According to a 2001 Constitutional Court ruling the South African government cannot extradite someone suspected of a capital crime to a country that enforces the death penalty. The ruling does however allow for the extradition if the requesting government provides a commitment that they will not pass the death penalty.
A victory for human rights? I don't think so.
In the last few years two men from Botswana suspected of a capital offence (murder) have entered South Africa. The government of Botswana asked for these men to be extradited so that the cases can be put to trial. Subsequent to this one of these men has died but the case continues to be dragged out in our courts. The snag; Botswana has a mandatory death penalty for convicted murderers.
Our government has appealed to the government of Botswana for a commitment not to pass the death penalty; understandably they refused. This has created a legal dilemma: the men cannot be tried in a South African court, but also cannot be extradited. This has two obvious infringements on human rights. Firstly, the accused could potential get away with murder and the victims not see justice. Secondly, South Africa could become a safe-haven for criminals fleeing potential execution thus our citizens right to safety in infringed upon.
In an attempt to protect human rights, our constitution has actually protected potential murders.
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