The main grounds of appeal were that the  court a quo erred in holding that high treason was an offence of a political character within the meaning of s 7(1)(a) of the Extradition Act; and that the court a quo relied on inadmissible hearsay evidence in holding that s 7(1)(b) of the Act precluded the extradition of the respondents to Namibia.

The appellant argued that treason was not by definition a political offence.

The appellant also argued that people who committed treason could not raise the political offence exception where that state had  democratic processes through which people’s grievances could be addressed.

The respondents submitted that though there were democratic processes through which grievances could be addressed, they had exhausted all democratic and peaceful means and had to consider other possible means. The respondents also argued that they were at risk of being persecuted on political grounds should they be extradited.

Country
Date of judgment

Extradition, fugitive, fugitive criminal, political offence, offences of political character, exemption from extradition, political opinion, murder, attempted murder, extrajudicial punishment, persecution on account of political opinions

Case citations
2004 (2) BLR 101 (CA)
Nationality of refugee/asylum seeker
Facts

This was an appeal against an application by the government of Namibia for the extradition of 13 persons from Botswana to Namibia to stand trial  for various offences alleged to have been committed by them in the Caprivi strip. The Caprivi strip was a strip of land politically and legally part of Namibia.

The respondents were members of the Caprivi Liberation Army, an organization which sought to secure the secession of the Caprivi strip from Namibia. It was alleged that some members of the organization shot and killed an individual attempting to escape from one of their training camps in Namibia. Fearing arrest and prosecution for murder and other possible offences, the  respondents fled to Botswana where they were given refugee status.

The Government of Namibia sent warrants of arrest and  requested respondents’ extradition to Namibia. The respondents were arrested and ordered to be extradited. The respondents appealed the decision to the High Court.

Decision/ Judgment

The High Court held that treason was a political offence. The Court also held that if the respondents chose to pursue the democratic processes, they would not have committed and been charged with treason. It further held that the submission that the respondents exhausted their democratic and peaceful  means and had to consider other options was not been challenged.

The Court also held that extradition was reserved for criminal matters and that it would be improper to extradite individuals accused of committing offences of a political nature.

The Court ultimately held that whereas murder and attempted murder were not offences of a political nature, there  was a reasonable chance that the respondents could be punished extrajudicially for their political opinions.

Basis of the decision

Section 7(1)(a)-(b) of the Extradition Act stipulates that a fugitive criminal shall not be extradited if the offence in question is of a political nature or if there is a likelihood that he/she may be prejudiced at trial or punished for his/her political opinions.

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Supported by the UNHCR