Johannesburg | Tuesday
SOUTH Africa’s Constitutional Court has ruled that the government acted unconstitutionally by handing over a Tanzanian bombing suspect to the United States where he faces the death penalty.
An international legal expert, however, said he doubted whether the court’s ruling would have an influence on the outcome of the trial.
Khalfan Khamis Mohamed, 27, is facing a US federal court on charges of murder, conspiracy and an attack on a US facility following the 1998 bombings of US embassies in Nairobi and Dar es Salaam that left 224 people dead.
Mohamed was extradited in 1999 from Cape Town to the United States, where he is on trial with three other men for the bombings.
The Constitutional Court, South Africa’s highest law-making body, ruled that the government should have sought protection from the death penalty for Mohamed before handing him over for trial in the United States.
President of the Constitutional Court, Judge Arthur Chaskalson, said the authorities had not followed the proper procedure in Mohamed’s handover and that his rights had been infringed.
“The rights in issue here are the right to human dignity, the right to life and the right not to be treated or punished in a cruel, inhuman and degrading way,” Chaskalson said.
The government cannot expose anyone to the risk of execution whether by deportation or extradition, the court found.
The court drew a parallel with another of the suspects in Mohamed’s trial, Mahmoud Mahmud Salim. He was extradited from Germany to the United States for the same trial only after Germany was assured he would not get the death sentence.
Mohamed’s lawyers had argued that because South Africa does not have the death penalty, he should not have been sent to the United States without an assurance that it would not apply in his case.
The court ordered that the Constitutional Court summary urgently be sent to the administrative head of the Federal Court for the Southern District of New York, where Mohamed’s trial is being held.
“We respect the decision of the Constitutional Court and we will see to it that each and everything that emanates from the judgement is communicated via Foreign Affairs to the US court,” Justice Ministry representative Paul Setsetse responded.
Mohamed is one of four alleged members of Saudi dissident Osama bin Laden’s militant organisation charged with the embassy bombings.
The four suspects have been on trial in New York since January. All four are believed to be linked to Bin Laden’s militant al-Qaeda group.
If convicted, Mohamed and Saudi national Mohamed Rashid Daoud Al Owhali, 23, could face the death penalty, while the remaining two – Lebanese-American Wadih El Hage, 40, and Jordanian Mohamed Saddiq Odeh, 35 – face life in prison.
The Human Rights Committee of South Africa and the Society for the Death Penalty in South Africa – who participated as friends of the court – both welcomed the court’s judgement.
But the international legal expert, based at the University of South Africa in Pretoria, said chances were “very slim” that the ruling would have an influence on the US case.
Neville Botha, professor in international law, said the United States applied a legal principle in which its courts were not bound by rulings outside its jurisdiction – and therefore would not be bound by a South African ruling. – AFP