If government was allowed to procrastinate in assisting 69 alleged mercenaries in Zimbabwe they could be dead and buried by the time help arrived, the Constitutional Court was told on Monday.
Advocate Wim Trengove, acting on behalf of the Society for the Abolition of the Death Penalty, told the court that the South African government had a duty to protect the lives of its citizens abroad.
The court was hearing arguments why it should order the South African government to intervene on behalf of the group facing various charges in Zimbabwe and Equatorial Guinea.
Trengove said the right to dignity, life and security of person in the Constitution placed an obligation on the South African government to protect all South Africans everywhere against the death penalty.
”It’s a violation of the South African Constitution for people to be sentenced to death pursuant to an unfair trial,” Trengove said, adding that if the 69 alleged mercenaries currently held in Zimbabwe were sent to Equatorial Guinea for trial they would probably die.
Trengove told the court the current government policy of only intervening after sentence needed explanation.
He said it was government policy to intercede only after sentence, but by then it might be too late.
Trengove added that government had never said that its policy was either effective or achieved the desired results and for that reason the court could direct the government to intercede on behalf of the men earlier.
Earlier in the day advocate Francois Joubert on behalf of the 69 argued a similar line.
Joubert told the court it was doubtful his clients would get a fair trial in the west African state. In the past those accused there on similar charges had been executed after a summary trial.
But the court was not convinced it could help the men and repeatedly wanted to know from Joubert what assistance it could render and under what authority.
He replied that the court had that authority under the Bill of Rights contained in South Africa’s Constitution.
Joubert argued that South Africa could itself apply for the extradition of the men to stand trial in South Africa under the Regulation of Foreign Military Assistance Act.
It could also seek assurances from Harare that the men would not be extradited to Equatorial Guinea or face the death penalty if extradited there.
But the judges asked several times whether the court could direct the government on the conduct of its foreign affairs, saying it would amount to a violation of the separation of power between the courts and the executive.
”Your clients walked into a lion’s den. Now they are complaining there was a lion in it,” judge Albie Sachs told Joubert.
Judge Zak Yacoob questioned the urgency of the matter, saying much still had to happen procedurally before the 69 could be extradited.
”My own sense is there is still a long way to go,” he said.
The court also questioned whether it was the right time to intercede on the death penalty.
Judges remarked that the men might be acquitted on the charges or Equatorial Guinea prosecutors might not seek the death penalty.
They asked whether the death penalty issue should not be raised only after such a sentence was imposed.
Joubert said there might not be enough time to do that. Judge Sandile Ngcobo wanted to know whether Joubert implied there would be too little time between the imposition of the sentence and its execution for representations to be made.
”There may well be,” Joubert answered.
”Could they be executed the same day?” the judge asked.
”Yes,” Joubert answered.
Chief justice Arthur Chaskalson was not convinced Joubert’s team had done everything it could to secure the assurances it wanted before coming to court.
He implied the lawyers had given the government too little time to respond to their demands. ”There’s no indication of engagement.”
Joubert added that the Equatorial Guinea government was preparing an extradition request for the 69 alleged mercenaries to be sent to that country for trial.
The group was scheduled to go on trial at the Chikurubi prison on Wednesday charged with illegally entering Zimbabwe and seeking to obtain weapons, allegedly to overthrow the government of President Teodoro Obiang Nguema.
The men were arrested on March 7 after landing at Harare International airport.
Equatorial Guinea wants to try the men for conspiring to overthrow and kill Nguema. The hearing continues. – Sapa