The Transformation of South Africa's Role in International Co-Operation in Criminal Matters
by
Anton Katz
Adv Anton Katz1 is a member of the Cape Town and New York Bars.
Introduction
1. There are inter alia two significant factors that have contributed to the radical transformation of South Africa's role in the field of international criminal justice in the decade between 1994 and 2004.
First, the re-emergence of South Africa as a respected member of the body of nation states, and secondly the increase in the mobility of humans together with the increase of crime with a transnational element and more particularly, international terrorism.
Traditionally all crime was regarded as local in character.2 This approach is no longer recognised as reflecting reality in an ever increasingly interdependent and globalising world.
In the context of extradition Justice Goldstone for the Constitutional Court stated:
The need for extradition has increased because of the ever-growing frequency with which criminals take advantage of modern technology, both to perpetrate serious crime and to evade arrest by fleeing to other lands.3
This comment must be considered in the light of the fact that extraditing a person constitutes an invasion of fundamental human rights.4 This also applies to the execution of searches and seizures and the issuing of subpoenae, which have also been held to constitute an invasion of rights.5
The tension in domestic systems between the law and order approach and human rights protection is mirrored on the international plane.
Apartheid and isolation
2. Prior to 1994, many states declined to interact with South Africa in general and more specifically in the investigation and prosecution of crime. States, which had extradition arrangements with South Africa, cancelled them during apartheid and few states were willing to enter into new extradition agreements with South Africa.6 This changed in 1994 and the past decade has seen many States enter into new arrangements for extradition with South Africa. This development accelerated in May 2003 when South Africa acceded to the European Convention on Extradition, and thus became party to extradition agreements with a further fifty states.
3. Transborder movement globally of human beings has increased dramatically over the past decade. Also, South Africa has become a desirable state for fugitives to hide in.7
Increase in transnational criminal activity
4. There has been a significant increase in crime with an international dimension, particularly in international terrorism. The past decade has also witnessed the establishment by the United Nations Security Council of two ad hoc tribunals to try genocide and war crimes in Rwanda and the former Yugoslavia. The establishment of a permanent International Criminal Court in 2002 is significant. The adoption of United Nations Security Council Resolution 1373 (28 September 2001) concerning terrorism for the first time required all states to take action on a matter affecting all states, that being the combating and preventing of terrorism.8
5. All three branches of the South African government have responded to these trends. The legislature has enacted important new pieces of legislation, including the Protection of Constitutional Democracy against Terrorist and Related Activities Act of 2004. The Implementation of the Rome Statute of the International Criminal Court Act No 27 of 2002 was enacted to give effect to South Africa's ratification of the Rome Statute of the International Criminal Court. The Extradition Act No 67 of 1962 was amended in 19969 and for the first time the existence of an International Co-operation in Criminal Matters (Act 75 of 1996) has come into operation.
6. The executive branch has actively assisted foreign states with the investigation and prosecution of crime. South Africa has received many more requests for assistance in criminal matters10 and extradition than in previous years. It has extradited and attempted to extradite many more persons in the past decade than in previous decades. Indeed, governments, and the South African government is no exception, do not wish their own countries to be, or be perceived as safe havens for the criminals of the world.
7. As a result of these steps taken by the legislature and the executive, the Courts have been seized with many more matters concerning the internationalisation of South Africa's role in the prevention, investigation, prosecution and punishment of criminal activity. The law reports reflect that there has been a marked increase in the number of extradition cases from South Africa and there has been a development of the law and practice on many aspects of the subject in the last decade than the prior 90 years combined.
8. The Constitutional Court has been seized with three matters dealing with the interpretation of the provisions of the Extradition Act.11 It also dealt with the removal from Cape Town to New York of an admitted terrorist (a bomber of the United States Embassy in Tanzania in 1998) to face a possible sentence of death for the prosecution of the terrorist bombing in Tanzania12 and the complaint by a group of sixty nine South African citizens alleged to be mercenaries that the South African authorities acted unlawfully by refusing to provide them with diplomatic protection against Zimbabwe and Equatorial Guinea because they were not provided with fair criminal process in those states.13
9. This paper considers South Africa's emergence from isolation and its consequences, the cases of Mohamed and Kaunda, and the development of the laws of extradition and mutual legal assistance. It is concluded that the recent responses by the legislature, executive and judiciary to South Africa's re-emergence in global affairs and the increasing and more dangerous terrorist activities in the last decade will guide and shape the future of South Africa's role in global and regional attempts to investigate and prosecute international crime, and particularly international terrorism.
10. Effective international co-operation in the suppression of crime must be balanced against human rights concerns. Fundamental human rights must be respected in the process of the suppression of crime. This tension mirrors that contained in many national legal systems between the 'law and order' and human rights approaches to criminal justice in general.14
Extradition
11. An extradition procedure works both on an international and a domestic plane. On the international plane, a request from one foreign state to another for the extradition of a particular individual and the response to the request are governed by the rules of public international law. In issue are the political relations between states. However before the requested state may surrender the requested individual there must be compliance with its own domestic laws.15 The procedures in South African are contained in the provisions of the Extradition Act of 1962.
12. When in 1961 South Africa left the British Commonwealth to become a Republic its international arrangements changed. Many of South Africa's extradition agreements came to an end, and because of apartheid foreign states did not enter into new treaties and some states terminated their international agreements with South Africa. Thus, because of its political isolation South Africa was party to few extradition treaties.16
13. The fact that a foreign State requesting a fugitive in South Africa was not a party to an extradition agreement with South Africa was not a legal bar to South Africa surrendering the fugitive. The Extradition Act permitted – and permits - the surrender in extradition of persons to foreign states not a party to an extradition agreement with South Africa if the President consents on an ad hoc basis to the extradition.17
14. Having emerged from political isolation South Africa has negotiated and entered into a number of extradition agreements in recent years18 and on 12 February 2003 acceded to the European Convention on Extradition and in doing so became party to a further fifty states.19
Mohamed
15. Khalfan Khamis Mohamed entered South Africa and applied for asylum under a false name. He had played an active part in the bombing of the United States embassy in Tanzania and entered South Africa shortly thereafter. When the FBI discovered that he was hiding in Cape Town they together with South African immigration officials arranged that he be arrested and immediately removed to the United States where he was put on trial for his life before the US Federal Court in New York. He applied to the Courts in South Africa for a declaratory order that he had been unlawfully removed from South Africa to the United States inter alia because the South African authorities had not obtained an assurance from the US authorities that he would not be subject to the death penalty20 and that his removal (deportation) constituted an unlawful "disguised extradition" contrary to international law and the Constitution.
16. The Constitutional Court upheld Mohamed's application. In doing so it made some important statements concerning international co-operation in general and extradition in particular. It stated that there is clear distinction between extradition and deportation.
17. Extradition involves three elements: acts of soveignty on the part of two States; a request by one State to another for the delivery to it of an alleged criminal; and the delivery of the requested person for the purposes of trial or sentence in the requesting State.21
18. Deportation on the other is a unilateral act of the deporting State to get rid of an undesired foreigner. The purpose of deportation is achieved when the foreigner leaves the territory of the deporting State. The destination of the deportee is irrelevant.
19. The Constitutional Court ruled in Mohamed's favour on the basis that it is contrary to the underlying values of the Constitution for the South African government to co-operate with a foreign government to secure the removal of a fugitive from South Africa to a country of which the fugitive is not a national and with which he has no connection other than that he is to be put on trial for his life there. It was held that: "It is inconsistent with the government's obligation to protect the right to life of everyone in South Africa, and it ignores the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment."22 The Court stated that South Africa is a young democracy still finding its way to full compliance with the values and ideals enshrined in the Constitution and it was accordingly important that the state lead by example. It stressed that "[I]n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously… Government is the potent, omnipresent teacher. For good or 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."23
Mohamed pleaded guilty, was found guilty and sentenced to life imprisonment.
Kaunda
20. Sixty-nine South African citizens detained in Zimbabwe launched an application in South Africa asserting that the South African government had failed in its constitutional duty to provide them with diplomatic protection. They were held because of their alleged role in a failed coup attempt in Equatorial Guinea during March 2004.
Their complaint was that the nature of their detention violated minimum international standards. The South African government was said to have co-operated with the Zimbabwean authorities by providing a tip off.
21. A majority of the Constitutional Court rejected their application principally on procedural grounds. As part of its conclusion the following was stated:
South Africa had an obligation to co-operate with Zimbabwe and Equatorial Guinea in the prevention and combating of crime, including, in particular, the duty to share information on suspected coup attempts or mercenary activity.24
Mutual Legal Assistance
22. States' desire for closer co-operation to prevent and combat international criminal activity has resulted in the development of forms of co-operation wider than that of the traditionally limited form of extradition.
23. Examples of assistance include the giving or sharing of information, the locating of persons, making available public documents such as judgments and orders, obtaining of statements of witnesses who agree to be interviewed. Search and seizure, the obtaining of statements under oath from an unwilling witness, forfeiture and confiscation of the proceeds of crime or the enforcement of a foreign court order are other examples.25
24. In 1996 the International Co-operation in Criminal Matters Act No 75 of 1996 was enacted to give effect to South Africa's desire to co-operate internationally on a wider scale.
25. There has not been extensive judicial consideration of application of the Co-operation Act. However the Courts have insisted that when the South African government either makes requests to foreign states for assistance or responds to foreign requests it must do so lawfully. Failure to comply with the Constitution will result in a declaratory order to that effect being made.26 In August 2004 Equatorial Guinea requested South Africa to obtain the testimony of Sir Mark Thatcher to assist it in the prosecution of a number alleged coup plotters. The South African government acceded to the request and a subpoena was issued requiring him to appear and answer a list of questions. Thatcher challenged the issue of the subpoena in the High Court and lost.27 The Cape High Court in dismissing Thatcher's application stated that the South African government was entitled in deciding whether to accede to the request to take into account political and foreign policy considerations. In deciding to assist Equatorial Guinea South Africa was promoting the rule of law in Africa on the basis of a joint commitment to combat cross-border crimes. The Court effectively deferred to the role of the executive in this regard.
Conclusion
26. The developments in the first decade of South Africa's democracy in the field of international co-operation in criminal matters will be dwarfed by the developments in the next decades. The commendable desire to assist foreign States by way of extradition or otherwise must not allow for lawlessness on the part of the executive. A challenge for the Courts will be to insist on lawful conduct and protect human rights without hindering legitimate attempts by the executive at the prevention and prosecution of international crime.
Notes:
1 Advocate Katz B.Sc LL.B (UCT), LL.M (Columbia) is a member of the Bars in Cape Town and New York. His practice in Cape Town is predominantly concerned with matters relating to international co-operation in criminal matters.
2 Extra territorium jus dicenti impune non paretur quoted in Boister, "Transnational penal norm transfer: The transfer of civil forfeiture from the United States to South Africa as a in point", 16 SACJ (2003) at 271–272.
3 Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC) at para [2].
4 Geuking at para [1].
5 See Beheermaatscappij Helling INV and Others v The Magistrate, Cape Town unreported judgment of the Cape High Court (per Thring J.) dated 20 December 2004 at page 25 of the typed judgment.
6 Dugard, International Law – A South African Perspective, 2nd ed. (2000) at 156.
7 High profile examples include Jurgen Harksen, James Kilgore and Khalfan Khamis Mohamed.
8 In 2004 South Africa enacted the Promotion of Constitutional Democracy and Anti Terrorism Act inter alia to comply with its international obligations in this regard.
9 The Extradition Amendment Act 77 of 1996.
10 The Director General of the Department of Justice stated in an affidavit filed in the Cape High Court in October 2004 that 58 foreign requests for mutual assistance had been received in 2004.
11 Harksen v President of the RSA 2000 (2) SA 825 (CC); Geuking v President of the RSA 2003 (3) SA 34 (CC); Director Public Prosecutions: Cape of Good Hope v Robinson 2005 (2) BCLR 103 (CC).
12 Mohamed v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty Intervening) 2001 (3) SA 837 (CC).
13 Kaunda v President of the Republic of South Africa and Others (2) 2004 (10) BCLR 1009 (CC).
14 Dugard and van den Wyngaerdt, Reconciling Extradition with Human Rights, 92 (No 2) AJIL 1998, 187.
15 Harksen supra n3 at para [4].
16 Dugard, International Law – A South African Perspective (2nded., 2000) at page 156; Harksen supra (n 3) at para [3].
17 Section 3 (2) of the Extradition Act; Harksen supra (n3) at para [3].
18 See generally Anton Katz, The incorporation of extradition agreements, 16 South African Journal of Criminal Justice (2003) 311 at 314.
19 Notice No 666, Government Gazette 24872, 13 May 2003.
20 The Constitutional Court had decided that the death penalty was unconstitutional in S v Makwanyane 1995 (3) SA 391 (CC).
21 Mohamed at para [28].
22 Mohamed at para [58].
23 At para [68] quoting Justice Brandeis in Olmstead v United States 277 US 438 (1928) at 485.
24 Kaunda supra at para [144.2.]
25 See Jan d'Oliveira "International co-operation in criminal matters: The South African contribution" in SACJ 16 (2003) 323–369 at 337, and G Kemp, "Foreign relations, international co-operation in criminal matters and the position of the individual" SACJ 16 (2003) 370–392.
26 Reuters Group plc and Others v Viljoen and Others NNO 2001 (12) BCLR 1265 (C); Beheersmaatscappij Helling INV and Others v The Magistrate, Cape Town and Others, unreported decision of the Cape High Court dated 20 December 2004.
27 Thatcher v Minister of Justice and Others, unreported judgment of the Cape High Court dated 24 November 2004.
