificity as to dates and as to which
Zambian counterparts the request was directed. The list of people
being deported from Zambia prior to Shali's request would have been
provided in the spirit of the cooperation between the states in
security matters. On this evidence I do not agree when the court
a quo
says: "The 'deportation' of twelve of the accused
persons was clearly preceded by a request from officers acting
of behalf of the Namibian State and it cannot with any conviction be
argued that the Zambian authorities acted unilaterally when they
deported the Namibians."







Be that as it may, in R v Brixton Prison (Governor) ex parte Soblen
(1962) 3 ALL ER 641 in discussing the law of deportation Lord Denning
M.R. said the following (at 660 H - 661 F):







"It was suggested before us that there was a common law
shackle on this
power of deportation. It was said that a man
could not be deported
even to his own country, if he was a
criminal who had fled form it. No authority was cited for this
proposition. It cannot stand examination for one moment. Supposing
no other country but his own is willing to take him.
Are we
to keep him here against our will simply because he is, in his own
country, a wanted man?
Clearly not. If a fugitive criminal is
here, and the Secretary of State thinks that, in the public good, he
ought to be deported, there is no reason why he should not be
deported to his own country, even though he is there a wanted
criminal. The Supreme Court of India considered this very point in
1955 in Muller v Superintendent, Presidency Jail, Calcutta (54) and
in an instructive judgment made it quite clear that in their
opinion, the right to expel an alien could be exercised even though
he was wanted by his own country for a criminal offence.
I go
further. Even though his home country has requested that he should
be sent back to them, I see no reason why the Home Secretary should
not still deport him there, if his presence here is not conducive to
the public good. The power to deport is not taken away by the fact
that he is a fugitive from the justice of his own country, or by the
fact that his own country wants him back and has made a request for
him.







So there we have in this case the two principles: on the one hand
the principle arising out of the law of extradition under which the
officers of the Crown cannot and must not surrender a fugitive
criminal to another country at its request except in accordance with
the Extradition Acts duly fulfilled; on the other hand the principle
arising out of law of deportation, under which the Secretary of State
can deport an alien and put him on board a ship or aircraft bound for
his own country if he considers it conducive to the public good that
that should be done. How are we to decide between these two
principles?
It seems to me that it depends on the purpose
with which the act is done.
If it was done for an authorized
purpose, it was lawful.
If it was done professedly for an
authorised purpose, but in fact for a different purpose with an
ulterior object, it was unlawful. If, therefore, the purpose of the
Home Secretary in this case was to surrender the applicant as a
fugitive criminal to the United States of America, because they had
asked for him, then it would be unlawful;
but if his purpose was
to deport him to his own country because he considered his
presence here to be not conducive to the public good, then his action
is lawful. It is open to these courts to inquire whether the purpose
of the Home Secretary was a lawful or an unlawful purpose.
Was
there a misuse of the power or not? The courts can always go
behind the face of the deportation order in order to see whether the
powers entrusted by Parliament have been exercised lawfully or not.
That follows from R. v Board of Control, Ex p. Rutty (55). Then how
does it rest in this case? The court cannot compel the Home
Secretary to disclose the material on which he acted, but if there is
evidence on which it could reasonably be supposed that the Home
Secretary was using the power of
deportation for an ulterior
purpose, then the court can call on the Home secretary for an answer;
and if he fails to give it, it can upset his order. But, on the
facts of this case, I can find no such evidence. It seems to me that
there was reasonable ground on which the Home Secretary could
consider that the applicant's presence here was not conducive to the
public good." (my underlining)







This passage, and indeed the state of the evidence on the
deportation enquiry undertaken by the court a quo in this
case, highlights the futility of a municipal court attempting to pass
judgment on the actions of a foreign state; it calls to mind the
warning given by Lord Oliver in his dissenting opinion in Bennett's
case (supra) (at 157 e-g):







The appellant invites this House now to say that the decision in
Ex p Mackeson is to be preferred and that a criminal court's
undoubted jurisdiction to prevent abuses of its own process should be
extended, if indeed it does not already extend, to embrace a much
wider jurisdiction to oversee what is referred to generally as 'the
administration of justice', in the broadest sense of the term,
including the executive acts of law enforcement agencies occurring
before the process of the court has been invoked at all and having no
bearing whatever upon the fairness of the trial.





I have to say that I am firmly of the opinion that, whether such a
course be properly described as legislation or merely as pushing
forward the frontiers of the common law, the invitation is one which
ought to be resisted. For my part, I see neither any inexorable
logic calling for such an extension nor any social need for it; and
it seems to me to be a course which will be productive of a good deal
of inconvenience and uncertainty.
" (emphasis supplied)







That was said with reference to "executive acts of law
enforcement agencies of the United Kingdom. But the statement
acquires more force when applied to "executive acts of law
enforcement agencies" of a foreign state (it must also be
recalled that the majority decision in Bennett's case was based on an
assumption of the facts which in the later Bennett's case were found
to be rather different from what was assumed.







In his oral submissions before us Mr. Kauta persisted with the
argument, rejected by the court a quo, that 12 of the
respondents were abducted. He said that the respondents case before
the court a quo and before this court, "rest squarely and
(is) on all fours (with) S v Willem. One only need to look at the
facts in both cases to note the very important difference in the
conduct of the police concerned respectively in the two cases. The
head note in S v Willem 1993 (2) SACR 18(E) correctly summarises what
transpired in that case; it reads (as to the facts), P18 h-19:







The accused were charged in a Provincial Division with a number of
offences including murder, robbery with aggravating circumstances and
theft. The accused entered a plea in terms of s 106(1)(f) of the
Criminal Procedure Act 51 of 1977 that the Court had no jurisdiction
to try them as they had been apprehended in Ciskei and then brought
to South Africa against their will. The evidence showed that accused
No. 2 was arrested in Ciskei by members of the Ciskei Defence Force.
The fact of his arrest was conveyed to the South African Police who
proceeded to Ciskei where they found accused No. 2 at a police
station. They informed him that he was a suspect in a murder case in
South Africa and asked him whether he wished to go with them to South
Africa. He was told that if he did not do so he would be kept in
custody in Ciskei and a request would be made for his extradition.







He was not informed of the nature and content of extradition
proceedings in the Ciskei. Accused No. 2 indicated that he was
willing to go to South Africa and the Ciskei police released him into
the custody of the South African Police. On the following day
accused No. 2 was taken back to Ciskei where he pointed out the homes
of accused Nos. 1 an d3 who were arrested by a member of the Ciskei
police at their respective homes. The arrests took place with the
assistance of the South African Police
. Both accused Nos. 1 and
3 were similarly informed that they were suspects in a murder case in
South Africa and were asked whether they wished to return with the
South African Police to South Africa, failing which they would be
kept in custody in Ciskei pending extradition proceedings. Neither
was informed of the nature and content of the extradition
proceedings. Both elected to go the South Africa. (my emphasis)







One important difference between these facts and the facts in the
present case is that no Namibian police officer took part in the
arrest of any members of the first to the third group in Zambia or of
Likanye in Botswana. As to the request by Shali no causal link was
established before the court a quo between the request and the
handing over. All the actions taken by Zambia or Botswana in handing
them over to the Namibian authorities was in the spirit of
cooperation between (in the case of Zambia at least) two States faced
with a situation that could have political and security repercussions
on both sides of the border. All the decisions of deporting the
concerned respondents in this case were taken by the Zambian and
Botswana authorities without any influence form the Namibian
authorities; alternatively it has not been shown that in taking the
decision to deport, either the Zambian or the Botswana authorities
were influenced by the Namibian authorities.







The court a quo seems to imply, by undertaking the inquiry
into the legality of the deportation procedures used by Zambia or
Botswana, that the Namibian authorities had an obligation in
international law to underwrite the legality of the actions of a
foreign state. I am not aware of any rule of international law that
imposes such an obligation, and no authority to that effect has been
brought to the attention of this court. In this connection see S v.
Rosslee 1994(2) SACR 441 (C) especially at pp. 4461i - h, 449f - 450h
and 450e - h and Beahan's case, which Mr. Kauta sought to
distinguish.







The important point that clearly emerges from cases such as R v Bow
Street Magistrates, Ex p. Mackeson (1981) 75 CT App R 24 Bennett's
case (supra), S v Ebrahim 1991 (2) SA 553(A), R v Hartley (1978) 2
NZLR 199 and Beahan's case (supra) is that the court will exercise
its power to decline jurisdiction where the prosecuting authorities,
the police or executive authorities have been shown to have been
directly or indirectly involved in a breach of international law or
the law of another state or their own municipal law. In Prosecutor v
Dragan Nikoli case No. 94-2-PT the Trial Chamber of the International
Criminal Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law committed in the
Territory of the former Yogoslavia since 1991, discussed the
principle 'male captus bene detentus' as applied or formally
applied in various jurisdiction. The cases cited or referred to in
that discussion also illustrate the point above in jurisdictions that
have moved away from that principle. (See para 75-93.) In that case
the Trial Chamber held that misconduct, by somebody other than the
prosecution did not form a basis of a successful challenge to the
jurisdiction of the Tribunal.







It is interesting that the Appeal Chamber in the Prosecutor v Dragan
Nikolic case No. IT -94-2 AR 73, Decision on Introducing Appeal
Concerning Legality of Arrest 5 June 2003 upheld the above decision
and further held that even if the activities of the abductors could
be attributed to the UN Officers (as the defence had argued in the
Chamber below) this by itself would not remove the Tribunal's
jurisdiction to hear the matter. In doing so the Appeal Chamber
balanced the rights of the accused against the crimes committed as
follows:







"the damage caused to international justice by not
apprehending fugitives accused of serious
violations of
international humanitarian law is comparatively higher than the
injury, if any, caused to the sovereignty of a State by a limited
intrusion in its territory, particularly when the intrusion occurs in
default of the State's cooperation. Therefore, the Appeals chamber
does not consider that in cases of universally condemned offences,
jurisdiction should be set aside on the ground that there was a
violation of the sovereignty of a State, when the violation is
brought about by the apprehension of fugitives form international
justice, whatever the consequences for the international
responsibility of the State or organization involved."











The same approach was indicated in Ocalan v Turkey supra at par. 90
P3249-325 where the European Court on Human Rights remarked:







"As regards extradition arrangements between states when one is
a party to the convention and the other not, the court considers that
the rules established by the states concerned are also relevant
factors to be taken into account for determining whether the arrest
that has led to the subsequent complaint to the court was lawful.
The fact that a fugitive has been handed over as a result of
co-operation between states does not in itself make the arrest
unlawful
or, therefore, give rise to any problem under art 5
(see, to the same effect, Freda v Italy (App no. 8916/80) (1980) 21
DR 250; Altmann (Barbie) v France (App no10689/83) (1984) 37 DR 225;
Reinette v France (App no 14009/88 (1989) 63 DR 189). The court
reiterates that:











'----inherent in the whole of the Convention is a search for a
fair balance between the demand of the general interest of the
community and the
requirements of the protection of the
individual's
fundamental rights. As movement about the world
becomes easier and crime takes on larger international dimensions, it
is increasingly in the interest of all nations that suspected
offenders who flee abroad should be brought to justice. Conversely
the establishment of safe havens for fugitives would not only
result in danger
for the state obliged to harbour the protected
person but also tend to undermine the foundations of extradition.'
(Soering v UK [1989] ECHR 14038/88 at par. 89.) (my emphasis)











The remarks in the two cases above imply the exercise of discretion
whether, in circumstances postulated, to decline to exercise
jurisdiction. That the House of Lords in Bennett's case (supra)
relied on R v Hartley (supra) when it approached the assumed facts;
is made clear in the opening remarks of Lord Lowry (concurring) (at p
106 h):







"---having had the advantage of reading in draft the speeches
of Your Lordships, I accept the conclusion by my noble and learned
friends Lord Griffiths and Lord Bridge of Harwick that the court
has a discretion to stay as an abuse of process criminal proceedings
brought against an accused person who
has been brought before the
court by abduction in a foreign country participated in or encouraged
by British authorities.











His Lordship went on to say (at P161h):







"I agree that prima facie it is the duty of a court
to try a person who is charged before it with an offence which the
court has power to try and therefore that the jurisdiction to stay
must be exercised carefully and sparingly and only for very
compelling reasons. The discretion to stay is not a disciplinary
jurisdiction and ought not to be exercised in order to express the
court's disapproval of official conduct. Accordingly, if the
prosecuting authorities have been guilty of culpable delay but the
prospect of a fair trial has not been prejudiced, the court ought not
to stay the proceedings
merely 'pour encourager les autres'.











Your Lordships have comprehensively reviewed the authorities and
therefore I will be content to highlight the features, which have led
me to conclude in favour of the appellant. The court in R v Bow
Street Magistrates, ex p Mackeson (1981) 75 CR App R 24, while
quite clear that there was jurisdiction to try the applicant,
relied
on R v Hartley [1978] 2 NZLR 199 for the existence of a discretion to
make an order of prohibition. Woodhouse J in R v Hartley (at 217)
had also recognized the jurisdiction to try the accused Bennett,
but
expressed the court's conclusion that to do so in the
circumstances offended against 'one of the most important principles
of the rule of law". (my underlining)











In his heads of argument Mr. Gauntlet (at par. 77) says:







"It is submitted that in these circumstances the court a quo
appears to have been unaware of the fact that it had discretion
to exercise. It approached the matter, as we have said, on the basis
that any inferred contravention of international law would vitiate
jurisdiction. Given the failure by the court to exercise its
discretion, it is submitted this court is now free to do so. Even if
some basis existed for concluding that the court a quo had
consciously exercised a discretion, it is respectfully submitted -
for the reasons set our above - that it did not do so judicially: it
applied the wrong legal principles and it misconstrued the material
facts."







In the concluding paragraph of his written submissions he also says:







"The respondents in this case can claim no overriding
unfairness if they are tried in a Namibian court. In the
circumstances, it is submitted that even if this court finds that the
Namibian authorities did in some attenuated respect act in violation
of the precepts of public international law, this court should still
exercise jurisdiction."











In his oral submission counsel said something to the effect that the
state's alternative argument was that if the court finds that in some
way some illegality either in Municipal law or in International law
is to be attributed to the Namibian Security Forces that was not the
end of the matter 'because just as in State v Mushimba, as in Rey v
Attorney-General in the South African constitutional court mere
illegality in obtaining evidence or something of that kind does not
mean that the trial stops. You've to weigh the two up'. In his
replying submission Mr. Gauntlet appeared to abandon the argument
about the court a quo's failure to recognize the fact that it
had a discretion in those circumstances. Counsel said he was doing
so because section 106 of the Criminal Procedure Act does not import
a discretion. I fail to understand this retraction unless it was
premised on the South African Common Law basis of the decision in
Ebrahim's case (supra). But Mr. Gauntlet elaborated his retraction
by saying that the court a quo made finding of fact and the
court has to form a conclusion as to what's right in law or not'. It
is interesting that in this regard and in justifying the retraction
counsel refers to the French case Argoud 451LR90 of June 1964 quoted
in Nikoli's case thus:







"the accused was returned to France against his will by private
individuals and handed over to the French police. As the French
police were not complicit to his informal rendition the court found
no obstacle to it exercising jurisdiction."











The point is that if one assumes that the court a quo made a
correct finding of the facts, particularly that the rendition of some
of the respondents was a direct result of the request by Namibian
police (Shali) (as in R v Hartley) the court would be entitled to say
whether, on the basis of that irregularity, it had jurisdiction to
try the accused, and if so, whether it should decline to exercise the
discretion. That as already indicated above, is the meaning of the
Bennett case, R v Hartley, and other cases cited on the same
reasoning.







Mr. Kauta on the other hand did not argue that the court did not
have that discretion. He in fact argued that the court had exercised
the discretion without necessarily saying so. I do not agree.







In the light of my finding that the evidence did not establish a
causal link between the Shali request and the rendition of the
respondents, it is not necessary to pursue the discretion issue any
further, except to say that the Ebrahim case does not preclude this
court from having regard to principles of international law. Article
144 of the Namibian Constitution provides that "---the general
rules of public international law and international agreements
binding up on Namibia shall form part of the law of Namibia."
As the court a quo itself said, "In the Ebrahim case the
Appellate Division based its finding on principles of Roman Dutch law
but was not insensitive (to the) principles of public international
law.".







It is clear from its Judgment that the court a quo laid a lot
of store by the fact that respondents were, by "the disguised
extradition" or the bypassing of the formal extradition
proceedings deprived of the benefits or safeguards embodied in
extradition acts or treaties and therefore of their human rights.
The answer to any such argument is first that the Zambian or Botswana
authorities did not have an obligation to wait for Namibia, or to
urge Namibia to initiate extradition proceedings to get rid of
undesirable foreigners from their territory. Secondly, the Namibians
did not have to refuse to receive the returned fugitives (see the
Staines case (supra) let alone to instruct Zambia or Botswana how
they should get rid of their unwanted visitors. Thirdly when one
considers the question of human rights care must be taken to balance
the rights of accused against these of the victims of their actions.
We have in this case antecedent circumstances where some people lost
their lives and property was destroyed as a result of the incident at
Katima Mulilo on 2 August 1999. The public interest that those
responsible must be brought to justice in a very weighty counter in
the balance. I for one am not much impressed by the quotation from
Mohammed v President of the Republic of South Africa and Others 2001
(3) SA 893 (cc) because the present is not such a case.







ADDENDUM







I am taking the rather unusual step to say something more than I have
already said above because I have now read the judgment of my brother
O'Linn AJA, and the Acting Chief Justice's concurring contribution
thereto. I share their great concern about the human rights of the
respondents in this case, the violation of which both of them have
painstakingly emphasized throughout their judgments; both have come
to the conclusion that the appeal in this matter succeeds only in
respect of respondents No 13, Charles Samboma.







Marais J. in S v Rosslee 1994 (2) SACR 441 (c), said (at p447c):







"This is an area of the law which is bound to be controversial.
As remarked earlier, there are potentially conflicting societal and
constitutional values involved and the opinions of reasonable people
as to which societal value should be accorded the higher priority in
any given case may differ sharply."







I fully endorse that observation though it may be said to be stating
the obvious!







My brother O'Linn, AJA has referred to (quoted) certain
passages from the case, Prosecutor v Dragon Nicolic (a case I also
referred to in my main Judgment); at p83 of the judgment the
following is reflected:







"112. The Chamber must undertake a balancing exercise in



order to assess all the factors of relevance in the case at hand and
in order to conclude whether in light of all these factors, the
Chamber can exercise jurisdiction over the Accused."







The Tribunal also observed that "in keeping with the approach of
the appeals Chamber in the Barayagwiza case, according to which in
cases of egregious violation of the rights of the accused, it is
irrelevant which entity or entitles were responsible for the alleged
violations of the rights of the accused."







Whether such a decision should be taken also depends entirely on
the facts of the case and cannot be decided in the abstract."

The Tribunal concluded: "Here the Chamber observes that the
assumed facts, although they raise concerns, do not at all
show that the treatment of the accused by unknown individuals
amounts, was of such egregious nature" (my emphasis added)"
(My emphasis as to the first two underlining in this passage.)







Earlier in this judgment I tried to analyse the evidence in the
present matter as fully as I thought necessary, and concluded that
'"On this evidence I do not agree when the court a quo says
'the 'deportation' of twelve of the accused persons was clearly
preceded by a request from officers acting on behalf of the Namibian
state and it cannot with any conviction be argued that the Zambian
authorities acted unilaterally, when they deported the Namibian's."
I did a review of the evidence on seeing the definite and
categorical conclusions reached on it by my brothers. I regret to
say that I am still not persuaded that the evidence justifies the
conclusion that a disguised extradition was perpetrated by the
Namibian official sin receiving respondents rendered by either the
Zambian officials or those of Botswana. With great respect I
certainly do not see how the evidence as a whole can be assessed to
reach the conclusion reached by the Acting Chief Justice:








  1. that "As for as the first two groups are concerned there can be
    no doubt that agents of the State were actively organizing and
    involved in bringing those respondents out of Zambia.












Or








  1. that "the request by Shali triggered the actions by the Zambian
    authorities and the way in which the groups were received, in some
    cases after officers of the Namibian Police first visited the
    stations in Zambia, is evidence of an orchestrated and organized
    involvement in order to obtain the handing over of the
    respondents."








Hoff J made no direct finding on credibility of State witnesses in
this matter. There is on record clear evidence by two Zambian
officials disavowing any influence by Namibian authorities on them to
take the actions they took. My reading of the evidence clearly shows
the Zambian and Botswana authorities taking the initiative, with the
Namibian Authorities, whatever may be justifiably said about the
wrongs or illegality of the former's actions in terms of their
domestic laws, merely welcoming the hand over. There is also clear
evidence, in some cases drawn or suggested by respondents' counsel in
cross-examination, that the security situation in the Caprivi had
ripples across into the Barotse Province of Zambia. One would have
to be a typical armchair critic to suggest that the security forces
on either side of the border should have reached with the legal
niceties that academics sometimes indulge in.







On of 'the factors of relevance' in the case at hand is that the
attack at Katima Mulilo on August 2, 1999 was not an imagined event
or a mere allegation by the Appellant; the other is the State's
allegation as appears in the High Court of Botswana Criminal Appeal
Judgment No. 108/2001 delivered on 3 December 2002, that:







"In 1998 the respondent were among other people that decided
unilaterally and attempted to secede part of Namibia to be an
independent state. This group of people solicited various arms and
ammunition as well as other weapons of war from within and outside
Namibia for the above purpose. The respondents participated heavily
in misleading lots of innocent Namibian to believe that Caprivi
region was not politically and legally part of Namibia that an
agreement that could be enforced was existing that formed the basis
of secession. Various secret camps were established within Namibia
and the respondents were part of the so called Caprivi liberation
army that operated these camps, they also co-ordinated logistics and
transport needs for these camps. As a result of these false promises
some of their members escaped and went back to their places but the
7th and 9th respondents brutally shot and
killed Victor Falali one of the escapees from their camps were
disbanded and they fled to Botswana together with their weapons. In
Botswana they were all given refugee status and while in Botswana as
refugees the respondents continued to plan a vicious military attack
on the Republic of Namibia.
Without any consideration and
respect to the Republic of Botswana that offered them sylum and
without compliance to the principles of
the United Nations the
respondents escaped from the Dukwi refugee camp thus violating the
laws of Botswana,
while some had requested for the voluntary
repatriation process with a motive to come and organize themselves in
Namibia and carry out the military attack. On the 2nd
of August 1999
some of the respondents participated directly
while some of them indirectly in this vicious attack on some
installations in Katima Mulilo where innocent people were killed as a
result of this attack. As a result of this attack many people fled
the town of Katima Mulilo, business activities were brought to a
halt. After this attack the respondents again fled to the
Republic of Botswana thus avoiding an arrest and prosecution for this
conduct........"











I hasten to admit that this is not evidence against any of the
respondents, but see Hoff J's opening paragraph in the judgment a
quo
:







"It is general knowledge that on 02 August 1999 various
Government institutions including the Mpacha military base, the
Katounyana Special Field Force base, the Wanela border post, the
building housing the Namibian Broadcasting Corporation, the Katima
Mulilo and the house of a police officer had been attacked by groups
of armed men resulting in the deaths of several people and damage to
properties. A state of emergency was declared in the Caprivi region
and order was subsequently restored by the Namibian Security Forces.
The state of emergency was revoked on 26 August 1999. People were
arrested inside Namibia and a number of the inhabitants of the
Caprivi region fled to neighbouring countries. It appears that
the exodus of people from the Caprivi region already started prior to
the attacks on
02 August 1999 and continued for some time after
order had been restored in the region."







The report of Horn J's judgment in the Botswana High Court case was
one of the authorities brought to our attention by respondent's
counsel. Horn J based his consideration of the 'political exception'
in terms of Extradition Acts as it applied in the case before him -
an appeal from a magistrate's decision to have 13 Namibian refugees
from the Caprivi extradited, at Namibia's request to face charges
also arising from events of 2 August 1999 at Katima Mulilo.







In respect of respondent No. 8 Osbert Likanyi my brother the acting
Chief Justice says his handover "happened despite the fact that
political asylum was granted to Osbert........and, what is more, he
was handed shortly after the High Court of Botswana refused to
extradite other Namibians in regard to which a formal request for
extradition was made." My brother O'Linn, AJA regards Osberts
evidence as unchallenged. Osbert did not testify in the court a
quo
. His affidavit in the originating motion proceedings was
taken as his plea in terms of Section (1) of the Criminal Procedure
Act 51 of 1997. All one need say is that the Affidavit arrearing in
Vol. 1 of the record at pp32-34 while stating that he sought asylum
in Botswana (apparently in 1998) and was based at the Dukwe Camp,
does not say why he was not one of those Namibians requested to be
that this was a sworn statement does not in my view render it
automatically acceptable as evidence and subjecting himself to cross
examination. This applies even more to affidavits of one two others
who did not testify.







The evidence in this case would appear to justify the question posed
by Marais J. in the Rossle case, supra with reference to the 'clean
hands' doctrine espoused in Ebrahim's case, at 448 a:







"Should his own hand snot be clean in that particular respect
before it lies in his mouth to complain of the state of the hands of
others."







I agree with the caution sounded by my brother O'Linn, AJA during our
discussion of the case, that one should not, like the three apes (of
the Jewish adage), adopt the attitude, particularly where the rights
of the accused persons are concerned, 'See on evil, hear no evil and
speak no evil.' (See also his reminder about judge's oath of office
at p164 of his judgment.) However I also feel that one should not
stretch the evidence in any particular case to portray a picture to
fit a mould or a theory one seeks to vindicate. In this connection I
note that my brother O'Linn has done a lot of research on what he
considers applicable statutes (local and foreign), conventions and
international agreements. He has omitted however to say anything
about the Defence Acts of Namibia, Zambia or Botswana, despite the
fact that there is some evidence on record that Namibia and Zambia
had mutual security committees; Major General Shali in cross
examination was quizzed about the state of emergency having ended on
26 August 1999, and that on 6th November 1999 some of the
respondents were collected there was no state of emergency in the
Caprivi": He state in reply:







"I just want to state one thing, to put one thing clear, that
the Namibian Defence Force has a responsibility and tasks to defend
the people of this country at all times, with or without state of
emergency."







Section 95 of the Defence Act 1957 (Act No. 44 of 1957) as amended by
Section 29 of the Defence Amended Act 1990 (Act No. 20 of 1990) reads
as follows:







"any member of the Defence Force may be required to perform
service at any place outside the Republic whenever it is necessary-








  1. to combat, prevent or suppress any attack or act of aggression in
    circumstances other than those contemplated in article 26 of the
    Namibian Constitution.









  1. to prevent the recurrence of any such attack or act of aggression."












For the last part of Shali's evidence in cross-examination, I do not
better than repeat it verbatim as it appears at pp. 232-235 of the
Record. It reads as follows:







"I'm sorry, let me just confirm My Lord before I excuse this
witness, maybe for my learned Friend to re-examine. Major General,
perhaps you can assist me with the one issue is, is it correct, is it
correct if I understood your testimony correct, there was no
agreement between you, the Namibian forces, or the forces under you
and the police with the authorities in Zambia to give over these
people to you?---OK, I'm sorry for being told to ask me this
question, but I'll tell you the following:







COURT: Sorry --- I said I'm sorry for you to have been told to ask
me this question but I tell you the following:







Sorry, I didn't hear the last part of your reply?







MR KAUTA: I also didn't hear the last part, maybe you could repeat
it. --- I shall repeat. I said I'm sorry for you to have been told
to ask me this question, but I'm going to answer it. There's been an
agreement already, the two States have signed a co-operation
agreement that encompasses all sorts of things and that agreement at
the same time established what is known as Namibia/Zambia Joint
Commission of Defence and Security. In the result, it is an
instrument that can be used and has been used effectively and it's
going to be used in the future, to deal with threats like this one
we're talking about. I have no time to give a lecture on this one.
There is an agreement.







Do you have an agreement here? --- Oh, yes, yes, it is signed and
sealed.







Can I have a copy of it? --- It's not allowed to be given to
individuals. Part of the agreement is that this should not be given
to persons who ought not to see it and I don't know whether your are
one of those.







COURT: So this court is not allowed to see the contents of the
agreement? --- Exactly you Honour.







I'm asking whether this Court is also not permitted to see the
contents of the agreement? --- Your Honour, if I got you right did
you say that the contents of the agreement cannot be quoted for
example?







No, I'm asking whether the Court is also precluded form seeing this
agreement you're referring to?



MR KAUTA: Maybe he didn't hear the question. The court is
asking whether it's also precluded form seeing the agreement that you
are referring to? ----- Your Honour, I'm not saying that, but I
believe that it is, the (inaudible) would have known better than I
do, yes, there is a restriction as to who will have access and who
will not have access to this agreement.







I think Your Honour there are no further questions, we take it there
is no agreement.







NO FURTHER QUESTIONS BY MR KAUTA







COURT: Just repeat that last part of the statement that you've
made.







MR KAUTA: My Lord I said, I thank you for his testimony and in
the absence of a copy we take it that there is no such agreement ---
There is no such agreement"







The long commentary of PRO John Duggard on S v Makala (see O'Linn's
judgment pp. 120-121 contains this statement:







"This reasoning was indeed accepted in Mafokeng to which the
appellate Division also failed to refer. In this latter case,
reference is made to section 34(g) of the Police Act which creates
a possibility of mutual assistance agreement between States (although
none existed in that case) which would have rendered the Police
action invalid."







My brother O'Linn, AJA concludes his review of the cases as follows:







"To conclude this review of the case law, I must reiterate that
the Namibian Supreme Court is not bound to follow the decision of the
South African Supreme Court (Appellate Division) or even the South
African Constitutional Court.







One must keep in mind that the Appellate Division when considering S
v Mahala and S v December were faced with appellants who had already
been found guilty of the most callous, cowardly and heinous crimes of
murder. To hold at the appeal stage that the court a quo who
had rejected the jurisdiction point and then convicted and sentenced
the accused on the merits, had erred in not upholding the objection
to the jurisdiction, would have resulted in a grave injustice to the
victims of those crimes, their families and friends. To see that
justice is done not only to accused persons, but also to the victims
of crime is part of the aim of the Rule of Law and the public
interest." INTERESTING!!







There are many cases in which conviction and sentences were set aside
when the plea to the jurisdiction failed at first instance but was
upheld on appeal.















I still maintain that the appeal must be upheld and the following
order made:








  1. That the order of Hoff J in the court below that the court had no
    jurisdiction to try the accused persons and ordering their release,
    be and is hereby set aside.









  1. That the application brought by respondents under case number (P)
    A268/2003 be and is hereby dismissed.









  1. That the matter be and is hereby remitted to the High Court for the
    trial of the respondents to proceed.












________________________



MTAMBANENGWE, A.J.A.











O’LINN, A.J.A.: This judgment is divided for the purpose of
easy reference into various sections, as follows:







SECTION A: INTRODUCTION



SECTION B: THE POINT OF DEPARTURE OF THE COURT A QUO
AND ITS MAIN FINDINGS



SECTION C: THE RELEVANT EXTRADITION, IMMIGRATION AND
DEPORTATION LEGISLATION OF NAMIBIA, BOTSWANA AND ZAMBIA IN
CONJUNCTION WITH INTERNATIONAL LAW



SECTION D: THE RELEVANT CASE LAW AND OTHER AUTHORITY



SECTION E: IS THE ABUSE OF THE LAW AND OF THE RIGHTS OF THE
PERSON DETAINED IN AND REMOVED FROM THE HOST COUNTRY RELEVANT



SECTION F: THE GROSSNESS OF THE ABUSE OF THE RULE OF LAW IN
THE INSTANT CASE



SECTION G: THE PARTICIPATION OF THE NAMIBIAN AUTHORITIES IF
ANY



SECTION H: THE IMPLICATION OF SECTION 17 OF THE NAMIBIAN
EXTRADITION ACT



SECTION I: CONCLUDING REMARKS.







SECTION A: INTRODUCTION






I will hereinafter refer to
respondents in this appeal as the “13 accused” irrespective of
whether or not they were also “applicants” in their notice of
motion and “respondents” in the present appeal.







Similarly I will hereinafter refer to the appellant as “the State”,
notwithstanding that the State was “respondent” in the notice of
motion proceedings and “appellant” in the present appeal.







Mr. January appeared for the State in the Court a quo, but Mr.
Gauntlett, S.C., assisted by Mr. Borgström , both of South
Africa, assisted by Mr. January, appeared for the State before us on
appeal. On the other hand Mr. Kauta appeared for the “13 accused”
in the Court a quo as well as before us on appeal.







The counsel on both sides placed before Court full and interesting
argument which I am sure was extremely helpful for the Court and for
which they deserve the Courts appreciation.







The 13 accused were arraigned before the Court a quo, together
with 107 others, each facing two hundred and seventy eight (278)
charges of which the most serious are: High Treason, Sedition,
Murder, Attempted Murder, Robbery with aggravating circumstances,
Public Violence, the Unauthorized Possession of Firearms and
Ammunition, Theft and Malicious Damage to Property.







Hoff, J., presided in the Court a quo. He sketched the
background to these charges as follows:







On 2 August 1999 various government institutions, including the
Mapacha military base, the Katounyana Special Field Force base, the
Wanela Border Post, the building housing the Namibian Broadcasting
Corporation, the Katima Mulilo Police Station, the central business
area of the town Katima Mulilo and the house of a police officer had
been attacked by groups of armed men, resulting in the death of
several people and damage to properties.






A state of emergency was declared in the Caprivi region and order
was subsequently restored by the Namibian Security Forces. The State
of emergency was revoked on 26 August 1999.







People were arrested inside Namibia and a number of the
inhabitants of the Caprivi region fled to neighbouring countries. It
appears that the exodus of people from the Caprivi region already
started prior to the attacks on 02 August 1999 and continued for some
time after order had been restored in the region.”














At their arraignment the 13 accused
raised the issue of jurisdiction in the form of a notice of motion
supported by founding affidavits by each and every accused in which
they asked that the Court make the following order:







1. Directing and holding that the applicants are not amenable
to the criminal jurisdiction of the Court in respect of the
indictments referred to in paragraph 3.



2. Declaring that the applicants’ apprehension and abduction
from Zambia and Botswana respectively and their subsequent
transportation to the Republic of Namibia and purported arrest and
detention pursuant thereto is in breach of international law and
wrongful and unlawful.



3. Declaring that the applicants’ have not properly and lawfully
been arrested and properly and lawfully been arraigned before a court
of competent jurisdiction for the purposes of trying them on the
indictment’s preferred by the prosecution against the applicants.



4. Declaring that the applicants are entitled to be discharged
from their imprisonment and detention at present pending their trial
on the said indictments.




  1. Granting the applicants further and/or alternative relief.”












The State gave notice of opposition and stated that it will present
viva voce evidence in support thereof.







There was some initial uncertainty about the procedure used but the
Court ruled that the notice of motion properly raised the issue of
jurisdiction and that it should be regarded as a plea explanation.
Furthermore the Court ruled that the onus would be on the State to
prove by viva voce evidence and beyond reasonable doubt the
facts in dispute pertaining to the circumstances relating to the
arrest, detention and delivery of the 13 accused.







Each of the said accused recounts in his founding affidavit the
events surrounding his departure from and the eventual return to
Namibia. Each states that he left Namibia as a result of continued
political harassment. Each portrays his return as an “unlawful
abduction
”, consisting of a series of unlawful acts performed
by Zambian and Botswana authorities in concert with the Namibian
authorities.







It is unfortunate that the State did not file answering affidavits as
is normally done in notice of motion proceedings, wherein it could
have precisely stated which allegations in the applicants’
affidavits were admitted and which it contested. The ambit of the
viva voce evidence could then have been narrowed down
considerably.







Be that as it may, the State accepted the ruling of the Court a
quo
that the onus would be on the State to prove by viva voce
evidence and beyond reasonable doubt that the 13 accused were
lawfully before Court and that the Court thus had jurisdiction to try
them. Although the Court a quo regarded the aforesaid notice
of motion supported by founding affidavits as a clear indication to
the State of the case it had to meet by viva voce evidence, it
is not clear from the judgment whether the Court also regarded the
factual allegations therein as having some evidential value.







It must be noted at this stage that it is trite law that a plea
explanation has some evidential value, the weight thereof depending
on the circumstances.1







I will assume in this appeal when dealing with any disputes of fact,
that where factual allegations in the founding affidavits were not
disputed in the viva voce evidence of the State (appellant)
such undisputed factual allegations must be accepted by the Court as
proven, unless there are other good reasons, recognized by law, for
their rejection. On the other hand where the State has
contradicted specific allegations
of the 13 accused contained in
their affidavits by credible viva voce evidence, which were
not discredited in cross-examination or in credible rebutting
evidence contained in any viva voce evidence presented on
behalf of the accused, then such facts on which the State relied must
be accepted as proven. The State called a number of witnesses and
the accused only two.







After an extensive hearing during a period of 19 days, the Court gave
judgment on 23/02/2004. In its judgment the Court upheld the plea
that the Court has no jurisdiction and ordered that the 13 accused
persons be released from custody. The 13 accused were released but
almost immediately rearrested by the Namibian Police and detained as
before.







A further application to the High Court on behalf of the rearrested
accused to be released was heard by the full bench of the High Court
but rejected by that Court on the main ground that the issue of the
correctness of the judgment of the Court a quo was then
pending before the Supreme Court and that it would consequently not
be justified to grant the order prayed for.







In respect of the appeal it must be noted that the State applied for
leave to appeal to the Supreme Court immediately after judgment was
given. The application was rejected by Hoff, J. The State then
petitioned the Supreme Court which granted leave to appeal.







The 13 accused are at the time of this judgment still detained by the
Namibian authorities, several years after their initial arrests and
detention.






SECTION B: THE
POINT OF DEPARTURE OF THE COURT A QUO AND ITS MAIN FINDINGS:







1. Point of departure



The learned presiding judge in the Court a quo took due notice
of the difficulties caused to the Security Forces by the grave acts
of rebellion in the Caprivi. He said:







I appreciate the fact that Major-General Shali and all the
members of the Security Forces under his command during the period
immediately following the armed attacks, must have worked under
difficult and dangerous conditions. The security situation in the
Caprivi region had to be stabilized and it had to be done so quickly.
This however, was no authority to anyone of the members of the
Security Forces including Major-General Shali to turn a blind eye to
the relevant extradition agreements in force.”







He also correctly endorsed the view recently expressed by the South
African Constitutional Court in the case of Mohamed v President of
the Republic of South Africa & Ors
where that Court held that
“if a deportation was in substance an extradition, it would have
been unlawful because the correct procedures were not followed
”.
(My emphasis.)







Referring to the finding that the South African Government, through
its officials had acted “unlawfully”, the Constitutional Court
stated:







That is a serious finding. South Africa is a young democracy
still finding its way to full compliance with the values and ideals
enshrined in the Constitution. It is therefore important that the
State lead by example. This principle cannot be put better than in
the celebrated words of Justice Brandeis in Olmstead ET AL v
United States
:







In a government of laws, existence of the government will be
imperilled if it fails to observe the law scrupulously. …..
Government is the potent omnipotent teacher. For good or for ill, it
teaches the whole people by its example. … If the government
becomes a lawbreaker, it breeds contempt for the law; it invites
every man to become a law unto himself, it invites anarchy.’ (My
emphasis added.)







The warning was given in distant era but remains as cogent as
ever. Indeed for us in this country, it has particular relevance:
we saw in the past what happens when the State bends the law to its
own ends and now, in the new era of constitutionality, we may be
tempted to use questionable measures in the war against crime.







The lesson becomes particularly important when dealing with those
who aim to destroy the system of government through law, by means of
organised violence. The legitimacy of the constitutional order is
undermined rather than reinforced when the State acts unlawfully.”





Hoff, J.
commented:






This view equally applies to Namibia and I fully endorse it. I
also fully endorse the judgments, referred to in this judgment, which
emphasise the importance of due process when considering whether
there had been a breach of public international law or not.”










I have not
heard in the course of this appeal any criticism of the approach of
the South African Constitutional Court and of the acceptance of that
approach or point of departure by the Court a quo. I also
have no doubt that the Namibian Supreme Court agrees with, endorses
and commends the abovequoted approach of the South African
Constitutional Court.





It is against
this point of departure that much of the argument for and against the
judgment of the Court a quo must be weighed.





2. A “few
traits” applicable to all accused



The Court recited the evidence before it and extracted what it called
“a few traits” but which the Court apparently regarded as facts
which were either common cause or otherwise not seriously disputed.
These were:






(i) There are in existence extradition agreements or treaties
embodied in reciprocal statutory provisions, between Namibia and
Zambia and between Namibia and Botswana respectively. (See Botswana
Extradition Act 18 of 1990, the Zambian Extradition Act, Chapter 94
of the laws of Zambia and the Namibian Extradition Act 11 of 1996).






  1. No
    proceedings were initiated by the Appellant with the aim of having
    anyone of the respondents extradited to Namibia;








  1. All
    thirteen respondents, with the possible exception of Osbert Likanyi
    (8th Respondent) were prohibited immigrants at the
    time of their respective arrest;







  1. No
    Respondent had been asked by any State officials whether he
    voluntarily consented to return to Namibia;







  1. No state
    witness had informed any one of the Respondents that they would be
    handed over to the Namibian Authorities in order to face criminal
    charges in Namibia, and in particular on the charge of high treason.







  1. No state
    witness had informed any respondent of the procedures prescribed in
    terms of Zambian and Botswana immigration laws;







  1. There is
    no documentary proof that any Respondent had been deported to
    Namibia neither is there any proof which immigration official or
    other statutory body ordered such deportation;







  1. Not a
    single respondent was informed of his right to legal representation.







  1. The
    Namibian Police and Army Officers, prior to receiving the
    Respondents were aware of the fact that the Respondents would face
    criminal prosecution of specific crimes once returned to Namibia.






A few remarks
to place the above findings in context, are apposite at this stage:





Ad
2(i)
: No express extradition agreements were placed before the
Court. The “extradition agreements or treaties” referred to by
the Court were probably those whose existence were inferred from the
existence of the very explicit and mandatory reciprocal legislation
enacted by the sovereign parliaments of Namibia, Botswana and Zambia.
It may be mentioned that the South African legislation that
followed, corresponds in its main principles and procedures to those
of Namibia, Botswana and Zambia.





Ad
2(iii)
: What was probably meant by this finding was that they
were “prohibited immigrants” because they left Namibia and
entered Botswana and Zambia without the proper passports and papers.
However, they were never declared “prohibited immigrants in terms
of the Immigration Laws of Botswana and Zambia. Those who entered
Botswana, did not fall under any of the classes deemed prohibited
immigrants. In the case of Zambia, they may fall under classes E or
F of the 2nd schedule, but were never declared as such in
terms of Zambian law.2





They left,
according to their unchallenged affidavits, because they were
continuously harassed politically by government agents being police
and army personnel.





All the
accused who first entered Botswana, applied for political asylum and
they were granted such asylum in Botswana. Some indicated when they
entered Zambia that their purpose is “political asylum”. Some,
in conjunction with their lawyer were preparing to take their cases
to Court, when they were suddenly removed by Zambian military
personnel and handed to Namibian military and police personnel. None
of them were served with arrest warrants or deportation orders in
terms of the laws of Botswana, Zambia and/or Namibia. There was also
no evidence that any of them were served with written documents, as
the law of these countries require, that they are henceforth regarded
as prohibited immigrants. It is not only the status of Osbert
Likanyi which was in doubt, but certainly also that of Charles
Samboma, who according to the viva voce evidence of the State,
came to Katima Mulilo on his own steam to hand himself over.





Mr Gauntlett
actually conceded that Samboma “was not returned as an illegal
immigrant”.





Ad v &
vi
: The accused were neither informed of any of their rights
under the Extradition laws, nor of their rights in regard to the
Deportation laws. They were also not informed of the right to appeal
or to make representations and of any period of time within which to
do so.





Ad
vii
: None were given the opportunity to engage legal
representation.






3. The facts relating to the arrest, detention, removal to and
handing over to Namibian officials of 5 distinct groups of accused
persons
.







The Court and counsel for the parties dealt with the different
circumstances pertaining to the accused by dividing them into five
groups.





Counsel for
the State and accused substantially agree on the facts and
circumstances dividing the five (5) groups as well as the facts and
circumstances they have in common.






I find it
therefore convenient and justified to make use of the classification
in the heads of argument of counsel for the accused. In doing so, I
will leave out the references to the record for the sake of brevity,
after having checked against the record the references given by
counsel for the accused as well as those by counsel for the State.
The comment added in regard to each group by counsel for the State
also appear to be substantially correct. Consequently I find it
justifiable to make use of that classification, but have renumbered
the paragraphs. The classification reads as follows:







    1. “The
      first group – named the “Mamili group” after the late
      Stephen Mamili – comprised five of the thirteen respondents,
      being Moses Mushwena (1st Respondent); Thaddeus Ndala
      (9th Respondent); Martin Mumbaundule (10th
      Respondent); and Oscar Nyambe Puteho (11th Respondent),
      and Charles Mushakwa (12th Respondent).








  1. It is
    common cause that the members of this group left Namibia and entered
    Botswana and then Zambia.








  1. This
    group was apprehended and detained in Zambia on the 18th
    of June 1999 as suspected illegal immigrants before the attack in
    Caprivi on the 2nd August 1999. (Mr Gauntlett stated in
    regard to this group: “They were all apprehended as aliens
    illegally present in Zambia
    ”). Chief Inspector Goraseb went
    to Zambia on the 25th June 1999, to ascertain the
    veracity of their apprehension and detention. He then informed the
    Zambians to heighten their vigilance. On his return to Namibia he
    informed the Inspector General of Police that this group was
    detained in Zambia.







  1. On the
    6th of August 1999, after the attack, a Zambian
    delegation headed by their Criminal Investigating Officer met with
    Chief Inspector Goraseb at Katima Mulilo, Namibia. The purpose of
    this visit was two fold. Firstly to inform Chief Inspector Goraseb
    that they are aware of the attack on Caprivi. Secondly to seek ways
    in which they could assist in curbing the problem. (attack on
    Caprivi)







  1. The next
    day 7th of August 1999, after the visits from the Zambian
    delegation, when their assistance was clarified, the Major General
    of Operations of the Namibian Police Service, Major General
    Nghiishililwa, instructed Chief Inspector Goraseb to receive this
    group (parcel) at Secheke in Zambia.







  1. Also
    after the attack, the Namibian army Commander Major General Shali
    got in touch with his counterparts in Zambia and asked for the
    handing over of specific terrorists, he was looking for and the
    Zambians did exactly what they were asked.







  1. It is
    common cause that the Namibian Police represented by Inspector
    Theron and Inspector Shishanda proceeded to Secheke in Zambia
    purportedly received and removed this group to Namibia and handed
    them to the Namibian Army.







  1. No
    request was directed to the Zambian Authorities to deport and or
    extradite this group from the 25th of June 1999, when
    admittedly the Namibian Police knew about their detention at Mongu
    in Zambia, until after the attack on Caprivi on the 2nd
    of August 1999.”







3.2 “The second group – known as the “Samboma Group” –
comprised Richard Misuha (4th Respondent), Oscar Muyuka
Kushaluka Puteho (5th Respondent); Richard John Samati
(6th Respondent) and John Sikundeko Samboma (7th
Respondent).






  1. This
    group left Namibia and entered Botswana and thereafter Zambia.


  2. The
    Zambian authorities, also apprehended the members of this group as
    alleged illegal immigrants.


  3. Major
    General Shali the Army Commander, in the Namibian Defence Force was
    in touch with his counterpart in Zambia and requested the handing
    over of this specific terrorists to face the ruthlessness of the law
    in Namibia. The Zambian did exactly as requested.


  4. Sight
    should not be lost of the purpose of the meeting between Chief
    Inspector Goraseb and the Zambian delegation of the 6th
    August 1999, supra.


  5. The
    Appellant’s evidence on where the Namibian authorities received or
    collected this group is unclear.


  6. The
    Namibian Police Officers who were present at the handing over
    testified that it took place in a “no man’s land” area between
    the Namibian and Zambian border posts, and that the handover or
    receipt was a matter between the Namibian and Zambian Army.


  7. The Army
    on the other hand, from the officer (Ndakotola) who were present
    there testified that the handing over or receipt was a matter
    between the Namibian Police and the Zambian authorities inside
    Zambia
    .


  8. Nevertheless
    it is common cause that this group was handed over to the Namibia
    Security Forces on the 6th November 1999 and that they
    were then kept in military detention for six month’s before their
    first appearance in a court of law on the 02 May 2000.”








    1. “The
      third group – comprizing Fred Maemelo Ziezo (2nd
      Respondent) and Andreas Mulupa (3rd Respondent) – were
      arrested in Zambia as illegal immigrants. (What was probably meant
      here was that the members of this group were arrested as “alleged”
      prohibited immigrants).








  1. It is
    also common cause that this group left Namibia and entered Botswana
    and thereafter Zambia.


  2. It is an
    undisputed fact that his group was handed over or received in
    Namibia at Katima Mulilo. (Mr Gauntlett however stated that this
    group “were arrested in Zambia as illegal immigrants ….Zambian
    authorities handed them over at Katima Mulilo.” However the
    uncontested evidence of Zielo, as member of this group was that
    “after their arrest by Zambian authorities, they were loaded onto
    vehicles of Namibian Special Field Force at Katima Mulilo in Zambia
    and taken by them to Namibia”).


  3. What is
    in dispute is how this group was handed over. The Appellant
    has two versions. Deputy Commissioner Maasdorp confirms that
    Colonel Kalezi brought this group into Namibia and at Katima Mulilo
    gave them over to Chief Inspector Goraseb. The other by Chief
    Inspector Goraseb that he did not even see this group because they
    were handed over directly to Deputy Commissioner Maasdorp.


  4. The
    Second Respondent’s unchallenged testimony is that they were
    received by the Deputy Commissioner Maasdorp in Zambia and then
    returned to Namibia (Katima Mulilo).”








    1. “The
      fourth group consists of Charles Kalipa Samboma (13th
      Respondent).








  1. On the
    19th March 2001 this respondent went to Katima Mulilo
    Police Station in Zambia with the sole purpose of handing himself
    over to the law. He expressed his regret and the Zambian
    authorities assumed that the Respondent wished to return to Namibia.


  2. The
    Namibian Police, was looking for this respondent on High Treason,
    charges. Detective Sergeant Simasiku went to Zambia and without
    informing or speaking to Charles Samboma, about his true purpose
    removed Charles Samboma to Namibia and then arrested him.”








    1. “The
      fifth group consists of Osbert Mweny Likanyi (8th
      Respondent).








  1. He was
    the only respondent who did not come from Zambia. Likanyi left
    Namibia and was granted asylum in Botswana.


  2. His
    asylum was irrelevant to the Namibia Army because he is a terrorist.
    (According to Major-General Shali).


  3. The
    Namibian Police received a call from their counterparts in Botswana
    about the presence of Osbert Likanyi. Inspector Goraseb proceeded
    to Botswana where he removed Mr Likanyi without speaking to him, and
    returned him to Namibia.”







4. The finding of a “disguised extradition”. The final
conclusion of the Court a quo was stated as follows:







“In view of my finding that 12 of the accused persons are
before this Court through a process of “disguised extradition
and that in respect of Charles Samboma there was no proper consent,
all thirteen accused persons are irregularly before me and this Court
has accordingly no jurisdiction to try them.”





The State’s
first attack against this finding was that it never was a specific
ground of the case of the 13 accused as set out in their application
on notice of motion.





To this
attack the Court a quo reacted as follows in its judgment on
the initial application by the State for leave to appeal:






The expression ‘disguised extradition’ as such was indeed
first mentioned when judgment was delivered in respect of the
jurisdictional issue. This however is an appellation attached to
those circumstances where a fugitive is deported in accordance with
deportation proceedings disguised as an extradition. What is
important is not the name given to those circumstances but the nature
of the act of delivery. The accused persons stated that they had
been brought before this Court unlawfully since they had been
abducted. The State denied that they had been abducted and justified
their presence in Court on the submission that they had been
deported. The onus was on the State to prove beyond reasonable doubt
that they indeed had been deported, that they were thus lawfully
before this Court and that this Court consequently had jurisdiction
to try them. The accused has no onus to prove their abduction. On
the evidence presented by the State the Court found that no such
deportation had been proved.







The inference drawn by the Court on those facts presented to it
was that the accused persons were before this Court as a result of an
extradition in disguise.







In my view it is irrelevant whether the expression “’disguised
extradition’ appears in the plea explanation of the accused persons
and it is similarly irrelevant whether the expression per se had been
used during argument by either counsel for the State or counsel for
the defence. It is further not entirely correct to state that the
issue of ‘disguise extradition’ had never been canvassed or
argued by either counsel and that it was brought up mero motu by this
Court. Counsel for the State himself during his submissions to this
Court, distinguished between deportation proceedings and extradition
proceedings. Furthermore counsel for the accused persons in his
heads of argument as well as oral submission referred to the
importance of the compliance with rules public international law and
international agreements.







An extradition treaty is an international agreement without doubt.
The Court was in this regard specifically referred to the cases of
S. v Wellem and S v Buys & Andere where the
importance of compliance with extradition agreements had been
emphasised. In addition counsel for the defence submitted in his
heads of argument that in the Constitutional regime now reigning in
Namibia that the human rights of the fugitive are as important as
that of any other citizen and that the extradition process was
designed to protect these rights.







The Court was further in this regard referred to an article by
Prof. John Dugard where the opinion was expressed that when
extradition proceedings are ignored a person is abducted in
order to bring him within the jurisdiction of the Court to try him
and that in this way the human rights of an abductee are being
flouted. What was submitted was that extradition proceedings must be
complied with and where it is not done, in my view, the process of
simulated deportation is indeed an ‘extradition in
disguise’
.”







Mr. Gauntlett persisted with the argument before us that because the
applicants had not claimed in their notice of motion, that there was
a “disguised extradition”, the Court was not entitled to base its
judgment on that ground.







I find this approach very technical and not conducive to the aim of
achieving justice in this case. It does not seem to me that the
State was in any respect prejudiced by the Court putting a label on
the conduct of the officials of the State on both sides in ensuring
the attendance of the 13 accused before the Namibian Court.







I agree with the reasoning of the Court a quo in response to
the objection.







5 THE “ABDUCTION” FINDING



The Court stated: “I cannot find that the accused persons had been
abducted in the sense used in the Ebrahim case.” It was
also in this context that the Court held: “Whatever suspicions
there may be in this regard, I am unable to hold that there was
indeed a connive or collusion between the respective authorities to
abduct the accused persons.”







Mr. Gauntlett seized on this finding or non-finding, in the sense
that there also was no express finding of an abduction in any other
sense.







Mr. Kauta, on the other hand, pointed out that this finding did not
exclude “abduction” in the sense averred by the accused persons.
The reason why the Court concluded as it did appears from the
following reasoning by the Court, preceding the finding in question:







In regard to those accused persons who alleged they had been
abducted in the absence of evidence to the contrary, the evidence
presented by the State witness stand uncontradicted since they said
that they had never been ‘arrested’ by the Namibian authorities
on foreign soil.”











An important feature of the facts of the Ebrahim case was that
agents acting on behalf of South Africa entered Swaziland and took
the appellant Ebrahim, a member of the military wing of the ANC, back
to South Africa by force and there handed over to the South African
Security Police, where he was then formally arrested, arraigned
before a South African Court and tried and sentenced to 20 years
imprisonment. The force used was that Ebrahim was first lured out to
their car at night by false pretences and there the two agents then
pointed firearms at him, threatened him with death should he not
accompany them.







The full bench of the Appellate Division of the South African Supreme
Court set this conviction and sentence aside on the ground that the
objection in limine that the Court had no jurisdiction because
of the illegal abduction of the accused, should have been upheld
already at the in limine stage. This decision was widely
welcomed – also internationally.







Now this type of fraud and force was admittedly not used in the case
of the 13 accused now before Court.







Hoff, J. thus clearly referred to such a type of abduction and that
did not include other action tantamount to abduction or which was an
abduction in essence and where the officials of the State requiring
the persons for trial, participates in the illegal action, bypassing
deliberately, applicable mandatory extradition procedures.







The South African Appellate Division held, in the Ebrahim
decision, after a thorough investigation of the relevant South
African and Roman Dutch common law, that the issue as to the effect
of the abduction on the jurisdiction of the trial Court, was still
governed by the Roman & Roman Dutch common law which regarded the
removal of a person from an area of jurisdiction where he had been
illegally taken prisoner to another area as an “abduction in
essence
” and thus constituted a serious breach of the law. A
Court before which such a person is brought also lacked jurisdiction
to try him.3







It appears from the above that “illegality” and “abduction”
are equated and that “abduction” is merely a form of illegality,
but illegality is not restricted thereto. An illegal taking
prisoner, detention and removal, is “tantamount” to abduction or
is in essence an abduction.







It appears to me however, that the Court misdirected itself when it
based its finding in the form formulated, when it apparently regarded
as decisive, that the Namibian officials did not “arrest” the
persons in Zambia or Botswana – apparently using the term arrest in
the form of a formal arrest, where the necessary procedure for
such an arrest is followed. For the purpose of whether or not the
Namibians had carried out an abduction, or participated therein or
colluded or connived with the actual abductors, such an act of formal
arrest inside Botswana or Zambia would clearly not be an essential
requirement. It will suffice if there was an illegal taking
prisoner, detention and removal or participation therein – of which
the absence of formal arrest would be corroboration – and
not legal justification of such illegal taking prisoner, detention
and removal over the Namibian border
. The confusion may have
been caused by the fact that the English version of the headnote in
Ebrahim wrongly used the term “arrest” instead of “taking
prisoner”. The latter is a more precise translation of the words
“onregmatiglik gevange geneem”, used in the judgment written in
Afrikaans.







In my respectful submission, a Court should not become bogged down in
nomenclature.







When there are mandatory provisions in extradition and deportation
legislation of the states involved, the failure to comply with those
provisions, aggravates the illegality.







It then becomes an arbitrary action which amounts to “vigilante
law” or the “law of the bush” or the “law of the jungle”,
and constitute a grave inroad by the perpetrators, not only of the
rule of law but also a grave inroad on the fundamental and human
rights of the persons who are the victims of such action.
Furthermore such abuse also infringes on the sovereignty of the
states that had made laws for the extradition and/or deportation of
persons from its territory. It follows that the issue then cannot be
restricted to whether or not there was a breach of the sovereignty of
states, but also whether or not there was a breach of the fundamental
and human rights of the individual.







In the case of such gross lawlessness, it cannot be of much
importance or relevance whether the action of the perpetrators are
called “abduction” or “disguised extradition” or “simulated
extradition”. In such circumstances it should not really matter
when a Court before which such victim is arraigned and which has to
decide whether or not the Court has jurisdiction or whether or not
the Court must exercise its discretion to decline jurisdiction,
whether the illegality pertaining to the victim’s being taken
prisoner, detention, removal and delivery, was in breach of one
or all of the following categories of law: International Law,
National law or domestic law, which includes statute law as well the
common law.







5. THE FINDING THAT NEITHER THE EXTRADITION LAWS, NOR THE
DEPORTATION LAWS OF BOTSWANA OR ZAMBIA OR NAMIBIA WERE COMPLIED WITH







Here the Court pointed out that the State on which the onus rest,
failed to provide any written documentation whatever indicating that
any of these laws were complied with. Even in the case of the arrest
of a person as a suspected prohibited immigrant, such person must be
properly arrested, informed why he/she was arrested, a proper written
deportation order served on such person, certain time allowed to
leave the country from which deported, and time allowed to make
representations and even appeal. The Court a quo gave
extensive and convincing reasons why it found that neither the laws
of extradition or those relating to deportation were complied with.
There is no ground whatever to interfere with that finding and no
further discussion of that finding is required at this stage.







The State did not seriously attack the finding in relation to the
respective illegal actions by Zambia and Botswana. The main thrust
of their defence in this regard was that whatever illegalities Zambia
and Botswana officials may have perpetrated, Namibian officials were
not party to such illegalities in those countries and only received
the accused handed to them – not knowing and not concerned whether
or not the Zambians or Botswanas acted against the law. Furthermore,
State counsel argue – the Court is prevented by the doctrine of
“act of state” and the International Law regarding sovereignty to
enquire into the illegalities committed by Zambia and Botswana and
consequently – there was no impediment for the Namibian Court to
exercise jurisdiction. As a further consequence the Court a quo’s
decision should be set aside and the trial continued on the merits.







The issue of whether or not the Namibian officials were parties to
the illegalities can best be dealt with after an examination of the
Namibian, Botswana and Zambian legislation in regard to extradition
and immigration and deportation and the discussion of the relevant
case law and its application to the issue before us.






SECTION
C:
THE RELEVANT LEGISLATION IN NAMIBIA, BOTSWANA AND ZAMBIA
RELATING TO THE EXTRADITION OF ALLEGED FUGITIVE OFFENDERS AND THE
DEPORTATION OF PROHIBITED IMMIGRANTS.









    1. The Namibian Extradition Act 11 of 1996.









This act was passed by the parliament of the independent and
sovereign Republic of Namibia in 1996, signed by the President in
terms of Article 56 of the Namibian Constitution.







The Act states its aim in the heading thereof as: To provide for
the extradition of persons accused or convicted of certain crimes
committed within the jurisdiction of certain countries, and to
provide for incidental matters.







The Act provides a comprehensive set of legal requirements and rules
of law to be complied with for extradition from Namibia and in
addition certain requirements and rules of law for persons
extradited to Namibia
.







In this regard this Act corresponds in its main features with such
Acts in Commonwealth countries and in all democratic countries in the
civilized world, including the countries directly involved in the
present case, namely Botswana and Zambia.







There is no dispute in the present case in regard to the existence of
similar statutes of Botswana and Zambia, which were handed in by
consent in the course of the trial.







I will refer for the purpose of brevity only to some of the
provisions of the Namibian Act, which in my view are most relevant to
the issues in the case before us.







Section 2, under the heading - "Liability to
extradition",
provides in subsection (1)(a): "Subject
to the provisions of this Act, any person in Namibia, other than a
Namibian citizen, who is accused of having committed an extraditable
offence within the jurisdiction of a country contemplated in section
4(1); may upon a request made by such country in terms of
section 7, be arrested and returned to that country in accordance
with the provisions of this Act,
or where applicable, the
terms of an extradition agreement
existing between Namibia and
such country, whether or not such offence was committed before or
after the commencement of this Act or before or after the date upon
which the relevant extradition agreement came into operation."







Section 3, under the heading "Meaning of 'Extraditable
offence'
, provides in its subsection (1):







"For the purposes of
this Act, 'extraditable offence' means an act, including an act of
omission, committed within the jurisdiction of a country contemplated
in section 4(1) which constitutes under the laws of that country an
offence punishable with imprisonment for a period of 12 months or
more and which, if it had occurred in Namibia, would have constituted
under the laws of Namibia an offence punishable with imprisonment for
a period of 12 months or more.”







Section 4, under the heading 'countries to which person may
be extradited',
provides:







"(1) Subject to the provisions of this Act, the extradition
of persons from Namibia may be effected to -




  1. any country which has entered into an extradition agreement with
    Namibia; and



  2. any other country, including a Commonwealth country, which has
    been specified by the President by proclamation in the Gazette for
    purposes of this Act.





  1. The President may revoke or amend any proclamation made under
    subsection (1)."








Botswana and Zambia were two of the countries of the
Commonwealth specified by Proclamation 5 of 1997 in terms of section
4(1)(b) of the Extradition Act to which extradition of persons from
Namibia be effected for the purposes of this Act. Under the heading
"Restrictions on return," a large number of
restrictions and conditions are spelled out in section 5, amongst
which are the following:







"5(1) Notwithstanding section 2 or the terms of any
extradition agreement which may be applicable, no person shall be
returned to a requesting country, or be committed or kept in custody
for the purposes of such return, if it appears to the Minister acting
under section 6(3), 10 of 16 or the magistrate concerned acting under
section 11 or 12, as the case may be -




  1. that the offence for which such return was requested is an
    offence of a political character;
    Provided that this provision
    shall not apply to any offence declared not to be a political
    offence for purposes of extradition by an multi-lateral
    international convention
    to which both Namibia and the
    requesting country concerned are parties;





  1. Notwithstanding section 2 or any extradition agreement which may
    be applicable, no person shall be returned to a requesting country,
    or be committed or kept in custody for the purposes of such return,
    unless provision is made in the relevant laws of the requesting
    country or it has otherwise been arranged with that country that
    such person shall not, unless he or she first had the opportunity to
    leave the requesting country, be detained, charged with or punished
    for any offence other than –





  1. the offence in respect of which such return was sought;



  2. any lesser offence proved on the facts in respect of which
    such return was sought;
    or



  3. an offence committed after such person has been so returned;




Provided that the Minister may give his or her written consent
that such person may be so returned to be dealt with in respect of
any offence not being an offence contemplated in paragraphs (a) (b)
or (c)."







Part III of the Act under the heading "Procedure",
deals in section 7 with "Requests for return of persons"
and provides as follows:







"7. Subject to section 8, a request for the return of a
person under this Act shall be made in writing to the Minister -








  1. in such manner as may be specified in an extradition agreement
    which might be applicable; or



  2. by a diplomatic or consular representative of the requesting
    country, accredited to Namibia,
    but if the requesting country is
    a Commonwealth country, such request may also be made by or on
    behalf of the government of such country."








Provision is made in section 8 for the particulars and documents
in support of a request for return,
which shall accompany the
request.







Those particulars are:







"(a) full particulars of the person whose return is requested
and information, if any, to establish that persons location and
identity;




  1. full particulars of the offence of which the person is being
    accused ----------a reference to the relevant provisions of the laws
    of the requesting country which were breached by the person and a
    statement of the penalties which may be imposed for such offence;



  2. a statement or statements containing information which set out
    prima facie evidence of the commission of the offence contemplated
    in par. (b) by the person whose return is requested;



  3. by the original or an authenticated copy of the external
    warrant
    issued in relation to the person whose return is
    requested;……”








Subsection (2) provides:







"All particulars and copies of all documents contemplated
in subsection (1) shall be made available to a person whose return
is requested
"







Section 9, under the heading



"Further particulars required by Minister",
provides that the Minister can require and request further
information.







Section 10, under the heading



"Authority to proceed and warrant of arrest,"
provides that the Minister shall, if he is satisfied that an order
for the return can lawfully be made, forward the request and the
relevant documents to a magistrate and issue to that magistrate an
authority in writing to proceed with an enquiry as provided for in
section 12.







Subsection (2) provides:







"Upon receiving the documents and authorization referred to
in subsection (1) or section 6(3), as the case may be, the Magistrate
shall, if he or she is satisfied that the external warrant
accompanying the request
is authenticated as contemplated in
section 18(1), endorse that warrant, and whereupon that warrant may
be executed in the manner contemplated in subsection (3) as if it
were issued in the Court of that magistrate under the laws of Namibia
relating to criminal procedure."







Subsection (3) provides that:







"A warrant endorsed in
terms of subsection (2) may be executed in any part of Namibia."







Subsection (4) provides that any person arrested under
subsection (3) shall in accordance with Art 11 of the Namibia
Constitution -







(a) be informed promptly in a language, which he understands of
the grounds for such arrest; and



(b) be brought before a magistrate within 48 hours of his or her
arrest, or if it is not reasonably possible, as soon as possible
thereafter to be dealt with in accordance with the provision of
section 12." (Section 12 related to a fair trial).







Section 11, under the heading







"Provisional warrants of arrest on grounds of urgency,"
provides for a shorter and less cumbersome route in case of urgency
applicable only to some specified countries.







Subsection (1) states:







"Notwithstanding section 7, and subject to subsection (2) of
this section -








  1. any diplomatic or consular representative of a country
    contemplated in section 4(1); (which includes Botswana and Zambia)
    or



  2. The International Police Commission (Interpol), on behalf of such
    country; or



  3. In the case of a Commonwealth country contemplated in section
    4(1), (which again includes Botswana and Zambia) in addition to the
    ways set out in paragraphs (a) and (b) of this subsection, the
    government of such country or any person acting on its behalf, may
    in urgent circumstances apply to the Minister for the arrest of a
    person who is accused of an extraditable offence in such a country,
    pending the communication of a request for the return of that person
    in accordance with the said section 7.”








Subsection (2) sets out the requirements for such an
application.







Section 12, under the heading -







"Enquiry proceedings for committal," sets out the
requirements for such an enquiry which are analogous to a preparatory
examination in criminal proceedings.







If the magistrate is satisfied at the end of such enquiry after
hearing the evidence tendered that -








  1. the offence to which the request in question relates is an
    extraditable offence;



  2. the country requesting the return of the person concerned is a
    country contemplated in section 4(1);



  3. the person brought before him or her ------------- is the person
    who is alleged to have committed such extraditable offence in such
    country;



  4. in the case of a person accused of having committed an
    extraditable offence, the evidence adduced would be sufficient to
    justify the committal for trial of the person concerned if the
    conduct constituting the offence had taken place in Namibia; and



  5. the return of the person concerned has been requested in
    accordance with this Act and that the return of the person is not
    prohibited under part II, the magistrate shall issue an order
    committing that person to prison to await the Ministers decision
    under section 16 with regard to that persons return to the
    requesting country.
















Subsection (7) provides that if the magistrate is not
satisfied that all the requirements have been complied with set out
in subsection (5) or if the evidence requested in terms of subsection
(4) is not forthcoming within a period of two (2) months, the
magistrate shall order the discharge of the person concerned, whose
return was requested and shall forthwith inform the Minister in
writing of such order and his reasons therefore.







Section 13, under the heading







"Certain conditions for return," provides that, a
person committed, shall not be returned -








  1. unless the Minister orders such return under section 16; and



  2. until the expiration of period of 15 days from the date of the
    order of committal in question or until the conclusion of an
    appeal
    made by such person or on his or her behalf in terms of
    section 14, whichever is the later.












Section 14, provides for an appeal, either by the
government of the requesting country or the person against whom a
committal order has been made.







Section 15, provides for a waiver by the person whose
return has been requested, of an enquiry as provided for in section
12, if certain requirements are complied with.







PART IV of the Act provides inter alia for
authentication of foreign documents, legal representation
at all stages from arrest to conclusion of an appeal, bail
and custody. As to legal representation the section provides
if no legal representative has been instructed by the person whose
return has been requested, the Director of the Legal Aid shall
instruct a legal representative to represent such person and if such
legal practitioner is not an employee of the Namibian Public Service,
any legal fees and disbursements shall be met by the country
requesting the return.







Section 17, under the heading "Extradition to
Namibia,
" lays down some very important conditions for
the prosecution of persons extradited to Namibia
in regard to
their prosecution in Namibia.







Subsection (1) provides:







"A person extradited to Namibia shall not, unless such
person has first had an opportunity to leave Namibia, be prosecuted
or punished in Namibia for any offence other than -








  1. the offence in respect of which such person was returned;



  2. any lesser offence proved on the facts on which such
    person was returned;



  3. an offence committed in Namibia after such persons return;
    or



  4. an offence not being an offence contemplated in par. (a), (b) or
    (c) and in respect of which the country returning such person
    have consented to the person being tried
    ."
















The provisions referred to supra, apply mutatis mutandis also
to cases of extradition to the requesting country of a person who had
already been convicted and sentenced in the requesting country but
who has escaped from custody and is at large in Namibia.









    1. The Immigration Control Act, No. 7 of 1993.









This Act of the Namibian Parliament is the only legislation providing
for the legal deportation of aliens or prohibited immigrants
from Namibia.







The procedure to deport prohibited immigrants is less cumbersome than
that of extradition.







In view of the fact that we are dealing in this case only with
alleged prohibited immigrants, I will refer only to the provisions
dealing with them and the requirements for a legal deportation in
their case.







PART VI of the Act under the subheading







"Prohibited immigrants," in section 39(2) set out
the various categories of prohibited immigrants.







None of the categories provided corresponds to the accused in this
case, were they persons who were in Namibia and were the Namibian
authorities to consider their deportation.







However, for an appropriate case, section 42 provides for
the "arrest, detention and removal of prohibited
immigrants".







Subsection (1) provides for the powers of an immigration officer
to arrest a person "who enters, or has entered or is found
within Namibia, on reasonable grounds is suspected of being a
prohibited immigrant in terms of any provision of the Act, an
immigration officer may arrest such person.”










Subparagraph
(b) provides that a police officer or other persons authorized in
writing may also arrest in certain specified circumstances.







Subsection (2) provides inter alia that an immigration
officer detaining a person shall inter alia,








  1. comply with the provisions of Art 11(5) of the Namibia Constitution
    which reads as follows:








"No persons who have been arrested or held in custody as
illegal immigrants shall be denied the right to consult
confidentially legal practitioners of their choice
, and there
shall be no interference with this right except such as is in
accordance with the law and is necessary in a democratic society in
the interest of national security or for public safety
."










Subsection
(3)(a) provides that the person arrested may be released, if a
guarantee for payment or cash is given, as surety that the person
arrested will comply with conditions.






Provision
is made for an investigation to establish whether or not the
person is a prohibited immigrant within a specified period of 14
days, unless the Minister consent to a longer period.







Section 43 and 44 provides that in terms of Art 11(4) of the
Namibian Constitution, the person detained may only be removed from
Namibia if the Tribunal established in terms of the Constitution
takes a decision to that effect.






Art
11(4) of the Namibian Constitution provides:







"Nothing contained in Subarticle (3) hereof shall apply to
illegal immigrants held in custody under any law dealing with illegal
immigration: provided that such persons shall not be deported from
Namibia unless deportation is authorized by a Tribunal empowered
by law to give such authority
."











Section 45 provides for witness and evidence before the
tribunal.



Section 46 provides that the Minister may modify a decision by
the Tribunal for removal.







Section 47 provides that a question of law can be reserved by
the Tribunal for decisions by the High Court.







Section 48, provides for steps to be taken where removal is
authorized.







These steps include inter alia a written notification of the
period within which the deportee must leave Namibia.







Section 49 of the Act, provides for special procedures for the
deportation of a person for reasons of state security, where the
Minister
gives the order for such deportation on the
recommendation of the Security Commission.







In such a case the Minister and the Security Commission will however
have to comply with Article 18 of the Namibian Constitution
providing for fair and reasonable procedures and decisions. (see in
this regard the decision of the Namibian Supreme Court in the case of
Government of the Republic of Namibia v Sikunda, NmSc, not
reported, 21-2-2002)







The Namibian Extradition Act and Immigration Control Act demonstrate
the vast difference in the concept and purpose of extradition
compared with deportation, although both have extensive requirements
for fair and reasonable procedures safeguarding not only the public
interest of the state or states involved, but safeguarding in the
public interest, the fundamental rights and freedoms of the
individual when the states involved seek to extradite or the states
seek to deport.







The legal extradition normally envisages the involvement of two
sovereign states and the person or persons to be extradited,
whereas the legal deportation normally envisages only the deporting
state and the person or persons to be deported.







As far as extradition is concerned, the purpose is to remove a
fugitive from justice from the state where he or she is to be found
to the requesting state, in order to either serve his or her sentence
if already convicted and sentenced, or to be tried in the requesting
state for specified offences allegedly committed in that state.







On the other hand the purpose in cases of deportation is to remove a
person from a state where his or her continued presence is not
regarded by the designated authorities as in the public interest of
that state and consequently order such person to leave that state,
irrespective of his/her destination.







Where deportation procedures are used but the real purpose is to
remove a fugitive from justice to a requesting state for trial or to
serve his sentence, such action is regarded as a form of "disguised
extradition".4









    1. The Botswana Extradition Act 18 of 1990 as amended by Act 9 of
      1997









The purpose of the Act appears from the heading, which read; "An
act to re-enact with amendments the law relating to the extradition
of persons accused or convicted of crimes committed within the
jurisdiction of other countries."







This heading in the context of the provisions of the Act indicates
that "the law" is the exclusive law for the
extradition and that extradition other than as provided in this law,
will be illegal in Botswana.







The aim is similar to that as stated in the Namibian Extradition Act
No. 11 of 1996, although the Botswana Act indicates with greater
clarity that it is "an act to re-enact with amendments 'the
law' relating to the extradition of persons."







The Namibian Act must nevertheless, by the clear implication from the
context and the fact that it has repealed effectively, the whole of
the previous Extradition Acts 67 of 1962 as well as the Extradition
Amendment Act 46 of 1967, constitute the exclusive legal vehicle for
extradition of fugitive offenders
entering or found in Namibia,
to countries which request their return.







The aforesaid Botswana Act embodies substantially the main features
of the Namibian Act although it is not clear from the documents
handed in by consent at the hearing in the Court a quo whether
the Botswana Act was made applicable to Namibia by order of the
Minister. It was apparently accepted at the aforesaid hearing that
it was made applicable to Namibia in accordance with section 3 of the
Botswana Act.







It was also accepted by the High Court of Botswana in the Botswana
decision of Kavena Likunga Alfred v The Republic of Namibia, case
No. 108/2001, 3/12/2002,
that the Botswana Act, "with
respect to the surrender to that country of any fugitive criminal,"

is applicable to Namibia.







I will refer only specifically to a few provisions that need to be
emphasized.







Section 3 of the Botswana Act clearly spells out the
application of the Act.







Subsection (1) provides:



"Where an arrangement has been made with any country, with
respect to the surrender to that country of any fugitive criminal,
the Minister may, having regard to the reciprocal provision
under the law of that country, by order published in the gazette
direct that the Act shall apply in the case of that country subject
to such conditions, exceptions and qualification, as may be specified
in the order.







Section 5, under the heading "Liability to
surrender"
provides:







"Where this Act applies in the case of any person who is in
or suspected of being in Botswana, shall be liable to be
apprehended and surrendered in the manner provided by this
Act, whether the crime in respect of which the surrender is
sought was committed before or after the commencement of this Act or
the application of this Act to that country, and whether there is or
is not concurrent jurisdiction in a Court of Botswana over that
crime."











Section 7, under the heading "restrictions on
surrender of criminals"
provides inter alia:








  1. A fugitive criminal shall not be surrendered if the offence
    in respect of which his surrender is demanded is one of a political
    character,
    or if it appears to the Court or the Minister that
    the requisition for his surrender has in fact been made with a
    view to try or punish him for an offence of a political
    character
    -------"








"(c) A fugitive criminal shall not be surrendered to
any country if there is the likelihood that he may be prejudiced
at his trial or punished, detained or restricted in his personal
capacity by reason of his political opinions."



(d) A fugitive criminal shall not be surrendered if the facts on
which the request was made, do not constitute an offence under the
laws of Botswana;"



"(e) A fugitive criminal shall not be surrendered to any
country unless provision is made by the law of that country, or by
arrangement, that the fugitive criminal shall not, until he
has been restored or had an opportunity of returning to Botswana, be
detained or tried in that country for any offence committed prior
to his surrender, other than the extradition crime proved
by the
facts on which the surrender is granted."



"(f) A fugitive criminal shall not be surrendered until the
expiration of 15 days from the date of being committed to prison to
await his surrender."




  1. An offence is not an offence of a political character -





  1. if it is an offence in accordance with the provisions of any
    international convention to which Botswana and the requesting
    country are parties and there is an obligation on each party to
    afford mutual assistance to surrender a fugitive criminal accused or
    convicted of the commission of the offence;




(b) if it is an offence against the life or person of a Head or
State or a member of his immediate family, a Head of Government, or a
minister or if it is any related offence;



(c) if it is murder or any related offence."







Section 8, under the heading "Request for surrender,
warrants etc and committal proceedings,"
provides in
subsection (1):







"(1) A requisition for surrender of a fugitive
criminal of any country, who is suspected of being in Botswana shall
be made to the Minister by a diplomatic representative or
consular officer of that country.








  1. The requisition shall be accompanied by a warrant of arrest of
    the fugitive country
    with the request that the warrant be
    endorsed for the arrest of the fugitive offender.









  1. The Minister may transmit the warrant to a magistrate to endorse
    it for the arrest of the fugitive criminal.”








Section 9 makes provision for the refusal where the offence is
too trivial.







Section 10, provides for the requirements for endorsement.







Section 11, provides for the requirements for a provisional
warrant.







Section 12, provides for the requirements of detention.







Section 13, provides for the requirements of a proper enquiry
in the form of a preparatory examination.







Section 14, deals with committal or discharge at the
conclusion of the hearing.







Section 15, provides for the special procedure required before
committal is ordered.







Subsection (2) provides for a duly authenticated record of
the case
prepared by a competent authority in the requesting
country in accordance with the provision of subsection (3) and (4).







Subsection (3) and (4) provides for the requirements of such a
record, inter alia the particulars of the fugitive, specifying
inter alia date and place, legal description and relevant
legal provisions, an abstract of the available evidence and a
verified copy of reproduction of exhibits, the duly authentication of
the record on oath or affirmation and a certificate by the
Attorney-General of the requesting state that he/she is satisfied
that there is a sufficient case to be tried in the Courts of the
requesting country.







Section 16, provides for a report of the committal, if any, to
the Minister, who can then decide on issuing a warrant of the
Minister for the surrender of the fugitive to the requesting country.







Section 17, provides for an appeal by an aggrieved party
to the High Court of Botswana.







Section 18, provides for the requirements of a waiver
by the fugitive, which if properly given, can then dispose of the
enquiry mentioned in section 13.







Section 19, provides for the surrender or discharge
of a fugitive offender.







Section 20, provides for the discharge of an apprehended
fugitive if he is not surrendered or conveyed out of Botswana within
two (2) months of his committal, or if an appeal has been lodged,
after the decision of the High Court on the matter.







It is abundantly clear that the Botswana Extradition Act provides
essentially for the same principles and the same procedures as the
Namibian Act.







The Botswana Act was the legal framework under which the Botswana
High Court in the recent case of Kavena Likwega Alfred v The
Republic of Namibia,
mentioned supra, had to decide on
appeal whether or not a group of Namibians, from the Caprivi area in
Namibia and who were accused of the same crimes as the present group
of 13 accused, had been correctly ordered by the magistrate to be
repatriated to Namibia for trial.







In that case, all the procedural requirements set out above were met
but the Court found that the crime of Treason was a political
crime
and that the fugitives could not be extradited for that
crime in terms of section 7(a) of that Act.







In regard to the other crimes listed which were extraditable, the
Court found that a case had been made by the then appellants in terms
of section 7(b) that there was a likelihood that the accused may be
prejudiced at their trial or punished, detained, or restricted
in their personal capacity by reason of their political opinions.







Evidence of other abuses in Namibia, including hate speech by some
SWAPO leaders, officials and members threatening harm and even death
to the accused, were some of the reasons for the Courts conclusion.







In the result the appeal by the accused was upheld, the order for
their repatriation set aside and the appellants released from
custody.







It is obvious that if the same legal procedures were used in regard
to accused Likanyi in this case, he may have been discharged by
either the Magistrate holding the enquiry or the High Court on
appeal.







Unfortunately, none of the requirements for a valid and lawful
extradition in terms of Botswana law and/or Namibian law were met.
The question is what is the effect of this fact on jurisdiction of
the Namibian Courts in the case of the said accused, who was the only
accused handed over by Botswana officials to Namibian officials.
This question will be dealt in further detail in the final part of
this judgment.







2.2 The Botswana Immigration Legislation Chapter 25:2.







This Botswana law once again corresponds in its main principles and
procedures with that of Namibia.







Section 7(a) - (h), sets out the list of persons who "shall
be prohibited immigrants and whose entry in or presence within
Botswana is unlawful- --"







Only the following categories could be applicable to the Namibians
who are the accused in this case:







"(f) any person who, in consequence of information received
from any source deemed by the President to be reliable, is declared
by the President to be an undesirable inhabitant or visitor to
Botswana;








  1. any person named in an order made under section 27(1) or of a
    class or description specified in such order." Section 27
    provides for the President to name a person or a class in the
    Gazette, who would in his opinion, endanger the peace and security
    in Botswana.








Section 10, provides for the "Detention of suspected
prohibited immigrants, by Immigration officers
for certain
specified period whilst inquiries are made.







Subsection (2) provides for a report by the Minister within
seven (7) days.







Subsection (4) and (5) provides however such person may be
released on certain conditions, pending the finalization of the
inquiries.







Section 11, provides for proper written notice to the
suspected prohibited immigrant setting out the grounds for the order
and appeals to the nearest magistrate court.







Such court may however reserve questions of law for decision by the
High Court.







Section 12, provides that the President and the Minister may
in certain specified circumstances, exempt prohibited immigrants.







Section 13, provides for the removal of certain prohibited
immigrants by an immigration officer or by a police officer acting
under the authority of an immigration officer, after conclusion of
all the procedures including an unsuccessful appeal.







Section 27(1) provides:







"The President may, by order published in the Gazette,
prohibit the entry into Botswana of any person (not being a citizen
of Botswana) who -








  1. is named in such order; or



  2. is of a class or description specified in such order, if in his
    opinion the presence within Botswana of such person, or a person of
    such class or description, as the case may be, would endanger the
    peace or security of Botswana.









  1. Any person named in an order made under subsection (1), or of a
    class or description specified in such order, who enters Botswana,
    except in accordance with an exemption given under section 12, may
    be arrested without a warrant and shall be guilty of an offence and
    liable to the penalties prescribed in section 32(4).









  1. Where any person who is named in an order made under subsection
    (1), or who belongs to a class or who conforms to a description
    specified in such order is found in Botswana, he shall be deemed to
    have entered in contravention of subsection (2) unless the contrary
    is proved in certain circumstances.”








Subsection (1) provides that subject to subsection (6),
“the President may make an order requiring any alien to leave
Botswana (in this section referred to as a deportation order) in
either of the following circumstances-








  1. if that alien is convicted of any offence punishable with
    imprisonment and the Court before which he is convicted, or any
    court to which his case is brought by way of appeal against
    conviction or sentence recommends that a deportation order be made
    in respect of that alien; ……”



  2. if the President deems it to be conducive to the public good to
    make a deportation order in respect of that alien."








Subsection (3) provides for an appeal against such order.







Subsection (4) provides: "a deportation order shall be
made in writing under the hand of the President and the President
shall cause the order to be served on the person on whom it relates
and shall state in the order the period that is to lapse after such
service before the order takes effect.











Subsection (5) provides:



If on the expiration of the period specified in the deportation
order the alien in respect of whom the order was made has not left
Botswana, he shall be removed from Botswana by an immigration
officer and section 13(2) and 14 shall have effect.”









    1. The Zambian Extradition Act









Section 5 of PART II of this Act provides:







"Where a country in relation to which this part applies duly
regards
the surrender of a person who is being proceeded against
in that country for an offence or who is wanted in that country for
the carrying out of a sentence, that person shall, subject to and
in accordance with the provisions of this part and of Part IV, be
surrendered to that country."







Section 6 under the heading – “Request for extradition”,
proceeds to lay down the following legal requirements of a
request:







"A request for the extradition of any person under this part
shall be made in writing to the Attorney-General and shall be
communicated by -








  1. a diplomatic agent of the requesting country, accredited to the
    Republic; or



  2. any other means provided in the relevant extradition
    provisions."








Section 7, provides for the "Documents to support
request"
and lays down the mandatory requirements. It
reads:







"A request for extradition under this part shall be
accompanied by the following documents:








  1. the original of an authenticated copy of the conviction and
    sentence immediately enforceable, or as the case may be, of the
    external warrant or other order having the same effect and
    issued in accordance with the procedure laid down in the law of the
    requesting country;









  1. a statement of each offence for which extradition is requested
    specifying, as accurately as possible, the time and place of
    commission, its legal description and a reference to the relevant
    provisions of the law of the requesting country;









  1. a copy of the relevant enactments of the requesting country, or
    where this is not possible, a statement of the relevant law; and









  1. as accurate a description as possible of the person claimed,
    together with any other information, which will help to establish
    his identity and nationality.”








(Subsection (a) requires the original or authenticated copy of the
external warrant or other order having the same effect and issued in
accordance with the procedures laid down in the law of the requesting
country.)







Section 8 lays down the procedure for the issue of a warrant
of arrest by a magistrate at the request of the Attorney General.







Extensive further provisions deals with the situation when the
Attorney General is not satisfied.







Subsection (4) makes it mandatory for the Attorney General to
refuse extradition if he is of the opinion that the case is one in
which extradition is prohibited under any provision of
Part IV or under the relevant extradition provisions.







Subsection (5) provides that:







"A person arrested under a warrant issued under this section
shall be informed, in a language that he understands, of the
reasons for his arrest and detention and shall be brought before a
magistrate as soon as practicable."











Section 9 provides for the issue of a provisional warrant in
certain circumstances.







Section 10, deals with the committal or discharge of the
detained person by a magistrate before whom he must be brought
after arrest.







The magistrate after hearing evidence, in the case of an extraditable
offence,
and the evidence of the accused if he testifies, if he
is satisfied that the extradition has been duly requested,
that this part applies to the requesting country, that extradition is
not prohibited by this part or Part IV, that the documents required
have been produced, shall make an order committing that person to
prison, there to await the warrant of the Attorney-General for the
surrender to the requesting country and shall forward a copy of such
committal to the Attorney-General.







On the other hand the magistrate
shall, if of the opinion that the information produced is
insufficient, “order that the person claimed be discharged and
shall forthwith notify the Attorney-General in writing.”







Section 11, provides for a lapse of time of at least 15 days
from the date of committal to the date of surrender or from the date
of the conclusion of any proceedings brought by such person.







Section 12, deals with "the surrender of the prisoner under
warrant of the Attorney General"
as follows:







"(1) Subject to section 11 and 38, if the person claimed is
committed under the section and is not discharged by the decision of
the High Court in any habeus corpus proceedings, or pursuant to an
application under subsection (2) of section 31, issue a warrant
directing that the person claimed be brought to some convenient point
of departure from the Republic and there to be delivered to such
other person as, in the opinion of the Attorney-General
, is duly
authorized by the requesting country to receive him and convey him
from the Republic to the requesting country; and he shall be
surrendered accordingly…”







Section 13, defines an "extraditable crime" as
follows:







"For the purposes of this part 'extraditable crime' means an
offence (wherever committed) against the law in force in the Republic
and punishable under the laws of the Republic, being an offence for
which extradition is provided under the terms of an extradition
agreement, or for which reciprocal extradition facilities are
afforded
between the Republic and the requested country; the
requested country being one to which this part applies by virtue of
an order made pursuant to section 3.”







Section 31, deals with political offences and provides:







(a) If the Attorney-General, believes for any reason for which
extradition is sought is a political offence or







(b) Receives from a magistrate a request pursuant to subsection
(2); he shall refer the request for extradition together with the
accompanying documents and such other documents that he may deem to
be relevant and also a statement of any other relevant information he
may have in that regard to the President for a ruling on the issue.



This provision is in addition to the right given to the
detainee at the enquiry proceedings before the Magistrate in
accordance with subsection (2) of section 31, to apply to the
Magistrate to submit to the Attorney-General a request for the
determination of the question whether the offence "is or is
not a political offence or an offence connected to a political
offence.







Section 17, deals with extraditable offences.






The
crimes of Treason and Sedition are not mentioned in that schedule
obviously because such offences are offences of a political nature
and extradition is thus not allowed in the case of such alleged
crimes.







The crime of Murder, as well as any offence connected to
the alleged political offence
, will then also be an offence in
regard to which extradition will be prohibited.







Section 19 further provides that if the President notifies the
Attorney General that he - the President is satisfied that -








  1. the request for the surrender of the person claimed was made for
    the purposes of prosecuting and punishing him on account of his
    political opinions; or









  1. if the person claimed is surrendered to that country he may be
    prejudiced at his trial, or punished, detained or restricted in his
    personal liberty, by reason of his political opinions."








Section 24(1) provides for the
proceedings after arrest on a warrant as follows:







“A person who is arrested under any warrant pursuant to Section 21,
shall be informed, in a language he understands, of the reasons for
his arrest and detention and shall, unless he is sooner discharged,
be brought as soon as practicable before a magistrates court.”







Section 24 provides that the Magistrate shall, if the prisoner
is committed for extradition, inform the prisoner that he will not be
surrendered until a period of 15 days from the date of committal or
conclusion of any habeus corpus proceeding and that if he asserts
that his detention is unlawful, he may apply to a Court of
competent jurisdiction, for a writ of habeus corpus.







Section 49, provides for the procedure after arrest.



Subsection (1) states:







"A person who is arrested under an external warrant
endorsed pursuant to section 46, or under a provisional warrant
issued pursuant to section 47,….shall be informed in the
language which he understands of the reasons for his arrest and
detention
and shall as soon as practicable be brought before a
magistrate."





Section 52 further provides a further remedy to the person who
is ordered by the Magistrate to be surrendered. He/she can
apply to the High Court of Zambia for a review of the order
made by the Magistrate.







The judgment of Horn J in the Botswana High Court in the case
of Kakena v Ors and The Republic of Namibia decided on 3
December 2002, dealt with an appeal from the decision of a magistrate
to extradite to Namibia another group of 13 Namibians from Caprivi.







In that case Namibia had formally complied with all the required
legal procedures to obtain extradition. The High Court set aside the
decision of magistrate to make an extradition order and ordered the
release of the detainees.







In the judgment the concept of “offence of a political character”
was extensively dealt with and the criteria from several judgments
applied, some of these were:







Hawkins J in Re Castioni (1891)/49 accepted a definition of a
fellow judge Stephen J in his book "History of the
Criminal Law of England" in Vol. 11, p. 70 - 71 where it is
stated in regard to the Extradition Act of the Swiss Republic:







"I think therefore, that the expression in the Extradition
Act ought, (unless some better interpretation of it can be suggested)
to be interpreted to mean that fugitive criminals are not to be
surrendered for extradition crimes, if those crimes were incidental
to and formed part of political disturbances ----."







Horn J further referred to the case of Kokzynski where Lord
Goddard, CJ stated:







"-----but in my opinion the meaning is this: "If, in
proving the facts necessary to obtain extradition,
the evidence
adduced in support shows the offence has a political character, the
application must be refused, but although the evidence in support
appears to disclose merely one of the scheduled offences, the
prisoner
may show that, in fact, the offence is of a political
character. Let me try to illustrate this by taking a charge of
murder.





The evidence adduced by the requisitioning state shows that the
killing was committed in the cause of a rebellion. This at once show
the offence to be political; but if the evidence merely shows that
the prisoner killed another person by shooting him on a certain day,
evidence may be given, to show that the shooting took place in the
cause of a rebellion. In other words the political character of the
offence may emerge either from the evidence in support of the
requisition or from the evidence adduced in answer."











In my respectful view Horn J correctly relied on these expositions to
come to his conclusion.







However it is not necessary to take this matter further at this
stage, because there was no dispute in the Court a quo about
the true meaning of the term "offence of a political character"
or offence connected to it.







The Government of Botswana has taken the matter on appeal but the
judgment on appeal has not come to hand at the time of writing this
judgment.









    1. The Zambian "Immigration and Deportation Act - Chapter
      123.
      "









The introduction of the Act states:







"An Act to regulate the entry into and the remaining within
Zambia of immigrants and visitors; to provide for the removal from
Zambia of criminals and other specified persons; and to make
provision for matters incidental to the foregoing."















In Section 2 of the Act "prohibited immigrant
is defined as "a person described in section 22 as a prohibited
immigrant in relation to Zambia."







(Section 22(1) in turn provides:







Any person who belongs to a class set out in the Second
Schedule shall be a prohibited immigrant in relation to Zambia.”
(The second schedule sets out Classes A - H, most of, which are not
applicable to any of the accused).











Subsection (2) of section 22 further provides that:







"Any person whose presence in Zambia is declared in writing
by the Minister to be inimical to the public interest, shall
be a prohibited immigrant in relation to Zambia."















Subsection (5) of section 22 provides that the Minister may
exempt any person from falling under the aforesaid classes.







Subsection 23 (1) provides:







Any immigration officer may, or if so directed by the Minister
in the case of a person to whom subsection (2) relates, shall by
notice served in person on any prohibited immigrant,
require him
to leave Zambia.”















Subsection (2) provides:







"Any notice served in accordance with the provisions of
subsection (1) shall specify:








  1. the class set out in the Second Schedule to which it is
    considered he belongs or that he is a person to whom subsection (2)
    of section 22 relates;



  2. the period within which he is required to leave Zambia; and



  3. the route by which he shall travel in leaving Zambia.”
















Section 24 provides that “a person who has received a notice
under section 24, may make written representations to the minister
against such requirement to leave, and deliver it to any immigration
officer, police officer or prison officer.”







The Minister shall notify the person who made the
representation whether or not his representations were successful.







Section 26 (2) provides that “any person who in the
opinion of the minister
is by his presence or by his conduct
likely to be a danger to peace and good order in Zambia may be
deported from Zambia pursuant to a warrant under the hand
of the Minister.







Section 26(3) provides:







"Any prohibited immigrant who -








  1. Having been required under section 23 to leave Zambia, fails to
    do so within the prescribed period; or



  2. Fails to comply with any condition specified in a temporary
    permit issued to him; may without warrant be arrested, detained and
    deported from Zambia by an immigration officer or police officer.















Section
26(4) provides:







An immigration officer may without warrant arrest, detain
and deport
from Zambia any person whom, within 7 days of
appearing before an immigration officer in accordance with section
nine,
he reasonably believes to be a prohibited immigrant -








  1. who is not the holder of a valid temporary permit;



  2. who has not been served with a notice under section 23 requiring
    him to leave Zambia; and



  3. with respect to whom the procedure in section 23 is inadequate to
    ensure the departure from Zambia of such person."
















Section 9 however deals with entrants who arrive in Zambia by air -







(a) at any prescribed airport and intends to leave the
precincts of such airport
shall forthwith proceed to and appear
before the nearest immigration officer.



(b) at any place other than a prescribed airport shall forthwith
proceed to and appear before the nearest immigration officer;”















The provisions of section 26(4) are therefore only applicable to
persons who arrive in Zambia by air.







Section 35, deals specifically with "Reasons to be given
for arrests and detention and provides:







"Every person arrested or detained under the provisions of
this Act shall be informed as soon as reasonably practicable in a
language which he understands of the reason for his arrest or
detention.”











4. International covenant of civil and political rights







The word “covenant” is defined in the Oxford Advanced learner’s
dictionary of Current English by A.S. Hornsby as “a formal
agreement that is legally binding”. I adopt this definition as
correct. The title “International Covenant of Civil and Political
Rights” therefore means a legally binding international agreement.







The recognized sources of International Law are: Custom; Treaties;
or Conventions; General Principles of Law as recognized by Civilised
Nations; Equity; Judicial Decisions and Decisions of Municipal
Courts; Resolutions of the political organs of the United Nations.
Conventions such as the International Covenant of Civil and Political
Rights and the United Nations Convention and Protocol in respect of
Refugees, have indeed become part of International Law.5







This Covenant was acceded to by Namibia on 28/11/1994 and has became
part of the law of Namibia by virtue of art. 144, read with articles
63(e) and 32(3)(e) of the Namibian Constitution.6







Some of its provisions have also been followed almost literally in
the Namibian Constitution. Not only has it become part of Namibian
domestic law by virtue of the Namibian Constitution, but some of its
basic principles have been incorporated into the Namibian, Botswana
and Zambian laws relating to extradition, deportation and
repatriation. The Convention is also part of International Law and
breaches of it are not only breaches of the domestic law of these
countries, but breaches of International Law.7







Some of the provisions relevant to the issues in the instant case,
are:







Article 4:







1. In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the
States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with their other obligations under
international law an do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.







2. No derogation from articles 6, 7, 8 ( paragraphs 1 and 2), 11,
15, 16 and 18 may be made under this provision.







3. Any State Party to the present Covenant availing itself of the
right of derogation shall immediately inform the other States Parties
to the present Covenant, through the intermediary of the
Secretary-General of the United Nations, of the provisions from which
it has derogated and of the reasons by which it was actuated. A
further communication shall be made, through the same intermediary,
on the date on which it terminates such derogation.







Article 5:







1. Nothing in the present Covenant may be interpreted as implying
for any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights and
freedoms recognized herein or at their limitation to a greater extent
than is provided for in the present Covenant.









    1. There shall be no restriction upon or derogation from any of the
      fundamental human rights recognized or existing in any State Party
      to the present Covenant pursuant to law, convention, regulations or
      custom on the pretext that the present Covenant does not recognize
      such rights or that it recognizes them to a lesser extent.”













Article 9








  1. Everyone has the right to liberty and security of person. No one
    shall be subjected to arbitrary arrest or detention. No
    one shall be deprived of his liberty except on such grounds and in
    accordance with such procedure as are established by law.









  1. Anyone who is arrested shall be informed, at the time of arrest,
    of the reasons for his arrest and shall be promptly informed of any
    charges against him.









  1. Anyone arrested or detained on a criminal charge shall be brought
    promptly before a judge or other officer authorized by law to
    exercise judicial power and shall be entitled to trial within a
    reasonable time or to release. It shall not be the general rule
    that persons awaiting trial shall be detained in custody, but
    release may be subject to guarantees to appear for trial, at any
    other stage of the judicial proceedings, and, should occasion arise,
    for execution of the judgment.









  1. Anyone who is deprived of his liberty by arrest or detention
    shall be entitled to take proceedings before a court, in order that
    that court may decide without delay on the lawfulness of his
    detention and order his release if the detention is not lawful.









  1. Anyone who has been the victim of unlawful arrest or detention
    shall have an enforceable right to compensation.












"Article 10







All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human
person."







"Article 12












  1. Everyone lawfully within the territory of a State shall, within
    that territory, have the right to liberty of movement and freedom to
    choose his residence.









  1. Everyone shall be free to leave any country, including his own.









  1. The above-mentioned rights shall not be subject to any
    restrictions except those which are provided by law, are necessary
    to protect national security, public order (order public), public
    health or morals or the rights and freedoms of other, and are
    consistent with the other rights recognized in the present Covenant.









  1. No one shall be arbitrarily deprived of the right to enter his
    own country."








"Article 13







An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in pursuance of a
decision reached in accordance with law and shall, except where
compelling reasons of national security otherwise require, be allowed
to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the
competent authority."











Art. 14 is the equivalent of part. 12 of the Namibian
Constitution relating to the requirements of a fair trial.







Art. 16: “Everyone shall have the right to
recognition everywhere, as a person before the law.







A few further comments on these provisions are apt:







Ad art. 9.1, art. 10, art. 13 and art. 16: not only
arbitrary arrest: is illegal but alkso “arbitrary
detention
”.







Any “abduction”, abduction in essence, or act tantamount
to abduction or the act of taking prisoner or any other action
depriving a person of his liberty
, is a contravention of the
convention and illegal in domestic law, as well as international law,
except if such action was taken on grounds and in accordance with
such procedures as are established by law.







Art. 16 reaffirms in effect that no person, anywhere, may be
treated as a mere chattel that can be bundled across international
boundaries at the whims of unauthorized officials, in defiance of
their fundamental rights.







In the instant case, the action taken against the accused were not
taken in accordance with legal procedures and on grounds established
by law.







5. The Convention relating the status of refugees and stateless
persons as supplemented by the protocol relating to the status of
refugees
:







The aforesaid convention entered into force on 22 April 1954 and the
Protocol on 4th October 1967.







Namibia acceded to the Protocol on 17 February 1995 and Zambia and
Botswana became parties prior that date.







5.1 A “refugee” after amendment by the aforesaid Protocol, is a
person who, owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular
social group or political opinion, is unable, or owing to such fear,
is unwilling to avail himself of the protection of that country; “or
who not having a nationality and being outside the country of his
former habitual residence is unable or, owing to such fear, is
unwilling to return to it.”







In the instant case all the accused are Namibians and the
lastmentioned category in the definition does not apply. All the
accused, according to their own uncontested version, were such
refugees.







5.2 However, par. F of the aforesaid convention, states that: The
Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:







(a) he has committed a crime against peace, a war crime, or a crime
against humanity, as defined in the international instruments drawn
up to make provision in respect of such crimes;







(b) he has committed a serious non-political crime outside the
country of refugee prior to his admission to that country as a
fugitive.







(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.









    1. Article 16: Access to Courts:









This article provides:







“1. A refugee shall have free access to the courts of law on the
territory of all contracting states.







2. A refugee shall enjoy in the Contracting state in which he has his
habitual residence the same treatment as a national in matters
pertaining to access to the Courts, including legal assistance and
exemption from cautio judicatum solvi.”







The above exclusion does not apply to any of the accused,
alternatively has not been proved by the State to apply to any of the
accused.







In this regard the principle of international law that a person shall
be presumed “not guilty” until proved guilty shall apply. This
is also why the extradition procedures provided for by law requires
the requesting state to prove a prima facie case for
specified offences, before extradition will be ordered.







5.3 Article 31: Refugees unlawfully in the country of refuge








  1. The Contracting States shall not impose penalties, on account
    of their illegal entry of presence, on refugees who, coming directly
    from a territory where their life or freedom was threatened in the
    sense of article 1, enter or are present in their territory
    authorization, providedt they present themselves without delay to
    the authorities and show good cause for their illegal entry or
    presence.









  1. The Contracting States shall not apply to the movements of such
    refugees restrictions other than those, which are necessary and such
    restrictions, shall only be applied until their status in the
    country is regularized or they obtain admission into another
    country. The Contracting States shall allow such refugees a
    reasonable period and all necessary facilities to obtain admission
    into another country.












5.4. Article 32: Expulsion








  1. The Contracting States shall not expel a refugee lawfully in
    their territory save on grounds of national security or public
    order.









  1. The expulsion of such a refugee shall be only in pursuance of
    a decision reached in accordance with due process of law.

    Except where compelling reasons of nations security otherwise
    require, the refugee shall be allowed to submit evidence to clear
    himself, and to appeal to and be represented for the purpose before
    competent authority or a person or persons specially designated by
    the competent authority.









  1. The Contracting States shall allow such a refugee a reasonable
    period within which to seek legal admission into another country.
    The Contracting States reserve the right to apply during that period
    such internal measures, as they may deem necessary.












5.5 Article 33: Prohibition of expulsion or return (‘refoulement’)








  1. No Contracting State shall expel or return (‘refouler’) a
    refugee in any manner whatsoever to the frontiers of territories
    where his life or freedom would be threatened on account of his
    race, religion, nationality, membership of a particular social group
    or political opinion.









  1. The benefit of the present provision may not, however, be claimed
    by a refugee whom there are reasonable grounds for regarding as a
    danger to the security of the country in which he is, or who, having
    been convicted by a final judgement of a particularly serious crime,
    constitutes a danger to the community of the country." (my
    emphasis added)














    1. Art. 35: Co-operation of the National Authorities with the
      United Nations.









35.1 The contracting states undertake to cooperate with the Office of
the united Nations High Commissioner for Refugees, or any other
agency of the United Nations which may succeed it in the exercise of
its functions and shall in particular facilitate its duty of
supervision the application of the provisions of the Convention.









    1. Art. V (of the Protocol) under heading: Voluntary
      repatriation
      :









This article of the aforesaid Protocol reaffirms:







1. The essentially voluntary character of repatriation shall be
respected in all cases and no refugee shall be repatriated against
his will.









    1. The country of asylum, in collaboration with the country of origin,
      shall make adequate arrangements for the safe return of the
      refugees who request repatriation.” (My emphasis added.)









5.8 OAU Convention governing the Specific Aspects of Refugee
problems in Africa.







In its Resolution No. 10, the aforesaid UNO convention was adopted by
the Assembly of Heads of State and Government, calling upon Member
States of the Organization who had not already done so, to accede to
the aforesaid United Nations Convention of 1957 and the Protocol of
1967 relating to the Status of Refugees, and meanwhile to apply their
provisions to refugees in Africa.







The OAU convention repeated some of the principles of the
international convention and elaborated on some, but did not adopt
any principles in conflict with the aforesaid international
convention and protocol.







In Article II, under the heading “Asylum” the following
principles are stated:







1. Member States of the OAU shall use their best endeavours
consistent with their respective legislations to receive refugees and
to secure settlement of those refugees who, for well-founded reasons,
are unable, unwilling to return to their country of origin or
nationality.







2. The grant of asylum to refugees is a peaceful and humanitarian
act and shall not be regarded as an unfriendly act by any Member
State.







3. No person shall be subjected by a Member State to measures such
as rejection at the frontier, return or expulsion, which would compel
to return to or remain in a territory where his life, physical
integrity or liberty would be threatened for the reasons set out in
Article 1, paragraphs 1 and 2.







4. Where a Member State finds difficulty in continuing to grant
asylum refugees, such Member State may appeal directly to other
Member States and through the OAU, and such other Member States shall
in the spirit of African solidarity and international co-operation
take appropriate measures to lighten the burden of the Member State
granting asylum.







5. Where a refugee has not received the right to reside in any
country asylum, he may be granted temporary residence in any country
of asylum in which he first presented himself as a refugee pending
arrangement for his resettlement in accordance with the preceding
paragraph.







6. For reasons of security, countries of asylum shall, as far as
possible, settle refugees at a reasonable distance from the frontier
of their country of origin.”

















    1. It should be noted that the abovestated UNO convention and Protocol
      on the Status of Refugees, became part of the domestic law of
      Namibia in the same manner as the International Covenant of Civil
      and Political Rights, dealt with under Section C4 supra.
      (See art. 144 of the Namibian Constitution, read with articles
      63(e) and 32(3)(e).)









Similarly the said UNO convention and Protocol became part of the
domestic law of Zambia and Botswana upon their accession thereto.









    1. It should be clear from the above and the facts of the instant
      case, that not only have the unauthorized officials of
      Botswana and Zambia, in conjunction with the unauthorized
      officials of Namibia, failed to act in terms of the provisions of
      the respective domestic, extradition and deportation laws, but they
      have also acted in defiance of and in conflict with the
      International Covenant of Civil and Political Rights pertaining to
      persons in the position of the accused, as well as of the United
      Nations Convention and Protocol relating to refugees.









In so doing, these unauthorized officials have once again not only
acted in conflict with domestic law, but also in conflict with
International Law.



















SECTION D: THE RELEVANT CASE LAW







1. Ocalan v Turkey, 15 BHRC (App. No. 46221/99)



This is a decision of the European Court of Human Rights, where the
applicant, Ocalan, applied to that Court for certain relief –
during his detention as well as after his conviction and sentence of
death by a Turkish Court.







He was prosecuted and convicted in regard to alleged terrorist
activities in the Turkish state during which there was high loss of
life. He was arrested in Kenya and removed to Turkey for detention
and trial. His arrest and removal was facilitated by close
cooperation between Turkish and Kenyan officials which amounted to an
abduction.







Distinguishing features distinguishing this case from the instant
case before us are inter alia the following:







(i) The European Court was not deciding whether or not it or the
Turkish Court had jurisdiction to try Ocalan for his alleged crimes.







(ii) The applicant asked the European Court to rule on various
alleged contraventions of the European Convention by the Turkish
authorities.







(iii) There was no extradition treaties or reciprocal legislation
relating to extradition and/or deportation in existence applicable to
Kenya and Turkey “laying down a formal procedure to be followed”.
The applicant was detained and removed in accordance with “informal
arrangements for cooperation”.







(iv) There were seven (7) formal legal warrants of arrest issued by
the appropriate legal authorities for the arrest of Ocalan, as well
as a so-called “red notice” circulated by INTERPOL, which amounts
to a “wanted notice”.








  1. The European Court had jurisdiction to decide whether or not the
    procedures of arrest, detention, removal trial and sentence
    contravened the European Convention. The aforesaid convention
    contained many provisions similar to those in the Namibian
    Constitution pertaining to breach of the provisions of that
    Convention. On the other hand, Kenya was apparently not a member
    state of the European Council and thus not bound by its Convention
    and the various Protocols applicable to members. The Court thus had
    no jurisdiction over breaches by Kenya of the European Convention
    and the relevant Protocols.









  1. The Court pointed out that although states faced immense
    difficulties in protecting their communities from terrorist
    violence, the Convention prohibited in absolute terms torture or
    inhuman or degrading punishment, irrespective of the victims
    conduct. These prohibitions are similar to fundamental rights and
    freedoms, but it is not clear from the available report of the
    Court’s judgment what sanction the European Court could impose if
    a breach is found.








The Court in its assessment nevertheless took note of the fact that
the Kenyan authorities cooperated with the Turkish authorities in the
arrest and removal of Ocalan from Kenya to Turkey and that Kenya had
at no stage complained that Kenya’s sovereignty was breached by the
Turkish officials. The Court however, did not at any stage find
itself prohibited from enquiring into the facts pertaining to the
arrest and removal of Ocalan from Kenya and in fact enquired into
those facts.








  1. The Court in fact found several breaches by Turkey of the
    requirements of a fair trial and in particular in regard to the
    imposition of the death sentence by the Turkish Court.









  1. In regard to the applicant’s arrest and detention the Court held
    as follows:








It follows that the applicant’s arrest on 15/2/1999 and his
detention must be regarded as having been in accordance with ‘a
procedure prescribed by law’ for the purposes of art. 5(1)(c) of
the convention. Consequently there has been no violation of art.
5(1) of the convention.”















In coming to its abovestated conclusion, the Court in its assessment
first stated the general principles that it would apply. In this
regard the Court stated inter alia:







Par. 86 of the Court’s judgment:







The Court reiterates that on the question whether detention is
‘lawful’ including whether it complies with a ‘procedure
prescribed by law, the convention refers back essentially to
national law
and lays down the obligation to conform to
the substantial and procedural rules thereof. However, it
requires in addition that any deprivation of liberty should be
consistent with the purpose of article 5, namely to protect
individuals from arbitrariness. What is at stake is not only
the ‘right to liberty’ but also the ‘right to security of
person’. ….. The Court has previously stressed the importance of
effective safeguards, such as the remedy of habeus corpus, to provide
protection against arbitrary behaviour and incommunicado detention…”







Par. 89 of the judgment:







The Court points out that the Convention does not prevent
cooperation between states, within the framework of extradition
treaties
or in matters of deportation, for the purpose of
bringing fugitive offenders to justice, provided that it does
not interfere with any specific rights recognized in the Convention…”















The specific rights referred to will obviously include the
fundamental rights and freedoms relating to the “rights to liberty”
and the “right to security” of the person.







Arbitrary arrest and detention by vigilante and other
unauthorized groups or persons, depriving a person of the aforesaid
rights, freedoms and guarantees, obviously cannot be legally
permissible and will thus be in conflict with the convention.







Par 90 of the judgment:







As regards extradition arrangements between states when
one party is a party to a convention and the other not, the Court
considers that the rules established by an extradition treaty, or
in the absence of any such treaty, the cooperation
between the
states concerned are also relevant factors to be taken into
account for determining whether the arrest that has led to the
subsequent complaint to the Court was lawful
.







The fact that a fugitive has been handed over as a result of
cooperation between states does not in itself make the arrest
unlawful or therefore give rise to any problem under art. 5
…”















This paragraph is no justification whatever to conclude that even
where there is an extradition treaty or reciprocal legislation
between states regarding extradition and deportation, that
cooperation and action in conflict with such treaties and laws will
nevertheless be lawful.







Par 91 of the judgment:







The Court further notes that the Convention contains no
provisions concerning the circumstances in which extradition may be
granted.”















In the case before this Court, the Namibian Court is in a completely
different position, because it has to decide in the light of
applicable legislation – many provisions whereof are stated in
mandatory form by the sovereign parliaments of the respective
governments and which legislation is further similar and reciprocal.







The European Court continued:















“It considers that, subject to its being the result of
cooperation between the States concerned and provided that the legal
basis for the order for the fugitives arrest is an arrest warrant –
issued by the authorities of the fugitives state of origin, even an
extradition in disguise’ cannot as such be regarded as being
contrary to the convention
………”















In the instant case there were no warrants of arrest issued by the
authorities pertaining to the 13 accused which provided the legal
basis for their being taken prisoner, detained and removed over
territorial borders
.







Consequently there was no legal basis as envisaged and required by
the European Court for the taking prisoner in Botswana and Zambia,
their subsequent detention and handing over to Namibian officials for
trial in Namibia.







Par 92 of the judgment:







Independently of the question whether the arrest amounts to a
violation of the law of the State in which the fugitive has taken
refuge (a question which only falls to be examined by the Court
(i.e. now the European Court) if the host state is party to the
convention
– it must be established to the Court ‘beyond all
reasonable doubt’ that the authorities of the State to which the
applicants had been transferred have acted extra-territorially in a
manner which is inconsistent with the sovereignty of the host state
and therefore contrary to international law……..”











Par 101 of the judgment:







In the light of these considerations and in the absence of
any extradition treaty between Turkey and Kenya laying down a formal
procedure to be followed, the Court holds that it has not been
established beyond all reasonable doubt that the operation carried
out in the instant case partly by Turkish officials and partly by
Kenyan officials amounted to a violation by Turkey of Kenyan
sovereignty, and consequently of international law
.”











Par 102 of the judgment:







The Court holds, lastly, that the fact that the arrest warrant
was not shown to the applicant until he was detained by the members
of the Turkish security forces in an aircraft at Nairobi airport (in
Kenya) does not deprive his subsequent arrest of a legal basis under
Turkish law.”











It should be noted that the Court concentrated in par 100 –102
supra on whether or not there was in the particular instance a breach
of “international law” in regard to the arrest in and
removal from Kenya to Turkey.







Its conclusion in this regard was specifically and unequivocally
qualified by the fact that in the case of Ocalan – there was “no
extradition treaty between Turkey and Kenya laying down a formal
procedure to be followed
.”







It must be obvious that when there is such extradition treaty and/or
reciprocal provisions of the laws of the countries concerned
pertaining to extradition and deportation, the enquiry of necessity
is much wider than whether or not the conduct in question was in
breach of international law or not. At any event, even the
issue whether or not such unlawful conduct would be in breach of
international law or not, would be much more complicated. But
whether or not such lawless conduct by officials in breach of the
relevant laws of their own countries is a breach of ‘international
law’ or not, cannot lay all the issues to rest. This is so because
such an approach would just brush from the table the fundamental
rights and freedoms of the person affected and the procedural
guarantees for his/her protection, as if all that matters is the
international relations between sovereign states.







It seems to me that this was not intended by the European Court as
the consequence of its formulation of par. 100 & 101 supra,
particularly in view of the principles it set out in par. 86 for the
protection of the individual against arbitrariness and his/her right
to protection of the right to “liberty” and “security of the
person.”







The simple solution is that the test for a domestic Court seized with
the question is not limited to an enquiry whether or not there was a
breach of international law.







It must be kept in mind that the Appellate Division of the South
African Supreme Court in the Ebrahim decision 8
based its decision on the South African common law, which in turn is
based on Roman Dutch Law, as adapted to local circumstances. Roman
Dutch Law is similarly the basis of the Namibian common law.







In its assessment and its consideration of the legality of arrest and
handing over procedures where states cooperate in one form or
another, the European Court made the following general observation
which I can only endorse as far as it goes:







Inherent in the whole of the convention is a search for a fair
balance between the demands of the general interest of the community
and the protection of the individuals fundamental rights. As
movement around the world becomes easier and crime takes a larger
international dimension, it is increasingly in the interest of all
nations that suspected offenders who flee abroad should be brought to
justice. Conversely, the establishment of safe havens for fugitives
would not only result in danger for the State obliged to harbour the
protected person but also tend to undermine the foundations of
extradition…..”















The answer it seems to me is for states to enact fair but effective
procedures, simplified if necessary, for extradition and/or
deportation in the exercise of their sovereignty. Then to give
effect to due process and the rule of law as laid down by their own
laws and that of democratic countries the world over and to intensify
and expedite international cooperation to this end.







In view of the above analysis, I do not find any support for the
appellants’ case in the decision by the European Court in Ocalan
v Turkey
.







1.2. BOZANO V FRANCE 9



In this decision of the European Court of Human Rights, the question
of an alleged deportation, and disguised extradition and abuse of
power was dealt with.







The facts and decision is correctly summed up in the headnote –
which reads as follows:







The applicant was convicted in absentia in Italy of serious
crimes. He was arrested in France, whence the Italian authorities
unsuccessfully sought his extradition. Their application to a French
Court was refused on the ground that the procedure followed in the
trial was incompatible with French public policy. This ruling was
final and binding on the French government, which then issued a
deportation order against the applicant, who was taken by police
against his will to Switzerland, and from there successfully
extradited to Italy to serve his sentence. In legal proceedings
before the French courts, the deportation order was quashed as an
abuse of power.”















The Court, by a majority of 11 judges – 2, expressed the opinion
that there was in this case a breach of Art 5(1) of the convention in
that the applicants arrest and detention with a view to his
deportation were not lawful within the meaning of subparagraph (f) of
this provision.







Subsection 5(1)(f) provides:







Everyone has the right to liberty of the person. No one shall
be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:







(f) the lawful arrest or detention of a person – against whom
action is being taken with a view to deportation or extradition.”















The Commission dealt with two grounds for the decision of the
Administrative Court. I will only refer to its comments on the 2nd
ground because it is more in point on the issue of unlawful
“disguised extradition.” I quote from the report the dicta of
the Commission for Human Rights, when dealing with the findings of
the so-called “Administrative Court.”







It went on to hold that the disputed decision was a misuse of power.
In this context it said:







Whereas, secondly, it appears from the file – and is in any
case not disputed – that after the deportation order was served
on
him on 26 October 1979, Mr Bozano, on the orders of the
Minister of the Interior
, was immediately taken to the Swiss
border, where he was held in custody and then handed over to the
Italian authorities, who had lodged an extradition request with the
Swiss authorities; an extradition request made to the French
government, however, had been vetoed by the Indictment Division of
the Limoges Court of Appeal on the ground that the rights of the
defence in the case had not been sufficiently secured by the Italian
proceedings;







Whereas the haste with which the impugned decision was
enforced, when the applicant had not even indicated his refusal to
comply
, and the choice of the Swiss border which was imposed on
the applicant clearly show the real reason behind the decision: in
reality the executive sought, not to expel the applicant from French
territory, but to hand him over to the Italian authorities via the
Swiss authorities, with whom Italy had an extradition agreement; the
executive accordingly sought to circumvent the competent judicial
authority’s veto, which was binding on the French Government; it
follows from this that the impugned decision was a misuse of power

(…) (translation).







75. The Commission considers that it follows from these findings
that the applicant was deprived of his liberty unlawfully.







76. This conclusion is confirmed by the interim order made on 14
January 1980 by the President of the Paris Tribunal de Grande
Instance, who, while holding that he had no jurisdiction to rule on
the enforcement of the deportation order, nonetheless took the view
that:







the various events between Bozano’s being
stopped by the French police and his being handed over to the Swiss
police disclose manifest and very serious irregularities both from
the point of view of French public policy and with regard to the
rules resulting from application of Article 48 of the Treaty of Rome;
it is surprising to note, moreover, that the Swiss border was chosen
as the place of expulsion although the Spanish border is nearer
Limoges;



and, lastly, it is noteworthy that the
judiciary has not had an opportunity to determine whether or not
there were any irregularities in the deportation order against him,
since as soon as the order was served on him, Bozano was handed over
to the Swiss police despite his protests; and the executive thus
itself implemented its own decision
(translation).’







77. From these decisions it follows also that the deprivation of
liberty was unlawful from the point of view of Article 5(1)(f).







78. The Commission also points out that the
Limoges Administrative Court considered that there had been a ‘misuse
of powers’. By Article 18 of the Convention, no permitted
restriction on a secured right – such as the right to liberty –
shall be applied for any purpose other than that for which it has
been prescribed. The question thus arises whether the unlawfulness
of the enforcement of the deportation order affects the applicant’s
detention in respect of Article 18 of the Convention as well
.







79. The Commission considers that it is not required to express a
general view on the question whether and under what circumstances
what are sometimes known as ‘disguised extraditions’ by means of
deportations might raise problems with regard to the Convention.







80. The Commission further notes that it has already had occasion
to consider these problems, particularly as regards the obligations
that arise for States to which persons against whom such expulsion
measures have been taken are sent.







81. It points out, however, that the Limoges
Administrative Court found that the enforcement of the deportation
order – and hence the applicant’s detention – was unlawful
also on the ground that the executive, by proceeding in this way, had
sought to circumvent the competent judicial authority’s veto on
extraditing the applicant, which was binding on the French
Government
.









    1. The Commission consequently considers that since detention with
      a view to extradition was no longer possible in French law, the
      applicant’s detention had a purpose different from detention with
      a view to deportation, as provided for in Article 5(1)(f)”
      .
      (My emphasis added).
















Although the European Court was not in the position of the Namibian
Court a quo, it is instructive on the issues of illegality, unlawful
arrest and detention, the purpose to be inferred from the
circumstances.







Prof John Dugard also refers to this decision as some of the
authority for saying that the practice of “disguised extradition”
“achieved by deporting a fugitive to a state in which he is accused
of a crime, in accordance with deportation procedures, is widely
condemned.” 10







The abuse obviously is even more serious when the alleged deportation
is also not done in terms of any law of the “deporting” country,
but by private arrangement between unauthorized officials.







1.3 STOCKE V GERMANY 11



In this decision of the European Human Rights Court, a decision of
the German Federal Constitutional Court was called into question by
the applicant, one Stocke. According to the European Human Rights
Court report – the German Constitutional Court in 1984 had held,
inter alia:







“…Even though there also existed decisions expressing the
opinion that kidnapping of an accused could bar prosecution in the
State the kidnapped person has been taken to, there was no
established practice of the like in international law
.







Furthermore there existed no general rule in international law
according to which prosecution of a person was barred because that
person had been taken to the prosecuting State in violation of an
extradition treaty with another State.







The Federal Constitutional Court further stated that although the
applicant had unsuccessfully laid charges of kidnapping the Federal
Court nevertheless had also dealt with and correctly denied that
prosecution against the applicant had to be considered barred on the
assumption that his kidnapping involved the criminal responsibility
of German public officials. So far a bar to prosecution had been
considered only in cases of inordinate length of proceedings and of
incitement by an agent provocateur to commit an offence. Even if
kidnapping was likewise to be considered as a possible bar to
prosecution this could be assumed only in exceptional cases but not
in the applicant’s case. Even assuming that the applicant had been
taken to the Federal Republic by subterfuge and not by physical
force. He had been arrested by the German police on German and not
foreign territory. His arrest had been based on a lawful and valid
warrant of arrest. Any involvement of public officials in the
alleged kidnapping related, according to the findings of the Public
Prosecutor, only to unauthorised activities of lower police officers
not involving responsibility of superior authorities. In these
circumstances there was nothing which would have barred the
proceedings against the applicant.”







At the hearing of the plaintiffs appeal, the German government,
relying on the findings of the German Constitutional Court, contended
that the plaintiffs appeal is inadmissible. The European Commission
did not agree. The report of the case states:







4. The Commission, having made a preliminary examination of the
applicants complaints, finds that they cannot be declared manifestly
ill-founded on the grounds invoked by the government without further
investigation into the facts. The application raises difficult
issues of fact and law, in particular under Article 5(1)(c) of the
convention, which can only be determined by an examination of the
merits of the case.”







The European Commission then declared the application in terms of
Article 5(1)(c) of the Convention was admissible. It must be noted
that the said Article 5(1)(c) provides:







Everyone has the right to liberty and security of the person.
No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law. (c) the lawful
arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after
having done so…”











It should be noted that the decision of the German Constitutional
Court was taken in 1984, years before decisions such as in Bennet and
Ebrahim led and confirmed a new and more enlightened approach.







2. Prosecutor v Dragon Nicolic12



The report of the case contains the following summary:



Mr Nikolic was originally indicted for 24 counts of crimes
against humanity, violations of the laws or customs of war and grave
breaches of the Geneva Conventions. Following two amendments to the
Indictment by the Prosecution, the accused now stands charged with
eight counts of crimes against humanity. The crimes were allegedly
committed by the accused during 1992 in the Vlasenica region of
eastern Bosnia. Most of the crimes alleged are said to have occurred
within the Susica camp, a former military installation converted by
Bosnian Serbs into a detention camp of which Nikolic is alleged to
have been the commander. In these proceedings Nikolic challenges the
jurisdiction of the Tribunal to hear the allegations against him
pursuant to Rule 72(A)(i) of the Rules of Procedure and Evidence
(“the Rules”). By way of relief, Nikolic seeks a stay, dismissal
or negation of the Indictment, his release from the custody of the
Tribunal and a return to his place of residence prior to his arrest.”















The background of the case was as stated in the report of the case,
particularly in the following paragraphs:







10. On 4 November 1994, pursuant to Rules 47 and 55 of the
Rules, Judge Odio Benito confirmed the Indictment against Nikolic.
In accordance with Rules 2(A) and 55 of the Rules, two warrants for
his arrest were issued, one addressed to the Federation of Bosnia and
Herzegovina and the other to the Bosnian Serb administration in Pale.
The arrest warrants were served on the authorities, and various
attempts were made by the Prosecution to serve the Indictment on
Nikolic and to have them executed.”







11. On 15 November 1994, the Registrar of the Tribunal received
official notification that the Federation of Bosnia and Herzegovina
was unable to execute the arrest warrant. The Federation of Bosnia
and Herzegovina claimed that Nikolic was residing in the town of
Vlasenica. No response was received from the Bosnian Serb
administration in Pale concerning its ability or willingness to
execute the arrest warrants against Nikolic.







12. On 16 May 1995, Judge Odio Benito ordered the Prosecution to
submit the case to the Trial Chamber for a review of the Indictment
pursuant to Rule 61(A) of the Rules. On 20 October 1995, the Trial
Chamber found that it was satisfied by the evidence presented to it
that there were reasonable grounds for believing that Nikolic had
committed the crimes charged in the Indictment. Accordingly, an
international arrest warrant was issued and transmitted to all
States.







13. The Trial Chamber also found that the failure of the
Prosecution to effect service of the Indictment was due wholly to the
failure or refusal of the Bosnian Serb administration in Pale to
co-operate. In accordance with the procedure of Rule 61(E), the
Presiding Judge of the Trial Chamber requested the President of the
Tribunal to notify the security Council of this failure. The
President of the Tribunal complied with this request and sent a
letter dated 31 October 1995 to notify the Security Council.







14. The Trial Chamber invited the Prosecution to amend the
Indictment in the light of the evidence presented at the Review
Proceedings. The Prosecution subsequently filed its first Amended
Indictment in which 80 counts of crimes against humanity, violations
of the laws and customs of war and grave breaches of the Geneva
Conventions were alleged, Judge Claude Jorda confirmed the Amended
Indictment on 12 February 1999 and issued a new arrest warrant to the
authorities of the Federal Republic of Yugoslavia (“FRY”).







15. On or about 20 April 2000, Nikolic was arrested and detained
by SFOR and, thereafter, on 21 April 2000, transferred to the
Tribunal. How Nikolic came into the custody of SFOR is not entirely
clear. It is alleged that he was kidnapped in Serbia by a number of
persons and delivered into the hands of SFOR officers stationed in
the Republic of Bosnia and Herzegovina.







16. During 2001, and following discussions with the pre-trial
Judge and between Parties, the Prosecution was requested to submit a
new amended indictment. On 7 January 2002, the Prosecution sought
leave to file the Second Amended Indictment. This was granted on 15
February 2002 and the accused was charged with eight counts of crimes
against humanity.”







The Tribunal proceeded to hear the accused's objection to
jurisdiction on account of the manner in which he was brought before
the Tribunal.







In its assessment, the aforesaid International Tribunal also pointed
out that: “The case law described above is rather diverse.
Depending on how one defines illegal abduction, probably not all of
the cases described necessarily fit such a definition. In some
cases, the State, which is about to exercise jurisdiction over the
accused, (the Forum State) was intensively involved in the forced
abduction of the accused. In others, the State where the accused was
originally found was actively involved as well, for example, deported
or expelled the accused – a situation sometimes referred to as a
form of informal extradition or even of a circumvention of the
due process of extradition. The Trial Chamber does not consider it
necessary to define the various forms of cross border transfer of
accused persons…”







The above once again indicates that the label “abduction” is
widely used, and is not restricted to the type of forcible removal
which actually took place in the Ebrahim case. In the Courts
discussion on the concept of “Violation of State sovereignty” it
stated:







“As the defence observes, in cross border abduction cases where
there was some evidence to indicate State involvement… the
violation of international law was regarded as a breach of State
sovereignty”. Traditionally, such breaches were considered a
possible dispute between states with no role as such for the
person involved
. As the defence rightly points out, however, the
Appeals Chamber in the TADIC decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, held that individuals
can also invoke this ground, at least before this Tribunal”. The
Court therefore acknowledged that the point of infringement of
sovereignty and international law is not limited or dependant on the
governments of the sovereign states involved, complaining or not
complaining. The Court thus recognized that the accused person also
have rights which need to be considered.







The Court dealt with the nature of the process it had to apply and
said:







“111. There exists a close relationship between the
obligation of the Tribunal to respect the human rights of the Accused
and the obligation to ensure due process of law. Ensuring that the
accused’s rights are respected and that he receives a fair trial
forms, in actual fact, an important aspect of the general concept
of due process of law
. In that context, this Chamber concurs
with the view expressed in several national judicial decisions,
according to which the issue of respect for due process of law
encompasses more than merely the duty to ensure a fair trial for the
Accused. Due process of law also includes questions such as how
the Parties have been conducting themselves in the context of a
particular case and how an Accused has been brought into the
jurisdiction of the Tribunal. The finding in the Ebrahim case
that the State must come to court with clean hands applies equally to
the Prosecution coming to a Trial Chamber of this Tribunal
. In
addition, this Chamber concurs with the Appeals Chamber in the
Barayagwiza case that the abuse of process doctrine may be relied on
if “in the circumstances of a particular case, proceeding with the
trial of the accused would contravene the court’s sense of
justice”. However, in order to prompt a Chamber to use this
doctrine, it needs to be clear that the rights of the Accused have
been egregiously violated.







112. The Chamber must undertake a balancing exercise in order to
assess all the factors of relevance in the case at hand and in order
to conclude whether, in light of all these factors, the Chamber can
exercise jurisdiction over the Accused.”







The Tribunal also observed that “in keeping with the approach of
the Appeals Chamber in the Barayagwiza case, according to which in
cases of egregious violation of the rights of the accused, it is
irrelevant which entity or entities
were responsible for the
alleged violation of the rights of the accused”.







Whether such a decision should be taken also depends entirely on the
facts of the case and cannot be decided in the abstract”. The
Tribunal concluded: “Here the Chamber observes that the assumed
facts, although they do raise concerns, do not at all show that the
treatment of the accused by unknown individuals amounts, was of
such egregious nature
”. (My emphasis added)







The Tribunal’s final conclusion was that, on the basis of the
assumed facts, the Tribunal must exercise jurisdiction. It should be
kept in mind that the International Criminal Tribunal differs from
National Court in that it was set up to deal with “serious
violations of international humanitarian law”. The International
Court has its own procedures and issues international warrants for
the arrest of persons it wishes to bring before Court.







It is against this background that it developed the test of
‘egregious violations”. It did not deal in this context with a
situation, as in the instant case, where each and every provision of
the laws of the affected countries were contravened and thereby not
only the fundamental rights of the accused, and their protection
provided by those laws, but also an abuse of those laws amounting to
a breach of the sovereignty of the states whose sovereign parliaments
enacted those laws in the exercise of their sovereignty.







The great differences between a national and domestic criminal Court
and that of the International Criminal Court clearly emerges from the
facts set out in the judgment and quoted above. In the case of the
International Court, the purpose is to try persons who are accused of
international crimes against humanity such as genocide where states
are enjoined and required to cooperate and assist the Tribunal in its
functions: There are special procedures. One of the most important
differences is that sovereign national states, can if they so wish,
enact laws with mandatory provisions in regard to extradition and
deportation. This was done by Namibia, Botswana and Zambia.







The International Court on the other hand functions in terms of a
legal charter, agreed upon by the Security Council of the United
Nations. The machinery of legal extradition and/or deportation is
not available to the International Court. Its legal machinery to
bring persons accused of having committed international crimes, to
justice, differs materially from those of states to achieve this.
One of the features of the machinery provided, is the issue of
international warrants.







In the case of the 13 accused before this Court, there were neither
warrants of any nature, nor any preliminary judicial investigation to
prima facie establish whether there is a case, justifying prosecution
and a warrant of arrest.







The “close relationship” referred to by the Court in par 111 of
the judgment is not as some contend, a relationship between the
rights of the accused and the rights of the prosecution. The
“relationship” is between the human rights of the accused and the
obligation to ensure due process of the law. The balancing exercise
“referred to in par 112, is also not stated to be between the
rights of the prosecution and that of the accused.







I have been referred to the following quotation from the Appeal
Chamber, which so it is argued, requires the balancing of “rights
of the accused, against “the crimes committed”. The passage
however does not do so. What it purports to balance is
“international justice” against “infringing to a limited extent
in the sovereignty of states.”







The passage reads as follows:







The damage caused to international justice by not
apprehending fugitives accused of serious violation of
international humanitarian law is comparatively higher than
injury, if any, to the sovereignty of a State by a limited
intrusion of its territory
, particularly when the intrusion
occurs in default of the State’s cooperation. Therefore,
the Appeals Chamber does not consider that in cases of universally
condemned offences
, jurisdiction should be set aside on the
ground that there was a violation of the sovereignty of a State, when
the violation is brought about by the apprehension of fugitives
from international justice
, whatever the consequences for the
international responsibility of the State or organization
concerned”.















The Appeal Chamber confirmed the decision of the Trial Chamber to
arraign and prosecute the accused.







4. S v Ebrahim 13







The decision in S v Ebrahim, is not only strong persuasive authority
for the applicability of the South African common law to the issues
discussed, but should be followed in Namibia in so far as it applied
the Roman Dutch common law.







It is necessary at this juncture to repeat the facts of the case.
The appellant, a member of the military wing of the African National
Congress who had fled South Africa when under a restriction order,
had been abducted, in the literal sense of the word, from his house
in Mbabane Swaziland by persons acting as agents of the South African
State and taken back to South Africa, where he was handed over to the
South African police, arrested and detained in terms of security
legislation. He was subsequently charged with Treason, convicted and
sentenced to 20 years imprisonment by the Circuit Local Division.







The Appellant had prior to pleading launched an application for an
order to the effect that the Court lacked jurisdiction to try the
case inasmuch as his abduction was in breach of international law and
thus unlawful. The application was dismissed and the trial
continued.







M T Steyn, JA who wrote the judgment of the Court of Appeal held:







In the light of the repeated exposition and wide acceptance of
the aforesaid rule in its different shapes, it is in my view clear
that the removal over the territorial boundaries of a person from a
territory where such person has been illegally taken prisoner, to
another jurisdiction, was regarded in Roman Dutch Law as an abduction
in essence and as a serious breach of the law”.















The Court further held that “the above rules embodied several
fundamental legal principles, viz those that maintained and promoted
human rights, good relations between states and the sound
administration of justice: the individual had to be protected
against unlawful detention and against abduction, the limits of
territorial jurisdiction and the sovereignty of states had to be
respected, the fairness of the legal process guaranteed and the abuse
thereof prevented so as to protect and promote the dignity and
integrity of the judicial system. The State was bound by these rules
and had to come to Court with clean hands, as it were, when it was
itself a party to proceedings. This requirement was clearly not
satisfied when the State was involved in the abduction of persons
across the country’s borders.”







It was accordingly held that the Court a quo had lacked
jurisdiction to try the Appellant and his application should
therefore have succeeded. As the Appellant should never have been
tried by the Court a quo, the consequence of that trial had to
be undone and the appeal disposed of as one of conviction and
sentence. Both conviction and sentence were accordingly set aside.
Some further remarks are apposite:





(i). The Ebrahim case can be distinguished from the instant case
before us, in that:







(a) The 13 accused, as pointed out supra, were not abducted in a
similar manner as in the Ebrahim case.



(b) In the case of the 13 accused, there existed clear reciprocal
extradition and deportation legislation relating to prohibited
immigration and therefore the non-compliance therewith was a decisive
issue. Not so in the Ebrahim case.







(ii) However the decision in Ebrahim is not just restricted to a
case where there was a literal and forceful abduction, but also where
the arrest, detention and removal was illegal for other reasons, e.g.
where it amounted to “disguised extradition” which was in essence
an abduction.















It was also not restricted to cases where the officials of the
receiving State perpetrated the abduction or illegality in the host
state, but where such officials or agents of the receiving state
ordered the illegal conduct, or cooperated with the perpetrators or
was involved with them in achieving the purpose of removing the
fugitive to the receiving state, so that such receiving state cannot
be regarded as having brought the fugitive to trial with clean hands.







An important aspect raised in Ebrahim was the development of this
part of the law in developed foreign democracies.







Counsel for the appellant in that case – Mohammed SC as he then
was, argued that the Court of Appeals in United States in the matter
of United States v Toscanino, 500 F 2d 267 had decided
on 15th May 1974 that the former authoritative decisions
in Ker v Illinois 119 US 342 (1888) and Frisbie v Collins,
342 US 519 (1952) US 51 should no longer be followed.







It should be remembered that in Frisbie v Collins the approach
was:







Due process of law is satisfied when one present in Court is
convicted of crime after being fairly apprized of the charges against
him and after a fair trial in accordance with constitutional
procedural safeguards.”















Against this was the dicta that: “The requirement of due
process
in obtaining a conviction is greater. It extends to
the pre-trial conduct of law enforcement authorities
.”







Steyn JA, quoted the following as the reasoning in the Toscanino
case:







In an era marked by a sharp increase in kidnapping activities,
both here and abroad …we face the question as we must whether a
Federal Court must assume jurisdiction over the person of a defendant
who is illegally apprehended abroad and forcibly conducted by
Government agents to the United States for the purpose of facing
criminal charges here.”







The Court then concluded:







The Court (in Toscanino) refused to follow the decisions in Ker
v Ilinols … and Frisbie v Collins … and motivated its case as
follows:



Faced with a conflict between two concepts of due process, the
one being the restricted version found in Kerr-Frisbie and the other
the expanded and enlightened interpretation expressed in more recent
decisions of the Supreme Court, we are persuaded that to the extent
that the two are in conflict, the Kerr-Frisbie version must yield.
Accordingly we view due process as now requiring a court to divest
itself of jurisdiction over the person of the defendant where it has
been acquired as the result of the government’s deliberate,
unnecessary and unreasonable invasion of the accused’s
constitutional rights. This conclusion represents but an extension
of the well-recognised power of the federal courts in the civil
context to decline to exercise jurisdiction over a defendant whose
presence has been secured by force or fraud.’”







The Court adopted the wise words of Justice Brandeis in his
dissenting opinion in Olmstead v United States and invoked
again in United States v Archer the passage, which read as
follows:







The Courts aid is denied only when he who seeks it has violated
the law in connection with the very transactions as to which he seeks
legal redress. Then aid is denied despite the defendants wrong. It
is denied in order to maintain respect for law; in order to preserve
the judicial process from contamination:







Decency, security and liberty alike demand that Government
officials shall be subjected to the same rules of conduct that are
commands to the citizen. In a government of laws, existence of the
Government will be imperilled if it fails to observe the law
scrupulously. Our government is the potent, the omnipotent teacher.
For good or for ill, it teaches the whole people by its example,
crime is contagious. If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto
himself; it invites anarchy. To declare that in the administration
of the criminal law the end justifies the means – to declare that
the government may commit crimes in order to secure the conviction of
a private criminal – would bring terrible retribution. Against
that pernicious doctrine this Court should resolutely set its face.”







The South African Court also referred to the dicta in United
States v Archer
where it was held:







Society is the ultimate loser when, in order to convict the
guilty, it uses methods that lead to decreased respect for the law…”











4. United States v Alvares-Machain



The Court in State v Ebrahim, referred to the development in
the law of the United States of America, as set out in the Toscanino
case. That development however, was reversed to some extent in 1992
when the Supreme Court of the United States in the case of United
States v Alvares – Machain, by majority vote of 6-3, overruled two
lower Courts on petition to it.







The following summary of the editors in the report on
Alvarez-Marchain sufficiently reflects the facts and the ratio in the
United States Supreme Court decision:







The Extradition Treaty, May 4, 1978, [1979] United
States-United Mexican States (31 UST 5059, TIAS No. 9656) provides
(1) in Article 22(1), that the treaty shall apply to specified
offences committed before and after the treaty entered into effect;
and (2) in Article 9, that (a) neither contracting party shall be
bound to deliver up its own nationals, but the executive authority of
the requested party shall, if not prevented by that party’s laws,
have the power to deliver such nationals up, if, in the party’s
discretion, it is deemed proper to do so, and (b) if extradition is
not granted pursuant to the prior provision, the requested party
shall submit the case to the party’s competent authorities for the
purpose of jurisdiction, provided that the party has jurisdiction
over the offence. A Mexican citizen and resident was indicted in the
United States on numerous federal charges for allegedly participating
in the kidnap and murder of a Drug Enforcement Administration (DEA)
agent and the agent’s pilot. The accused was forcibly abducted
from Mexico to the United States and was arrested in the United
States by DEA officials. On a motion by the accused to dismiss the
indictment, the United States District Court for the Central District
of California (1) concluded that, although DEA agents were not
personally involved in the accused’s abduction, they were
responsible for it; (2) ruled that the court lacked jurisdiction to
try the accused, because the abduction violated the extradition
treaty; (3) discharged the accused; and (4) ordered that the accused
be repatriated to Mexico (745 F Supp 599). On appeal, the United
States Court of Appeals for the Ninth Circuit, in affirming,
expressed the view that (1) the forcible abduction of a Mexican
national from Mexico by an agency of the United States without the
consent or acquiescence of the Mexican Government violated the
extradition treaty; and (2) with respect to the abduction of the
accused, the proper remedy was the indictment’s dismissal and the
accused’s repatriation, as (a) the requisite findings of United
States involvement had been made, and (b) letters from the Mexican
Government to the United States Government served as official protest
of the treaty violation (946 F2d 1466).







On certiorari, the United States Supreme Court reversed and
remanded. In an opinion by Rehnquist, Ch. J., joined by White,
Scalia, Kennedy, Souter, and Thoma, JJ., it was held that, even if
the accused’s forcible abduction might have been “shocking” and
in violation of general principles of international law, the
abduction was not in violation of the 1978 extradition treaty, the
accused did not thereby acquire a defence to the jurisdiction of
United States courts, and the fact of the accused’s forcible
abduction did not therefore prohibit the accused’s trial in the
District Court for alleged violations of the criminal laws of the
United States, because (1) in view of the general United States rule
that a forcible abduction does not impair a court’s jurisdiction to
try a person for a crime, the language of the treaty, in the context
of the history of negotiation and practice under the treaty, did not
support the proposition that the treaty prohibited abductions outside
of the treaty’s terms; and (2) to infer from the treaty and its
terms that the treaty contained an implied prohibition against
obtaining the presence of an individual outside of the treaty’s
terms would go beyond established precedent and practice, with only
the most general of international law principles to support such an
inference.







Stevens, J., joined by Blackmun and O’Connor, JJ., dissenting,
expressed the view that (1) although the treaty contained no express
promise to refrain from forcible abductions in the territory of the
other nation, the treaty’s manifest scope and object plainly
implied a mutual undertaking to respect territorial integrity; (2)
this interpretation was confirmed by a consideration of the legal
context in which the treaty was negotiated; (3) with respect to such
abductions, the Supreme Court’s opinion failed to differentiate
between (a) the conduct of private citizens, which did not violate
any treaty obligation, and (b) conduct expressly authorized by the
Executive Branch of the Federal Government, which constituted a
violation of international law; and (4) the fact, if true, that the
accused had participated in an especially brutal murder of an
American law enforcement agent might explain the Executive Branch’s
intense interest in punishing the accused in United States courts,
but such an explanation provided no justification for disregarding
the rule of law that the Supreme Court had a duty to uphold.”















In mitigation one can at least say that the Extradition Treaty
between the United States and Mexico did contain ambiguous clauses
and not clear and mandatory provisions such as contained in Namibian,
Botswana and Zambian reciprocal legislation. So e.g. the majority
relied on the American/Mexican treaty which in Article 9 allegedly
provides, that (1) neither contracting party shall be bound to
deliver up its own nationals, but the executive authority of the
requested party shall have the power to deliver such nationals up, if
in the party’s discretion, it is deemed proper to do so, and (2),
if extradition is not granted pursuant to the prior provision, the
requested party shall submit the case to the party’s competent
authorities for the purpose of jurisdiction, provided that the party
has jurisdiction over the offence. It was found by the majority that
such a treaty did not exclude abduction.







It seems to me that there is a vast difference between the honouring
and implementation of such treaties which are bilateral in nature and
reciprocal obligations and laws enacted by the supreme and sovereign
legislatures of the respective countries. In the case of the
aforesaid treaties, the treaties leave the decision in the hands of
the Executive, whereas in the case of the aforesaid legislation,
provision is made for proper procedures, which no member of the
Executive may transgress or allow or order others to transgress.







The minority opinion of the Supreme Court as formulated by Stevens J,
was extremely critical of the majority decision. The minority
referred with a measure of approval to the South African decision in
Ebrahim. It said in conclusion:







The significance of this Court’s precedents is illustrated by
a recent decision of the Court of Appeal of the Republic of South
Africa. Based largely on its understanding of the import of this
Court’s cases – including our decision in KER – that Court held
that the prosecution of a defendant kidnapped by agents of South
Africa in another country must be dismissed…….. The Court of
Appeal in South Africa – indeed, I suspect most courts throughout
the civilized world – will be deeply disturbed by the “monstrous”
decision the Court announces today. For every nation that has an
interest in preserving the Rule of Law is affected, directly or
indirectly, by a decision of this character.















The condemnation of the majority decision was fairly widespread. The
Trial Chamber of the International Criminal Tribunal for the
Prosecution of Persons Responsible for serious Violation of
International Humanitarian Law committed in the territory of former
Yugoslavia since 1991, in its review of national law decisions in the
case of Prosecutor v Dragan Nikolic, noted:







The decision was not only heavily criticized in the United
States but also in other states, in judicial decisions of national
courts in other states and in academic circles. Still it must be
considered ‘the leading US case on forcible abduction by US
agents”.















5. Mohamed and Another v President of the Republic of South Africa
and Others
14



This decision of the South African Constitutional Court has some
features that are relevant to the issues before this Court. The
headnote of the report briefly sets out the relevant facts. These
were:







The 1st appellant one Mohamed, was at the time of
the instant proceedings standing trial in a Federal Court in the USA
on a number of capital charges related to the bombing of the United
States Embassy in Dar es Salaam, Tanzania in August 1998. The
appellants sought leave to appeal against a judgment of a Provincial
Division in which the appellants were denied an order declaring (i)
that the arrest, detention, interrogation and handing over of Mohamed
to US agents was unlawful and unconstitutional, and (ii), that the
respondents had breached Mohamed’s constitutional rights by handing
him over to the custody of the US Government without obtaining an
assurance that the death penalty will not be imposed or carried out
in the event of Mohamed’s conviction. The appellants also sought
mandatory relief in the form of an order ‘directing the Government
of the Republic of South Africa to submit a written request … to
the government of the Unites States of America that the death penalty
not to be sought. The crux of the governments contentions, which
carried the day in the Court a quo, was that Mohamed was an illegal
immigrant whom the Immigration Authorities had properly decided to
deport and whose deportation was mandated by the Aliens Control Act

96 of 1991 and the regulations published thereunder. The Court a quo
held that the collaboration between the South African and US
officials that had led to the removal of Mohamed to the US did not
make any difference to his status or his liability to deportation.”















The Constitutional Court held:





1. The validity of the deportation







There is a clear distinction between extradition and deportation.
Extradition is a consensual act by two (2) states directed at the
handing over by one State to another State of a person convicted or
accused there of a crime so that the receiving state may deal with
him in accordance with the provisions of the law. It involves a
request by the first
State for such delivery and delivering by
the requesting State for the purposes of trial or sentence in the
territory. Deportation is essentially a unilateral act
of the deporting State in order to rid it of an undesired
alien
who has no permission to be there. The purpose of
deportation
is served when the alien leaves the deporting State’s
territory, and the destination of the deportee is irrelevant to the
purpose of deportation”.















The Constitutional Court further held that the deportee was not given
a three (3) day period of grace, before he was removed, as mandated
by Section 52 of the Aliens Control Act – which was also illegal.







The Court further emphasized the issue of the death sentence which
was a permissible sentence in the USA but not in South Africa and
held that the Government should have made representations to the USA
to ensure that if the deportee was deported, tried and convicted, the
death sentence would not be imposed, or if imposed, executed. The
Court further raised the issue of the alleged consent by the deportee
to be returned to the USA rather than Kenya. In this regard the
Court laid down the requirements for a valid consent by the deportee,
where such consent is required to legalize a step taken by the
Executive. The Court held that for a consent to be enforceable, it
had to be a fully informed consent that showed clearly that the
person in question was aware of the exact nature and extent of the
rights being waived in consequence of the consent
….. The
onus of proving such waiver is on the government
…” The Court
further pointed out that the deportee “was at no time afforded the
benefit of consulting a lawyer. It followed that M’s alleged
election to accompany the US agents, must have been to some extent a
result of his being cut off from legal advice.”







The Constitutional Court held all these features to be elements of
the overall illegality of the deportation. The Court also pointed
out that whether or not the removal had been a lawful deportation
or an unlawful disguised extradition, the procedure
followed was unlawful whether it is characterized as a deportation or
extradition
.







It is important to note that the Constitutional Court clearly found
the action illegal, because it did not comply with the mandatory
provisions of the law, irrespective whether or not it was referred to
as “deportation” or “extradition in disguise”. The Court
finally found that the deportation was unlawful. It follows,
that where the mandatory provisions of Namibia, Botswana and Zambia,
are not followed for similar actions taken in those countries, such
action would be illegal
, irrespective of the question whether the
Court of the forum state, can look into such illegalities which
occurred in the host state.







The fact that the Constitutional Court was unable to reverse the
course when the deportee’s case was eventually brought before it,
in the light of the fact that the deportee had already been brought
before the USA Court, the principles of legality laid down in this
decision remain important for Courts worldwide faced with similar
issues.







The warning given in conclusion by the 12 judges of the
Constitutional Court, has been heeded by Hoff J in the Court a quo
and remains a timeous reminder also for the Namibian State, Courts
and Government, struggling to live up to Namibia’s Constitution in
an era, not only of growing constitutionality on the one hand, but
growing criminality, terrorism and violence threatening law and
order, the Rule of Law, and civilized values.







6. R v Brixton Prison (Governor) Ex Parte Soblen.15







In this decision of the Court of Appeal in the United Kingdom, Lord
Denning MR stated when contrasting the power of extradition with the
power of deportation:







It was suggested before us that there was a common law shackle
on this power of deportation. It was said that a man could not be
deported, even to his own country, if he was a criminal who had fled
from it. No authority was cited for this proposition. It cannot
stand examination for one moment. Supposing no other country but his
own is willing to take him. Are we to keep him here against our will
simply because he is, in his own country, a wanted man? Clearly not.
If a fugitive criminal is here, and the Secretary of State thinks
that, in the public good, he ought to be deported, there is no reason
why he should not be deported to his own country, even though he is
there a wanted criminal. The Supreme Court of India considered this
very point in 1955 in Muller v Superintendent, Presidency Jail,
Calcutta (54), and in an instructive judgment made it quite clear
that, in their opinion, the right to expel an alien could be
exercised even though he was wanted by his own country for a criminal
offence. I go further. Even though his home country has requested
that he should be sent back to them, I see no reason why the Home
Secretary should not still deport him there, if his presence here is
not conducive to the public good. The power to deport is not taken
away by the fact that he is a fugitive from the justice of his own
country, or by the fact that his own country wants him back and has
made a request for him.







So there we have in this case the two principles: on the one hand
the principle arising out of the law of extradition under which the
officers of the Crown cannot and must not surrender a fugitive
criminal to another country at its request except in accordance with
the Extradition Acts duly fulfilled; on the other hand the principle
arising out of the law of deportation, under which the Secretary of
State can deport an alien and put him on board a ship or aircraft
bound for his own country if he considers it conducive to the public
good that that should be done. How are we to decide between these
two principles? It seems to me that it depends on the purpose with
which the act is done. If it was done for an authorised purpose, it
was lawful. If it was done professedly for an authorised purpose,
but in fact for a different purpose with an ulterior object, it was
unlawful. If, therefore, the purpose of the Home Secretary in this
case was to surrender the applicant as a fugitive criminal to the
United States of America, because they had asked for him, then it
would be unlawful; but if his purpose was to deport him to his own
country because he considered his presence here to be not conducive
to the public good, then his action is lawful. It is open to these
courts to inquire whether the purpose of the Home Secretary was a
lawful or an unlawful purpose. Was there a misuse of the power or
not? The courts can always go behind the face of the deportation
order in order to see whether the powers entrusted by Parliament have
been exercised lawfully or not. That follows from R v Board of
Control, Ex p. Rutty (55). Then how does it rest in this case? The
court cannot compel the Home Secretary to disclose the materials on
which he acted, but if there is evidence on which it could reasonably
be supposed that the Home Secretary was using the power of
deportation for an ulterior purpose, then the court can call on the
Home Secretary for an answer; and if he fails to give it, it can
upset his order. But, on the facts of this case, I can find no such
evidence. It seems to me that there was reasonable ground on which
the Home Secretary could consider that the applicant’s presence
here was not conducive to the public good.”















Mr Gauntlett relied on the decision to point out that although it is
open to the Courts to enquire whether the purpose of government was
lawful or otherwise, there is a “heavy onus” on the party
alleging an unlawful exercise of power.







It does not seem to me from the available report of the decision that
Lord Denning said anything in regard to onus. There is however a
remark in the headnote of the report, in brackets, as follows:







“….though it is open to an applicant (the burden of proof
being on him) to show that the deportation order was not made
lawfully..”















Mr Gauntlett, in his heads of argument, also relied in this regard on
the Canadian case of Halm v the Minister of Employment and
Immigration
16
in submitting:







In the Canadian case in HALM this approach was adopted and the
Court affirmed that ‘to decide that the deportation proceedings are
a sham or not bona fide, it would be necessary to hold that the
Minister did not genuinely consider it in the public interest to
expel the applicant.’















Mr Gauntlett reiterated in his par 49 that there is this “heavy
onus” and refers as authority in his footnote “47” to “Par
21.3 and 21.4”.







Unfortunately I have been unable to trace such statement in either
the Soblen decision or the Halm decision. Be that as it may. It
seems that there is some confusion. I agree on general principles
that when a person against whom a deportation order is made, has the
opportunity before the Court of the country whose executive made the
order, applies to that Court to have the deportation order set aside,
the burden of proof will be on the applicant to prove the illegality.
But in Namibia a person in the position of the Minister will have to
comply with the provisions contained in art. 18 of the Namibian
Constitution relating to administrative justice, requiring them to
act “fairly and reasonably”.17







Where however, the applicant has been removed to the requesting
country to stand trial, without having had any opportunity in the
deporting country to attack the “deportation” order, as happened
in the instant case of the accused, then the position as to burden of
proof is quite different.







In the latter case, where such applicant objects to the jurisdiction
of the Court to try him, the burden is on the State to prove beyond
reasonable doubt that the accused has been brought before Court in a
lawful manner and that the Court consequently has jurisdiction.







It must also be noted that the reference to the executive authority
in the Soblen case is to the Minister or the Home Secretary who has
been given the authority to decide on deportations by Parliament, and
cannot be compared with the instant case where the fate of the
accused was decided by officials who were not authorized by law to
take such decisions. At least, the State did not prove in this
appeal that any of the policemen, army personnel or immigration
officials were authorized to take such decisions or even purported to
take such decisions according to the laws of the land.







In the instant case now before this Court the two differing
principles relating to “extraditions” on the one hand and
“deportation” on the other, does not affect the issues to be
decided because there was not only no lawful extradition but also no
lawful deportation.







7.1. Bennett v Horseferry Rd Magistrate Court and Another18



As far as the law of the United Kingdom is concerned, this is the
most authoritative decision to date on these issues. The House of
Lords in this decision reviewed many previous decisions in the United
Kingdom, the USA, Australia, New Zealand and South Africa.







It is clear from the decision of the House of Lords that the South
African judgment in Ebrahim and the minority judgment in the case of
US v Alvarez Marchain of the USA Supreme Court, carried
considerable weight with the House of Lords.







Lord Griffiths, presiding, put the case as follows:







In the present case there is no suggestion that the appellant
cannot have a fair trial, nor could it be suggested that it would
have been unfair to try him if he had been returned to this country
through extradition procedures. If the court is to have the power to
interfere with the prosecution in the present circumstances it must
be because the judiciary accept a responsibility for the maintenance
of the rule of law that embraces a willingness to oversee executive
action and to refuse to countenance behaviour that threatens either
basic human rights or the rule of law.







My Lords, I have no doubt that the judiciary should accept this
responsibility in the field of criminal law. The great growth of
administrative law during the latter half of this century has
occurred because of the recognition by the judiciary and Parliament
alike that it is the function of the High Court to ensure that
executive action is exercised responsibly and as Parliament intended.
So also should it be in the field of criminal law and if it comes to
the attention of the court that there has been a serious abuse of
power it should, in my view, express its disapproval by refusing to
act upon it.







Let us consider the position in the context of extradition.
Extradition procedures are designed not only to ensure that
criminals are returned from one country to another but also to
protect the rights of those who are accused of crimes by the
requesting country
. Thus sufficient evidence has to be produced
to show a prima facie case against the accused and the rule of
speciality protects the accused from being tried for any crime other
than that for which he was extradited. If a practice developed in
which the police or prosecuting authorities of this country ignored
extradition procedures and secured the return of an accused by a mere
request to police colleagues in another country they would be
flouting the extradition procedures and depriving the accused of the
safeguards built into the extradition process for his benefit. It is
to my mind unthinkable that in such circumstances the court should
declare itself to be powerless and stand idly by; I echo the words of
Lord Devlin in Connelly v DPP [1964] 2 All ER 401 at 442, [1964] AC
125 1354:







The courts cannot contemplate for a moment the transference to
the executive of the responsibility for seeing that the process of
law is not abused.’







The courts, of course, have no power to apply direct discipline to
the police or the prosecuting authorities, but they can refuse to
allow them to take advantage of abuse of power by regarding their
behaviour as an abuse of process and thus preventing a prosecution.







In my view Your Lordships should now declare that where process of
law is available to return an accused to this country through
extradition procedures our courts will refuse to try him if he has
been forcibly brought within our jurisdiction in disregard of those
procedures by a process to which our own police, prosecuting or other
executive authorities have been a knowing party. If
extradition is not available very different considerations will arise
on which I express no opinion
.”















In the course of his judgment, Lord Griffiths also quoted with
approval the following telling passage quoted by Lord Lane CJ, from a
judgment by Woodhouse J in a New Zealand decision.19







There are explicit statutory directions that surround the
extradition procedure
. The procedure is widely known. It is
frequently used by the police in the performance of their duty
.
For the protection of the public the statute rightly demand the
sanction of recognised Court processes before any person who is
thought to be a fugitive offender can properly be surrendered from
one country to another. And in our opinion there can be no possible
question here of the Court turning a blind eye to action of the New
Zealand police which has deliberately ignored those imperative
requirements of the statute
. Some may say that in the present
case a New Zealand citizen attempted to avoid a criminal
responsibility by leaving the country: that his subsequent conviction
has demonstrated the utility of the short cut adopted by the police
to have him brought back. But this must never become an area where
it will be sufficient to consider that the end has justified the
means. The issues raised by this affair are basic to the whole
concept of freedom in society. On the basis of reciprocity for
similar favours earlier received are police officers here in New
Zealand to feel free, or even obliged, at the request of their
counterparts overseas to spirit New Zealand or other citizens out of
the country on the basis of mere suspicion, conveyed perhaps by
telephone, that some crime has been committed elsewhere? In the High
Court of Australia Griffith CJ referred to extradition as a ‘great
prerogative power, supposed to be an incident of sovereignty” and
then rejected any suggestion that “could be put in motion by an
constable who thought he knew the law of a foreign country, and
thought it desirable that a person whom he suspected of having
offended against that law should surrendered to that country to be
punished’
: Brown v Lizars (1905) 2 CLR 837 at 852). The
reasons are obvious. We have said that if the issue in the present
case is to be considered merely in terms of jurisdiction then
Bennett, being in New Zealand, could certainly be brought to trial
and dealt with by the Courts of this country. But we are equally
satisfied that the means which were adopted to make that trial
possible are so much at variance with the statute, and so much
in conflict with one of the most important principles of the rule of
law, that if application had been made at the trial on this ground,
after the facts had been established by the evidence on the voir
dire, the judge would probably have been justified in exercising his
discretion under s 347 (3) [of the Crimes Act 1961] or under the
inherent jurisdiction to direct that the accused be discharged.”















Lord Bridge, who also agreed with the judgment of Lord Griffiths, put
the position as follows:







Whatever differences there may be between the legal systems of
South Africa, the United States, New Zealand and this country, many
of the basic principles to which they seek to give effect stem from
common roots. There is, I think, no principle more basic to any
proper system of law than the maintenance of the rule of law itself
.
When it is shown that the law enforcement agency responsible for
bringing a prosecution has only been enabled to do so by
participating in violations of international law and of the laws of
another state in order to secure the presence of the accused within
the territorial jurisdiction of the court
, I think that
respect for the rule of law demands that the court take cognisance of
that circumstance
. To hold that the court may turn a blind
eye to executive lawless ness beyond the frontiers of its own
jurisdiction is, to my mind, an insular and unacceptable view.
Having then taken cognisance of the lawlessness it would again appear
to me to be a wholly inadequate response for the court to hold that
the only remedy lies in civil proceedings at the suit of the
defendant or in disciplinary or criminal proceedings against the
individual officers of the law enforcement agency who were concerned
in the illegal action taken. Since the prosecution could never have
been brought if the defendant had not been illegally abducted, the
whole proceeding is tainted.
If a resident in another country
is properly extradited here, the time when the prosecution commences
is the time when the authorities here set the extradition process in
motion
. By parity of reasoning, if the authorities,
instead of proceeding by way of extradition
, have resorted to
abduction
, that is the effective commencement of the
prosecution process and is the illegal foundation on which it rests
.
It is apt, in my view, to describe these circumstances, in the
language used by Woodhouse, J in
Moevro v Dept of Labour
[1980] 1 NZIR 464 at 476, as an ‘abuse of the criminal jurisdiction
in general or indeed, in the language of Mansfield J in US v
Toscanimo (1974) 500 F 2d 267 at 276, as a ‘degradation’ of the
court’s criminal process. To hold that in these circumstances the
court may decline to exercise its jurisdiction on the ground that its
process has been abused may be an extension of the doctrine of abuse
of process but is, in my view, a wholly proper and necessary one.”















Lord Lawry agreed with Lord Griffith and Lord Bridge and affirmed
that the Court had a discretion to stay as an abuse of
process, criminal proceedings brought against an accused person who
has been brought before the Court by abduction in a foreign country
participated in or encouraged by British authorities. He
cautioned:







And, remembering that it is not jurisdiction which is in issue
but an exercise of a discretion to stay proceedings, while speaking
of ‘unworthy conduct’
, I would not expect a Court to stay the
proceedings of every trial which has been preceded by a venial
irregularity
…..”







The abuse of process which brings into play the discretion to
stay proceedings arises from wrongful conduct by the Executive in
an international context
.”















Lord Slynn referred to alleged “illegalities” and said:







It does not seem to me to be right in principle that,
when a person is brought within the jurisdiction in the way alleged
in this case (which for present purposes must be assumed to be true)
and charged, the Court should not be competent to investigate
the illegality alleged, and if satisfied as to the illegality, to
refuse to proceed to trial.”















It should be noted that the House of Lords, and particularly, Lord
Griffiths, approved of the dictum of Woodhouse J, where the latter
dealt specifically with cases where “explicit statutory
directions
that surround extradition procedures” and which are
imperative”, are deliberately ignored by the police.







The Court in that case held that the Court cannot turn a blind eye to
such abuse, and shall, in the exercise of its discretion, refuse to
exercise trial jurisdiction. It must be clear from the facts dealt
with in the said judgment by Woodhouse J and that of Lord Lane in the
aforesaid New Zealand decision, that the facts are similar in many
important aspects, to the practice followed in the instant case of
the 13 accused. It is therefore directly in point.







7(2) Bennet v H Mr Advocate20



This decision was that of the Divisional Court after the House of
Lords in Bennet v Horseferry Road Magistrates Court had
remitted the case to the Divisional Court to apply the law as laid
down in Bennet to the facts established after trial, because the
judgment of the House of Lords in Bennet v Horseferry Magistrates
Court
was based on assumed facts.







In the remitted case, Lord Justice General (Lord Hope) said in his
conclusion:







“In our opinion it would be unreasonable where there has been no
collusion
, to insist that the police must refrain from
arresting a person who is wanted for offences committed in this
country when he arrives here simply because he is in transit to
another country from where he could then be extradited
. As
Lord McLaren pointed out in Sinclair v HM Advocate (1890)
17R(J)
38 at 43), we must be careful to apply the rules about
the transfer and delivery of persons under arrest in a reasonable
way
. The flouting of extradition procedures by collusion with
the foreign authorities is one thing. To allow a person to escape
prosecution and punishment for his alleged offences in this country
on the ground of the steps taken to arrest him where there has been
no such abuse is quite another. It is of course necessary that the
petitioner should receive a fair trial if he is to be brought to
trial in Scotland, but we are not concerned with that question at
this stage. We are concerned only with the question whether to
enforce the warrant would be an abuse of the processes of the
Scottish court.” (emphasis supplied)











The following should be noted:







“The flouting of extradition procedures by collusion with foreign
authorities”, is the “abuse” referred to. The sentence – “to
allow a person to escape prosecution and punishment for his alleged
offences in this country on the ground of the steps taken to arrest
him, where there is no such abuse, is quite another, is not
authority for concluding that the Court will have jurisdiction to try
the accused, even if there was an abuse as described.







This decision consequently gives no support to the State case,
because it is premised on the condition that there is “no such
abuse”.







8. R v Staines Magistrates’ Courts & Others Ex Parte
Westfallen
.



R v Staines Magistrates’ Court & Others Ex Parte Soper.



R v Swindon Magistrates’ Court & Others Ex Parte Nangle.







The decision in Bennet was followed in 1997 by a decision in the
Queen’s Bench Division on the aforesaid cases.







Lord Bingham wrote the main judgment of the Court.







The decision in Bennett was distinguished on the facts:



The headnote sufficiently summarizes the facts:







In the first and second cases, W and S travelled from London to
Oslo and were detained on arrival in Norway, after having been found
in possession of forged passports, stolen traveller’s cheques,
cheque books and cards. In a series of communications between London
and Oslo, details of their criminal records were passed to the
Norwegian authorities, who then arranged their deportation back to
the United Kingdom, relying not on the fact that they had previous
convictions but on a belief that they would commit a criminal act in
Norway. The Norwegian police advised the Metropolitan Police that W
and S were to be deported and that, if met, they would be handed over
on arrival. W and S were duly arrested, cautioned, charged and
brought before the justices.







In the third case, N travelled to Canada whilst he was subject to
a warrant for his arrest. In Canada he was convicted of further
criminal offences and sentenced to imprisonment. The trial judge
recommended him for deportation. N subsequently obtained an Irish
passport with a view to being deported on release to the Republic of
Ireland. The British police learnt of N’s whereabouts and his
prospective deportation as a result of communications with the
Canadian authorities. The police were later advised that N would
travel under escort from Canada to Dublin via Glasgow as there were
no direct flights available. On arrival at Glasgow, N was arrested
by the police, charged with robbery and later brought before the
justices.







In each case the examining justices refused to stay the subsequent
criminal proceedings. W, S and N each applied for judicial review of
the decisions by the police authorities to arrest them on arrival in
the United Kingdom and by the justices to continue to hear the
criminal proceedings. In particular, they contended that the British
authorities had improperly procured their presence in the United
Kingdom by means other than formal extradition procedures, when the
only proper way of procuring their presence would have been to make a
formal request for extradition.







Held – When considering whether to exercise its power to stay
the prosecution and order the release of an accused following
deportation
, the question for the court was whether it
appeared that the police or the prosecuting authorities had acted
illegally or procured or connived at unlawful procedures or violated
international law or the domestic law of foreign states or abused
their powers in any way. In the instant cases, there was nothing to
suggest that the British authorities had influenced or procured the
decisions of the Norwegian or Canadian authorities to deport the
applicants, even if they did welcome the outcomes. Accordingly,
there was no illegality or abuse of power associated with the
decisions at issue and no basis on which the subsequent criminal
proceedings should be stayed
. The applications for judicial
review would therefore be dismissed (see p 222 f to p 223 d and p 224
f g, post).



Bennett v Horseferry Road Magistrate’s Court [1993] 3 All ER 138
distinguished.”















Lord Bingham applied the law as stated in Bennet to the facts and
concluded:







Certain of the cases draw a contrast between official
kidnapping and extradition. In R v Governor of Brixton Prison, ex p
Soblen [1962] 3 All ER 641 at 661, [1963] 2 QB 243 at 302 Lord
Denning MR briefly expressed the difference between extradition and
deportation. He said:







So there we have in this case the two principles: on the one
hand the principle arising out of the law of extradition under which
the officers of the Crown cannot and must not surrender a fugitive
criminal to another country at its request except in accordance with
the Extradition Acts duly fulfilled; on the other hand the principle
arising out of the law of deportation, under which the Secretary of
State can deport an alien and put him on board a ship or aircraft
bound for his own country if he considers it conducive to the public
good that that should be done. How are we to decide between these
two principles? It seems to me that it depends on the purpose with
which the act is done. If it was done for an authorised purpose, it
was lawful. If it was done professedly for an authorised purpose,
but in fact for a different purpose with an ulterior object, it was
unlawful
.’







Lord Denning MR was, of course, referring to deportation from this
country, but the same approach in principle must apply in the case of
deportation to this country, and there must be grounds for
objection if the British authorities knowingly connive at or procure
an authorised deportation
from a foreign country for some
ulterior or wrongful purpose
.







The question in each of these cases is whether it appears that
the police or the prosecuting authorities have acted illegally or
procured or connived at unlawful procedures or violated international
law or the domestic law of foreign states or abused their powers in a
way that should lead this court to stay the proceedings against the
applicants
. In the case of the applicants Westfallen and Soper,
the answer to that question is in my judgment plainly in the
negative. The Norwegians were entitled under their own law to
deport these applicants. The propriety of the deportations is
acknowledged and indeed could not be challenged
. It is difficult
to see why the Kingdom of Norway should be obliged to keep the
applicants whilst the British applied for extradition if they wished
to deport them. It was indeed a natural step for Norway to send the
applicants back to where they had come from. There is in the
material before us nothing to suggest that the British authorities
procured or influenced that decision
. It is true that they did
not in any way resist it, and there is no reason why they should have
resisted it. It is very probable that they welcomed the decision,
but in my judgment they would have been failing in their duty as law
enforcement agencies if they had not welcomed it. In my judgment
there is nothing to suggest any impropriety such as would attract
application of the ratio in Bennett v Horseferry Road Magistrates’
Court [1993] 3 All ER 138, [1994] 1 AG 42 in this case.







So far as the applicant Nangle is concerned, it is relevant to
remind oneself that the recommendation to deport him was made at the
time of conviction, and that the deportation order was made shortly
afterwards. The decision was taken to deport him to Ireland, which
is where the applicant wished to go, and the Canadian authorities
bought him a ticket to that destination. They chose an obvious route
in the absence of a direct flight from Canada to Ireland. There
were, as is pointed out, other possible ways by which he could have
reached Ireland without travelling through the United Kingdom. But
it is not suggested, and could not be suggested, that the flight via
Glasgow was in any way contrived or sinister or other than an
ordinary route to choose in order to reach that destination. There
is nothing whatever to suggest that the British authorities
influenced the Canadian authorities to deport or procured the choice
of route
. Again, they did not resist it and probably welcomed
the outcome. But again, there is no reason why they should have
resisted that decision and no reason why they should not have
welcomed it. There was in my judgment no illegality, no violation of
international law, no violation of the domestic law of Canada, and no
abuse of power.” (My emphasis added)











9. Mackeson v Minister of Information, Immigration & Tourism



In this decision by Gubbay J (as he then was), in the General
Division of the High Court of Rhodesia-Zimbabwe (as it then was), the
Court took the first faltering steps in Zimbabwe on the issue of
“disguised extradition”.







The Court held that:







It was unlawful for the authorities to invoke the power of
deportation to achieve an ulterior aim – namely the extradition of
Mackeson to Britain to face charges of fraud. On appeal this
decision was reversed, Macdonald CJ holding that the immigration
authorities were entitled to deport a person declared to be an
undesirable inhabitant to his country of origin. ‘For obvious
reasons,’ said the judge, ‘this is an appropriate place to send a
person who is being deported and it can make no difference that this
happens to be the place where he is likely to be charged and tried
for an alleged crime. However, in R v Bow Street Magistrates, ex
parte Mackeson
21the
receiving state, Britain, refused to exercise jurisdiction over
Mackeson on the ground that his deportation was a disguised
extradition.”











It should be noted that the Rhodesia-Zimbabwe Appeal Court on appeal,
ruled that Gubbay J “had been incorrect in looking behind the
actual order of deportation and
thereby questioning the right of
the Zimbabwe/Rhodesia Minister to make the order that he did.
Instead the Appellate Division (Rhodesia/Zimbabwe) emphasized the
wide powers conferred upon the Minister in this respect, which
virtually precluded any questioning of the adequacy of the grounds
for any such decision. In other words, the Court approached the
problem solely from the point of view of the exercise and extent of
the ministers powers, as opposed to their effect.”22
But in Namibia, since achieving its independence in 1990, any such
“wide powers” would be subject to art. 18 of its constitution,
requiring as a fundamental human right that “Administrative bodies
and officials, shall act fairly and reasonably…”







This was a case where no extradition treaty or reciprocal legislation
for extradition between Rhodesia/Zimbabwe existed at the time. As
shown supra, the United Kingdom Court however refused jurisdiction
and found that this was a typical case of disguised jurisdiction,
justifying it to refuse jurisdiction to try Macheson. The decision
of Gubbay J was thus vindicated.











10. S v Beahan23



In the decision of S v Beahan, 24
Mtambanengwe, J, first decided the issue of whether he High Court of
Zimbabwe had jurisdiction to try Beahan on several criminal charges.
The headnote sufficiently summarizes the case for present purposes.
It reads as follows:







The accused was charged in the High Court with contravening s
50(1) of the Law and Order (Maintenance) Act Chap 65 (Z) in that he
had attempted to release various persons from custody. The accused
raised a special plea to the jurisdiction of the Court, contending
that the Court lacked jurisdiction as he had been arrested in
Botswana by the Botswana Defence Force and had been taken to Zimbabwe
where he was arrested. The accused alleged that he had been
unlawfully removed from Botswana and taken to Zimbabwe without any
extradition proceedings (there being no extradition agreement between
the two countries) or deportation proceedings having been instituted.
It appeared that the accused had previously been detained for
questioning after having entered Zimbabwe illegally but had escaped
and swum across the Zambezi River into Botswana. The Court found, on
the evidence led in respect of the special plea, that after having
been brought into Zimbabwe without deportation or extradition
formalities the accused was formally arrested on Zimbabwean soil.







Held, that in these circumstances the Court did have jurisdiction
to try the accused but the Court also had a discretion not to
exercise that jurisdiction in the exercise of which it would balance
the interests of the State against those of the accused.







Held, further, that in the instant case, where the accused had
initially entered and left Zimbabwe illegally and had merely been
returned, this was not a proper case for the Court to use its
discretion to refuse to try the accused. Special plea dismissed.”















After the issue of jurisdiction had been decided, Beahan was tried
before another judge of the High Court, convicted and sentenced.
Beahan then appealed to the Zimbabwean Supreme Court against the
jurisdiction decision as well as against his conviction and sentence.
By the time that this appeal was decided, the decision in S v
Ebrahim
had already been given.







Gubbay CJ, who wrote the unanimous judgment of the Zimbabwe Supreme
Court, reviewed the decisions in the USA, Great Britain and South
Africa. He described the South African judgment in S v Ebrahim
written by Steyn JA as “the most authoritative and persuasive
judgment insofar as the Zimbabwean Court was concerned.”







It is not necessary for present purposes to deal in any detail with
the merits of the case. Suffice to refer to the summary of the
decision of Mtambanengwe in the High Court, supra, from which the
relevant criminal charges appear. As to the jurisdiction issue, the
following summary of the judgment of the Zimbabwe Supreme Court
appears from the heading of the report and suffices for present
purposes:







It was contended on behalf of the appellant on appeal that
because he had been brought before the Court by illegal means the
Court lacked jurisdiction to try him. It was contended in the
alternative that, even if the Court did have such jurisdiction, in
the circumstances the Court ought to have exercised its discretion
and declined to entertain jurisdiction over him.







Held, applying the principle set out above, that as the appellant
had been recovered from Botswana without any form of force or
deception being practised by the Zimbabwean authorities there was no
bar to the Zimbabwean courts exercising jurisdiction over him
.







Held, further, as to the contention that the Court a quo ought, in
the exercise of its discretion, to have declined jurisdiction, that
as there had been no manipulation or misuse of procedure by
Zimbabwean agents and
the hands of the prosecution were not
soiled there was
no basis for interference with the discretion of
the Court a quo.”











Gubbay CJ echoed the general approach laid down in State v Ebrahim
when he stated:







In my opinion it is essential that, in order to promote
confidence in and respect for the administration of justice and
reserve judicial process from contamination, a court should decline
to compel an accused person to undergo a trial in circumstances where
his appearance before it shall be facilitated by an act of abduction
undertaking by the prosecuting State. there is an inherent objection
to such a course both on grounds of public policy pertaining to
international ethical norms and because it imperils and corrodes the
peaceful coexistence and mutual respect of sovereign nations. For
abduction is illegal under international law, provided the abductor
was not acting on his own initiative and without the authority or
connivance of his government. A contrary view would amount to a
declaration that the end justifies the means, thereby encouraging
States to become law-breakers in order to secure the conviction of a
private individual.”







The Court also overruled the decision in State v Ndlovu
1977 (4) SA 125 (RA). In Ndlovu the former Rhodesian Appellate Court
had held that “the fact that the appellant had been abducted from
Botswana (where he had been resident for several years) by the former
Rhodesian security forces in violation of international law and
brought to this country, did not constitute a bar to jurisdiction in
a criminal trial.”







The Zimbabwean Supreme Court differed from Mtambanengwe J’s
judgment in that it held that Mtambanengwe J “stated the applicable
rule too broadly, excluding as he did the important exception
relating to a violation of international law and the sovereign
integrity of a foreign state.”







It should be noted that according to the Court there was no
Extradition Treaty between Zimbabwe and Botswana at the time. The
other important distinguishing fact was that there was no reciprocal
legislation by Botswana and Zimbabwe laying down mandatory procedures
for extradition and deportation.







The contention based on O’Connell, International Law, 2nd
ed, Vol 2 at 834 that even where there is an extradition treaty it is
still not a violation of international law if there is a voluntary
surrender of the fugitive by the host state, since no sovereign is
affronted and the offender has no rights other than in municipal law,
appears to be in conflict with the decisions in S v Ebrahim,
Bennet v Horseferry Magistrate Court and Another
, S v
Wellem
, S v Buys & Others, Mohamed v President of
the RSA
and even State v December, dealt with infra. It
also appears to be inconsistent with the principles applied by Gubbay
J as he then was, in the Mackeson case, referred to in Section D9
supra.







The Court did not rule on the proposition by Mtambanengwe J in the
Court a quo that the Court hearing the jurisdiction issue, has
a discretion to refuse jurisdiction, in the exercise of its inherent
power, as an expression of its displeasure, when there is an abuse of
process in regard to the manner in which a person has been brought
before Court.







On the assumption that a discretion was vested in the High Court, the
Supreme Court again reiterated the principles applicable to enable an
Appellate Court to interfere on appeal with a discretion exercised by
a lower Court. These were stated as follows:







The principles justifying interference by an appellate Court
with the exercise of a discretion are firmly entrenched. It must
appear that some error has been made in exercising the discretion.
If the court below acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or effect it, if it
mistakes the facts, if it does not take into account some material
consideration, then its determination should be reviewed and the
appellate Court may exercise its own discretion in substitution.”







In regard to the issue of discretion and the reason why the Court did
not exercise a discretion to decline jurisdiction, some appropriate
comment was made by M G Cowling in his article – “Unmasking
Disguised Extradition – some glimmer of hope.” He says:







S v Beahan is somewhat confusing in this respect, because
although the court accepted the principle that criminal courts have
discretion whether or not to exercise jurisdiction in such
circumstances, Mtambanengwe J then decided, on the facts of the case,
that it was not necessary to exercise such discretion and that the
court should indeed assume jurisdiction. The court relied on the
absence of an extradition agreement between Botswana and Zimbabwe and
also on the accused’s illegal entry into and departure from
Zimbabwe His Lordship stated the position as follows:







It seems to me that it would be taking to absurd lengths the
concept of personal liberty to insist that a man in these
circumstances acquires a right to remain free to complain if
apprehended, as the accused here was, after his own flagrant
violation of the immigration laws of both countries, and to insist
that he should benefit from such acts and escape being brought to
justice’







This introduces the concept of the conduct of the fugitive
offender as a factor in determining whether a criminal court should
assume jurisdiction. It is respectfully submitted that this factor
cannot in any way be relevant. That a fugitive offender has
committed a heinous offence or that he was arrested for being in
contravention of a particular state’s immigration laws is neither
here nor there. What is of relevance in this respect is whether
states are evading extradition procedures and failing to comply with
accepted international standards. It would appear that Beahan’s
case is a good example of the latter, for the practical effect of the
actions of the Botswana and Zimbabwean authorities was the equivalent
of an extradition without the need to follow any procedures.







Beahan’s case raises a number of other problems that require
closer examination. In the first place, there is strong prima facie
evidence that the fugitive offender (Beahan) was wanted by the
Zimbabwean authorities for what could be described as a political
offence. As pointed out above, political offences are generally not
considered to extraditable. This raises the question whether or not
disguised extradition can arise in the absence of extradition
provisions. Mtambanengwe J specifically referred to the fact that no
extradition treaty existed between Zimbabwe and Botswana. In such a
case it can be argued that the authorities of both states are not
bound by any procedures and hence may act as they please. This is a
fundamental distinction, because the court in R v Hartley placed
great emphasis on the fact that the New Zealand authorities had
evaded existing extradition provisions between that country and
Australia. The same reasoning was adopted by the Court of Appeal in
Mackeson’s case, where it took account of the fact that, as a
result of direct rule in Zimbabwe in 1979, extradition provisions had
come into operation between that country and the United Kingdom.
Does this mean that domestic courts will grant relief only where
existing extradition provisions between two states have been
violated?







On the other hand, the question of deportation is problematical in
Beahan’s case, as under normal circumstances an alien cannot be
deported to a state with which he has no legal links (such as
nationality, citizenship or residence). It is submitted that the
applicant in Beahan’s case had no such links with Zimbabwe, and it
would appear that the only reason why the Zimbabwe authorities were
willing to accept him was in order for him to stand trial. This
clearly smacks of extradition rather than deportation. At that stage
he was a British subject and resident in South Africa. This can be
contrasted with Mackeson’s case, where the applicant’s objection
to being deported back to the United Kingdom was based on the desire
of the authorities in that country for him to stand trial there.
This was notwithstanding that he was a United Kingdom citizen. In
Beahan’s case the fugitive was simply handed over without any
formalities whatsoever, which means that such action cannot be
described as either extradition or deportation. Is it to be assumed
that no standards apply in such circumstances and officials can
simply do as they please? But, on the other hand, the court was
prepared to accept in principle that it would not exercise criminal
jurisdiction in certain circumstances. Unfortunately, it did not
spell out those circumstances.”
25















11. R v Hartley 26



M C Cowling 27
comments as follows on this decision:







A new dimension was added to the problem of extradition in R v
Hartley, where the New Zealand Supreme Court accepted that, in
accordance with the dictum of Lord Goddard CJ in Ex parte Elliott, it
had jurisdiction to try a particular alleged offender notwithstanding
irregularities in his apprehension. The applicant had been brought
before the court as a result of a request made by New Zealand police
to their Australian counterparts to apprehend him, a fugitive whom
fled to Australia while being wanted on criminal charges in New
Zealand. The Australian police willingly obliged, and the
fugitive was picked up in Melbourne (it would not be
proper to use the term ‘arrest’ in this particular context
)
and placed on the next plane to New Zealand, where he literally had
no option but to walk into the waiting arms of the New Zealand
police, who had made the initial request and had been alerted to his
arrival. The accused challenged the jurisdiction of the court on the
ground that the steps taken in this regard by the police (both
Australian and New Zealand were illegal.







On the face of it, this contention appeared to be in direct
contrast to the dictum in Ex parte Elliott. But Woodhouse J drew a
distinction between a criminal court being vested with jurisdiction
to try a particular offender (in terms of which the means of bringing
such offender within the jurisdiction of the court are irrelevant)
and a discretion enjoyed by any criminal court by way of its inherent
jurisdiction to prevent abuse of its own process. In other words,
even where jurisdiction exists, a criminal court still enjoys the
power not to proceed with a particular matter where prior
illegalities have the effect of tainting the subsequent trial. This
means that any criminal court enjoying jurisdiction to try a
particular offender also has a discretion not to exercise that
jurisdiction in certain circumstances. It would appear from the
dictum that the court concluded that disguised extradition as
revealed by the facts of this case constituted such circumstances…”















12. STATE v Wellem28



The decision in State v Wellem by Froneman AJ is the first
South



African decision wherein the role of Extradition Legislation and the
failure to comply with it, was held to be decisive. The decision
also applied the principles set out in S v Ebrahim.







The headnote of the report once again is an adequate summary for
present purposes. I repeat:







The accused were charged in Provisional Division with a number
of offences including murder, robbery with aggravating circumstances
and theft. The accused entered a plea in terms of s 106(1)(f) of the
Criminal Procedure Act 51 of 1977 that the Court had no jurisdiction
to try them as they had been apprehended in Ciskei and then brought
to South Africa against their will. The evidence showed that accused
No. 2 was arrested in Ciskei by members of the Ciskei Defence Force.
The fact of his arrest was conveyed to the South African Police who
proceeded to Ciskei where they found accused No. 2 at a police
station. They informed him that he was a suspect in murder case in
South Africa and asked him whether he wished to go with them to South
Africa. He was told that if he did not do so he would be kept in
custody in Ciskei and a request would be made for his extradition.







He was not informed of the nature and content of extradition
proceedings in the Ciskei. Accused No. 2 indicated that he was
willing to go to South Africa and the Ciskei police released him into
the custody of the South African Police. On the following day
accused No. 2 was taken back to Ciskei where he pointed out the homes
of accused No’s 1 and 3 who were arrested by a member of the Ciskei
police at their respective homes. The arrests took place with the
assistance of the South African Police. Both accused No’s 1 and 3
were similarly informed that they were suspects in a murder case in
South Africa and were asked whether they wished to return with the
South African Police to South Africa, failing which they would be
kept in custody in Ciskei pending extradition proceedings. Both
elected to go to South Africa.







Held, that the provisions of the Extradition Act 67 of 1962
were exhaustive of the manner in which South African officials may
obtain the presence of persons who had committed extraditable
offences in South Africa from Ciskei and similarly of the manner in
which State officials in Ciskei may hand over such persons to South
African officials
: to allow State officials to circumvent the
Important procedural and substantive safeguards for persons liable
for extradition therein would frustrate the very purpose of the Act
.







Held, accordingly, that the actions of the Ciskei officials in
arresting, detaining and handing over the accused to the South
African Police and the actions of the latter in requesting the
accuseds’ arrest and detention in Ciskei and handing over in the
manner they did was unlawful.







Held, further that in the absence of any evidence that the members
of the South African Police had in terms of s 6(6) of the Police Act
7 of 1958 been directed by the Commissioner to perform service
outside of South Africa, the conduct of those members of the police
in Ciskei was unlawful.







Held, further that the consent of the accused was not sufficient
to render their unlawful arrest and removal to South Africa lawful:
where a person was unlawfully arrested and detained in a foreign
state by officials of that state at the unlawful instance of the
requesting states police officials who also participated in that
unlawful arrest and detention, considerations of public policy
relating to the due process of law outweighed any consent to removal
to the requesting state by the individual concerned under those
circumstances. This was particularly so in the present case where
the accused were not told of the nature and ambit of the extradition
proceedings in Ciskei or of the procedural and substantive safeguards
provided for in the Act and extradition agreement.







Held, further that an arrest obtained by a stratagem or deceit was
invalid.







Held, further that the handing over and removal of the accused
amounted to an unlawful kidnapping or abduction and the accuseds’
consent thereto was invalid. Accuseds’ plea upheld and ordered
that they be released from custody
.”















In regard to jurisdiction – the Court held that this must be
decided in accordance with the rules of our law (i.e. Roman Dutch &
South Africa) rather than international law. Here Court referred to
Ebrahim at 569A-B of report of the decision.







The Court further held:







From the analysis of the old authorities in Ebrahim case supra,
it is clear that a person who committed a crime in the area of
jurisdiction of one Court could only lawfully be arrested in a
foreign area of jurisdiction and brought to trial in the area of
jurisdiction where the crime has been committed if the competent
authorities
of that area or state, requested the competent
authorities of the foreign area or state to do so”
.











This finding puts in a nutshell an essential requirement of a legal
extradition. The Namibian, Botswana and Zambian officials did not
qualify as the competent authorities under the laws of their
respective countries and acted in total disregard of this
requirement. Consequently there was no request by a competent
authority and also no delivery by a competent authority.







13. S v Buys & Others29



The decision by Lichtenberg JP in the Orange Free State Provincial
Division in the case of S v Buys and Others followed the
decisions in S v Ebrahim and S v Wellem. The headnote
summarizes the decision as follows:







The accused were charged in a Provincial Division with murder.
The first accused raised a special plea in terms of s 106(1)(f) of
the Criminal Procedure Act 51 of 1977 that the Court lacked
jurisdiction as the accused had been extradited from Bophuthatswana
to South Africa other than in terms of the provisions of the
Extradition Act 67 of 1962 and the relevant Convention. It appeared
from the evidence that the accused had been arrested in
Bophuthatswana by members of the Bophuthatswana police. The arrests
were lawful in terms of Bophuthatswana legislation. By agreement
between the Bophuthatswana police and the South African police,
members of the latter force transferred the accused from custody in
Bophuthatswana to custody in South Africa. The accused were later
released on their own recognisances by a magistrate’s court. It
appeared further that the accused were prepared to be transferred
because they were being held under appalling conditions in
Bophuthatswana. The Court held that there could not be two methods
of extradition, viz one in terms of the Extradition Act and the
relevant Convention and the other without the provisions of those
enactments having been complied with: as the Act and the Convention
had not been complied with in the instant case the extradition was
unlawful and the Court had no jurisdiction. The Court held further
that as the position of the other two accused was the same as that of
the first accused, the Court did not have jurisdiction in their cases
either.”











14. State v Mahala & Another30



The Appellate Division in this decision, written by Joubert JA,
distinguished the decision in State v Ebrahim. Although S
v Wellem
and S v Buys were referred to, the approach in
those two decisions were not followed. As a matter of fact, the
Appellate Division did not express itself on the question whether or
not the Court will have jurisdiction if the accused were removed from
the country of their residence, in conflict with available
Extradition and Deportation laws and without their consent. The
summary in the report of the case adequately reflect the points of
fact and law which were dealt with in the decision. I quote from
that summary:







The appellants were convicted in a Provincial Division on a
charge of murder and were sentenced to death. When they were called
upon to plead in the trial Court they raised a special plea that the
Court lacked jurisdiction in that, in breach of international law,
they had been unlawfully arrested in the Republic of Ciskei and/or
removed from the Ciskei without their consent and brought to South
Africa. The trial Court found that the appellants had not been
unlawfully arrested by the South African Police in the Ciskei but had
been arrested in South Africa. The Court convicted the appellants of
murder and sentenced them to death.







It appeared that the first appellant was initially arrested by the
Ciskeian Police but released from arrest by them and handed to the
South African Police. He voluntarily agreed to travel with the South
African Police back to East London where he was arrested. As regards
the second appellant, it appeared that he had been intercepted by
members of the South African Police while he was still in Ciskei and
requested to accompany them to South Africa, where he was arrested.
The trial Court accordingly held that the appellants had not been
unlawfully abducted and that the Court accordingly had jurisdiction
to try them. On appeal.







Held, that the trial Court had correctly held that the appellants
were not unlawfully arrested in the Ciskei and that they had not been
unlawfully abducted.



Held, further, that as the appellants had not been unlawfully
abducted from the Ciskei in violation of public international law
and/or South African law, that there had been no violation of the
sovereignty of the Ciskei and there had been no infringement of the
appellants’ fundamental human rights, there had been no breach of
South African law and the trial Court accordingly had jurisdiction to
try the appellants. The Court furthermore dismissed the appeal
against the imposition of the death sentences for murder.”















The Court appears to have held that where the South African Police
remove a suspect from the Ciskei and even handcuff him there, the
sovereignty of the state is not impugned, as long as a formal
arrest
is not done in the Ciskei but only in South Africa once
the person is brought across the border into South Africa. This
appears to be, with respect, a very artificial approach where the
reality is a prior illegal series of acts executed inside the host
country in order to remove him from the Ciskei to South Africa.







The Court also laid down an approach regarding consent by a suspect
to be removed, which seems to be completely removed from what the
Constitutional Court laid down as reasonable guidelines in Mohamed
v President of the RSA
, 2001 (3) SA 893 (CC).







It must be conceded that the Constitutional Court was also concerned
about the fact that the USA could impose the death sentence on
Mohamed if tried in the USA Courts. But in the Mahala case
the death sentence could also be anticipated if the accused were
removed to South Africa for trial.







The Mahala decisions, both that of the Eastern Province Provincial
Division and the subsequent decision of the Appellate Division, which
upheld the decision of the Provincial Division drew sharp criticism
from commentators.







Prof John, Dugard had this to say about the decision of the
Provincial Division: 31







S v Mahala & Another can only be explained in the context
of this ‘regional practice’. In this case Zietsman JP exercised
criminal jurisdiction over two suspects physically arrested by the
South African Police in Ciskei with the co-operation of the Ciskei
police on the ground that the collusion between the South African and
Ciskei police aimed at the avoidance of extradition procedures
resulted in Ciskei’s territorial sovereignty not being violated.
The inevitable conclusion to be drawn from this ‘regional practice’
is that the strict rules of extradition have no place in the
relations between South Africa and the quasi-sovereign TBVC states.
S v Mahala therefore should not be seen as a useful or serious
precedent on the law of extradition and abduction.”















Neville Botha, a commentator from the University of South Africa,
writing in the South African Yearbook of International Law 32
commented as following on the decision of the Appellate Division on
appeal:







Apart from the lack of the use of force, the judgment turns
on the fact that the accused were not actually physically arrested in
Ciskei. However, arrest represents the culmination of a process of
investigation, and even from the facts presented by the SAP, there is
clear involvement and action by members of the SAP in Ciskei
territory. The right of the SAP to act in foreign territory was,
however, not examined by the court
. Its assessment of Froneman’s
reasoning in Wellem would have been interesting and instructive.
This reasoning was indeed accepted in Mofokeng to which the Appellate
Division also failed to refer. In this latter case, reference is
made to section 34(g) of the Police Act which creates the possibility
of mutual assistance agreements between states (although none existed
in that case) which would have rendered the police action valid. The
only agreement the appeal court mentions is one between South Africa
and Ciskei for the maintenance of the road on which the apprehension
took place. It is also noted that he two police forces travel freely
on that road. The relevance of this information is also somewhat
obscure-a maintenance agreement and unhindered travel are a far cry
from apprehension, questioning, clamping an individual in leg irons,
and transporting him out of the country.





The court also stated that the extradition proceedings need not be
explained to the individual faced with the choice of returning to
South Africa voluntarily or being extradited (contra: Wellem and
Buys). It also found that there had been no violation of the
accused’s human rights – apparently because the removal had not
been forcible. These issues were merely stated without discussion.







It is indeed to be regretted that faced with the wealth of case
law both in South Africa and internationally, in which the nature,
scope, and validity of the male captus bene detentus principle are
being incisively debated, the Appellate Division has delivered what
is essentially an impoverished judgment. This is all the more
distressing when one considers the binding nature of Appellate
Division decisions. The logical conclusion to be drawn from the
judgment is that provided the individual is not carried across the
border in a sack – preferably kicking and screaming – South
African courts will enjoy jurisdiction
. Not only does this
approach cast doubts on the value of the Extradition Act and
extradition treaties (which it must be remembered are part of our law
enjoying equal status with common law in terms of the constitution),
it is out of step with current international sentiment. Although
Mahala represents an opportunity lost, it is to be hoped that the
Ebrahim tide will not be so easily stemmed.”



(My emphasis added)















The question is: When a detention and removal is done in conflict
with the laws relating to extradition and deportation and without the
consent of the person so detained and removed, is anything more
required to make such action illegal. And in any event, if it is a
requirement that such action must have the characteristic of being
done “forcibly”, then any pressure or influence emanating from a
person in authority, such as a police officer, should suffice.
Similarly, any fraud, trick or deceit applied to ensure the persons
compliance, would suffice.







15. S v December33



In the judgment of the South African Appellate Division in S v
December
, written for the full bench by Nienaber JA, the
Court stated that the decision in the Wellem and Buys cases were
impliedly overruled in the Mahala decision and was now
expressly overruled. I once again make use of the short
summary contained in the report of the case and which reads as
follows:







The appellant was convicted in a Provincial Division of two
counts of murder and was sentenced to death in respect of one count
and to 25 years’ imprisonment in respect of the other. In an
appeal from the convictions and sentence of death, it was contended
on behalf of the appellant, inter alia, that the trial Court had
lacked jurisdiction to try him as he had been brought from the
Republic of Ciskei to South Africa without any extradition
proceedings having taken place. It appeared that the appellant had
not been forced to leave Ciskei to return to South Africa but that he
had willingly accompanied members of the SA Police. It was contended
that the appellant had been enticed into South Africa by devious
means and that the police contingent had acted unlawfully in entering
Ciskei would provide authority given them pursuant to s 6 of the
Police Act 7 of 1958.







Held, that on the facts there was no evidence that the appellant
had been enticed to enter South Africa.







Held, further, that to the extent that it was suggested that the
appellant should at the outset have been lectured on the nature and
details of extradition, no such duty was cast on the police as a
precondition to consent from a person they wished to escort into the
country.







Held, further, that even though there was no proof that the police
had authority in terms of s 6(6) of the Police Act to enter Ciskei,
this did not deprive the trial Court of jurisdiction to try the
appellant.”















As in Mahala, the main factual issue was decided in favour of the
State. It was to the effect that the accused was neither
arrested
, nor abducted from the Ciskei and had consented,
willingly to accompany the South African police officers from Ciskei
– where he lived, to South Africa.







On this factual basis the Court held:







Where the appellant was not forcibly abducted and his return to
South Africa was voluntary, there was no infraction of South African
or Public international Law; consequently the decision in Ebrahim’s
case did not preclude a South African Court from exercising
jurisdiction to try the appellant……..”







It seems that by equating “not forcibly” with “voluntary”,
the Court accepted that if a removal is “not voluntary”, it is
“forcibly”.







The Court continued:







“For the purpose of his alternative argument the appellant
accepted that he was not forced to accompany the South African
policemen to East London but that he did so willingly. Nevertheless,
on the authority of S v Wellem (supra), it was submitted in this
Court that the rationale of Ebrahim’s case supra is to be extended
to a situation where an accused person’s presence within the
jurisdiction is obtained by ‘craft or cunning’ (Wellem’s case
supra at 31c-f).







The argument founders as its berth: there is no basis whatsoever
on the facts of this case for a finding that the appellant was
enticed into South Africa by devious means. And to the extent that
it was further suggested that the appellant should at the outset have
been lectured on the nature and details of extradition proceedings in
place between South Africa and the Ciskei at the time (see too S v
Buys en Andere 1994 (1) SACR 539 (O) at 550f-552a), this Court in
Mahala’s case supra at 516d-e, held that no such duty is cast on
the police as a precondition to consent from a person they wish to
escort into this country. Failing a duty to speak, there can be no
false representation by silence. Consent so obtained is not
improperly obtained. Consent properly obtained dispenses with the
necessity of seeking formal extradition.







S v Mahala (supra) also provides the answer to a further
submission based on S v Wellem (supra at 29e-h), namely that the
police contingent acted unlawfully when, without proven authority
given to them pursuant to s 6(6) of the Police Act 7 of 1958, they
entered the Ciskei in order to investigate a crime committed in South
Africa; and that considerations of public policy precluded the
appellant’s consent from rendering conduct otherwise unlawful,
lawful. That very situation also occurred in Mahala’s case.
Nevertheless this Court, with knowledge of Wellem’s case which was
cited to it, decided that the trial court had the jurisdiction to try
the accused. In Mahala’s case Wellem’s case and, following it,
Buys’ case supra, were impliedly overruled. It is now done
expressly.







In the absence of unlawful or improper conduct in the sense
referred to in Ebrahim’s case supra, on the part of any of the
organs or functionaries of the South African State, a South African
court is not precluded from trying anyone for crimes committed within
its borders. Here was no unlawful conduct. The special plea was
accordingly rejected.”















I must briefly comment on some of the findings:







(i) The most important perhaps is the finding that:







Consent properly obtained, dispenses with the necessity
of seeking formal extradition.” (My emphasis added)















The Court therefore accepted that formal extradition, (of
course only where such procedures are available in the form of
extradition treaties and/or extradition laws,”) is a necessity,
unless the party to be extradited, consents and provided such
consent was properly obtained
.







(ii) The Court in S v Wellem held that where consent of
the accused is relied on by the State to excuse an unlawful arrest
and detention, such consent could not suffice where as in that case,
“the accused were not told of the nature and ambit of the
extradition proceeding in the Ciskei or of the procedural and
substantive safeguards provided for in the Act and extradition
agreement.”







To this reasonable requirement, the Appellate Division per Nienaber
JA, said:







“And to the extent that the appellant should at the outset have
been lectured on the nature and details of extradition proceedings in
place between South Africa and the Transkei at the time ……….this
Court in Mahala’s case supra at 516 d-e held that no such duty is
cast on the police as a precondition to consent from a person they
wish to escort out of this country. Failing a duty to
speak, there can be no false representation by silence
. Consent
so obtained is not improperly obtained………”















Nobody suggested that the accused must be “lectured”. But
surely, it cannot be correct that the police officials, who require a
waiver from the accused of his rights provided under the extradition
laws, cannot remain silent, without even informing the accused at all
of the gist of the implications, if the State wishes to prove consent
amounting to a waiver of rights. The said finding by Appellate
Division will make it very difficult for the State, if not almost
impossible, to discharge its onus to prove beyond reasonable doubt,
the legality of the arrest and removal from one state to the other.







(iii) The issue on which Wellem and Buys was overruled, does not seem
to be the requirement of “consent properly obtained,” but
what would constitute “consent properly obtained”. It is in this
regard that the Appeal Court in this case struck down not only what
was held in the decisions of Wellem and Buys, but laid down an
approach which was subsequently discredited by the Constitutional
Court in Mohamed v President of the RSA in May 2001.







The Appellate Division of the Supreme Court obviously did not have
the benefit of the ruling of the Constitutional Court and the
guidelines which it laid down for the obtaining of consent from a
person to be extradited or even deported.







(iv) In Wellem’s case the Court held, that where a person
was unlawfully arrested and detained in a foreign state by the
officials of that state at the unlawful instance of the requesting
states police officials, who also participated in that unlawful
arrest and detention, considerations of public policy, relating to
the due process of law
outweighed any consent to removal to the
requesting state by the individual concerned under these
circumstances.







The Court in Wellem did not rule out completely that “consent
properly obtained”, can be a defence even where Extradition Laws
and Agreements were not complied with.







In S v Buys it seems that the Court unambiguously held
that if the terms of the Extradition Act and Convention are not
complied with, the “extradition” was unlawful and the Court had
no jurisdiction. The Court said: “There could not be two
methods of extradition, viz one in terms of the Extradition Act and
the relevant Convention and the other without the provisions of those
enactments being complied with
.”







The decision in S v December clearly struck down any
suggestion in S v Wellem and S v Buys that consent
properly obtained, will not suffice to remedy the failure to comply
with an available Extradition Act and Convention.







(v) In Wellem’s decision detention and/or removal achieved
by “craft or cunning”, or by “stratagem of deceit,
amounts to an unlawful “kidnapping” or “abduction” and was a
justified extension of the “abduction” concept as it appeared in
S v Ebrahim. In S v December this
approach was not rejected, but the argument based on it was rejected
only on the facts:







The argument founders at its berth: there is no basis whatever
on the facts of his case that the appellant was enticed into South
Africa by devious means
.”











To conclude this review of the case law, I must reiterate that the
Namibian Supreme Court is not bound to follow decisions of the South
African Supreme Court (Appellate Division) or even the South African
Constitutional Court.







One must keep in mind that the Appellate Division when considering S
v Mahala
and S v December was faced with appellants who
had already been found guilty of the most callous, cowardly and
heinous crimes of murder. To hold at the appeal stage that the Court
a quo who had rejected the jurisdiction point and then
convicted and sentenced the accused on the merits, had erred in not
upholding the objection to the jurisdiction, would have resulted in a
grave injustice to the victims of those crimes, their families and
friends. To see that justice is done not only to accused persons,
but also to the victims of crime is part of the aim of the Rule of
Law and the public interest.







Nevertheless, there is no good reason why the State’s officials
should flout the constitution and laws of their own country and those
of neighbouring states. Such abuse of process in countries which
subscribe to the Rule of Law, can never be in the public interest.







I have come to the conclusion that the Wellem and Buys decisions were
correctly decided, except insofar as these decisions held that
consent properly obtained, will not rectify failure to comply with
available Extradition Laws and Conventions. In that regard I prefer
to follow the two Appellate Division decisions in S v Mahala
and State v December
. It also seems to me that the
Appellate Division was wrong in sanctioning silence by the
officials when confronting the accused and when they are initiating
the removal of the suspected fugitive. Such suspected fugitive is at
least entitled to know the gist of what is intended for him, such as
the intention to put him on trial and the nature of the charges
he/she would be expected to face upon his/her return and the gist of
extradition procedures and his/her rights under such procedures.







This course may place a burden on the officials, but such burden must
be undertaken if the State wishes to take a short cut and avoid a
more lengthy and complicated Extradition Procedure, by obtaining a
waiver from an accused person.







SECTION E: IS THE ABUSE OF THE LAW AND OF THE RIGHTS OF THE
PERSONS DETAINED IN AND REMOVED FROM THE HOST COUNTRY, RELEVANT
.







In this regard Mr Gauntlett submitted in his heads of argument:







It is submitted that this Court should not, save in the most
extreme cases, embark on a determination, as the Court a quo did, of
the lawfulness of functionaries of a foreign state in accordance with
the municipal law of that State. This principle is expressed in the
“act of state doctrine adopted by courts in the United States. In
English courts, a similar approach is explained on the basis of
judicial restraint in matters that might affect international
relations and the comity between nations. The principle is further
based on equality and the sovereignty of nations – as well as the
fact that a municipal court has no manageable standards by which to
judge issues which occurred in a foreign state.







42. The act of state doctrine is not a principle of public
international law, but is widely accepted in municipal systems. The
doctrine gains particular significance in light of the principle in
Article 96 (c) of the constitution of Namibia, that the State
endeavours to ensure that in its international relations it creates
and maintains just and mutually beneficial relations amongst nations.







43. The doctrine is not absolute and notable exceptions have been
made in recent times, of which the Pinochet case, discussed above, is
a prime example. The doctrine however retains some significance. It
is submitted that all of the exceptions to the principle in recent
cases indicate that municipal courts will not under this rubric turn
away from acknowledging extreme violations of public international
law (such as invasions of territorial sovereignty) or egregious
violations of international human rights such as torture. This is,
however not such a case.”















Mr Gauntlett then goes on to deal with the concept and issues of
“disguised extradition” and impliedly accepts that “disguised
extradition”, where it is used, is an exception to the “act of
state” doctrine. He cites with approval what Lord Denning said in
R v Brixton Prison (Governor), Ex Parte Soblen 1962 3 All ER
641 (CA), dealt with in Section D6 supra.







For the sake of brevity I will only repeat the last two paragraphs of
the quotation:







It is open to these courts to inquire whether the purpose of
the Home Secretary was a lawful or unlawful purpose. Was there a
misuse of power or not? The courts can always go behind the face of
the deportation order in order to see whether the powers entrusted by
Parliament have been exercised lawfully or not”.















State counsel however continued to equate the action of police and,
defence officials with Namibia as a state.







In my respectful view “the State” and “acts of state” cannot
be equated with acts of officials who are not authorized by the law
of the state to act for and in the name of the State and thus to
represent the state. The fact that the host State will be held
responsible for wrongs against persons, such as delicts, which are
committed by officials of the host State when they are acting in the
course of their employment, does not make those wrongs “acts of
state” of the host State, which for that reason, falls outside the
jurisdiction of a Court of the forum State.







Several of the authorities referred to highlight the uncertainty
about the concept of “act of state” and the use of that concept
as a bar to a trial court in a criminal case in the forum state,
investigating, or deciding or even expressing itself on wrongs and
abuses perpetrated in the host state.







J G Starke deals in his book, “Introduction to International Law,”
with the proposition that “the Court of one state cannot question
the validity or legality of the act of state of another sovereign
country or its agents
and that such questioning must be done, if
at all, through the diplomatic channels” as “a more far reaching
proposition” which “cannot as yet be said to be part of
international law”.34







As pointed out before, the aforesaid “far reaching proposition”
also finds no support in the decision of R v Brixton Prison
(Governor) Ex Parte Soblen
, supra, where the argument was about
interference with decisions of the Secretary of State,
equivalent to a Minister, and as such obviously a representative or
agent of the State, authorized by law to take decisions regarding
deportation on behalf of the State.







The decision in Attorney General v Nissan, 35,
referred to by counsel, dealt with acts of state in a different
context. It throws no light on the issue of the aforesaid
“far-reaching proposition.”







Bradley and Ewing in the 11th edition of the book
“Constitutional and Administrative Law” says: “Although it is
often applied confusingly in different situations, ‘act of state’
is often used in this context. One definition of act of state is
that is an act of the Executive as a matter of policy performed in
the course of its relations with another state, including its
relations with subjects of that state, unless they are temporarily
within the allegiance of the Crown’. This is not a wholly
satisfactory definition and different legal inferences may be drawn
from it…”







Brownlee, in “Principles of Public International Law referred to by
counsel for the State, states:







One form of Act of State doctrine is the principle (which is
not a rule of public international law) that municipal courts will
not pass on the validity of acts of foreign government performed
in their capacities as sovereigns
within their own territories”.
(My emphasis added).















The related argument is that a Court such as the Court a quo
enquiring inter alia into acts of officials of a host state, done in
conjunction with officials of the forum state, affecting the rights
of any accused before such Court, who is a citizen of the country of
the forum state, will jeopardize or prejudice good relations between
the affected states. This argument appears to me to be farfetched.







A number of decisions in civil cases have been brought to our
attention several of which have been decided many decades ago, if not
centuries ago, and are extremely unhelpful. I will briefly refer to
some. Sinclair v H.M Advocate, 17 RJC was decided in 1890.
The case is not in point at all because it deals with a situation
where there was neither extradition treaty, nor extradition laws with
mandatory provisions. The learned judge Lord Mac Laren said:
“Generally it (i.e. extradition) is done by treaty, but if a
state refuses to bind itself by treaty
, and prefers to deal with
each case on its merits, we must be content to receive the fugitive
on these conditions, and we have neither title nor interest to
inquire as to the regularity under which he is apprehended and given
over to the official sent out to receive him into custody”.







In Underhill v Hernandez, 168 US 250 1897 at 252, the US
Supreme Court, said “Every sovereign State is bound to respect the
sovereignty of every other State and the Courts of one State will
not sit in judgment on the acts of government of another done within
its own territory
”.







The point is that illegal action by unauthorized officials in a state
is certainly not what was meant by “acts of government”.







In Banco Nacional de Cuba v Peter L F Sabbatine et al, 376 US
398 (1964) the need for “judicial restraint” was mentioned and it
was pointed out that “the less important the implications of an
issue are for our foreign relations, the weaker the justification for
exclusivity in the political branches”. The above stricture is
rather vague and ambiguous with no helpful guidelines.







In Buttes Gas and Oil v Hammer & Another and Occidental
Petroleum Corporation & Another v Buttes Gas and Oil Co
, 1981
3 All ER, Lord Wilberforce said inter alia:







There exists in English Law a more general principle that
Courts will not adjudicate on the transactions of foreign states
.
Though I would prefer to avoid argument on terminology, it seems
desirable to consider this principle, if existing, not as a
variety of ‘act of state’ but one for judicial restraint and
abstention…”















The question once again is what was meant by “transactions of
foreign states
”. In my respectful view it was never meant to
refer to actions of unauthorized officials, committing unauthorized
and illegal acts.







The decision in Abassi v Secretary of State for foreign and
Commonwealth Affairs
, 200 2 EWCA CIV 1598 was decided in a
completely different setting and is not in point at all. Decisions
such as these above referred to, have been misconstrued and
unjustifiably extended to include under the label “act of state”
and/or acts where judicial restraint is necessary, the unauthorized
and illegal acts of unauthorized officials.







The decision of the House of Lords in R v Bow Street Metropolitan
Stipendiary Magistrate and Others, ex parte Pinochet Ugarte
,
was also referred to. This decision was given in 1998 against the
background of the State Immunity Act of 1978, enacted by the United
Kingdom Parliament, dealing inter alia with the Immunity of a
foreign state and that of a head of State in courts of the United
Kingdom. The House of Lords, by a majority of 3 – 2, found that
Pinochet, a former head of State of Chile, had no immunity from
proceedings in Courts in the United Kingdom.







The aforesaid Act of 1978, and its impact on the ultimate decision of
that Court, is not relevant to the issues before us in the instant
case. However, the issue of the doctrine of acts of State, is
relevant to the issues in the matter before us. Several of the
learned judges of the House of Lords reviewed the decisions of courts
of law on the doctrine as well as the writings and opinions of
recognized scholars and institutions, including most of the decisions
referred to by State counsel before us.







All the decisions reviewed by the House of Lords, once again showed
that the Act of State doctrine refers to acts by the sovereign of an
independent State, or to acts which can truly be said to be that of
officials representing the sovereign, acting in the exercise of the
sovereignty of that State.







Lord Slynn of Hadley, who was one of the majority judges in the House
of Lords decision in Bennet and one of the minority in the
Pinochet decision, said in regard to changes in the rules of
Customary International Law:







Rules of customary international law changes however, as Lord
Denning, MR said in Trendex Trading Corp. Ltd v Central Bank of
Nigeria
(1977), ALL ER 881 at 890 (1977) QB 529 at 554, we should
give effect to those changes and not be bound by any idea of stare
decisis in international law. Thus, e.g. the concept of absolute
immunity for a sovereign, has changed to adopt a theory of restricted
immunity in so far as it concerns the activities of a state engaging
in trade. One must therefore ask - is there sufficient evidence to
show that the Rule of International Law has changed?…







This principle of immunity has, therefore, to be considered in the
light of developments in International Law to what are called
International Crimes. Sometimes these developments are through
Conventions.”











The learned judge then cited certain conventions relating to
International Crimes. The principle stated is obviously also
applicable to conventions and treaties relating to fundamental human
rights of the individual.







Lord Steyn, one of the majority judges in Pinochet, had this
to say in regard to the doctrine of acts of state in criminal cases:







“Since the act of state doctrine depends on public policy as
perceived by Courts in the forum at the time of the suit, the
developments since 1973 are also relevant and serve to reinforce my
view. I would indorse the observation in (1986) 1 Third Restatement
of the Foreign Relations Law of the United States 370, published by
the American Institute to the effect that:







‘A claim arising out of an alleged violation of fundamental human
rights – for instance a claim on behalf of a victim of
torture or genocide – would if otherwise sustainable probably
not be defeated by the act of state doctrine, since the accepted
international law of human rights is well established and
contemplates external scrutening of such acts
.’”



(My emphasis added.)











The learned judge referred to torture and genocide as examples of the
violation of fundamental human rights. He stated a principle, and
did not purport to restrict its applicability to torture and
genocide. He also stated that in his view the word “generally”
should be substituted for the word “probably” in the above
quotation.







The above decisions and writings of acknowledged scholars suffice to
demonstrate the confusion about the concept of “act of state”.
The Courts outside the USA, have in the last decade or two moved away
from the aforesaid “far reaching proposition” in several
authoritative and landmark decisions.







It is clear from the decisions referred to and discussed under
Section D supra, that situations where there exist between states
extradition treaties and/or ‘reciprocal extradition laws, have been
distinguished from those where there were not such treaties and
legislation. Where mandatory legislature provisions exist, it has
been held that such provisions are exhaustive and extradition and/or
deportation outside such provisions are illegal. That position was
the most clearly spelled out in the Bennet v Horseferry
decision, the New Zealand decision in R v Hartley and the
South African decisions of Wellem and Buys. This aspect was not
contradicted in the subsequent decisions of the Appellate Division in
Mahala and December.







The majority decision of the United States of America Supreme Court
in Alvarez-Marchain can be distinguished as I have shown in Section
“D”4, on the ground that in that case there was only an
extradition treaty between Mexico and the USA and the provisions
therein were very wide and left a discretion to the Executive and
even left it open for the executive to decide to use other means to
bring a fugitive before the trial Court.







Mr. Gauntlett concluded his written argument in this regard as
follows:







57. The critical issue identified by the court a quo thus
remains the actions of the Namibian authorities and an
assessment of their lawfulness. The unlawfulness of the actions of
the Zambian and Botswana authorities alone is neither
necessary, relevant or conclusive – at best they gain significance
as a prism through which to view the actions of the Namibian
authorities. It is submitted that this court should be very
reluctant to make such a far-reaching finding against the
executive of a foreign State to provide
what is at best
supporting evidence unless the wrongdoing thus highlighted was of the
most serious kind.”











Mr. Gauntlett thus appears to concede that an alternative
justification for the Court to look into the “unlawfulness of
Zambian and Botswana authorities” is as “a prism through which
to view the actions of the Namibian authorities.”







In regard to the warning that the Court should be very reluctant to
make such a far-reaching finding against the “executive of a
foreign state”, Mr. Gauntlett in my respectful view, once again
confuses investigation into and findings on the acts of unauthorized
officials with that of acts of the Executive of a State as the term
is used in regard to the “Act of State” doctrine.







Even though “acts of state” refer to the acts of the sovereign
power or senior members of government and the executive, such as
ministers, who are in terms of the laws of a sovereign country
authorized to act for and on behalf of the State
, the State will
still be held responsible for the unlawful acts of its officials,
when a Court, deciding on whether or not it has jurisdiction to try
the accused, considers the acts of those officials in bringing the
accused before Court.







As to the qualification that such an enquiry and findings should not
be made “unless the wrongdoing thus highlighted is of the most
serious kind,” my view is that a total disregard of the laws of the
relevant states in regard to extradition and/or deportation and even
of international law, is in fact “a wrongdoing of the most serious
kind”. Such wrongdoing is also “exceptional” and falls within
its own distinct class or category of gross illegality and abuse,
which without more, will require a criminal court to decline
jurisdiction.







Even if Mr. Gauntlett’s abovequoted restrictive approach was
applicable, the Court a quo would have been justified in
considering the actions of both Namibian, Zambian and Botswana
officials and to make findings on it, in so far as it relate to the
issue of the abuse of the law in bringing the accused before it. How
else could it be determined what the alleged wrongdoing was and
whether or not it was of the most serious kind?







The Court a quo followed the approach of Wellem and Buys, to
the effect that where treaties and or laws provide for the procedures
for extradition, such provisions are exhaustive and extradition or
deportation outside it would be unlawful.







In my respectful view the approach set out in the cases of Bennet,
read with Ebrahim, Mohamed, Wellem, Buys, the Crown Appeals decision
in Mackeson, and Hartley, all dealt with in Section D supra, commend
itself and should be followed by the Namibian Supreme Court.















SECTION F: THE GROSSNESS OF THE ABUSE BY THE OFFICIALS IN BOTSWANA
AND ZAMBIA.







These officials who detained and handed over the accused persons to
Namibian police and army personnel, had neither complied with any of
the requirements of the laws of their own country nor with the
provisions of international law as provided for in the International
Covenant of Civil and Political Rights and the Convention and
Protocol relating to Refugees. (See Section C4 and C5 supra.)







As correctly pointed out by the Court a quo, a written request
supported by documentation in support thereof is required to set in
motion the extradition proceedings.







These officials furthermore completely prevented the accused from
exercising their rights provided in the aforesaid legislation. It is
necessary to peruse the provisions of those laws as set out in
Section C supra to grasp the full ambit of these rights. Those
provisions provide inter alia for the right to proper arrest
in terms of a warrant, the right to legal representation, opportunity
to appear at a hearing before a magistrate in the form of a
preparatory examination where the charges against them by the
requesting country are tabulated and considered, to establish whether
they are extraditable, and by which inter alia the right to
specificity and not to be extradited for crimes of a political
nature, are very important forms of protection.







Even in the case of an alleged deportation, there must be a written
document to declare the person a prohibited immigrant, a warrant of
deportation when that is decided on, the opportunity to make
representations to the appropriate senior officials and tribunals
established by law, the right to legal representation, the
opportunity to leave the country within a reasonable period and an
indicated route along which such person should leave the deporting
country.







When the provisions of the laws in question are perused, it must be
clear that there was a gross abuse not only of the laws of Botswana
and Zambia but of the rights of the accused persons in terms of those
laws and in terms of international law. Hoff J gave full reasons for
finding that the applicable laws were not complied with. I fully
agree with his reasons and finding in this regard.







SECTION G: THE INVOLVEMENT OF NAMIBIAN OFFICIALS IN THE ABUSE







1. Although the Court a quo had found that there was “no abduction
in the sense used in the Ebrahim case” and also no connivance
by South African officials in such abduction, proved by the evidence,
it did in effect find that the Namibians were party to the
illegalities pertaining to the illegal taking prisoner, detention,
removal and handing over of the accused persons. The Court put this
aspect as follows:







The ‘deportation’ of 12 of the accused persons was clearly
preceded by a request from officers acting on behalf of the Namibian
State and it cannot with any conviction be argued that the Zambian
authorities acted unilaterally when they deported Namibians.







If one accepts, in favour of the State, the accused person had
been arrested by the respective neighbouring authorities, a decision
had not been taken and they had not been deported until some time
after the Namibian authorities had requested their return”.















The Court further stated:







In my view the protest by the Namibian authorities that they
had no part in irregularities which occurred during the deportation
procedures in Zambia and Botswana, in itself, cannot come to their
rescue since their own initial conduct, by informally requesting the
handing over of fugitives and thus bypassing formal extradition
proceedings tainted those very deportation proceedings they now want
to put at a distance.”







It is I think useful to look at the dictionary meanings of the words
“abduction” “connive” and “collusion” before we proceed.
The Oxford Advanced Learners Dictionary of Current English by Hornsby
mention the following definitions:







ABDUCTION: “Take or lead … away unlawfully by force, or
fraud”.



CONNIVE: “Take no notice of (what is wrong, what ought to
be opposed) (suggesting that tacit consent or approval is given).



COLLUSION: “Secret agreement or understanding for a
deceitful or fraudulent purpose.”







I have compared these definitions with others and am satisfied that
it fairly reflects the meaning of these words.







I have already dealt in Section B5 supra with the finding regarding
abduction “in the sense of the Ebrahim case” and that it could
not find on the facts that “there was indeed a connive or collusion
between the authorities to abduct the accused persons”. I also
pointed out in that section that the learned judge a quo there
committed a misdirection.







This Court on appeal is entitled to come to a different conclusion.







To the extent that the Namibian police and/or army officials moved to
receive, take prisoner, the Namibian accused, without any prior legal
extradition request by them, but merely a request from army or police
personnel and removed those accused from those countries without any
legal warrants or other written authority in terms of Extradition
laws or Immigration and/or deportation laws, was prima facie
evidence of being a party to, or having colluded or connived with the
Zambian or Botswana officials’ illegal actions.







In such circumstances it should not really be decisive when a Court
before which such accused is arraigned has to decide whether or not
it has jurisdiction or whether or not it should exercise its
discretion to decline jurisdiction, whether the manner in which the
accused was brought before it should be clothed with the label
abduction, abduction in essence, disguised extradition, or “voluntary
surrender”, and whether or not it is in conflict with international
law, and/or domestic law, and/or Roman Dutch Law, and/or South
African Law.







2. Mr Gauntlett submitted in this regard in his written heads of
argument:







In this matter Namibia had asked for no more than the
apprehension and delivery of the respondents as fugitives from
justice. There is no evidence that Namibia had suggested that
this be achieved by illegal means. When such a request is directed,
it is presumed that the reference is intended to refer to lawful
actions.”















On what logic or law this presumption is based, was not disclosed.
There is no basis whatever for such a presumption. The presumption
or alternatively, the inference, is rather the opposite.







“Namibia” must be presumed to know its own laws and at least the
mandatory procedure laid down in the reciprocal legislation of the
neighbouring Commonwealth states, Botswana and Zambia being two of
those states. So “Namibia” must know or be presumed to know that
the lawful way is to act in terms of the Extradition legislation, the
first step of which is a proper written request, supported by
documents and in the case of Botswana, directed by the Namibian
diplomatic representative or consular officer in Botswana to the
Minister in Botswana, who is designated for this purpose by the
Botswana Act. In Zambia the law provides:







A request for extradition of any person under this part shall
be made in writing to the Attorney-General and shall be communicated
by –







(a) a diplomatic agent of the requesting country, accredited to
the Republic; or



(b) any other means provided in the relevant extradition
provisions.”















It must be remembered that Namibia correctly followed this procedure
when it requested the extradition of 13 other Namibians, who were
also accused of participating in the Caprivi uprising. See in this
regard the decision in Kakena Likunga Alfred v The Republic of
Namibia
heard on August 2002 and decided in December 2002.







3. It follows from the above that the request by “Namibia” could
only have been conveyed in the form and in the circumstances on the
assumption that a “short cut” will be taken not conforming
with the law of extradition.







4. It must further be kept in mind that the burden was on the State
to prove that the accused were brought before the trial Court by
legal procedures.







5. On the evidence before Court, Namibia was, if not the main
instigator, at least a “knowing party”, in the words of Lord
Griffiths in the Bennet decision. Lord Griffiths also made it clear
that a situation where “a practice developed where the police or
prosecuting authorities in this country ignored extradition
procedures by a mere request to police colleagues in another country,
they would be flouting the extradition procedures and depriving the
accused of the safeguards built into the extradition process for his
benefit. It is to my mind unthinkable that the Court should declare
itself to be powerless and stand idly by,…”







The case now under consideration is precisely such a case.







6. The cooperation between Namibian police and army personnel with
their colleagues in Botswana and Zambia must be seen against the
background of a violent uprising in the Caprivi.







(i) The fact of this uprising was a notorious fact, obviously
well-known also to the officials of the neighbouring countries
Botswana and Zambia.







(ii) It soon became known that a considerable number of Caprivians
moved from the Caprivi to Botswana and Zambia before the actual
outbreak and apparently increased after it.







(iii) The first group, the Mamili group had already left before the
actual outbreak on 2 August 1999 and were arrested and in detention
in Zambia at the time of the actual outbreak, allegedly because they
were suspected prohibited immigrants. In Section A3 it was asserted
that the arrest of the first group of which Mushwena was a member
took place on 18th June. That appears to be incorrect
because Mushwena, and Puteho, according to the entry declaration
forms which they completed on 23/6/1999, entered on that date.







Stephen Mamili, who died in detention awaiting trial in Namibia
before the application of the 13 applicants before the Court a
quo
, also entered Zambia on 23/6/99 and completed a proper
immigration form. Mamili stated the purpose of his entry to be
“other political”. Mushwena stated the purpose as “Political
asylum”. Puteho stated that his purpose was – “other”, i.e.
other than those stipulated on the form.







These forms were handed into Court by State witnesses. These forms
support the affidavits of Mushwena, and Puteho, who were members of
the first group. An important feature of the uncontradicted evidence
of Mushwena as contained in his affidavit was the following:







7. Five colleagues and myself left for Zambia due to the fact
that even though we were given political asylum by the Botswana
government, we were forced to leave because of the living conditions
we were subjected to.







8. We entered Zambia on 18th June 1999 and reported
ourselves to the Zambian Police at Katima Mulilo but due to lack of
space there, we were taken to Sesheke where we spent about two days
and later transferred to Mongu Prison. Later we were taken to
Chilenje Police Station cells in Lusaka and finally to Kamwala Remand
Prison, also in Lusaka.







9. At Kamwala Remand Prison, a representative of the United
Nations High Commission for Refugees (UNHCR) came to see us. We
filled in some application forms for refugee status and the
representative took photographs of us and told us to wait for the
outcome of our applications.







10. Before we could get the outcome of our applications, in or
about July 1999, a human rights lawyer by the name of Mr Ngulube came
to see us at the Remand Prison. We explained our position to him and
he told us that he would take out case to court so that we could be
removed from prison



.



11. However, before Mr Ngulube could take our case to court, we
were removed from the Remand Prison and taken back to Namibia on 7th
August 1999. We stayed at Kamwala Remand Prison for about 53 days.







12. On the day of our removal from Kamwala Remand Prison, the
prison authorities told us that we were being taken to the Central
Police Station in Lusaka for interviews but they did not tell us what
the interviews were about.







13. When we got into their bakkie, we were driven straight to the
Airport in Lusaka. At the Airport we asked the officers where we
were being taken. The officers told us that we would first be taken
to Kampala in Uganda, then to Europe. We were suspicious because the
plane we were about to use was a military one. When we got in the
plan, the pilot told us that we were flying to Sesheke. That’s
when we realised that we were being unlawfully conveyed to Namibia.







14. We were flown to Sesheke in Zambia, where we found Namibian
Police officers who had crossed into Zambia to collect us, waiting.
When we arrived on the Namibian side of Katima Mulilo, we were driven
straight to Mpacha Military Base.







15. Around 01:00 to 02:00 O’clock in the afternoon, we were
driven to Katima Mulilo Magistrate’s court cells and later in the
evening were taken back to Mpacha Military Base where the officers
tied our hands behind our backs with wire strings.







16. We stayed at Mpacha Military Base from 7th to 10th
August 1999. Thereafter, we were transferred to Grootfontein
Military Base and subsequently, to Grootfontein Prison where we have
been until the present time.








  1. On 11th August 1999, we were charged with high treason
    and sedition and as time went by, other counts were added”.












It is clear from the above that there was a total and deliberate
refusal or failure to follow the procedure laid down in the
legislation of Zambia. The accused were even actively prevented from
taking their case to the Zambian Court. The rush to get the accused
across the border back into Namibia after the outbreak of hostilities
on 2 August 1999, fits in with the background of conferences between
Zambia and Namibia military and police personnel and the specific
request of General Shali to urgently hand over the Namibians.36







(iv) It was only after the outbreak of hostilities on 2 August 1999
that they were handed over by Zambian officials to Namibia officials.
The question is why? The answer appears from the contacts and
conferences between Zambian officials and Namibian officials as set
out in Section A3(ii) – A3(vii) supra.







At the first meeting Chief Inspector Goraseb “informed the Zambians
to heighten their vigilance”.







At the second meeting a Zambian delegation led by their criminal
investigation officer met with Chief Inspector Goraseb in Katima
Mulilo. The purpose was twofold:







Firstly to inform Chief Inspector Goraseb that they ware aware of the
attack on Caprivi. Secondly to seek ways in which they could assist
in curbing the problem. The next day, the 7th August,
Mayor General Nghiishililua, Chief of operations of the Namibian
Police Force, instructed Chief Inspector Goraseb to receive the group
at Sesheke in Zambia.







This was done by Inspector Theron and Inspector Shishandi of the
Namibian police who went to Sesheka in Zambia, where they received
and removed this group to Namibia where they were handed to the
Namibian Army and where they remained in detention.







The evidence of Major-General Shali is significant in this regard.
He was asked by the State Prosecutor, Mr January:







“As a result of the information from Zambia, what did you do?



Shali replied:







I did exactly what I was supposed to do in my capacity of Army
Commander to immediately contact my counterparts on the other side of
the border and asked them to immediately contact my counterparts
on the other side of the border and asked them to immediately hand
over the group of terrorists that I was looking for because I wanted
them to be brought to book
”.



What happened after that?”



The Zambians did exactly what we asked them to do and
immediately they were handed over.”











Some further passages from Shali’s evidence are significant: In
his evidence-in-chief he said:







“It was simple, simple in the sense that Zambian authorities
informed us that they have, they are holding people that we are
looking for as a result of which the Zambian authorities decided to
hand them over to the Namibian authorities
.” Here it is
expressly stated and admitted that the Zambian authorities decided to
hand over the “people that the Namibians are looking for” “as a
result of which” they were handed over.







Another passage reads:







I was saying that we went there to collect them during the
process of deportation, that’s why I have mentioned to you to say
that these are people who had no choice in any case they had
to be returned to Namibian authorities in any case, whether it was
legal, because they were in Zambia illegally and the law does not say
that the person has to be deported from point A to Point B of the
country it can be anywhere”.











The attitude to legal extradition procedures appears from the
following extract:







I said there was no need to ask for extradition because as far
as the Zambian authorities are concerned, they were holding illegal
immigrants whom they were ready to deport to Namibia. As far as we
are concerned this is a group of terrorists which we so badly wanted
to apprehend.”











It is clear from the above that the witness, who was instrumental in
the handing over and taking prisoner of the Namibians, continuously
refer to the “authorities” in Zambia and Namibia, without
apparently realizing that the minimum requirement is a request by
authorities who are authorized by law to make the request on the one
hand, and on the other authorities authorized by law to decide and
accede to such a request.







It is clear from the above that there was not the slightest
indication of extradition procedure and also no indication whatever
of a legal deportation.







The purpose of the handing over of the “terrorists” by army
personnel in Zambia to army personnel in Namibia was so that they
“could be brought to book in Namibia” and because General Shali
asked for their immediate handover for that very purpose. The
handover, when it happened was clearly at the initiative of
General Shali and other Namibian military and police officials. In
this context the purpose and motive was neither legal extradition nor
legal deportation. At least General Shali and the other Namibian
Defence Force and police officials influenced the handing over, or
knowingly cooperated.







The commentator MG Cowley referred to supra, correctly comments:







And Courts must scrutinize official acts and factual situations
very carefully in order to determine whether the expulsion of an
alien is a genuine case of deportation or whether it constitutes a
form of disguised extradition. Although it is conceded that the
distinction is subtle, there are some important differences. The
essence of the concept of deportation is the decision by the
appropriate authorities
in a particular state that the continued
presence of an alien in that state is undesirable. So such alien is
ordered to leave the territory. The expelling state should
not concern itself with the destination of the deportee, nor
should deportation be preceded by a request from
another state. Thus if the supposed act of deportation was
initiated
by a request from another state, (state A) to
the effect that an alien should be deported to that state with
the ultimate objective of his standing trial
, this would
constitute a clear case of disguised extradition. And in such
a case the domestic courts of the receiving state (state A) should
grant relief to such an offender on the basis that his presence
before the Court is irregular”. (My emphasis added)







It must also be noted that in the instant case there is no indication
whatever that a decision to deport was taken by the “appropriate”
authorities.







7. The position for the State is aggravated by the fact that Namibian
Police and/or military personnel went into Zambian and Botswanan
territory in order there to take possession of the accused and from
there to remove them to Namibia.







To do so, they were depending on their counterparts in Zambia.
Counsel for the defence pointed out that the Namibian Police did not
formally arrest the accused in Botswana and/or Zambia but only did so
after they had arrived back in Namibia. That was because they had no
legal authority to make an arrest in Zambia and Botswana.







The question then is on what legal authority did they take the
accused prisoner, detained them and removed them to Namibia? It
follows from the fact that the Namibians could make no legal arrest
in Zambia and Botswana, that they also could not legally receive and
take possession of the accused, detain them and remove them into
Namibia.







The Zambian and Botswanan counterparts obviously also had no legal
authority with which they could clothe the Namibians. So what we
have is that Namibian officials illegally took of the accused
prisoner inside Zambia and Botswana, illegally detained them and
illegally removed them across the Namibian border. To do this, the
Zambians and the Namibians were dependant on each other and the
illegal deed was done by cooperation between them.







Some of the accused, e.g. the members of the second group, were
handcuffed by Namibian military personnel in Zambia. This action
indisputably contains an element of force. It must also be assumed
that some of the military and police personnel, including the
Namibian personnel, were armed at the various stages when they dealt
with the accused, reinforcing obvious authority and leaving the
accused with no alternative but to obey their commands and to submit
to the action to remove them from Zambia to Namibia.







Neither State witnesses nor counsel for the State, raised the defence
of consent or waiver of rights except in the case of accused.
Charles Kalipa Samboma, accused no. 119.







In these circumstances the so-called taking prisoner, detaining and
removing of the 12 accused from Zambia and Botswana to Namibia, was
in essence an abduction, but not of the kind which occurred in the
Ebrahim case. Nevertheless such action without consent can
justifiably be described as having been done “forcibly”, because
it was done without consent and obviously made possible by the
apparent authority and power of the police and military officials.
An appropriate label for such action is “official abduction”.







It also does not matter whether the label of the acts of the said
officials is “abduction”, “official abduction”, “disguised
extradition” or “voluntary” or “informal rendition”.







Neville Botha in his article in the South African Yearbook on
International Law entitled “Aspects of Extradition and Deportation”
describes informal rendition as a more subtle form of
abduction
. While abduction involves the flagrant violation of an
extradition treaty and violation of the host states sovereignty,
rendition is a less obvious circumvention of extradition formalities.
It involves the forcible return of an offender but with the
knowledge and generally, although not inevitably, also the sanction
and active cooperation of the State in which he has sought refuge…..”







The author later describes the said action as a toned down version
of abduction
in that there is no violation of the sovereignty of
the host state and therefore no international delinquency, but the
process remains essentially unlawful”. Referring to the
decisions in Wellem and Ebrahim he comments: “It seems somewhat
strained to classify what could well have been bona fide
action on behalf of the South Africa Police as ‘craft and cunning’
simply to force it into the kidnapping mould. It is also
unnecessary to do so when invalidity based on rendition is available
to the Courts
”.







9. Another feature of the action or inaction of the Namibian
officials involved, was that they specifically refrained from
explaining anything to the prisoners, they even refrained from
talking to them. This they apparently did because they thought that
they cannot execute official acts in Zambia.







This attitude however is not only bizarre, but underlines the gross
abuse of the right of the accused to be heard, in accordance with the
audi alterim rule, which is an internationally accepted right
in all democracies and is specifically incorporated in the Namibian
Constitution as well as the extradition and deportation laws of
Namibia, Botswana and Zambia.







10. The aforesaid action of the officials on both sides cannot be
described as innocent cooperation, but as patently illegal conduct.
It clearly demonstrates the complicity of both sides in such illegal
conduct. The collaboration was not only “indirect” but “direct”.







11. The aforesaid illegal activity and background applies to all the
groups of accused, except Charles Kalipa Samboma, because he,
according to the uncontradicted viva voce evidence of the
State gave himself up to the authorities and was removed to Namibia
with his consent and cooperation.







12. The illegal conduct in the case of the second group continued
when the members of that group, were received by the Namibian
Security Force on 6th November 1999 and then kept in
military detention for six months before their first appearance in a
Court of Law on 2 May 2000.







The uncontradicted evidence of accused Puteho was that he, Misuha,
Samati and John Samboma were handcuffed by Zambian officials whilst
detained and when they were handed over to Namibian Police and
military personnel inside Zambia, the Zambians removed their
handcuffs but the Namibia military personnel then handcuffed them.
They remained handcuffed from then on, i.e. from 16 November
1999-29th April 2000. Puteho said “…we have been
eating, bathing, sleeping with handcuffs on our wrists….”







(There is a discrepancy as to the date of handover of this group as
reflected in Section A3(viii) supra and the above evidence of Puteho.
However whether it was the 6th November 1999 or the 16th
November 1999 does not change the substance and relevance of the
evidence in this regard.)







13. Osbert Likanyi said in his affidavit that he left the Caprivi
because of political harassment. There he applied for political
asylum and was granted political asylum in Botswana by the United
Nations Representative for refugees.







From the refugee camp at Dukwe he was however removed to Kasani
Prison and from there taken to Kazangula Border post against his
will. The accused did not give viva voce evidence under oath,
but this part of his affidavit was not contradicted by the State.







The State however failed to explain how a person who has been granted
political asylum in Botswana could be and was removed from Botswana
by Botswana officials and handed over to Namibian officials, in spite
of his status as a political refugee who had been granted political
asylum. This is an aggravation of the illegality of the actions of
the Botswana and Namibian officials. See the provisions of the
Convention and Protocol relating to refugees – Section C5 supra.







The general attitude of the Namibian military towards the accused and
even those who had been granted asylum was referred to by the Court a
quo
as follows:







During cross-examination the Major-General stated that the
‘Namibian view’ was that irrespective of whether a ‘terrorist’
had been given asylum ‘somewhere else’ it may not necessarily be
recognised, so it was ‘irrelevant at the time to consider the
question of asylum. When asked during cross-examination whether a
group of suspects had been informed of their rights to challenge
their removal from Zambia, the Major-General replied that the
suspects had no choice
but to came to Namibia, whether they liked
it or not since they had committed crimes here and had to face ‘the
ruthlessness of the law’”.















This once again underlines the element of force and an attitude of
total and deliberate refusal to comply with the laws of Botswana,
Zambia and Namibia and the International Law.







Apparently some documents were completed at the handing over on the
so-called weighbridge, but it was not explained in terms of which
legal provisions these forms were completed. The forms, handed in by
witnesses for the State, makes little sense and does not throw any
light on the procedures followed.







The first one, purporting to be a document of the Republic of
Botswana was dated 6/12/2002 and purported to have been completed at
the Ngoma border post within Botswana. It is headed – “Republic
of Botswana – ACCEPTANCE WARRANT” and states:







The prospective deportee whose personal particulars are
appended below has been given special orders, in accordance
with the Immigration Law of the Republic of Botswana to leave
Botswana on or before 6 December to Namibia”. (My emphasis added)















A statement that he is a Namibian citizen is then signed by Osbert
Likanyi, the accused. A signature purporting to be that of a
Botswana official is then appended and also a signature purporting to
be that of an official of the Department of Home Affairs in Namibia
both dated 6/12/2002. The Namibian official signed under a clause
reading:







“Signature of officer accepting deportee”.















It is to be noted that there was no sign whatever of any of the
documents required by Botswana laws. There was no indication of any
reason for the deportation, no period of grace to the deportee to
leave, to make representations or to appeal. There was no allegation
at all that the deportee was a “prohibited immigrant”. If he was
a prohibited immigrant in Botswana, this document would have said so
if it was not a bogus document.







The document further provides that a “repatriation form is attached
to this warrant”. But no repatriation form was attached.
Particulars required to be filled in but which were not filled in
were: The deportee has a valid travel document/no valid travel
document”. It must thus be presumed that as far as Botswana was
concerned, Likanyi was not a “prohibited immigrant”.







Another document purporting to be a document of the “Republic of
Namibia, Ministry of Home Affairs, and headed “Warrant of
detention”, (Section 42), dated 8 December 2002, was handed in. It
states that the person “Mr Likanyi has been found in Namibia
and is suspected on reasonable grounds to be an immigrant in terms
of this Act
: (It is to be noted that the words
“prohibited/illegal immigrant” have been ruled through. What
then remains of the justification is that the deportee “has been
found
” in Namibia, with no comprehensible reason for his
detention other than that he was found in Namibia).







The so-called warrant of detention then continues:







Now therefore, you are under provisions of Section 42 (1)(a)(b)
requested to receive and detain such person in the cell/police cell
(pending investigations) for a period of 14 days for which this shall
be your warrant”.















It is then signed by one purporting to be an immigration officer”.
It is nowhere stated to what law the stipulated “Section 42” and
Section 42(1)(a)(b) refers. Section 42 of the Namibian Immigration
Act provides for the “arrest, detention and removal of prohibited
immigrants from Namibia”. The accused Likanyi was however never a
“prohibited immigrant” who could be deported as such from
Namibia.







Subsection (1) provides for the powers of arrest of a Namibian
immigration officer to arrest a person “who enters, or has entered
or who is found within Namibia, on reasonable grounds is suspected
of being
a prohibited immigrant in terms of any provision of the
Act, an immigration officer may arrest such person”.







The whole document is patently fraudulent. Likanyi was never “found
in Namibia, but handed over by Botswana officials to Namibian
officials inside Botswana. He could never have been “suspected on
reasonable grounds” of being a “prohibited immigrant”.







The two documents aforesaid also differ as to dates. It seems that
both the Botswana and Namibian documents were fraudulent concoctions.
The Namibian document also clearly shows that the Namibians knew
that the accused was not a prohibited immigrant in Botswana and that
the action of Botswana officials were illegal, just as their own
actions were fraudulent and illegal. The Namibian officials did not
receive any other documents indicating authority to take the accused
over the border.







It is noteworthy that the aforesaid speedy, concocted and fraudulent
handing over of Likanyi, took place almost immediately after the
decision of the Botswana High Court in Kavana Likunga v Republic
of Namibia
was given on 3 December 2002, setting aside their
deportation order and releasing them from custody. The Likanyi
“deportation” action was then commenced within days.







The inference is almost unavoidable that the police and military
and/or immigration authorities were discouraged by this result and
consequently took the haphazard, concocted and fraudulent steps to
prevent a recurrence of the Kavana Likunga case.







Surely this is an instance of gross abuse of both the Botswana and
Namibian legislation as well as international law and in addition a
grave outrage of the fundamental rights of the accused.







The only reasonable inference from the above is that the Namibian
officials were at least “knowing” parties as the concept is used
by the House of Lords in the Bennet case.37
They were in fact directly or indirectly involved in the illegal
acts of the Zambian and Botswana officials and so were the Zambian
and Botswana officials with the illegal acts of the Namibian
officials. The only reasonable inference is that the transfer of the
accused to Namibia was done at the request of the Namibians and for
the purpose of standing trial in Namibia. The Namibians at least
influenced the Zambian officials to do what they did. The
prosecution at any event failed to discharge the burden to prove the
contrary.







14. There is therefore no substance in the argument of “innocent
conduct” as put forward by counsel for the State and that argument
was correctly rejected by the Court a quo in so far as it
relates to all the groups, except Charles Samboma.







15. Mr Gauntlett has also criticised the finding of the Court a
quo
insofar as the Court found that the proceedings were tainted
by the conduct of the Namibian officials and that the State did not
come to Court with “clean hands”.







The term tainted has been used in several decisions referred to and
so the term “with clean hands”. The Prosecution has failed to
prove that the officials of the State came to Court “with clean
hands” and has followed a process to do so which is “not tainted”
by serious illegality.







16. In my respectful view, even where the principle of “judicial
restraint” is applied, the forum Court, in the present case the
Court a quo, had sufficient reason to enquire into the manner
in which the State brought the accused before Court. And assuming
that the basis of this rule, as well as the “act of state” rule,
is the possible breach of international law by interfering with the
sovereignty of the host state, based on the influencing of and/or the
participation in, directly or indirectly, in the illegal acts of
officials of the host state, then the proven acts of officials of the
forum state in this case, amount to such influencing, and/or direct
or indirect participation in such illegalities of the officials of
the host state. Such illegal activity by Namibian officials, in
conjunction with their Zambian and Botswana counterparts, some of
which was conducted on the territories of these states, amount to a
breach of the sovereignty of those states and as such of
international law.







For this breach, consent or implied consent, by unauthorized
officials from Zambia and Botswana, does not justify or excuse such
breach and constitutes another illegality.







SECTION H: THE IMPLICATION OF SECTION 17 OF THE NAMIBIA
EXTRADITION ACT







The illegal removal in which Namibian officials participated not only
resulted in the destruction of the rights of the accused in Zambia
and Botswana, but destroyed their rights specifically provided for in
Section 17 of the Namibia Extradition Act No. 11 of 1996, unless the
trial Court declines jurisdiction to try them.







Section 17 reads:







A person extradited to Namibia shall not unless such person
has first had an opportunity to leave Namibia, be prosecuted or
punished in Namibia for any offence other than







(a) the offence in respect of which such other person was
returned;







(b) any lesser offence proved out the facts on which such person
was returned;







(c) an offence committed in Namibia after such persons return; or







(d) an offence not being an offence contemplated in subparagraph
(a), (b) or (c) and in respect of which the country returning such
person have consented to the person being tried…”















This mandatory provision of Namibian statute law makes it abundantly
clear that the accused returnees cannot be prosecuted or punished in
Namibia for any offence for which they have not been lawfully
extradited, unless they returned to Namibia voluntarily.







The implication is that the trial Court in the circumstances has no
option but to comply with the mandatory provisions of the Namibian
law by declining jurisdiction in the trial of the accused for the
offences for which they are now brought before Court and for which
they were not lawfully extradited except in the case of those accused
who returned to Namibia voluntarily.







It is important to note that the Zambian Extradition law in Section
57 also incorporates the “speciality” provision in Zambian law.
The Zambian Section 57 is substantially the same as the Namibian
Section 17.







The said Zambian Extradition Act is applicable to all extradition
requests from declared Commonwealth countries, which includes Namibia
as being such a declared Commonwealth country.







The above contention is strengthened by reference to and
consideration of all the other reciprocal provisions in the
applicable legislation of Namibia, Botswana and Zambia, wherein each
of these countries lay down in mandatory form their requirements for
extradition of alleged fugitive offenders from their countries.38
Botswana Extradition Act 18 of 1990 as amended by Act 9 of
1977, Section 7 the Zambian Extradition Act, Chapter 94 of the
Laws of Zambia, Section 31, Section 17, 21, 24.







The implications and consequences of the illegal action described
above in relation to section 17 of the Namibian Immigration Act,
underlines once again the grossness of the illegalities and
irregularities committed in bringing the accused before Court.







It is obvious that if the provisions of the Extradition legislation
were used in Zambia and/or Botswana all or some of the accused may
already have been discharged in Botswana or Zambia as happened in the
case of 13 other Namibians in the Botswana case of Likunga v
Republic of Namibia
, supra.







SECTION I: CONCLUDING REMARKS







1. Whether or not the Court had to exercise a discretion or was
compelled to adjudicate as indicated in the Ebrahim decision,
according to Roman Dutch and South African common law or in terms of
Section 17 of the Namibian Extradition Act as explained in Section H,
is not necessary to decide, because the result would be the same. In
this regard, in my respectful view, it was not necessary for the
presiding judge to expressly state that he was exercising a
discretion, although it would have been prudent to do so.







In this regard it must be kept in mind that the discretion referred
to in the decisions of Bennet, Beahan, Hartley and other require a
discretion to be exercised, but in Ebrahim, the decision to be taken
followed from the proof of certain illegalities and did not require
the exercise of a discretion in the form and sense set out in the
decision of Bennet and others above referred to.







It follows if the Court a quo followed Ebrahim, and thus the
Namibian common law, he would not have been required to exercise the
“discretion” referred to. At any event, if he had to exercise a
discretion, this Court sitting as a Court of Appeal, has no ground to
set aside the decision of Hoff J in the Court a quo, except
his finding in regard to Charles, Kalipa Samboma.







In coming to this conclusion, I apply the approach of the Zimbabwean
Supreme Court in Beahan in regard to the setting aside of a decision
of the lower Court where that Court had to exercise a discretion.







2. There were some misdirections as pointed out in Section B supra
in regard to the concept of arrest as far as it relates to abduction
and connivance therewith. I also questioned whether the Courts label
of “disguised extradition” was correct and whether, it was not in
fact a case of “voluntary surrender”. I inclined to the later.
However the result would have been the same.







The misdirections relating to the “arrest”, “abduction” and
“connivance” however favoured the State and certainly did not
prejudice its case. There is consequently no good reason to set
aside the Courts final conclusion, except in respect of Charles
Kalipa Samboma. In the case of Samboma the initiative to
return originated from Samboma himself, and not from officials in
authority. Informed consent and waiver of his rights would have been
necessary if his return was initiated by persons in authority, but
this is not what happened, according to the uncontradicted evidence
of the State.







I may mention that Samboma had made very grave allegations of
abduction and torture in his written affidavit, but after the State’s
witnesses had testified, counsel for Samboma did not even
cross-examine the State witnesses and Samboma was not called as a
witness in rebuttal.







In the circumstances, Samboma must now take responsibility for his
own decision.







3. In conclusion I feel constrained to deal briefly with a very
important problem relating to the maintenance of the Rule of Law with
special reference to this case.







It is a notorious fact that after Hoff J gave his considered judgment
in the Court a quo, there was an outburst of emotion and criticism
and even hate speech from various influential quarters. Such conduct
undermines the integrity of the judicial system, the independence of
the Courts and its ability to conduct a fair trial.







It is in this regard that the Botswana High Court decision was a
stark but timely reminder of the necessity at all times, to abstain
from outside interference –politically or otherwise, in the
judicial system and to maintain the integrity of the system.







The Botswana High Court set aside the magistrate’s Court
extradition decision and ordered the 13 Namibians to be set free.
The ratio was that all the alleged offences, except the robbery
charges, were offences of a political character, for which
extradition was not allowed in the law of Botswana. (It must be
noted that the Namibian, Zambian and South African law, also does not
allow extradition for such offences).







Furthermore the Court found that there was a likelihood that the
accused may be prejudiced at their trial, or being punished,
detained or restricted in their personal liberty by
reason of their political opinions. In such a case Botswana
law required that extradition be refused. The Court took care to
point out that even if the Court at the trial would be impartial, the
question is what the effect is of extra judicial punishment.







The Court held:







With regard to the fair trial point, the appellants have
wisely, not submitted at the appeal that the evidence shows they will
be prejudiced at their trial and no more needs be said about that.
With regard to extra judicial punishment however, which they
say they fear at the hands of the law enforcement agencies of the
respondent (i.e. the Republic of Namibia) and/or members or
supporters of the SWAPO government, they argue that
there have
been many instances recently where people who hold political views
such as they do, have indeed been punished by the police and security
forces of Namibia by reason of their political opinions and their
fear has been fuelled by what they submit is an inadequate response
by the respondent to the very serious allegations made by appellants
which are relevant to this issue
.















The Court dealt in detail with the evidence of the appellants as well
as that by the respondent. The Court then selected a portion of the
evidential material and said:











In my view the cherry on the top must be Mr Nghiishililwa’s,
(the Deputy Director General of the Namibian Police) response to the
allegation in par 131 of the 6th respondents affidavit to
the effect that when persons charged with Treason etc for their
involvement and/or participation in secessionist activities appeared
in Court, the SWAPO Youth League issued death threats to them and
there were also calls made in the Namibian Parliament by SWAPO MP’s
one of whom was named, that the prisoners should be killed
notwithstanding there being no death sentence available under
Namibian Law. In his response, Mr Nghiishililwa does not deny that
death threats were made in Parliament by SWAPO MP’s and outside it
by SWAPO supporters. He said however that the demonstrations
(presumably by SWAPO youth) cannot be attributed to the SWAPO
government and then goes on to say:







I wish to state that demonstrations constitute enjoyment of the
demonstrator’s right to freedom of peaceable assembly and to
freedom of expression, guaranteed by the Namibian constitution and
recognised by the International Bill of Rights.’







To my mind this is a warped and dangerous assessment of the right
of ‘peaceable assembly’ and freedom of expression which
subordinates the constitutional rights of the accused in those cases
to what can only be described as ‘late speech’ by the supporters
of the government. It gives one insight, however into the way in
which Mr Nghiishiliwa’s mind works and also that of the person who
prepared his affidavit”.















The Court concluded:







In my view, on all the evidence before the magistrate on this
issue, there was to use the language of Lord Diplock in Fernando’s
case a reasonable chance that the appellants might, if surrendered to
the respondent, be punished on amount of their political opinions by
being ill-treated by the police investigating their cases and/or the
prison authorities…







In the result the appeal by the 13 succeeded and the magistrates
deportation decision overturned and the 13 released.
39















The continuation of conduct such as referred to above, will not only
reflect negatively on the true values of Namibians, but discredit the
Namibian legal system and the ability to ensure a fair trial by an
impartial and independent Court. That may eventually imperil the
trial – not only of the 13 accused, but of all the accused.







4. I have referred in this judgment to some very wise words by
eminent judges in landmark decisions on the need for the State, the
Government and the Courts to uphold the rule of law and to set an
example to the citizen.







I need only mention the decision of the South African Appellate
Division of the Supreme Court of South Africa in State v Ebrahim
and the decision of the Constitutional Court of South Africa in
Mohammed v President of the RSA and the dicta from other
distinguished judges in this regard, referred to in these decisions.







I need not repeat these dicta. But as far as Namibian judges are
concerned, I can do no better than to quote the oath which the
Namibian Constitution requires that judges will honour. It reads:







I …..do hereby swear/solemnly affirm that as a judge I will
defend and uphold the Constitution of the Republic of Namibia as the
Supreme Law and will fearlessly administer justice to all persons
without favour or prejudice and in
accordance with the laws of
the Republic of Namibia”.















I have also been referred to the following dicta in a judgment
written by me in the decision of State v Vries40
where I said:







However there is no reason whatsoever in my view, why, in
accordance with the right to equality before the law, the life of the
victim, the dignity of the victim, the right to peace and
tranquillity and the security of person or property, should not at
all stages of judicial process be given equal emphasis and
consideration with that of the offender, even though the consequences
of doing so would not always be the same for the offender, and the
victim.







The Courts must, in particular in the Namibian and South African
reality, interpret and apply the Constitution in a way where it will
be able to play its part in combating the emergence of a terror
State, where the criminal minority dictates to and holds hostage the
law abiding majority and where no one, except the criminals, would
have rights and freedoms.”















I still adhere to what was quoted above. But in a later decision,
that of State v Monday41
the other side of the coin was given. I repeat what I said in that
decision of the Namibian Supreme Court.







“…More specifically, the Court must consider and balance the
fundamental rights and interests of the accused with that of the
State and the prosecution, but also with the fundamental rights of
the victim. The aforesaid balancing action must however, always be
carried out subject to the specific constitutional principle that an
accused is presumed to be innocent until proved guilty beyond all
reasonable doubt, in a fair trial.”















The maintenance of the Rule of Law and more specifically the
adherence to the requirements of due process, does not make the State
powerless to take effective action against criminals and terrorists
and to protect the public interest as well as the rights of the
victims. All that is required is to act in terms of Namibia’s own
constitution and laws as well as those of the international
community, particularly those of neighbouring and Commonwealth states
with whom Namibia has undertaken reciprocal legal obligations.







I must also point out that the “public interest” is not an
interest apart from or in opposition to the Rule of Law, due process
and the fundamental rights of the accused. It is in the public
interest to uphold the fundamental rights of the accused persons,
just as it is in the public interest to protect victims and the
law-abiding citizens at large.







No reason at all and no justification whatever was given why these
laws could not be complied with and/or why any arrest, detention and
handing over could not be and was not done in accordance with these
laws. There was however, a lame attempt on behalf of some witnesses
from Zambia called by the State to claim that they had carte blanche
to deport any alleged prohibited immigrant, but when the applicable
legislation is examined, such claims were shown to be without any
foundation.







I need to emphasize: Nothing in this judgment is intended to
discourage cooperation between police, military and immigration
officials of the Namibian State with their counterparts in
neighbouring states. What cannot be allowed however, is cooperation
in taking short cuts in conflict with the express provisions of the
domestic law of these countries and even of International Law,
because such actions will gravely undermine the Rule of Law,
entrenched in the Namibian Constitution, which is the Supreme Law of
Namibia. Such actions cannot be justified as in the public interest.







It follows from the above that a sovereign state and its authorized
representatives and officials, as well as its Courts, often have to
take difficult and unpopular decisions, but that unfortunately cannot
be avoided in a truly democratic state with civilized values.






I have read the proposed judgment by
my brother Mtambanengwe, A.J.A., and feel constrained to make a few
comments as to why I am unable to agree with that judgment.







For this purpose I refer to the concluding paragraphs of that
judgment wherein my learned brother sets out the crux of his
judgment. I have numbered the different passages referring to
different points to facilitate a better understanding of my comments.





The passages so renumbered reads:







  1. In the light of my finding that the evidence
    did not establish a causal link between the Shali request and the
    rendition of the respondents, it is not necessary to pursue the
    discretion issue any further, except to say that the Ebrahim
    case does not preclude this court from having regard to principles
    of international law. Article 144 of the Namibian Constitution
    provides that ‘---the general rules of public international law
    and international agreements binding up on Namibia shall form part
    of the law of Namibia.’ As the court a quo itself said,
    ‘In the Ebrahim case the Appellate Division based its finding on
    principles of Roman Dutch law but was not insensitive (to the)
    principles of public international law
    .’”









  1. “It is clear from its Judgment that the court a quo laid a
    lot of store by the fact that respondents were, by "the
    disguised extradition" or the bypassing of the formal
    extradition proceedings deprived of the benefits or safeguards
    embodied in extradition acts or treaties and therefore of their
    human rights. The answer to any such argument is first that the
    Zambian or Botswana authorities did not have an obligation to wait
    for Namibia, or to urge Namibia to initiate extradition proceedings
    to get rid of undesirable foreigners from their territory.
    Secondly, the Namibians did not have to refuse to receive the
    returned fugitives (see the Staines case (supra) let alone to
    instruct Zambia or Botswana how they should get rid of their
    unwanted visitors.”









  1. “Thirdly when one considers the question of human rights care must
    be taken to balance the rights of accused against these of the
    victims of their actions. We have in this case antecedent
    circumstances where some people lost their lives and property was
    destroyed as a result of the incident at Katima Mulilo on 2 August
    1999. The public interest that those responsible must be brought to
    justice is a very weighty counter in the balance.”









  1. I for one am not much impressed by the quotation from Mohammed v
    President of the Republic of South Africa and Others 2001 (3) SA 893
    (cc) because the present is not such a case.”







(a) Ad (i) – (iv)


The full
reason why I came to different conclusion on the facts and the law,
follows from my detailed judgment on these issues.







(b) Ad (i)



In my respectful view a causal link has been established by
the evidence and the inferences to be drawn from those facts. I need
not repeat it because the full reasons for my view appear from my
judgment and it is not necessary to comment further thereon.







It is not clear from my brother’s judgment whether or not he
accepts that Roman Dutch Law is part of Namibian law and unless our
Constitution or acts of Parliament provide otherwise, such Roman
Dutch Common Law is the law that should be applied.







Obviously, such common law does not exclude International law,
because International law by virtue or art. 144, also becomes part of
the law of Namibia and shall be binding on Namibia. The common law,
again, as it existed before Namibian Independence, by virtue of art.
140 of the Constitution remains in force, until repealed or amended
by Act of Parliament or until they are declared
unconstitutional by a competent Court. No Act of Parliament has
repealed or amended any of the provisions of the common law and no
Court has declared it unconstitutional. Furthermore, no Act of
Parliament has repealed or amended the common law.







It is therefore debatable whether in case of conflict between
Namibian common law and international law, which law will take
precedence.







It is not necessary to decide that issue in this judgment, because
there is no conflict between Namibian common law and public
international law. It is not clear from my brother’s judgment,
what the conflict is, if any.







As a matter of fact, as I have shown, in Section C4 and 5 of my
judgment, that the International Covenant of Civil and Political
Rights and the U.N. Covenant and Protocol Relating to Refugees, have
become part of Public international law and by virtue of art. 144,
has become part of the law of Namibia. The whole process of taking
the accused prisoner and handing them over to Namibian officials, was
also in conflict with the aforesaid principles and rules of public
international law. An appropriate label for such illegal action is
official abduction”.







It is also not clear from my brother’s judgment on which part of
International Public Law he relies. If it is the Act of State
doctrine, I must point out that that doctrine is not a part of Public
international law.







(c) Ad (ii):



It is correct that the Zambian or Botswana authorities did not have
an obligation to wait for Namibia, or to urge Namibia to initiate
extradition proceedings to get rid of undesirable foreigners
from their territory. But then they must use the legal procedures at
their disposal. The question is why did they wait approximately 5
months after “arresting” and imprisoning the 1st group
of 6 Namibians in June 1989 until 5 days after the outbreak of
hostilities on the 2 August 1999, to decide to hand over this group
to Namibian officials? What prevented them from handing over these
accused persons by means of proper deportation proceedings? Surely
the only reason for the sudden handing over on 6th August
1989, was because the Namibian officials wanted them to be dealt with
in Namibia as alleged terrorists.







Surely one could expect, and the Court should expect, that although
officials of Botswana, Zambia as well as Namibia, need not follow a
Namibian prescription to “get rid of undesirable foreigners”,
they at least could be expected to follow the laws enacted in this
regard by their sovereign Legislative authorities and which they have
in common with Namibian laws, as well as the provisions of Public
international law.







The Namibians did not have to refuse to receive the “returned
fugitives”, provided they received them in Namibia or on the border
and did not knowingly make use of illegal procedures followed by
their counterparts or in any way connived with or directly or
indirectly participated in those procedures.







What is completely lost sight of and/or given no weight, is that the
Botswana and Zambian officials in conjunction with Namibian
counterparts, did not only fail to comply with legal extradition
procedures, but also failed to comply with legal deportation
proceedings. Furthermore the Namibians did not receive those
Namibian prisoners within Namibian borders, but went across the
border into Botswana and Zambia to receive them there without
warrants or written authority of any sort and without their consent,
took them prisoner and then removed them in custody, across the
border of Namibia.







My learned brother’s contention that the Namibians did not have to
refuse to receive the returned fugitives, let alone instruct
Zambia and Botswana how to get rid of their unwanted visitors”, is
not a fair and
reasonable reflection of the argument of the
accused and the judgment of the Court a quo.







What was dealt with was not a prescription or instruction by Namibia,
but a failure by unauthorized officials to respect and comply with
the laws passed by the highest legislative authorities of the
aforesaid sovereign countries, as well as the provisions and
principles of international law, binding on these countries.







In none of the decisions referred to in which deportation was
discussed as an alternative to extradition, was it contemplated or
justified, that a deportation not complying with the applicable
laws
, was a lawful alternative to a lawful extradition.







To continuously label a removal of a fugitive or refugee from the
host country to the other, as a “deportation”, irrespective of
whether or not the removal is in conflict with the laws of the
countries in question, is a misconstruction and misapplication of the
relevant decisions and laws.







I must also note that the Namibians regard themselves as refugees,
and it is my respectful view inappropriate to describe them as
“fugitives”, because as a result of the illegal procedures, they
had no opportunity whatever before removal, to prove that they were
in fact political refugees. They must be presumed innocent until
proved guilty.







(d) Ad (iii)



The “balancing” would certainly be relevant if the Court was not
as in Ebrahim, Wellem and Buys, bound to apply
the Roman Dutch Common Law, which requires the Court to refuse
jurisdiction, when it is proved that the applicable legal procedures
were not followed.







But on the assumption that the Court must weigh up the accused’s
human rights against that of the victims, and that it is in the
public interest that those responsible be brought to justice, the
answer cannot be that the State will be entitled to become a
lawbreaker
, flouting their own laws and that of their neighbours
and flouting international law, when no excuse is given why the clear
procedures laid down by those laws, were not followed. Not even the
Zimbabwean Supreme Court in Beahan, relied on so strongly by
counsel for the State, and my learned brother Mtambanengwe, A.J.A.,
condoned such illegal actions.







Gubbay, C.J., echoing the general approach in Ebrahim, dealing
with the illegal process of “abduction” used by a prosecuting
State, said:







“There is an inherent objection to such a course, both on the
grounds of public policy pertaining to international ethical norms
and because it imperils and corrodes the peaceful co-existence and
mutual respect of sovereign nations ….. a contrary view would
amount to a declaration that the end justifies the means, thereby
encouraging states to become lawbreakers in order to secure the
conviction of a private individual.”











Although in the instant case, we had no abduction as in Ebrahim,
the principle obviously also applies to other forms of serious
illegality, such as the imprisonment and removal of persons, by
patently illegal procedures, which amount to a total breach of all
the express provisions of the domestic law and the applicable
international law, which deprived the Namibians of all their rights
under the laws.







(e) Ad (iv)



The abrupt brushing aside of the unanimous and authoritative decision
of the 12 judges of the South African Constitutional Court in the
case of Mohamed, cannot be justified by the mere reason that
“The present is not such a case”.







The Court in Mohamed made several findings which are relevant
in the case now before us. The following must be noted:








  1. The Court reiterated the requirements of the Rule of Law and due
    process and the need for the State to maintain the Rule of Law and
    due process as well as complying with those principles and
    procedures required by specific laws relating to extradition and
    deportation.









  1. The decision points out the fact that the Aliens Act and the
    regulations thereunder provide for deportation and the procedure to
    be followed. It held that those provisions are not merely
    directory, but mandatory and that a purported deportation, in
    conflict with those provisions, is unlawful, irrespective of whether
    the procedure followed is characterized as a “deportation” or
    “extradition”, or an “extradition in substance” or a
    “disguised extradition”.









  1. The decision reiterated that the essential difference between an
    extradition and a deportation lies in the purpose with which it is
    undertaken.








It then proceeds to point out that:






There is
nothing in the South African Constitution which prevented the
Government from deporting an undesired alien. If however, what
happened was in substance an extradition, then such “deportation”
would have been unlawful because the correct procedures were not
followed.








  1. When consent is relied on for a purported deportation, it must be an
    informed consent
    complying with certain minimum requirements.









  1. An intended deportee must have the opportunity to obtain legal
    advice.









  1. Where the law provides for a period of grace between a declaration
    that a person is a “prohibited immigrant” and the actual
    deportation, the deportation is unlawful if such period of grace is
    not allowed.








The above finding also clearly indicates, as the Namibian, Botswana
and Zambian laws clearly provide, that a whenever action is taken
against a person on the ground that he is a prohibited immigrant,
there must be a formal declaration to that effect by an official
authorized by law to make such declaration.







Thereupon the person so declared has certain specified rights to
contest such declaration in the Courts of law.







The abovestated findings made in the Mohamed decision
underlines the fact that according to the laws of Namibia, Botswana
and Zambia, the person to be deported also has specific rights. The
protection of such rights are therefore not restricted to
extradition.







Although the Namibian Courts are no longer bound by any South African
decisions, the decision in Mohamed should be regarded as
strong persuasive opinion in regard to the points enumerated
above
.







  1. At the last conference
    between the judges, my brother Mtambanengwe, A.J.A., brought to our
    attention a further addendum to his judgment, which unfortunately
    necessitates some further comment, but I will be as brief as
    possible.








    1. I do not find it
      necessary to reconsider the evidence. However, my learned brother
      now refers to the supporting allegations to the warrant issued on
      behalf of the Namibian Government in the Botswana High Court
      decision in the case of Kakena & Ors. V The Republic of
      Namibia
      , dealt with in my judgment, supra.







After
quoting from a document containing such supporting allegations, my
learned brother says: “I hasten to admit that this is not
evidence against any of the respondents, but
see Hoff, J.’s
opening par. In the judgment a quo…”.





Clearly
the said admission by my brother is appropriate. That being so
however, I fail to see why he referred to it as if the allegations
were somehow evidence or facts against the 12 accused in the case
before us.







    1. My brother now refers
      to section 95 of the Defence Act of 1957 as amended by section 29
      of the Defence Amendment Act (Act No. 20 of 1990) which provides:








“(a) Any member of the Defence Force may be required to perform
service at any place outside the Republic whenever necessary – to
combat, prevent, or suppress any attack or act of aggression in
circumstances other then those dated (stated) in art. 26 of the
Namibian Constitution.







(b) To prevent the recurrence of any such attack or act of
aggression.”









This is
quoted in support of the allegation that I have omitted to say
anything about the Defence Acts of Namibia, Zambia and Botswana,
despite the fact that there is some evidence on record that Namibia
and Zambia had mutual security Committees.





The point
my learned brother wished to make is obscure and can hardly bolster
the case for the State in this appeal. If he suggests that Section
95 of the Defence Act nullifies the laws enacted by the Parliaments
of the respective countries, then I must differ emphatically. As to
the existence of the Security Committees and the cooperation between
them, this is another irrelevant fact.





It is
irrelevant because it has never been suggested by anyone, and
certainly not by me, that such cooperation is wrong or should be
discouraged. As I have said in effect repeatedly: There is nothing
wrong with cooperation, provided that it is not used as a shortcut to
avoid the laws of the land.





The
provisions of section 95 of the Defence Act, can never be understood
to mean or be interpreted to mean that any member of the Defence
Force is thereby authorized to enter another sovereign country
to remove suspects from that country, without any authority as
required by the Extradition and Deportation Laws. The section
obviously is intended to authorise the legal calling up of
members of the Defence Force to do service outside Namibia.





I did not
deal with the above provision of the Defence Act because it was never
raised and it was irrelevant.





To use
the omission of those irrelevant facts to suggest that I stretched
the evidence “to portray a picture to fit a mould or theory one
seeks to vindicate”, is an uncalled for and unjustified suggestion.
I will nevertheless not express myself on whether or not the
principle applies to the author of the suggestion.







In my respectful view the following order should be made:







1. The appeal is upheld in the case of Charles Kalipa Samboma.



2. The appeal is dismissed in the case of the twelve (12) other
accused.



3. The Court a quo must proceed with the trial of Charles Kalipa
Samboma.



4. The 12 accused, namely Mushwena, Ziezo, Mulupa, Misuha, Puteha,
Samati, John Sikundeko Samboma, Likanyi, Ndala, Tubaundule, Oscar
Nyambi Puteho, Mushakwa must be released immediately.



5. The State – appellant must pay the costs of appeal.

















O’LINN, A.J.A.



GIBSON, A.J.A.: The
facts are as set out in the judgment of my Brother Mtambanengwe,
A.J.A.







The stark question before this
Court is whether the Court a quo was right in its Ruling that
it had no jurisdiction to try the Respondents because, as it found,
the Government of the Republic of Namibia had breached international
law by its failure to seek the extradition of the fugitives from
Zambia and Botswana. This Ruling was made notwithstanding its
finding – that there had been no abduction “in the sense found in
the Ebrahim case”, and – that there had been no collusion
or conspiracy between Namibia and the foreign States leading to both
Zambia and Botswana to break their respective municipal laws.
However the Court held that the receipt by Namibia of the Respondents
was thus tainted by the request made by the Namibian official who
asked that the fugitives be surrendered to stand trial in Namibia.







The Learned Judge rejected the
notion of abduction “in the sense used in the Ebrahim case,”
reported in 1991 2 SA 553 (A). In that case the Court of Appeal
(South Africa) said that the action had been unlawful in that it
involved the “removal of a person from an area of jurisdiction in
which he had been illegally arrested to another area of
jurisdiction.”











The unlawful removal that the
Learned trial Judge in the instant case censured, in my view, is
explained later in his judgment when he came to consider the issue of
disguised extradition. The trial judge observed, at page 1234.







The deportation of twelve
of the accused persons was clearly preceded by a request from
officers acting on behalf of the Namibian State and it cannot with
any conviction be argued that the Zambian authorities acted
unilaterally when they deported the Namibians.







In my view the protest by the
Namibian authorities that they had no part in irregularities which
occurred during deportation procedures in Zambia and Botswana, in
itself cannot come to their rescue since their own initial conduct,
by informally requesting the handing over of fugitives and thus by –
passing formal extradition proceedings tainted those very
deportation proceedings they now want to put at a distance.”







The question posed is whether
there was thus a “taint” in this action such as to entitle the
trial court in the receiving state to refuse jurisdiction. As Mr
Gauntlett put it, “is a Namibian Court able to characterise as
illegal acts of the executive of other States against persons who
were aliens on that State’s territory, – and consequently whether
the conduct of one Namibian official in simply asking for







the repatriation of these
persons, prior to any such unlawful action, can be characterized as
“tainted”.







The applicants have contended
that the Court was wrong in fact and law in concluding that the
actions of the Namibian authorities in securing the return of the
Respondents were “tainted” in the circumstances, given its
conclusion that no conspiracy or collusion had been established that,
in any event on the facts of this case the court a quo further
erred because there was no evidence that either Botswana or Zambia
surrendered the fugitives as a result of the request.







In coming to the conclusion on
whether the Namibian authorities breached international law thereby,
the trial Court considered the effect of the request on the Zambians
and the Botswana by the Namibian authorities. In weighing this the
learned trial judge scrutinised the actions of those two countries in
deporting the Respondents. It also looked at the relevant statutes
to see to what extent, if at all, those actions were in compliance
with their municipal laws. The Court next considered whether the
actions of the Namibian authorities can be characterised as “tainted”
and therefore unlawful.







By examining the actions of the
Zambian and Botswana authorities within their own countries the Court
a quo appears to have gone against the long established







position in public international
law and custom that the receiving state should not, save in extreme
cases, as Mr Gauntlet submitted, consider the lawfulness of the
actions of a foreign state as against its own municipal law: the
principle more generally known as the “doctrine of act of state”.
I will look at some examples in a number of jurisdictions.







In the case of Sinclair v H M
Advocate
1890 17 R (JC) a Scottish National was arrested in
Portugal following information received that there was a warrant for
his arrest in Scotland; Portugal had no extradition treaty with the
former. The complainant was held for some weeks, thereafter deported
to Scotland, tried and convicted for a breach of trust and enbezzlent
of funds. The accused applied to have the proceedings quashed on the
grounds that his arrest was illegal and oppressive. The application
was dismissed. Lord MacLaren, giving one of the judgments, said, at
p 43:







With regard to competency
of the proceedings in Portugal, I think this is a matter with which
we really have nothing to do. The extradition of a fugitive is an
act of sovereignty on the part of the state who surrenders him. Each
country has its own ideas and its own rules in such matters.
Generally, it is done under treaty arrangements, but if a state
refuses to bind itself by treaty, and prefers to deal with each case
on its merits, we







must be content to receive
the fugitive on these conditions, and we have neither title nor
interest to inquire as to the regularity of proceedings under which
he is apprehended and given over to the official sent out to receive
him into custody.”



The summary is taken from S v
Beahan
1992 1 SACR 307 (ZS) AT 318 – 319, a judgment of Gubbay,
CJ.







In Underhill v Hernandez,
(quoted by Appellant) 168 US 250 1897 at 252 the US Supreme Court
stated, “Every Sovereign State is bound to respect the independence
of every other sovereign State, and the Courts of the one country
will not sit in judgment on the acts of the Government of another
done within its own territory. Redress of grievances by reason of
such acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.” See also Oetjen v
Central Leather Co
246 US 297 (1918) (62 L ed 726) and Banco
Nacional De Cuba v Peter L F Sabbatino et al
376 US 398
(1964) (11 L ed 2d 804) at 421.







In the latter case the Court, in
my view, gave the correct reason why there may be a need for judicial
restraint. It said,














“some
aspects of the international law touch much more sharply on national
nerves than do others; the less important the implications of an
issue are for our foreign relations, the weaker the justification for
exclusivity in the political branches.”







In a more contemporary setting
is the British example (before the Bennett decision to which I shall
return later,) in Buttes Gas and Oil v Hammer and Another (nos
1 and 2); Occidental Petroleum Corporation and Another v Buttes
Gas and Oil Co
1981 3 All ER 616 (HL). At page 628 g-i.



Lord Wilberforce held,






“there
exists in English Law a more general principle that the Courts will
not adjudicate on the transactions of foreign states. Though I would
prefer to avoid argument on terminology, it seems desirable to
consider this principle, if existing, not as a variety of ‘act of
State’ but one for judicial restraint or abstention…In my opinion
there is, and for long has been, such a general principle, starting
in English law, adopted and generalised in the law of USA, which is
effective and compelling in English Courts. This principle is not
one of discretion, but is inherent in the very nature of the judicial
process……









It would not be difficult to
elaborate in these considerations, or to perceive other important
interstate issues and/or issues of international law which would face
the Court. They have only to be stated to compel the conclusion that
these are not issues in which a municipal court can pass. Leaving
aside all possibility of embarrassment in our foreign relations
(which it can be said have not been drawn to the attention of the
Court by the Executive), there are, to follow the Fifth Circuit Court
of Appeals, no judicial or manageable standards by which to judge
these issues, or, to adopt another phrase (from a passage not
quoted), the Court would be in a judicial no man’s land: the Court
would be asked to review transactions in which four foreign States
were involved, which they had brought to a precarious settlement,
after diplomacy and the use of force, and to say that at least part
of these were “unlawful” under international law.”







The wide acceptance of this
doctrine in municipal systems shows that there is no room anymore for
gunboat diplomacy. The appreciation of this doctrine has to be
allowed to spread because the use of force and/or diplomacy may not
always work, a point well illustrated by the decision I have cited
above. See also the number of authorities set out in the Beahan
case
, pages 315 - 318















In my view, Lord Oliver of
Aylmerton, in his dissenting judgment in the Bennett case, put
his finger precisely on the impracticability of the proposition that
one municipal Court could supervise another country’s system. His
Lordship concludes, rightly, as I respectfully accept, at page 159 g,
that






…“An
English (any Court) Criminal Court is not concerned nor is it in a
position to investigate the legality under foreign law of acts
committed on foreign soil
and in any event any complaint of an
invasion of the sovereignty of a foreign state as it seems to me, a
matter which can only properly be pursued on a diplomatic level…”







In my respectful view, Gubbay,
CJ was correct in his observation in the Beahan case, that even if
irregularities were found to have been committed in the foreign state
these would be irrelevant unless there was a breach of international
law or gross invasion of human rights.







In Court proceedings before or
during hearings resulting constitutional or other irregularities may
occur invarying degrees of magnitude. The question is, should they
be allowed invariably to negate the criminal process? This question
was answered in the negative in our Court. See S v Shikunga and
Another
1997 NR 156 (SC). At page 478 9 –479 9 the late
Mohamed CJ, said:







There appears to be a tension
between two important considerations of public interest and policy in
the resolution of this problem. The first consideration is that
accused persons who are manifestly and demonstrably guilty should not
be allowed to escape punishment simply because some constitutional
irregularity was committed in the course of the proceedings, but in
circumstances which showed clearly that the conviction of the accused
would inevitably have followed even if the constitutional
irregularity relied upon had not been committed. (This is exactly
what transpired in the present case. Although the confession was
admitted in terms of s 217(1)(b)(ii) the trial court was able to
justify correctly the conviction of the second accused without any
reliance on the confession.) There is however a competing
consideration of public interest involved. It is this: the public
interest in the legal system is not confined to the punishment of
guilty persons, it extends to the importance of insisting that the
procedures adopted in securing such punishments are fair and
constitutional and that the public interest is prejudiced when they
are not. The courts in various countries have repeatedly addressed
themselves to the tensions contained between these two different
considerations.”







Lord Oliver’s observation,
taken from a previous page in the Bennett case, expresses a similar
view. At page 158 g, His Lordship said,







…“Experience shows that
allegations of abusive use of executive power in the apprehension of
those accused of criminal offences are far from rare. They may take
the form of allegations of illegal entry on private premises, of
damage to property, of the use of excessive force or even of
ill-treatment or violence whilst in custody. So far as there is
substance in such allegations, such abuses are disgraceful and
regrettable and they may, no doubt, be said to reflect very ill on
the administration of justice in the broadest sense of that term.
But they provide no justification nor, so far as I am aware, is there
any authority for the proposition that wrongful treatment of an
accused having no bearing upon fairness of the trial process,
entitles him to demand that he be not tried for an offence with which
he has been properly charged. Indeed, any such general jurisdiction
of a criminal court to investigate and adjudicate upon antecedent
executive acts would be productive of hopeless uncertainty. It
clearly cannot be the case that every excessive use of executive
power entitles the accused to be exonerated………”







By virtue of the dicta above
(the majority decision in Bennett accepted) as well as the contrary
view criticising the acts of intervention by one state on another
sovereign state, I view the doctrine of act of state as well in tune
with our











Constitution. Article 96 (c)
enjoins Namibia to…“create and maintain just and mutually
beneficial relations amongst nations:”







It would not be easy, for
Namibia to maintain good relations with its neighbours were its
courts to take it upon themselves to scrutinise and criticize the
actions of the other sovereign states and their institutions in
matters within the confines and power of such state.







I agree with Mr Gauntlett, that
the doctrine of act of State like most rules is not absolute.
Exceptions to it have been made. In R v Bow St Magistrate’s Court,
ex parte Pinochet Ugarte 1998 4 All ER 897 (HL) the Court
ruled that the doctrine could be defeated by evidence of a gross
violation of human rights. Thus according to present day
international law and custom courts will not ignore cases of serious
violations of public international law, including invasions of
territorial sovereignty, by hiding behind the doctrine of act of
state. However it is not easy to reconcile this view with the
approach that was adopted in the Abassi case, below.







In that case the doctrine of act
of state or, in the English approach, “judicial restraint” was
allowed to prevail even in the face of a clear breach of fundamental











human rights. See: the case of
Abassi v Secretary of State for foreign and Commonwealth Affairs
(2002) EWCA CIV 1598. I quote from the appellants heads of argument,






“An
application was brought by the mother of a British national who was
captured by US forces in Afghanistan, and at the time of the
application had been held in Guantanamo Bay for eight months without
access to a court or any other form of tribunal, or even a lawyer.
The court found was prepared to find that “In apparent
contravention of fundamental principles recognised by both
jurisdictions [i.e. the USA and the UK] and by international law, Mr
Abassi is at present arbitrarily detained in a ‘legal black hole’”
(at par 64). Having recognized a grave violation of human rights by
a foreign state, the court was, however, not prepared to grant the
relief sought – namely a mandamus that the Foreign Office make
representation of Mr. Abassi’s behalf to their US counterparts.
The court held, at par 107 (ii) that “[o]n no view would it be
appropriate to order the Secretary of State to make any specific
representations to the United States, even in the face of what
appears to be a clear breach of a fundamental human right, as it is
obvious that this would have an impact on the conduct of foreign
policy, and an impact on such policy at a particularly delicate
time.”







It is my view that this case
must be read in the context of the present day events. The case must
be seen as one of those “aspects of international law that touch
more sharply on national nerves than do others”…in the interests
of comity of nations: the Banco Nacional De Cuba previously
cited.







In the instant case, I take the
view therefore that the learned trial judge ought not to have
investigated the actions of Zambia or Botswana to determine whether
the countries had followed their own laws before deporting the
fugitives.







The trial Court also held that
the Namibian authorities committed serious acts of unlawfulness which
amounted to a disguised extradition, a practice which is widely
condemned in many jurisdiction. The applicant argued that this
finding is not justified in the circumstances of this case, that even
if it did amount to disguised extradition, there was not such a high
level of “evil” which would justify an exception to the act of
State doctrine. I agree with the appellants submission.







If the Court were right in its
finding that there was a disguised extradition, in the unlawful
removal of the fugitives, as found by the Court, the effect would be
as was found in S v Ebrahim 1991 2 SA 553. But this is not
such a case. The Ebrahim case was followed shortly afterwards by the
case of S v Beahan 1992 1 SACR 307, a Zimbabwe Supreme Court
decision.







The Ebrahim case, as is
made clear in the judgment, rested the decision exclusively on the
Roman Dutch municipal law as applied in South Africa. It did not,
with respect, advert to the principles of international law though I
accept, as my learned brother Hoff observed, that the Ebrahim
decision was sensitive to those principles. This is also made clear
by Gubbay, CJ in the Beahan judgment, in which the then Chief Justice
followed the decision, (Ebrahim) with approval, and, had little
difficulty in rationalising his decision on the basis of the
principles of international law while quoting from the Ebrahim case.
Gubbay, CJ, then examined a variety of cases from a number of
jurisdictions in the international law sphere, and, in commending the
judgment, said,







“…not only is it founded on the inherited
principles of common law which this country (Zimbabwe) shares with
South Africa, it has the added quality of being in accord with
justice, fairness and good sense….”, at page 315,



c-d







His Lordship then gave other
instances where the Court of the receiving state need not refuse to
exercise jurisdiction, and continued, at page 318 (a),







where agents of the state
of refuge, without resort to extradition or deportation proceedings,
surrender the fugitive for prosecution to another







State, that receiving State,
since it has not exercised any force upon the territory of the refuge
State and has in no way violated its territorial sovereignty, is not
in breach of international law. See Morgenstern 1952 The British
Year Book of International Law 262 at 270-1; Oppenheim International
Law 8th ed vol 1 at 703. In O’Connell International Law
2nd ed vol 2 at 834, the matter is put thus:





‘The
case of a voluntary surrender of the offender, but in violation of
the municipal law of the State which makes it, is different from that
just discussed (ie illegal seizure on foreign territory). Even if
the surrender is contrary to an extradition treaty it is still not a
violation of international law since no sovereign is affronted, and
the offender has no rights other than in municipal law.’







The proposition is well
supported by authority. In the Savarkar case (cited fully in
Harris Cases and Materials on International Law 3rd ed at
233) an Indian revolutionary who was being returned to India from
Great Britain under the Fugitive Offenders Act of 1881, escaped and
swam ashore in Marseilles harbour. A French policeman arrested him
and handed him over to the British policeman who had come ashore in
pursuit. Although the French Police in Marseilles had











been informed of the presence of
Savarkar on board, the French policeman who made the arrest thought
he was handing back a member of the crew who had committed an offence
on board. France alleged a violation of its territorial sovereignty
and asked for the return of Savarkar to it as restitution. The
Permanent Court of a Arbitration decided in favour of Great Britain
for the following reasons:






‘…(I)t
is manifest that the case is not one of recourse to fraud or force in
order to obtain possession of a person who had taken refuge in
foreign territory, and that there was not, in the circumstances of
the arrest and delivery of Savarkar to the British authorities and of
his removal to India, anything in the nature of a violation of the
sovereignty of France, and that all those who took part in the matter
certainly acted in good faith and had no thought of doing anything
unlawful. While admitting that an irregularity was committed by the
arrest of Savarkar and by his being handed over to the British
police, there is no rule of international law imposing, in
circumstances such as those which have been set out above, any
obligation on the Power which has in its custody a prisoner, to
restore him because of a mistake committed by the foreign agent who
delivered him up to that Power.’











Be that as it may, some
criticism has been made of the landmark decision in the Ebrahim
case
. Suggestions, have been made, respectfully, that there is a
slight limitation in this groundbreaking judgment. See The South
African Law Journal 1992 Vol 190, an article by M G Cowling, Senior
Lecturer in Law University of Natal Pietermaritzburg, published under
the title, Unmasking Disguised Extradition, some glimmer of Hope. At
page 248, the learned author observes,






“…But
to what extent does this decision have any impact on the issue of
disguised extradition? Although the court relied on general
Roman-Dutch principles of dealing with fugitive offenders and, as
pointed out above, these principles resemble those relating to
modern-day extradition proceedings, they do not in any way encompass
disguised extradition.





Another
problem arises from the foundation of the decision purely on
municipal law in the form of the Roman-Dutch common law of South
Africa, so that it does not purport to develop the rules and
principles of public international law in this sphere.”







To say that the law has yet to
be developed is to put it too strongly given the dicta by Gubbay, CJ
about the common features between Roman Dutch law principles











on this subject and
international law principles. Clearly South Africa has not been left
behind.







With regard to disguised
extradition, Mr Gauntlet’s contention was that … “the existence
of unlawfulness in the deportation process by these foreign States is
not an indication of a disguised extradition. In fact, as the court
itself notes, a disguised extradition usually occurs in the absence
of unlawfulness, when an attempt is made to deport a fugitive “in
accordance with deportation procedures.” The recognized defining
feature of a disguised extradition rather goes to the motivation
of the officials of the extraditing country. Thus, even in cases
where a prima facie valid deportation order exists, a court
considering the validity of that deportation order will “look
behind the form of the order to determine whether the motivation was
anything other than to effect a deportation. Mr Gauntlett went on to
submit that this principle is most clearly stated in the English case
of Soblen R v Brixton Prison (Governor) 1962 3 All ER 641 at
661 D-E. Lord Denning MR, in considering how a court was to
distinguish between deportation and extradition, concluded as
follows:







It seems to me that it
depends on the purpose with which the act is done. If it was done
for an unauthorized purpose, but in fact for a







different purpose with an
ulterior object, it was unlawful. If, therefore, the purpose of the
Home Secretary in this case was to surrender the applicant as a
fugitive criminal to the United States of America, because they asked
for him, then it would be unlawful; but if his purpose was to deport
him to his own country because he considered his presence here to be
not conducive to the public good, then his action is lawful. It is
open to these courts to inquire whether the purpose of the Home
Secretary was a lawful or an unlawful purpose. Was there a misuse of
power or not? The courts can always go behind the face of the
deportation order in order to see whether the powers entrusted by
Parliament have been exercised lawfully or not.”







Finally, it was also argued that
even if it were held that the Namibian courts can adjudicate on the
lawfulness of the actions of Zambia and Botswana, this finding alone
wouldn’t amount to a disguised extradition and justify refusal to
exercise jurisdiction because the crucial question is whether Namibia
has violated international law.







I agree that the finding that a
foreign state acted unlawfully is irrelevant. In S v Rosslee
1994 2 SACR 441 (C), the accused was wanted by the South African







Police. He was arrested and
deported by the Namibian Police after a tip off about his
whereabouts.



At page 449, the Court held


“that
where there had been no unlawful conduct by any functionaries of the
state in which the court is situated, but the presence within its
jurisdiction of the person concerned was the consequence of the
unlawful conduct on the part of functionaries of the foreign state to
which the functionaries of the court’s state were not parties, the
court will not decline to exercise jurisdiction.” See also:
S v Mahala 1994 1 SACR 510 (A) 616


S v
December 1995 1 SACR 438 (A) 441







In my conclusion, there was no
act of lawlessness committed by either Zambia or Botswana with the
knowledge or concurrence of Namibia such as to disentitle Namibia
from assuming jurisdiction as a receiving state.







It was also argued that the
Court erred in its conclusion because disguised extradition was not
canvassed at the hearing. In Kuesa v The Minister of Home Affairs
and Others
1995 NR 175, Dumbutshena AJA said at page (182 Court),
“…Counsel also pointed out that Court a quo raised several
aspects in its judgment















which were not advanced by
either counsel or canvassed by them. In relation to these counsel
said they were not heard. These were ………………….”.
After listing the issues, the then judge of Appeal said, at page
183D,







The above matters are not
crucial to the determination of this appeal. They are, however,
important because a frequent departure from counsel’s, more
correctly the litigant’s case, may be wrongly interpreted by those
who seek justice in our courts of law. It is the litigants who must
be heard and not the judicial officer. It would be wrong for
judicial officers to rely for their decisions on matters not put
before them by litigants either in evidence or in oral or written
submissions. Now and again a Judge comes across a point not argued
before him by counsel but which he thinks material to the resolution
of the case. It is his duty in such a circumstance to inform counsel
on both sides and to invite them to submit arguments either for or
against the Judge’s point. It is undesirable for a Court to
deliver a judgment with a substantial portion containing issues never
canvassed or relied on by counsel.”







I do not think that this is such
a case in that here, unlike the Kuesa case, substantial
evidence was led by the Respondents regarding the issue to which the
Appellant replied. So there cannot be said to have been any
prejudice. In any







event it is well established,
that as long as evidence is laid before the Court parties are at
liberty to raise such legal argument as can justifiably be raised on
the evidence. Mr Kauta invited the Court to reach its conclusion by
drawing inferences that could be drawn from the evidence proved. I
find it unnecessary to approach it from that angle.







Mr Kauta argued that it is in
the interest of the administration of justice and the principles of
fair play that the Court should decline jurisdiction over persons who
have been removed, collected or arrested from a sovereign state with
the intention of having them prosecuted without following extradition
procedures. He relied on the case of Bennett v Horseferry Road
Magistrates Court
(1993) 1 All ER 138 (HL) the judgment by Lord
Griffiths at p 150 H-J.







Extradition procedures are
designed not only to ensure that criminals are returned from one
country to another but also to protect the rights to those who are
accused of crimes by the requesting country. Thus sufficient
evidence has to be produced to show a prima facie case against the
accused and the rule of speciality protects the accused from being
tried for any crime other than that for which he was extradited. If
a practice developed in which the police or prosecuting authorities
of this country











ignored extradition
procedures and secured the return of an accused by a mere request to
police colleagues in another country they would be flouting the
extradition procedures and depriving the accused of the safeguards
built into the extradition process for his benefits. It is to my
mind unthinkable that in such circumstance the court should declare
itself to be powerless and stand idly by; I echo the words of Lord
Develin in Connelly v DPP (1964 2 ALL ER 401 at 442, (1964) AC
1254 at 1354
:






“The
courts cannot contemplate for a moment the transference to the
executive of the responsibility for seeing that the process of law is
not abused”.







Reliance was also placed on the
judgment of Gubbay, CJ, in Beahan, above, at page 317 D-F.
Chief Justice Gubbay said:






“In
my opinion it is essential that, in order to promote confidence in
and respect for the administration of justice and preserve the
judicial process from contamination, that a court should decline to
compel an accused person to undergo a trial in circumstances where
his appearance before it











has
been facilitated by an act of abduction undertaken by the prosecuting
State. There is an inherent objection to such a course both on
grounds of public policy pertaining to international ethical norms
and because it imperils and corrodes the peaceful coexistence and
mutual respect of sovereign nations. For abduction is illegal under
international law, provided the abductor was not acting on his own
initiative and without the authority or connivance of his government.
A contrary view would amount to a declaration that the end justifies
the means, thereby encouraging states to become law-breakers in order
to secure the conviction of a private individual.”







Unfortunately for the
Respondents, there is no basis on the facts of this case that these
Respondents were removed or arrested by the Namibian authorities in a
foreign jurisdiction in contravention of Namibia’s municipal law
and international law. The learned trial judge’s factual finding
herein was:






“In
respect of these accused persons who alleged that they had been
abducted, in the absence to the contrary, the evidence presented by
the State witnesses stands uncontradicted since they said they had
never been arrested by the Namibian authorities on foreign soil, (at
page 1224).











Respondent’s counsel also
argued that the case of R v Staines Magistrates Court ex parte
Westfallen and Soper and Nangle, 1998 4 All ER 210 are correct but
distinguishable on the facts of the present case.







The facts in R v Staines
Magistrate Court ex parte Wasfallen and Others
were these,
Westfallen and Soper went to Norway. On arrival in Oslo they were
detained after being found in possession of forged documents and
stolen travellers cheques. They were refused entry and deported by
the Norwegians for fear that they’ll commit further crimes. It is
to be noted that Norway had an extradition treaty with Britain. But
there was no question of holding them to await a British request for
extradition.







In Nangle’s case he travelled
from the United Kingdom to Europe and ended up in Canada, while there
was a warrant for his arrest in Britain. In Canada he committed
further crimes, was arrested, tried and sentenced. The trial judge
made an further order that he be deported to Ireland on release.
When he was released the Canadian police notified the British police
of his flight arrangements to Ireland via Glasgow. He was met by the
British police at Glasgow Airport and was arrested. All three
dependants challenged the jurisdiction of the Court and said they
were victims of improper and abusive practice by British authorities.
They relied on the Bennett case, above, where it considered
the question






“Whether
the High Court in the exercise of its supervisory jurisdiction the
court has power to enquire into the circumstances by which a person
has been brought within the jurisdiction and if so what remedy is
available if any to prevent his trial where that person has been
lawfully arrested within the jurisdiction for a crime committed
within the jurisdiction”.







At page 222 f in the Staines
case, Lord Bingham CJ observed, ………. “The question in each of
these cases is whether it appears that the police or prosecution
authorities have acted illegally or connived at unlawful procedures
or violated international law or the domestic law of foreign states
or abused their powers in a way that should lead this Court to stay
the proceedings against the applicants. In the case of Westfallen
and Soper the answer is plainly in the negative. The Norwegians were
entitled under their own law to deport the applicants. The propriety
of the deportation is not challenged. It is difficult to see why the
Kingdom of Norway should be obliged to keep the applicant whilst the
British applied for extradition if they wished to deport them. It
was indeed a natural step for Norway to send the applicants back to
where they had come from. There is nothing in the material before us
to suggest that the British authorities procured or influenced that
decision. It is true that they did not resist it….. It is very
probable that they welcomed the decision…..”











In the instant case there is no
doubt that the Namibians, as in the above case must have welcomed the
expulsion when it occurred. The evidence of Mr Matakala was that he
got information of a group of illegal immigrants in a village. He
travelled to the village and arrested them. Mr Matakala said he
prepared warrants for their detention pending deportation in terms of
the Zambian law. He explained that in terms of that law he had power
as an immigration officer to deport illegal aliens he said the
decision was his whether to invoke a different procedure to go
through the courts, but said he elected the first procedure in this
case. He was supported in this claim by Mr Mundia, who it seems,
must have been the most Senior immigration officer at the time.







This approach is supported by
decisions in other jurisdictions that empower the executive to take
administrative decisions that are generally shorter in order to expel
illegal aliens: See R v Brixton Prison (Governor) above,
where Lord Denning, lucidly sums the distinction in the powers.







So there we have in this
case the two principles: on the one hand the principle arising out of
the law of extradition under which the officers of the Crown cannot
and must not surrender a fugitive criminal to another country at its
request except in accordance with the Extradition Acts duly











fulfilled; on the other hand
the principle arising out of the law of deportation, under which the
Secretary of State can deport an alien and put him on board a ship or
aircraft bound for his own country if he considers it conducive to
the public good that that should be done.”







The subsection in the Zambian
statute, (S. 26 (4)(c)), was read into the record and appears in line
with the witness’s understanding. But even if it were not, the
Court in Namibia would not be entitled to check the correctness of
that answer, i.e. investigate the correctness of the compliance with
provisions of a foreign statute, any more than the Court in England
would have been expected to in the Westfallen case.






In
any event there is highly persuasive authority,





“…that
even if the surrender (of the fugitive) is contrary to an extradition
treaty it is still not a violation of international law since no
sovereign is affronted, and the offender has no rights other than in
municipal law,” per



Gubbay CJ quoting from an
international law publication, for which he found support for the
proposition in the Savarkar case.















It seems to me from the above
decisions, especially the Staines Magistrates Court decision,
that the trial court takes a bold decision to do justice between the
fugitive offender on the one hand and the interests of the public to
see that those who commit crimes do not go unpunished.







Dicta to this effect can be
found in a number of judgments of this Court, in particular those of
my Brother O’Linn, J as he then was, in the cases S v Andries
Gaseb and Others
2000 NR 135; The State v Vries 1998 NR
316.







To quote from Vries, the Learned
Judge when discussing a suitable sentence for offenders said, at page
268 G.






However,
there is no reason whatsoever in my view, why, in accordance with the
right to equality before the law, the life of the victim, the dignity
of the victim, the right to peace and tranquillity and the security
of person and property, should not at all stages of judicial process
be given equal emphasis and consideration with that of the offender,
even though the consequences of doing so would not always be the same
for the offender and the victim.”







The Learned Judge went on to
say,





“The
Courts must, in particular in the Namibian and South African reality,
interpret and apply the Constitution in a way where it will be able
to play its part in combating the emergence of a terror State, where
the criminal minority dictates to and holds hostage the law-abiding
majority and where no one, except the criminals, would have rights
and freedoms.”







The European Court of Human
Rights in the international sphere is alive to the need to balance
the competing interests when deciding issues of extradition of
offenders.







In Ocalan v Turkey 15
BHRC page 324, at para 90, the Court observed,







…“inherent in the whole
of the Convention is a search for a fair balance between the demands
of the general interest of the community and the requirements of the
protection of the individual’s fundamental rights. As movement
about the world becomes easier and crime takes on a larger
international dimension, it is increasingly in the interest of all
nations that suspected offenders who flee abroad should be brought to
justice. Conversely, the establishment of safe havens for fugitives
would not only result in danger for the state obliged to harbour the
protected person but











also tend to undermine the
foundations of extradition.’ (Soering v UK [1989] ECHR 14038/88 at
para 89.)







Though these words were
enunciated in the context of the provisions of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms 1950, they are in accord with any citizens understanding and
expectations in an organised, orderly society.







In the instant case, the actions
of the Namibia officials which were censured by the trial Court as
having “tainted” the process of procuring the fugitives from
Botswana and Zambia only consist of a request by the officer
commanding the Namibian forces to his counterpart in Zambia and
nothing further is suggested by this request. There is no hint that
the request was accompanied by threats of force or other ultimatum.
What is most impressive is that there is no evidence that Matakala
(the immigration officer) had been aware of the decisions made in
Lusaka when he started the proceedings to expel the fugitives from
Zambia. Also, as far as the other groups within Zambia were
concerned, the evidence showed that the Zambians initiated the
process of deportation independently of Namibia, that they only
advised the Namibian authorities after rounding up the “parcel”
of people they wished to expel.











As for Charles Samboma there is
no issue that he sought and got a lift to Namibia because he could
not endure further hardship from a life as a fugitive. He wanted to
return home. He apologised and expressed contrition for his role in
the upheavals in the Caprivi.







With regard to the Botswana
fugitives, there is not a single piece of evidence that Botswana’s
actions were influenced or caused by any action on the part of
Namibia. In any event if the surrender of the fugitives was the
result of a cooperation between the three foreign States in combating
lawlessness within their territories, there is good authority that
such eventuality could not avail the Respondents. – see the remarks
of Gubbay CJ in the Beahan case page 317 i-j, that







Even if it be assumed that
a member of the Zimbabwe Republic Police had interrogated the
appellant at the main police station in Gaborone and thereafter
requested that he be returned, such action does not avail the
appellant. It is irrelevant to the issue.



The immutable fact is that
the appellant was recovered from Botswana without any form of force
or deception being practised by the agents of this country. The
decision to convey him to Zimbabwe was made, and could only have been
made, by the Botswana Police in whose custody he was.”











In concluding I will do no
better than echo the words of Gubbay CJ that the fugitives were
collected from Zambia and Botswana without any form of collusion or
deception by the agents of Namibia but explicitly at the request of
the two foreign countries. Even if it were found that Zambia and
Botswana in doing so acted in breach of their own municipal laws that
was not a matter for the concern of Namibia. Therefore there is no
justification for holding that Namibia’s hands were not clean on
account of the above circumstances. In the result I agree with my
brother Mtambanengwe that the appeal be allowed.







It is ordered that the matter be
returned to the learned trial judge to continue the trial.





















GIBSON, A.J.A.



STRYDOM, ACJ: I have read the judgments of my sister Gibson
and my brothers O'Linn, Mtambanengwe and also Chomba. They have
written full and well-reasoned judgments and although I agree with
much that was stated by them my approach to some of the issues is
perhaps different and given the importance of this matter I have
decided to make my own contribution. I have reached the same
conclusion as my brother O’Linn and in that regard I am of the
opinion that the appeal should only succeed in a limited respect.
To that extent I respectfully differ from the conclusion reached by
my sister Gibson and brother Mtambanengwe. I am in certain respects
in agreement with the setting out of the law and the interpretation
thereof by my brother O’Linn and will indicate so in this judgment
of mine where I accept his reasoning. As my brothers and sister
dealt fully with the facts of this matter I do not find it necessary
to do so as well except where it is necessary for the purposes of my
judgment.







The issue before the Court a quo and before us was whether the
Court has jurisdiction to try the thirteen appellants who were
returned by authorities acting in Zambia and Botswana and brought
before the Court to stand trial in what is now known as the Caprivi
treason trial. The appellants alleged that they were abducted from
the two countries by members of the Namibian Police Force and Defence
Force. This is denied by the members of the respective forces and
they in turn testified that they, at all times, only received the
appellants from officials of Zambia and Botswana. It was also
alleged, and found by the Court a quo, that no arrests were
made by the Namibian forces except when the appellants were on
Namibian soil. Various immigration officers and members of the
police force of both Zambia and Botswana also testified. According
to them the appellants were either illegal or prohibited immigrants
who were arrested by them and deported by them back to Namibia.







The question whether a Court has jurisdiction in circumstances where
a fugitive offender, who has committed crimes within the jurisdiction
of the Court, crossed into a foreign country and was brought back has
undoubtedly undergone some change over the years. As far as our own
law is concerned one need not start further back than the case of
Abrahams v Minister of Justice and Others, 1963 (4) SA 542
(C.P.D.). This was an application made habeas corpus and it
was alleged that the applicant was abducted from Bechuanaland
Protectorate, (now Botswana), and brought back to South West Africa,
(now Namibia). The Court accepted these facts and also accepted
that members of the South African police were at least parties to the
abduction. This notwithstanding the Court found that the applicant
was only arrested in South West Africa and found that once there was
a lawful detention, the circumstances of the arrest and capture of
the applicant were irrelevant. (p.545H). In coming to this
conclusion the Court, inter alia, relied on an English case,
namely Rex v Officer Commanding Depot Batalion,Colchester: Ex
parte Elliot
, 1949 (1) A.E.R. 373.







It seems that, for some time, Courts in England as well as the United
States of America applied the principle of male captus bene
detentus
where once the offender is brought within the
jurisdiction of the Court the circumstances of his capture and arrest
were not obstacles debarring the Court from hearing the case. See
Sinclair v HM Advocate (1890) 17 R (JC)38 referred to in R
v Plymouth Magistrate’s Court and Others:
ex parte Driver
[1985] All ER 681 (QB) at 692f – 694j; Kerr v Illinois
119 US 342 (1888) and Frisbie v Collins 342 US 519 (1952).
This so it seems to me was also the ratio in the Abrahams
case.







Some fourteen years after the Abrahams case the Appeal Court
of South Africa was called upon to deal with a more or less similar
situation in the case of Nduli and Another v Minister of Justice
and Others,
1978 (1) SA 893 (A.D.). The applicant and others
were abducted from Swaziland and brought to South Africa where they
were arrested by the Police. The Court stated that the sole issue
for investigation was whether a South African Court could, in terms
of international law as applied in South Africa, try an
accused that had been apprehended on foreign soil but was arrested
within the Republic and charged with criminal acts triable by a South
African Court. (p.906H). The Court reviewed various cases in its
own jurisdiction as well as Courts of Great Britain and America and
concluded as follows, p. 911H – 912A:







“Having regard to what is stated above and the decisions of some of
the Courts of Great Britain and America to which we have been
referred, it seems clear that in terms of international law, as it
exists (and not perhaps as it should be), the appellants’ case
would only have merited consideration if their abduction had been
authorized by the Republic of South Africa. It is not disputed that
appellants were arrested and ordered to be detained by Colonel Dreyer
on South African soil. On the assumption that they were abducted by
people, including two South African policemen, on Swaziland soil, it
must be accepted on the evidence, for the reasons already given, that
such apprehension was not authorized by the South African State. In
the result it cannot be said that the jurisdiction of the Court a
quo
was ousted according to international law, and that the
judgment of the Court a quo was wrong.”















In regard to the finding of the Court that the South African State
was not involved in the abduction the Court accepted the evidence of
Colonel Dreyer who had expressly prohibited the police from crossing
the Swaziland border and apprehending the appellants there.
Although the Court did not make any finding as to what the position
would have been if it was proven that the State was involved in the
abduction, the fact that a proper investigation into international
law was undertaken by the Court, in my opinion, shows that where
there was an abduction from foreign soil the circumstances of the
arrest and capture were no longer totally irrelevant.







A further development in this regard came with the case of S v
Ebrahim
, 1991 (2) SA 553 (AA). Again the Court was faced with
abduction from Swaziland and although, on the evidence, the Court
found that the South African police was not involved the Court, on
the evidence, concluded that it was highly probable that the
abductors of the appellant were agents of the State. The Court
embarked on an exhaustive review of Roman and Roman Dutch law to
investigate the common law. As regards the Roman Dutch law the
Court found as follows:






“Uit
hoofde van die bogaande is dit duidelik dat ‘n Nederlandse hof
volgens die Romeins-Hollandse gemenereg geen regsbevoegdheid gehad
het om ‘n persoon te verhoor wat uit ‘n ander jurisdiksie ontvoer
is deur werktuie van die Staatsgesag wat bewind voer in die
regsgebied van so ‘n hof nie.”











(From the above it is clear that according to the Roman Dutch common
law a Dutch Court had no jurisdiction to try a person who was
abducted from another jurisdiction by agents of the State authority
exercising power in the area of jurisdiction of such court.)(My
translation).















The Court further concluded that these rules of Roman Dutch law were
still part of the common law of South Africa. The Court evaluated
the principles so involved and stated at page 582C – E as follows:















“Verskeie fundamentele regsbeginsels is teenwoordig in daardie
reels, te wete, die ter behoud en bevordering van menseregte, goeie
inter-staatlike betrekkinge en gesonde regspleging. Die individu
moet beskerm word teen onwettige aanhouding en teen ontvoering, die
grense van regsbevoegdheid moet nie oorskry word nie, staatkundige
soewereiniteit moet eerbiedig word, die regsproses moet billik wees
teenoor diegene wat daardeur geraak word en die misbruik daarvan moet
vermy word om sodoende die waardigheid en integriteit van die
regspleging te beskerm en te bevorder. Die staat word ook daardeur
getref. Wanneer die Staat self ‘n gedingsparty is, soos
bevoorbeeld in strafsake, moet die as’t ware ‘met skoon hande’
hof toe kom. Wanneer die Staat dan self betrokke is by ‘n
ontvoering oor die landsgrense heen, soos in die onderhawige geval,
is sy hande nie skoon nie.”















(Several fundamental legal principles are implicit in those rules,
namely, those for the preservation and promotion of human rights,
good interstate relations and sound administration of justice. The
individual must be protected against unlawful detention and against
abduction, the limits of jurisdiction must not be exceeded, State
sovereignty must be respected, legal process must be fair towards
those who are affected thereby and the misuse thereof must be avoided
in order to protect and promote the dignity and integrity of the
administration of justice. The State is also affected thereby.
When the State itself is a litigant, as for instance in criminal
matters, it must approach the court so to speak with ‘clean hands’.
When the State then itself is involved in an abduction over the
borders of another country, as is the case in the present instance,
its hands are not clean).



(My translation).















In this instance the appeal succeeded and the conviction and sentence
of the appellant were set aside. Although the principles to which
the Court referred were Roman Dutch law principles it seems that in
so far as these were justified on the basis of respect for the
sovereignty of other States and the comity of nations, such rules do
not differ greatly from those applicable in international law, as was
also found by the Court by reference to developments also in other
countries such as America as reflected in the case of United
States v Toscanino,
500 2d 267. See also Ocalan v Turkey
Ect HR APP No. 46221/99 at p 325 par. 92; S v Beahan 1992
(1) SA 307 (ZS) and Prosecutor v Dragon Nicolic Trial Chamber,
I.C.T. case 94-2-T. As the provinces in the Netherlands, to which
these Roman Dutch rules applied, were all sovereign states, the
similarity with international law may not be accidental.







Whereas the principles involved in the adagium male captus
bene detentus
applied at a stage very much in the United States
of America and also Great Britain, as well as South Africa, which
brought about that as long as the ultimate detention was legal the
courts did not bother to enquire about the circumstances of the
arrest and capture of the person abducted, there was in later years a
change of attitude and the focus was then directed to possible
breaches of international law and more particularly violations by one
country of the sovereignty of another. See in this regard the cases
referred to in the previous paragraph.







It was common cause between the appellant and the respondents that
these rules were applicable and that an abduction over the borders of
either Zambia or Botswana by members of the Namibian forces, or other
agents of the State, would have constituted a breach of international
law and, as I understood Counsel on both sides, such action would
have affected the jurisdiction of the Court a quo. It was
however submitted by Mr. Gauntlet that in each particular instance
there was no abduction of any of the respondents by agents of the
Namibian State or forces and that in each instance the respondents,
with the exception of Charles Samboma, were handed to the Namibian
police or military forces by the co-operation of the authorities in
both foreign countries. As this was the case there could not be
any question that any of the respondents were abducted in a sense
which would constitute a breach of international law. This was also
the finding of the Court a quo and the learned Judge also
found that all arrests were executed on Namibian soil or in the no
man’s land between Zambia and Namibia. It was further submitted
by Mr. Gauntlet that in so far as the handing over of the respondents
occurred with the co-operation of Zambia and Botswana these actions
constituted ‘acts of State’ and unless there was proof of some
gross violation of human rights, it was not relevant that the two
countries, in doing what they did, did not comply with their own
municipal laws. In this regard we were inter alia referred
to the following cases, namely, S v Beahan, supra; Ocalan, supra;
Stocke v Germany
APP No 1175/85 12 October 1989 par 54.







A reading of the above cases supports the submission by Counsel as
far as international law is concerned and I therefore also agree with
my sister Gibson and my brother Mtambanengwe that the fact that the
two countries may have breached provisions of their own laws does not
concern this Court. Where one country co-operates in the handing
over of an alleged offender of another country there is no suggestion
of the latter country violating the sovereignty of the country
involved in the handing over. In the instant case there was clear
co-operation between the officials and forces of Namibia and Zambia
and Botswana and, as was stated in the Ebrahim case, the
State was bound where action by the lower echelons of power were
authorized and executed even though such action was not sanctioned by
the highest authority (p. 568C-D). I also agree with what was
stated in S v Wellem, 1993 (2) SACR 18(E) at p. 32a-b, namely
that where it was clear that all the officials acted within the scope
and course of their employment, the State was bound by their actions.
In the instant case it was never claimed that the officials did not
act within the course and scope of their employment as such. If
they had acted as loose cannons then, on the strength of what was
decided in Nduli and Ebrahim, international law
did not play any role in this case. I have therefore come to the
conclusion that in the present instance there was no breach of
international law as far as the handing over of the respondents was
concerned. In this regard I am respectfully not in agreement with
the finding by my brother O’Linn which is to the effect that the
members of the Namibian forces as well as the officials of Zambia and
Botswana were “unauthorized” whatever that may mean in the
context of this case.







As previously stated, the focus of the Courts was at one stage mainly
directed to the question whether actions by the requesting State
breached international law or not, with the result that scant
attention was given to the fact that there was in existence between
two countries an extradition treaty or other legislative acts
prescribing how and in what circumstances extradition should be
obtained. See in this regard the Beahan case, supra,
p. 318, and the authorities referred therein, and Stocke v
Germany,
supra and United States v Alvares-Marchain,
(1992) 504 US 655. Although it was submitted in the Nduli case
that there was an extradition treaty between Swaziland and South
Africa this was not even mentioned in the judgment and seemingly did
not play any role in the deliberations and conclusion of the Court.







However, since the Nduli case, and also the Ebrahim
case, many countries, more particularly on the African continent,
underwent constitutional changes and can now boast Constitutions
containing first and second generation human rights provisions.
Transparency and accountability and a government based on the rule of
law are now part of the Constitutions of the Republic of Namibia and
the Republic of South Africa with which latter country we also share
the same common law, namely Roman Dutch law. It is my opinion that
where there is an extradition treaty or legislative Act in existence
between Namibia and, in the present instance, Zambia and Botswana,
which prescribes a particular procedure to be followed and which
grants certain rights and safeguards to an accused person, it is at
least necessary to also evaluate the role of all agencies involved
against the background of the new dispensation.







In two recent decisions in South Africa the Courts found that the
fact that there were extradition treaties and an extradition Act
between South Africa and the two countries from which the applicants
were handed over, were unlawful where the request, which was made for
such handing over, and the handing over itself, was executed by
police officers of the two countries who, in terms of the provisions
of these instruments, were not competent to take such actions. In
the first case, namely S v Wellem, supra, one of the accused
persons was arrested by members of the Ciskei Defence force who
informed the S.A. police of his arrest. Two other accused persons
were arrested by the Ciskei police by request of an officer of the
S.A. police. All the accused persons were given the choice to
remain in custody in the Ciskei until extradition proceedings could
be started or to accompany the S.A. police to South Africa. They
all opted to go to South Africa and some of them signed written
consents to that effect. The Court discussed the extradition
legislation between the two countries and the extradition treaty in
existence and came to the conclusion that the provisions were
exhaustive and that extradition could only take place in terms
thereof. The Court concluded that neither the Act nor the treaty
sanctioned extradition by request of a police officer and handing
over by the forces of the returning country. The Court consequently
found that the actions of the S.A. Police and the Ciskeian Police
were unlawful and that this action amounted to an unlawful abduction
of the accused. In the course of his judgment the learned Judge
stated as follows, at p. 27h - i:







“ In my view the provisions of the Act and agreement are exhaustive
of the manner in which South African officials, including the police,
may obtain the presence of persons who committed extraditable
offences in South Africa from Ciskei, and, similarly, of the manner
in which officials in Ciskei, including the police, may hand over
such persons to South African officials. The Act and agreement is
comprehensive, even to the point of making provision for cases of
urgency. To hold that the provisions of the Act and agreement are
not exhaustive and thus to allow State officials to circumvent the
important procedural and substantive safeguards for persons liable
for extradition therein would frustrate the very purpose of the Act
and agreement and make its provisions superfluous.”















The conclusion reached by the Court in S v Willem, to the
effect that the provisions of the Extradition Act and agreement were
exhaustive, was followed in the case of S v Buys en Andere, 1994
(1) SACR 539(O). Because of the circumstances of the case the Court
found that there was no unlawful abduction by the S.A. police
involved in the transfer of the accused persons from Bophutatswana to
South Africa however, the Court found that as a result of non
compliance with the provisions of the Extradition Act, the
extradition was irregular and therefore unlawful.







Although there are no extradition treaties between Namibia and Zambia
and Namibia and Botswana, extradition between these countries is
regulated by reciprocal Extradition Acts. In Namibia Act 11 of 1996
contains provisions prescribing the procedure to be followed when a
request is made by another country for the return of persons and the
Act grants certain rights to persons returned to Namibia by request
of the competent authority. Section 2 of the Act provides that in
such a case the return shall be in accordance with the provisions of
the Act. The Act further provides for the type of offences that are
extraditable (sec. 3) and prescribe the circumstances and crimes,
such as of a political nature, where the State shall not comply with
a request to return a person to another country (sec. 5). Sections
7, 8, 9 and 10 prescribe the procedure and by whom and to whom the
request should be addressed. It further puts in place enquiry
proceedings for committal (sec. 12) and provides for a right of
appeal to the High Court of Namibia for the person so committed as
well as the requesting Country (sec. 14).







In sec. 15 the person whose return has been requested is given the
power to waive his or her right to an enquiry provided that the
magistrate is satisfied that such waiver was voluntary and the person
understands the significance and all the implications of such waiver.
Even then the Minister must still be satisfied that the return of
such person is not prohibited by the Act. In the case of an
extradition to Namibia the person so returned shall only be charged
in respect of the offence for which such person was returned or a
lesser offence proved on the facts. (sec. 17) unless he or she is
given an opportunity to leave Namibia. Another important provision
is sec. 20 which provides for legal representation for a person
arrested for purposes of being returned to a requesting country.
Sub sec. (2) instructs the Director of Legal Aid, notwithstanding the
provisions of the Legal Aid Act, Act 29 of 1990, to appoint a legal
representative for such a person where the latter has not himself
instructed a legal representative. Furthermore the Act also
provides for a procedure to be followed where grounds of urgency are
present. (sec. 11).











The Zambian Extradition and Deportation Act, Chapter 94 of the Laws
of Zambia, and the Botswana Extradition Act, Act 18 of 1990, as well
as relevant provisions of the immigration laws of these countries,
were handed in to Court by agreement between the parties. A reading
of these Acts makes it clear that they contain very similar
provisions of procedure and safeguards in respect of accused persons
to that of the Namibian Act and to that extent they also provide for
the procedures to be followed when a request for the handing over of
a person is made, the circumstances when extradition is prohibited,
such as crimes of a political nature, enquiries to be held and the
right granted to such person to appeal against his or her committal.
(See further the discussion by my brother O’Linn of the specific
Deportation Acts and Extradition Acts of the two Countries and his
interpretation thereof, with which I agree).







In the present instance various immigration officers of Zambia and
Botswana testified in the Court a quo. According to them 12
of the respondents were arrested because they were illegal or
prohibited immigrants. These officers testified that as a result of
that the persons were deported in terms of their immigration Laws.
The Court a quo rejected this claim and in my opinion rightly
so. I agree with the Court a quo that if that was so one
could surely expect to see some documentation supporting that claim.
There is none and neither is there any claim or indication that any
of the steps, prescribed by the respective Acts, were followed, and
the warrants that were produced in regard to Osbert Likanyi,
respondent no. 8, are no more than an attempt to give some semblance
of legality to the handing over of this respondent. (See the
discussion in this regard by my brother O’Linn).







The dearth of documentation to support the claims by the immigration
officials, and the inference to be drawn there from, is further
substantiated by the circumstances under which the respondents, or
some of them, were handed over to the Namibian authorities.







The handing over of the respondents was divided by the Court a quo
into five groups. It was common cause that at no stage was any
formal request for the extradition of any of the respondents made by
any competent authority on behalf of the Government of Namibia. For
purposes of this case it is therefore necessary to determine how and
under what circumstances each of the groups were handed over to the
police or defence force of Namibia and the role played by these
forces in such handing over. In this regard the following is
relevant.







The first group, consisting of respondents numbers 1, 9, 10, 11 and
12 were arrested by



Zambian immigration officials on 18th or 23rd
.June 1999. As this happened before the alleged attack on various
installations at Katima Mulilo, which occurred on the 2nd
August 1999, I am of the opinion that at least at this stage there
was a genuine intention to deal with this group in terms of the
Immigration laws of Zambia. This is further substantiated by the
evidence of Major-General Shali who testified that he became aware
that the respondents were in Zambia when he saw their names on a list
which was provided by the Zambian authorities. There is a
suggestion in his evidence that before people are deported to their
country of origin it is customary to send a list of the names to such
country. All this lends support to the evidence of immigration
officer Matakala that he intended to set in motion proceedings for
the deportation of these people.







However, the matter does not end there. Shali further testified
that there were still many other names on that list but when he saw
the names of the “terrorists” on the list he requested that they
be handed over to the Namibian forces. It is common cause that the
only persons who were handed over on this occasion were the
respondents. Seemingly in regard to the other names on the list the
normal procedure of deportation continued. This differentiation can
in my opinion only be explained on the basis of an extradition as
against a deportation. This is further substantiated by the evidence
of Shali who sought their handing over to come and face the
“ruthlessness of the law”. It is in my opinion clear that the
general wanted these men, and this was more than once said by him,
for one purpose only and that was to prosecute them. These
respondents were handed over to Inspector Theron who collected them
inside Zambia.







The second group was arrested at a much later stage and after the
attack on Katima Mulilo. This group consisted of respondents
numbers 4, 5, 6 and 7. This was the group that was handed over in
no man’s land to members of the Namibian police or defence force.
Here again members of the Namibian Police force entered Zambia
seemingly to identify the respondents. What happened to this
group, and the way that they were dealt with, shows no resemblance to
a deportation.







According to the evidence of the Namibian police officers the third
group, consisting of respondents 2 and 3, was brought to the police
station at Katima Mulilo and handed to one of the officers. The
impression was created that they arrived at Katima Mulilo
unexpectedly and without any involvement by the Namibian officials.
This is contradicted by the evidence of respondent No 2 as well as
Colonel Kaleji.







The fourth group consists of Charles Samboma, respondent no. 13. He
was seen at the police station at Sesheke. He informed the police
that he wanted to return to Namibia and he expressed his regret at
what had happened on the 2nd of August. He willingly
accompanied Inspector Simasiku to Namibia and was then arrested on
Namibian soil.











The last group consisted of three persons which included Osbert
Likanyi, respondent no. 8. They were handed over to Namibian police
officers in Botswana at a defunct weighbridge close to the Border
post with Namibia. That happened notwithstanding the fact that
political asylum was granted to this respondent.







In the Ebrahim case the Court of Appeal of South Africa
pointed out that in cases where the State is a party, such as
criminal prosecutions, the State must come to Court with clean hands.
This conclusion was reached in terms of the rules applicable and
according to Roman Dutch law. I agreed that as far as international
law was concerned the Court of the requesting country is not
interested in any breaches by the returning country of their own
municipal law. Where, in the return of a person there is
co-operation by the returning country there is no violation of the
sovereignty of that country and consequently breaches by them of
their own law does not fall within the realm of international law.







However where this Court must decide on the lawfulness, or otherwise,
of the process whereby the respondents were brought within the
jurisdiction of our Courts I can find no reason why the Court shall
not look at all the evidence, including that of the involvement of
officials and members of the returning country, to decide whether the
State, in this instance, approached the Court with clean hands. Or
as it was put by Counsel for the appellants, namely that the
unlawfulness of the actions of the Zambian and Botswana authorities
alone is neither necessary, relevant or conclusive but that it at
best gain significance as a prism through which to view the actions
of the Namibian authorities. The caveat added by Counsel that
a Court should only do so in the event of gross human rights
violations cannot apply in this instance. In doing this the Court is
no longer dealing with international law but with the lawfulness or
otherwise of the whole process in terms of its own laws and
Constitution and the role played by the State, or its
representatives, in that process. No finding of illegality or
otherwise is made in regard to the other countries involved. That
this is permissible and necessary where the Court’s jurisdiction
was challenged was, in my opinion, decided in various present day
cases in South Africa as well as in other jurisdictions.







So far as South African law is concerned reference can be made to S
v Wellem
and S v Buys and others. In regard to other
jurisdictions see Bennett v Horseferry Road Magistrate’s
Court
and Another, (1993) All ER 138 (HL); its
follow up namely, Bennett v HM Advocate 1995 SLT 510 at 518; R
v Bow Street Magistrate’s Court, ex parte Mackeson
, (1981) 75CT
APP R 24; R v Staines Magistrate’s Court and Others, ex parte
Westfalen R v Staines Magistrate’s Court and Others, ex parte Soper
R v Swindon Magistrate’s Court and Others, ex parte Nangle,

(1998) 4 ALL ER 216(QBD); R v Hartley, (1978) 2 NZLR 199;
Bozano v France,
9 E.H.R.R.. 1986 Series A, No. 111 and
Prosecutor v Dragon Nicolic, Trial Chamber of the
International Tribunal for the Prosecution of Persons Responsible for
Serious Violation of International Humanitarian Law, Case No 94-2-T
par. 111;







The above cases are in my opinion authority that, apart from possible
breaches of international law, Courts must also examine the conduct
of the parties responsible for bringing the fugitive offender before
the jurisdiction of the requesting State, even more so where the
requesting country is a Government based on the rule of law. This
was aptly stated by Lord Bridge in the House of Lords in the Bennett
case as follows:







“Whatever differences there may be between the legal systems of
South Africa, the United States, New Zealand and this country, many
of the basic principles to which they seek to give effect stem from
common roots. There is, I think, no principle more basic to any
proper system of law than the maintenance of the rule of law itself.
When it is shown that the law enforcement agency responsible for
bringing a prosecution has only been enabled to do so by
participating in violations of international law and of the laws of
another state in order to secure the presence of the accused within
the territorial jurisdiction of the court, I think that respect for
the rule of law demands that the court take cognisance of that
circumstance. To hold that the court may turn a blind eye to
executive lawlessness beyond the frontiers of its own jurisdiction
is, to my mind, an insular and unacceptable view. Having then taken
cognisance of the lawlessness it would again appear to me to be
wholly inadequate response for the court to hold that the only remedy
lies in civil proceedings at the suit of the defendant or in
disciplinary or criminal proceedings against the individual officers
of the law enforcement agency who were concerned in the illegal
action taken. Since the prosecution could never have been brought
if the defendant had not been illegally abducted, the whole
proceeding is tainted. If a resident in another country is properly
extradited here, the time when the prosecution commences is the time
when the authorities here set the extradition process in motion. By
parity of reasoning, if the authorities, instead of proceeding by way
of extradition, have resorted to abduction, that is the effective
commencement of the prosecution process and is the illegal foundation
on which it rests.”















As far as the first two groups are concerned there can be no doubt
that agents of the State were actively organizing and involved in
bringing those respondents out of Zambia. I have already pointed
out that in regard to both these groups I agree with the finding of
the Court that there was no deportation. The request by
Major-General Shali brought about that those people he wanted were
excluded from the others on the list and handed over to the Namibian
authorities. This resulted therein that any rights they may have
had in terms of the Namibian laws or the Zambian laws were, as far as
they were concerned, completely negated. I am satisfied that the
request by Shali triggered the actions by the Zambian authorities and
the way in which the groups were received, in some cases after
officers of the Namibian Police first visited the stations in Zambia,
is evidence of an orchestrated and organized involvement in order to
obtain the handing over of the respondents. From the evidence I am
satisfied that the Namibian officials and officers were not mere
passive recipients of the respondents but that they took an active
part in bringing about the handing over and in receiving the
respondents which, as it turned out, was in breach of their own laws.
In my opinion the actions by the Namibian authorities were irregular
which resulted in the unlawfulness of their action.







In regard to the third group Inspector Goraseb as well as
Commissioner Maasdorp testified that this group was simply brought by
Colonel Kaleji to Katima Mulilo without any prompting from the
Namibian side and without them knowing that this would happen.
There is also uncertainty amongst the policemen as to whom this group
were handed over. In his evidence Colonel Kaleji however sketched a
different scenario. According to him he was instructed by his army
headquarters to hand the group over to his Namibian colleagues. He
then contacted the Namibians and a date was arranged for the handing
over of this group. This happened in December 1999. The 2nd
respondent also testified and according to him he was handed to the
Namibian police in Zambia and escorted by them to Katima Mulilo.







In regard to the fourth group, namely Charles Samboma, I do not agree
with the finding of the Court a quo. The Court dealt with
the matter as if Samboma was persuaded by someone to return to
Namibia and although he consented he was not apprised of what was in
store for him once he returned to Namibia. This was clearly not the
case. Samboma surrendered himself, first to the Zambian authorities
to whom he expressed his wish to return to Namibia, and thereafter to
Sgt. Simasiku whom he willingly accompanied to Namibia because that
was his wish. He even expressed his regret to the police for what
had happened on the 2nd August, that being the day of the
attack on Katima Mulilo. Under the circumstances there was in my
opinion no duty on the police officer to explain anything further to
him. The cases of S v Mahala and Another, 1994 (1) SACR 510
(AD), S v December, 1995 (1) SACR 438 (AD) and Mohamed v
President of the RSA,
2001 (3) SA 893(CC) are authority that a
consent properly given suffices under the circumstances and non
compliance with the relevant legislation is not a bar to subsequent
prosecution. This would be even more so, in my opinion, where a
person willingly surrenders himself to the authorities.







The last group consisted of three persons. of which Osbert Likanyi
was one, which was brought from Botswana and handed to the Namibian
authorities still inside Botswana. This happened despite the fact
that political asylum was granted to Osbert. The involvement of the
Namibian authorities in bringing Osbert to Namibia was not denied.
Again this resulted in a complete negation of any rights the
respondent had in terms of the Namibian and Botswana laws and, what
is more, he was handed over shortly after the High Court of Botswana
refused to extradite other Namibians in regard to which a formal
request for extradition was made. In my opinion the appeal in
regard to this respondent must also be dismissed.







Because of the involvement of the Namibian police and/or members of
the defence force, the respondents were denied any rights they may
have had in terms of the deportation laws and extradition laws of
Zambia and Botswana and also Namibia. These rights, which were
contained in legislative Acts by the parliaments of three sovereign
countries, were ignored by minor functionaries and, taken to its
logical consequences, can open the door to the handing over also of
Namibian citizens who had allegedly committed crimes in foreign
countries despite the rights and safeguards provided for in the
Extradition Act. Any action which has the effect of suspending or
circumventing the provisions of an Act, in this case Act 11 of 1996,
undermines the rule of law which is the basis of our Constitution.
The unlawful action of the Namibian police and defence force members
therefore consists in there active participation in the handing over
of the 12 respondents despite and contrary to reciprocal legislation
providing for a procedure and safeguards in such handing over and
thereby causing the circumventing of those procedures and rights
which the respondents had in terms of that legislation.







I would therefore propose the following order:








  1. The appeal against the release from prosecution of respondents 1, 2,
    3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 is dismissed.



  2. The appeal against the release from prosecution of respondent no.
    13, Charles Samboma, succeeds .



  3. In the latter instance the matter is referred back to the Court a
    quo
    and respondent No. 13 must plead to the charges and stand
    trial.








________________________



STRYDOM, A.C.J.



CHOMBA, A.J.A.










I have had the opportunity of
perusing the draft judgments of my learned brethren Mtambanengwe AJA,
Gibson AJA, O’linn AJA and Strydom ACJ and note that the first two
have arrived at a verdict of allowing this appeal while the other duo
have resolved to dismiss it. I must state at the out set that for
reasons stated by them, I concur with my learned brother Mtambanengwe
and learned sister Gibson. I shall state briefly why I feel that I
should add my voice to allowing this appeal.







My brother Mtambanengwe has comprehensively reviewed the facts of
this case as it was presented in the court a quo. Therefore, there
is no need for me to recapitulate them. It suffices to mention that
in the wake of the tumultuous upheaval of 2nd August, 1999
in the Caprivi Region, a number of alleged perpetrators of the
criminal activities of that day were apprehended in Namibia. Others
are said to have decamped and taken refuge in neighbouring countries.
The 13 respondents to the present appeal are alleged to be among
those that decamped. Indeed that is why when the 13 were brought
back home to Namibia they were, together with those who were arrested
internally, charged with offences emanating from the mayhem,
destruction and security threatening events of 2nd August.
The respondents have, by invoking the provisions of S. 106 (1)
(f)
of the Criminal Procedure Act, No. 51 of 1977,
purported to thwart the attempt to prosecute them by pleading that
the trial court in Namibia had no jurisdiction over them because they
were returned home to Namibia unlawfully since they were not legally
deported or extradited from Botswana or Zambia their respective
countries of refuge.







I readily concede that there are many celebrated decided cases in
many countries including South Africa and the United Kingdom in which
the plea of lack of jurisdiction by courts of trial has succeeded
grounded on the principle that the accused’s rendition to the
country of trial was unlawful in as much as the laws of deportation
or extradition had not been complied with by the surrendering
countries. However, in the situation which presents itself in the
appeal before us, to use that rationale would not, in my considered
opinion, meet the tenets of justice. In this day and age when the
world has been and continues to be ravaged by terrorist activity it
is otiose to apply that rationale.






In my
view the rationale on which those celebrated cases are predicated
sends wrong signals to potential terrorists. All you have to do is
terrorize a state and when you are about to be apprehended by the
authorities you cross territorial borders if you have the means to do
so and you will be safe unless and until the country of refuge
catches up with you and either deports or extradites you under the
law. Meanwhile any of your collaborators who were unable to make a
cross border escape can face the consequences of the law alone.
Furthermore, I think that the human rights of fugitives from the law
should not be considered by courts to be of prior concern over those
of victims of terrorism whose security remains endangered as long as
the fugitives remain at large.







In stating the above, I am far from stating that breaches of
international law in the removal of fugitive criminals from one
country to another should be condoned. However, my understanding of
breach of international law in the present context is typified by the
case of S v Ebrahim 1991 (2) SA 553. The headnote in
that case states that Ebrahim had escaped from South Africa where he
was being sought in connection with treasonable offences. He was
sojourning in Swaziland as a refugee. Agents of the South African
state abducted him from his home and conveyed him to South Africa
where he was tried and convicted. Swazi state authorities did not
only not collaborate in the abduction but were also unaware of the
abduction at the time it took place. Quite clearly in my opinion that
was a case in which the state sovereignty of Swaziland was breached.
The action of the South African Agents who abducted Ebrahim was an
infraction of international law.







To the contrary, in casu the respondents who were apprehended in
Zambia were illegal immigrants, although I must agree with the view
taken by my brother O’linn that they had not been so declared under
Zambian law. Their not being declared illegal immigrants
notwithstanding, the men were illegal immigrants no more no less as
they had not entered Zambia by first reporting themselves to
immigration officers. Some of them claimed that they had entered
Zambia to seek refuge, but they made this claim only after they were
apprehended. The Zambian state witnesses who gave evidence were
quite clear on the fact that they intended to deport them, but of
course we know that in the end the law of deportation was
circumvented. It is clear, too, that for the purpose of maintaining
public security in the border area between Namibia and Zambia the
relevant security authorities in both countries were collaborating.
It was in the advancement of that collaboration that the respondents
were surrendered to Namibia.







The same in my view can be said about Osbert Mwenyi Likanyi, as to
how he was surrendered by Botswana to Namibia.







Collaboration in the surrender of a fugitive offender was among
the issues that fell to be considered in the case of Ocalan vs.
Turkey App. No. 46221/99.
That was a case in which Ocalan was on
the run from Turkey where he was alleged to have been concerned in
the committing of acts of terrorism endangering state security. He
eventually, clandestinely and illegally, entered Kenya. When the
Kenyan state authorities came to know about his presence in their
country they collaborated with Turkish state agents who had travelled
to Nairobi in search of Ocalan. Ocalan was surrendered to the latter
without deportation or extradition statutory procedures being
followed. Having been flown back to Turkey, he was tried by the
State Security Court, was convicted of terrorism-related offences and
was sentenced to death. When his case went before the European Court
of Human Rights the issue of competence of the Turkish trial court
was raised. It was argued on Ocalan’s behalf, inter alia, that his
forced expulsion from Kenya and removal to Turkey had amounted to
disguised extradition and that he was deprived of procedural and
substantive protection under the law – the very kind of plea made
by the respondents in the present case.







The following are some excerpts of the judgment of the European
Court of Human Rights:







The court accepts that an arrest made by the authorities of one
state on the territory of another, without the consent of the latter
affects the person’s individual rights.” para 88.







However, the Court went on-







The fact that a fugitive has been handed over as a result of
co-operation between states does not in itself make the arrest
unlawful.” para 90.







It (i.e. the Court) considers that subject to its being the
result of co-operation between the states concerned and provided that
the legal basis for the order of the fugitive’s arrest is an arrest
warrant issued by the authorities of the fugitive’s state of
origin, even an extradition in disguise cannot be regarded as being
contrary to the Convention.” (i.e. the International Convention
for the Protection of Human Rights and Fundamental Freedoms of 1950).
para 92.







I would identify myself fully with the view contained in these
excerpts.







Consequently, it is my considered opinion that the rendition of
all the respondents was not tainted with breach of international law.
Indeed there was no evidence before the trial court that either the
Zambian or Botswana state authorities complained of any violation of
their territorial integrity by Namibian authorities concerned in the
removal of the respondents to Namibia. I am well alive to the strong
language of Gen. Shali whose evidence purported to suggest that while
seeking the fugitives he made demands to his counterparts in Botswana
and Zambia for the return of the fugitives and that the authorities
of the requested states obligingly abided with the request. However,
Gen. Shali testified that he was not directly involved in the removal
of the fugitives back to Namibia. On the other hand the witnesses
who were so concerned, particularly those from Botswana and Zambia,
did not lend credence to the picture portrayed by Gen. Shali that the
authorities of these two countries pandered to the demands of Gen.
Shali.







As for Charles Kalipa Samboma, my brother Mtambanengwe has
chronicled the events that transpired leading to Samboma’s travel
from Zambia to Namibia. It is abundantly evident from that chronicle
that Samboma visited Katima Mulilo Police Station on the Zambian side
for the sole purpose of finding a way to return home to Namibia. He
could endure no more the hardships he was experiencing in Zambia, was
missing his family and, above all, he expressed regret for the part
he had played in the riotous pandemonium of 2nd August,
1999 in Katima Mulilo in Namibia.







For the foregoing reasons, and concurring with what Mtambanengwe
and Gibson AJJA have stated in their more explicative judgments, I
would also uphold this appeal.



















CHOMBA, A.J.A.






























COUNSEL
ON BEHALF OF THE APPELLANT



ADV. J.
J. GAUNTLETT, SC. ASST. BY ADV. D. P. BORGSTRÖM AND ADV. H.
JANUARY



INSTRUCTED
BY



PROSECUTOR-GENERAL



COUNSEL
ON BEHALF OF THE RESPONDENTS



MR. KAUTA,
ASST. BY BASSON & KAMUHANGO



INSTRUCTED
BY



KAUTA,
BASSON & KAMUHANGA INC.












/ms




1
S v Hubert Shikongo & 2 Ors, 2000(1) SACR 190





2
See section 7 read with section 27(1) of the Botswana
Immigration Act CAP 25:02. See section 22 of the Zambian
Immigration & Deportation Act, read with the Second Schedule to
that Act.





3
1991 (2) SA 553 (A.D.)



See further a discussion of the decision in Section D3.





4
See M.G. Cowling, "Unmasking 'disguised' extradition





5
International Law, 4th ed. By Wallace, pp 7028.



See also: Dugard, International Law, a South
African Perspective, pp. 23 – 35.





6
See also the decision of the Namibian Supreme Court in Government of
the Republic of Namibia & o v Mwilima & O, NmSC Case No.
29/2001, delivered on 7/6/2002, not reported.





7
International Law – A South African Perspective by John Dugard,
1994 at 1 – 13, 23 – 35.



International Law by Rebecca M.M. Wallace, 4th
ed., 9 – 28, 230 – 250.





8
1991 (2) SA 553 AD.





9
9 E.H.R.R. 1986 Series A, No. 111.





10
Dugard – International Law – A South African Perspective (1994
at 177)





11
11 E.H.R.R. 46





12
Trial Chamber, of the International Criminal Tribunal for the
Prosecution of Persons Responsible for Serious Violation of
International Humanitarian Law Case No. 94-2-T.





13
1991 (2) SA 553 (A.D.)





14
2001 (3) SA 893 (CC)





15
Court of Appeal, 1962 (3) All ER 641





16
1996 1 FC 547





17
See also: the decisions of the Namibian Supreme Court in the
Government of the Republic of Namibia v N.R. Sikunda delivered on
21/02/2001, not reported; and



Cronje v the Municipal Council of the Municipality of
Mariental, delivered on 1/8/2003, not reported.





18
1993 (3) ALL ER 138 (HL)





19
1978 2 NZLR 199 at 216-217





20
1995 SLT





21
(1982) 75 Crown Appeal R24 11 Quotation taken from article by
Dugard: “International Law – a South African perspective 1994.”





22
Summary taken from an article by Mr G Cowling, University of Natal.





23
1980 (1) SA 747 ZR at 755B





24
1990 (2) SACR (ZH)





25
“Unmasking ‘Disguised Extradition’ – a glimmer of Hope.”
Cowley is a senior lecturer in law at the University of Natal”, BA
(Rhodes) LLB (Natal) LLM. M Phil (Cautab)





26
1978 NZLR 199. See also the quotations from this decision in the
Bennet v Horseferry Rd Mag.Court and An, (Section D7.1 supra), where
the dicta of Woodhause J was approved.





27
See previous footnote relating to the author of the article.





28
1993 (2) SACR 18E





29
1994 (1) SACR 539 (O)





30
1994 (1) SACR 510 (AD)





31
International Law – A South African Perspective, (1994) at 147.





32
South African Yearbook of International Law, (1993/1994)





33
1995 (1) SACR 438 (AD)





34
J.G. Starke, QC, in “Introduction to International Law, 10th
edition, 1989, p110.





35
House of Lords, H.L.(E) 1970





36
See the ‘Bennet v Horseferry Rd Magistrate Court decision Section
D7 supra





37
See Section D7





38
Namibia Extradition Act 11 of 1996, Section 17 read with Section 5.





39
Compare also the decision of the Namibia High Court in State v Heita
and Another, NR 403, reported in 1992 (3) SA 785 NmH. See also art
78 (3) of the Namibian Constitution, relating to the duty of all
organs of the State to protect the Courts, their judges and
officials which reads as follows:



no member of the Cabinet or the Legislature or any
other person shall interfere with judges or judicial officers in the
exercise of their judicial functions, and all organs of the State
shall afford such assistance as the Court may require to protect,
their independence dignity and effectiveness subject to the terms of
the Constitution or any other law”..





40
1998 NR 316





41
Supreme Court of Namibia, Case No. SA 18/2001 not reported