The daring escape from SA last year of the country’s most prominent fugitive couple, the evangelist and self-proclaimed prophet Shepherd Bushiri and his wife Mary, and the attempts to bring them back to face justice have brought into sharp focus the intricacies of extradition processes.
Bushiri, the leader of the Enlightened Christian Gathering, dramatically announced on social media that he and his wife had fled to Malawi. This was soon after they were granted bail of R200,000 by the Pretoria magistrate’s court on November 4 following their arrest for alleged fraud, theft and money-laundering to the tune of R102m.
The couple were also on bail of R100,000 on another matter before the Pretoria Specialised Commercial Crimes Court at the beginning of February. They were charged with fraud, money-laundering and contravention of the Organised Crime Act relating to exchange control regulations involving foreign currency worth about R17m.
The repatriation of fugitives such as the Bushiris is an interdisciplinary and a transactional process that requires a well-balanced approach — one that should consider the legal/judicial, diplomatic and executive factors of the countries involved.
One is often faced with the task of reconciling two or more jurisdictions. Hence, in the Bushiri case, Malawi received the National Prosecuting Authority’s (NPA’s) application only on December 4 2020.
The complex laws and procedures are meant to protect the sovereignty of the states involved, the rights of the fugitive and the integrity of the respective justice systems.
There are principles relating to extradition such as dual or double criminality — that the alleged acts must be criminal in both countries. Another is the rule of speciality — the international law principle that requires that once surrendered, a person can only be prosecuted for the offences for which his or her extradition was sought and granted, to the exclusion of any other crime that he or she could have committed in the past.
Further, there is the political offence exception; double jeopardy — the prosecution or punishment of someone twice for the same offence; and the risk of an unfair trial. These are of universal application.
Honeymoon murder accused Shrien Dewani fought his extradition for three years before Scotland Yard could effect his return to SA. The protracted legal battle ensued after Dewani’s lawyers argued that he could not be brought to SA because he had not recovered from illness.
Dewani was arrested and appeared in court in the UK in December 2010, about three weeks after his wife was murdered. He was released on bail, and a month later the extradition proceedings were adjourned owing to his mental health challenges. Eventually the proceedings resumed in April 2011, and four months later the court granted the order for his extradition.
That December, a year after his arrest, the home secretary in Britain signed the order for him to be returned to SA. His lawyers challenged the decision, and won that round three months later. His extradition was declared “unjust and oppressive” and temporarily stopped until he was fit. Later an order to this effect was issued and the ping-pong continued until he was eventually extradited.
Extraditions are affected by multilateral conventions and bilateral treaties, and in certain instances extradition applications are made on the basis of the principle of reciprocity, sometimes referred to as the international courtesy principle.
The drafting and transmission of extradition requests must be meticulous because it may lead to protracted legal processes if the fugitive challenges their surrender to face prosecution. These proceedings are subject to appeals and reviews by higher courts.
In the case of the Bushiris, the Southern African Development Community protocol on extradition, the bilateral treaty and the national laws of both SA and Malawi were invoked in applying for their extradition.
Furthermore, the rule of speciality requires that the requesting state clearly specify the offences for which extradition is sought.
Concomitant with this principle is the requirement that it should be demonstrated to the authorities of the requested state (the courts and the executive) that there is sufficient evidence to warrant prosecution of the person sought in the requesting state.
Judging by public statements Shepherd Bushiri has made since claiming to be in Malawi, we can anticipate he will make averments to the effect that his prosecution in SA is mere persecution due to one of more of these considerations
It becomes more intricate in cases where the sought individuals are facing multiple and complex charges, as in the case of the Bushiris.
Therefore, it may require more time, and may depend on the stage of the investigation in cases to consider exactly what offences are alleged against the accused. Failing to do this may lead to serious issues that could cause undue delays or even the failure of prosecution.
Another consideration is that mandatory and discretionary grounds of extradition should always be kept in mind when drafting a request for extradition.
It should also be borne in mind that there’s an interplay between asylum and extradition. The principle of non-refoulement enjoins states not to expel or surrender fugitives in any manner whatsoever to territories where their lives or freedoms would be threatened on account of race, nationality, religion, membership of a social group or political opinion.
Judging by public statements Shepherd Bushiri has made since claiming to be in Malawi, we can anticipate he will make averments to the effect that his prosecution in SA is mere persecution due to one of more of these considerations. Such an eventuality had to be countered already in the application.
The subject of extradition initially gained traction in the news media after the departure of the Gupta family following state capture allegations, but there are no formal processes under way to return the family to SA.
South African law enforcement agencies did make a mutual legal assistance request for help with regards to the gathering of some essential evidence in the UAE.
Disappointingly, there seems to be no willingness on the part of the UAE to assist, even though the two countries signed treaties on extradition and mutual legal assistance in Abu Dhabi in September 2018.
• Ngwema is the spokesperson of the NPA
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