Andrew Burrow and Carla Raffinetti
On Monday, May 28 2001, in a damning judgement, the Constitutional Court declared that the South African government’s handing over of suspected bomber
Khalfan Khamis Mohamed to the FBI was unlawful. The judgement came as a blow to
the South African government, which was found to have violated both the Constitution and the Aliens Control Act.
The court in effect accused South African authorities of taking the law into
their own hands and warned of dire consequences when governments break the law.
The case arose out of Mohamed’s suspected involvement in the bombing of the United States embassy in Dar es Salaam on August 7 1998 and his subsequent capture in Cape Town in October 1999. The US believes that Usama bin Laden, Al
Qaeda leader and Saudi multi-millionaire, masterminded the bombing. Bin Laden is believed to be residing in Afghanistan, which has refused repeated requests by
the US to extradite him to America.
Mohamed is a Tanzanian national by birth. He apparently obtained a visitor’s
visa from the South African High Commission in Dar es Salaam under a pseudonym,
and entered South Africa on a false passport. He subsequently applied for asylum
after arriving in the country. Pending the outcome of his asylum application he
was issued with a temporary residence permit.
In the meantime he was charged with conspiracy and murder in the US. (The bomb
killed 11 people in Dar es Salaam, ironically none of whom was American.) The US issued a warrant of arrest for Mohamed in December 1998. Later, an FBI agent
identified Mohamed while searching through the records of asylum-seekers with
the permission of the Department of Home Affairs. Mohamed was arrested in October 1999 with the cooperation of immigration and other government officials,
and handed over to FBI agents who interrogated him for two days (without an attorney) before flying him to New York to stand trial. Upon his arrival in New
York, the trial judge notified Mohamed that he would face the death penalty if
convicted. On Tuesday May 29 the New York jury found Mohamed and his three co-
conspirators guilty. Of the four, only Mohamed and a second man face the death
penalty on account of their extensive involvement in the bombing. The jury will
decide their fate in the sentencing phase, which began on May 30.
The Constitutional Court ruled that the South African authorities had handed
Mohamed over in contravention of the Aliens Control Act. Because he had entered
the country illegally and under false pretences, Mohamed was eligible for deportation to Tanzania under the Act, but not to the US. The regulations of the
Act only permit deportation to a person’s country of citizenship or residence.
Mohamed had no connection to the US other than the warrant for his arrest.
The court hinted that the handing over of Mohamed might not have been a deportation but a disguised extradition. Extradition is a bilateral act between
two states that involves the handing over of suspected criminals by one state to another. On the other hand, deportation is a unilateral act involving the expulsion of illegal aliens to their country of origin.
The Extradition Act requires suspects to undergo a “mini-trial” in a South African magistrate’s court before they can be extradited. This is not a requirement for deportation.
More importantly, the court found that the handing over was unconstitutional
because it violated Mohamed’s rights to dignity, to life and not to be subjected
to cruel, inhuman or degrading punishment. The ruling was based on the fact that
Mohamed was facing the death penalty in the US. (The death penalty has been held
to be unconstitutional in South Africa.)
The court said that the South African government should have protected his rights, by first obtaining an undertaking from the US that the death penalty
would not be imposed. The court stated that the fact that Mohamed was now facing
the death penalty in America was as a direct result of the South African government’s actions. The court drew a contrast with another of Mohamed’s alleged co-conspirators, Mamdouh Mahmud Salim, who is standing trial separately
from Mohamed. Salim was extradited from Germany on condition that the US would
not give him the death penalty if convicted.
In its defence, the South African government claimed that Mohamed had consented
to being handed over. The Constitutional Court expressed doubt about this, especially as Mohamed did not have access to a lawyer to advise him of his rights.
Mohamed was already in the US at the time that this case was heard by the Constitutional Court. The court was powerless to reverse the handing over and
instead ordered that its judgement be brought to the attention of the New York
trial judge.
In its judgement the court alluded to an extradition treaty that South Africa
signed with the US in 1999. The previous extradition treaty, which was signed in 1951, exempted political offenders from extradition. This protected the members
of liberation movements residing abroad (the African National Congress included)
from being extradited to their countries of origin for political crimes.
The 1999 treaty does away with the exception for political offenders. It also
does away with the need to hold extradition proceedings before a magistrate if
fugitives consent to their extradition. In its judgement the Constitutional Court expressed doubt about whether a person in Mohamed’s position could validly
consent to being removed to another country to face a capital charge. The court
said that the “authorities ought not to be encouraged to obtain consents of such
a nature”. This statement casts an obvious cloud over this aspect of the 1999
treaty.
The significance of this case is that the South African authorities took the law
into their own hands. The court gave a dire warning that governments encourage
anarchy when they break the law. The court mentioned that the apartheid state
used to bend the law to suit its own ends, with disastrous consequences. Hence
the need to guard against similar abuses in the future.
It is difficult to tell what made South Africa act in the way it did. Most probably, the US brought pressure on the government to hand Mohamed over. Undoubtedly the US reaction to Afghanistan’s refusal to extradite Bin Laden also
played a role. The Constitutional Court’s laudable judgement makes it clear that
South Africa should not compromise its own laws to ingratiate itself with the
US.
Andrew Burrow and Carla Raffinetti are at the firm of attorneys Cheadle Thompson
& Haysom Inc