Against a tide of criticism and a government application for his incarceration, the lawyer for deported Pakistani national Khalid Rashid is persisting in his bid to have Rashid’s disappearance declared a crime against humanity in South African and international courts.
And in another development, intelligence sources said that Rashid was more likely to be in American than British custody because of British court precedents rejecting extradition disguised as deportation.
On Wednesday night, the office of Khalid’s flamboyant lawyer, Zehir Omar, received an opposing affidavit from Minister of Home Affairs Nosiviwe Mapisa-Nqakula asking for Omar’s arrest for publicising internal government correspondence relating to Rashid which was accidentally discovered by law student Yaseen Suliman in May.
The correspondence, which came to light during Omar’s court bid to force the government to provide details of Rashid’s disappearance, was embargoed for publication by Judge Justice Poswa.
”That file is the truth and revealing the truth has led to this hysterical reaction,” said Omar.
Omar said he would push ahead with another application on Thursday in the Pretoria High Court to have the arrest, detention and removal of Rashid declared unlawful. He hopes that the court will invoke Section 132 of the Constitution to launch an investigation ”in the interests of justice and liberty”.
The Pretoria application asks the court to subpoena a list of people for questioning, including Mapisa-Nqakula, Justice Minister Brigitte Mabandla, Intelligence Minister Ronnie Kasrils and Safety and Security Minister Charles Nqakula.
Omar also wrote to the International Criminal Court at The Hague this week requesting an investigation into the ”enforced disappearance” of his client. He also wants the court to declare Rashid’s disappearance a crime against humanity in terms of the Rome Statue of the International Criminal Court.
In 2002, the South African government passed a law to implement the statute. This defines ”enforced disappearance of persons” as ”the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a state or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”.
Government spokesperson Joel Netshitenzhe this week voiced doubts about whether the International Criminal Court would entertain the case.
A government statement said Rashid had been deported as an illegal immigrant with the help of Pakistani authorities because of his terrorist connections, adding that the Pakistani authorities had provided written confirmation of Rashid’s arrival in Pakistan.
”If Omar is genuinely interested in assisting Rashid’s family to establish his whereabouts, he should take this matter up with Pakistan,” Netshitenzhe reportedly said.
Omar hit back: ”It is strikingly anomalous for the minister [of home affairs] to rely on a letter of confirmation whose author refuses to be interviewed by an advocate on our behalf in Pakistan.” He noted that Mapisa-Nqakula admitted to not knowing the identity of the person who received Khalid in his country of origin.
A legal source who asked to remain anonymous said that while the domestic application had some merit, the appeal to the International Criminal Court was ”nonsense”.
”You would have to show that there is a problem with the domestic courts and that they could not solve the problem,” added Rudolph Jansen, the national director of Lawyers for Human Rights.
Omar believes British agents are interrogating his client in Russia or a former Soviet state. However, an international intelligence source, speaking on conditions of anonymity, said that it was unlikely that Rashid was in British custody because the British courts had a track record of throwing out cases if they believed a deportation proceeding was a ”disguised extradition”. British barrister Colin Nicholls told the Mail & Guardian of the landmark ”Bennett case” on disguised extradition involving the deportation of a suspect from South Africa with British assistance to stand trial for fraud in Britain in 1993.
After the defence argued that the deportation was a disguised extradition, the case was thrown out because the action had violated international law. The Bennett principle concerned the abuse of power and could be used in any court within the Commonwealth, Nicholls said.
Analysts contrast the British approach with the American practice of ”extraordinary rendition”, where suspects are sent to countries other than the United States for imprisonment or interrogation.
British authorities were, for instance, reluctant to help American authorities carry out a plan to seize Haroon Aswat in South Africa and send him to an undisclosed third country last year, according to an Institute for Security Studies paper. Aswat was wanted in connection with the London bombings and was deported from Zambia to Britain in 2005.