The Minister of Justice introduced the Extradition Amendment Bill (B8-2023) which intends to amend the Extradition Amendment Act 11 of 1996 by deleting section 5(2)(a):
To amend Extradition Act, 1996 so as to delete the ground of refusal of extradition where a person is convicted in his or her absence by a court in a requesting country.
Section 5 Restrictions on return states that, notwithstanding Section 2 or the terms of any extradition agreement, no person who is alleged to be unlawfully at large after conviction of an extraditable offence shall be returned to a requesting country or be committed or kept in custody for the purposes of such return.
What can be interpreted from the deletion is that a person who is deemed to be allegedly at large, after they were convicted by a court in their absence, may be extradited to the requesting country.
The deletion of this one subsection can have wide ranging ramifications.
Section 3 Meaning Of “Extraditable Offence” defines an extraditable offence as offence which is “punishable with imprisonment for a period of 12 months.”
The sentence in the S v Fritz (CC 12/2015)  NAHCMD 244 (20 May 2021) case can be used as an example. The accused person was convicted of murder, rape, robbery with aggravating circumstances and defeating or obstructing the course of justice. The accused was sentenced to 31 years imprisonment. The accused’s actions thus qualify as an extraditable offence.
For the purposes of this arguments let us assume that the accused was a Botswana citizen, and they conducted the above offence in Botswana. The accused then fled to Namibia. The reason for this being that Botswana under Penal Code of Botswana (2 of 1964) Sections 202 and 203 still issues the death sentence for the crime of murder people Capital punishment in Botswana is conducted by way of hanging.
The fundamental human rights and freedoms enshrined in Chapter 3 of the Namibian Constitution, 1990 is afforded to “all natural and legal persons in Namibia”, not just Namibian citizens.
Arguably the possible reasoning behind the amendment could have been due to the importance of article 12 Fair trial. A person convicted of an offence in their absence could not have received a fair trial due to section1 (d) which states that:
All persons charged with an offence shall be presumed innocent until proven guilty according to law, after having had the opportunity of calling witnesses and cross-examining those called against them.
Meaning that a person would not have been afforded the opportunity of calling and cross-examining witnesses if they were not present during the court proceedings. This means that they did not receive a fair trial as provided for in Article 12. The argument being that if they were then extradited to the requesting county, they would be able to stand trial.
Immediately article 6 Protection of life comes to mind, which states that:
The right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia
The deletion of Section 5(2)(a) in the above argument will thus mean that if the individual was convicted, in their absence , of murder and then fled to Namibia, then Namibia can extradite the person back to Botswana to possibly face capital punishment.
We are thus of the opinion that this amendment to the Extradition Amendment Act 11 of 1996 must be heavily scrutinized before it is enacted by Parliament and assented to by the President.
Written by Gaby Saayman, reviewed and confirmed by Christiaan Cronjé
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