By Ryan Aliman
Impunity Watch Reporter, Africa

 PRETORIA, SOUTH AFRICA – In a landmark decision, the South African Constitutional Court ruled, on Friday, 27 July 2012, that any person living in South Africa accused of offences abroad cannot be extradited or deported to a country that allows the death penalty unless that country provides written assurance that the accused will not be executed.

South African Constitutional Court decides on the Phale and Tsebe case. (Photo Courtesy of Eyewitness News)

The Constitutional Court in Johannesburg rejected an appeal brought by the government in an attempt to overturn an earlier ruling that any transfer of Batswana nationals Jerry Phale and Emmanuel Tsebe to Botswana without prior assurances that the death penalty would be unlawful.

The highest Court’s ruling applies to any extradition or deportation case that puts an individual at risk of the death penalty.

Both Phale and Tsebe were wanted in Botswana for murder — an offense punishable by death. To escape prosecution, they fled to South Africa illegally. Upon notice of their illegal status, South Africa’s Department of Home Affairs sought to deport them.

If extradited, the two men were likely to face the death penalty.

Both Phale and Tsebe were included in the judicial process and decision despite the fact that Tsebe had already died before the Court could render a verdict. This was because both his lawyers and the state wanted the original application to be heard.

In the ruling, Justice Edwin Cameron reasoned, “when the constitution was adopted in 96 we as a nation chose a path to create a new society based among others the values of human dignity and the advancement of human rights and the court holds that handing over someone to a state will be a breach of the state’s obligation.”

The South African government voiced concerns over the ruling. The government was highly concerned that South Africa could be perceived “as a safe haven for illegal foreigners and fugitives from justice”. Acting Justice Zondo said that the situation would not arise “if countries seeking an extradition of someone in Mr. Phale’s position would be prepared to give the requisite assurance”.

Meanwhile, Amnesty International Africa Deputy Director Noel Kututwa said that the Constitutional Court’s decision is meant to exemplify to other states who have abolished the death penalty that they cannot simply “wash their hands” of their possible contribution to death sentences elsewhere. “Under international law, an abolitionist state is absolutely prohibited from forcibly transferring a person, who could be subject to the death penalty, to a retentionist State, unless reliable assurances have been obtained which effectively eliminates that risk,” Kututwa added.

For further information, please see:

Amnesty International – Landmark Legal Ruling says South Africa Cannot Deport People at Risk of Death Penalty – 30 July 2012

East Coast Radio – Concourt Upholds Death Penalty Ruling – 27 July 2012

Eyewitness News – Death Penalty Ruling Welcomed – 27 July 2012

Business Day – Top Court Clamps Down on Extradition to Death- Penalty Countries – 27 July 2012

SABC News – Two Botswana Citizens won’t be Deported – 27 July 2012

By Tara Pistorese
Impunity Watch Reporter, Africa

KINSHASA, Democratic Republic of the Congo—Since 1996, approximately 500,000 people in the Democratic Republic of the Congo (DRC) have fallen victim to sexual violence according to United Nations (UN) estimates. Although UN members and the Security Council have condemned the sexually motivated injustice, the sufferers of these violent crimes are often stigmatized by their own communities and rarely see their attackers brought to justice.

“As violence escalates in the eastern [DRC], I am deeply concerned that sexual violence is once again a pattern of the conflict,” said the acting Special Representative of the Secretary-General on Sexual Violence in Conflict, Vijay Nambiar, in a statement. “In the context of illegal activities of armed groups, serious crimes have been reported.”

A lack of funding and issues of integrity have contributed to the overall failure to bring many perpetrators of these crimes to justice in DRC. Moreover, many victims are unable to reach a police station or afford the costs of bringing a case to trial.

Specifically, in South Kivu in 2005, fewer than 142 of incidents of sexual violence faced a tribunal, although 14,200 were recorded that year. Similar failures have surfaced within DRC’s national courts, although the Ituri district boasts some progress, including ten recent rape convictions.

In an effort to curb judicial shortcomings, a project was initiated in South Kivu in 2009 whereby mobile courts travel from city to city to bring justice to the victims of sexual violence. The mobile gender courts—supported by the Open Society Justice Initiative, the American Bar Association Rule of Law Initiative, and the Open Society Institute for Southern Africa in collaboration with the Congolese government—have emphasized locally-led justice.

The project has enjoyed considerable success. Within the first twenty months of its existence, fourteen court sessions took place, 248 cases were tried, and 140 perpetrators were convicted of rape. Mobile courts have held sessions in many cities and villages from urban regions, such Baraka and Bakavu, to more remote villages, like Kamituga and Mwenga.

However, limitations on the mobile courts call their sustainability and effectiveness into question. The itinerant agencies often require staff to travel by plane and automobile very far distances and through difficult terrain to reach remote service areas. Sadly, the courts also lack funding for basic and necessary equipment and supplies, such as paper.

Mobile trials typically last two weeks, in compliance with international law requiring crimes of this nature to conclude within three months. Additionally, this timeline provides “timely redress to individual victims in communities still struggling with the chaotic aftermath of war and political upheaval,” according to Judge Mary McGowan Davis, who was recently invited to assess the productivity of the mobile courts. On the other hand, the speed of the trials and their conclusions make important components of an effective trial, such as obtaining witnesses, very difficult.

The court sessions, which are exclusively staffed by Congolese citizens, are typically made open to the public in an effort to break down the stigma surrounding victims of sexual crimes.

For further information, please see:

All Africa—Africa: Mobile Gender Courts-Delivering Justice in the DRC—30 July 2012

UN News Centre—UN Official Condemns Sexual Violence by Renegade Soldiers—18 July 2012

News 24—UN Condemns Eastern DRC Attacks—17 July 2012

Open Society Initiative for Southern Africa—Helping to Fight Impunity for Sexual Crimes in DRC—7 May 2012