The Constitutional Court was concerned on Tuesday about the few facts in the case of 69 alleged mercenaries held in Zimbabwe and facing possible extradition to Equatorial Guinea where they might be executed.
Chief Justice Arthur Chaskalson told counsel for the state Ismael Semenya that ”lots had happened” but few material facts had been placed before the court.
”We don’t really know what the facts are. It would help us in some ways if we knew,” Chaskalson complained.
Judge Albie Sachs added: ”It is very disconcerting to watch television and note that the general public is better informed than this court.”
Judge Johann van der Westhuizen said there was every chance that the lack of facts as to what the charges against the men were, and what the South African government had done — or not done — to assist them could result in the court’s judgement assisting lawyers arguing future constitutional cases. It would however, be of no use to the men currently in Chikurubi prison.
Semenya conceded that the facts before the ten judges were ”less than satisfactory” but he maintained that the government had no duty under the Constitution to assist the men avoid the death penalty or extradition to Equatorial Guinea or even to ensure that they had a fair trial in that country.
Semenya was not moved in his argument by several remarks from the judges that the United Nations rapporteur for Human Rights, the International Bar Association and Amnesty International had repeatedly found that the judiciary in Equatorial Guinea is not sufficiently independent of the executive to guarantee fair trials.
On Monday lawyers for the 69 as well as others appearing as friends of the court argued the state had a duty to assist the men.
The 69 were arrested earlier this year for allegedly planning a coup in Equatorial Guinea. – Sapa
State has ‘no duty’ to help ‘mercenaries’