10 Jun 2018

Minister of Defence, Justice and Security, Mr Shaw Kgathi has presented a bill seeking to amend the Extradition Act.

In his presentation, Mr Kgathi stated that the Extradition Act was enacted in 1990 and made provision for the extradition of persons accused or convicted of crimes committed within the jurisdiction of other countries.

The bill, he said, seeks to strengthen the current act so that it complements anti-money laundering and counter terrorism initiatives by the Director of Public Prosecution and law enforcement agencies.

He said it was not possible to have bilateral agreements with every country as such an arrangement would be cumbersome to implement and monitor.

The proposed amendments, he therefore said, would enable Botswana to seek assistance from other countries that it did not have agreements with.

“It is critical to the fight against crime that as a country we should be able to assist other countries when required to do so, as in this regard reciprocity contributes to the successful prosecution of cases,” he said.

He said the bill would also ensure that Botswana adhered to her international obligations by aligning the Extradition Act with other anti-money laundering and counter-terrorism policies, particularly the Mutual Assistance in Criminal Matters Act and the

Proceeds and Instruments of Crime Act. He said the new amendments would give Botswana the powers to prosecute on behalf of another country where the surrender of criminal fugitive has been denied.

Minister Kgathi stated that there were currently instances in which extradition may be denied by another country because there was no reciprocal arrangement.  

The effect of this amendment, he said, was that Botswana would be able to prosecute accused persons who had fled to Botswana with a belief that they would evade justice, adding that it was particularly important to ensure that Botswana was never perceived to be a safe haven for criminal offenders.

Contributing to the debate, Gaborone Bonnington North legislator, Advocate Duma Boko pleaded for more amendments to the Extradition Act, stating that the minister should address the discrepancies that other countries deem the death penalty unconstitutional and inhumane.

He cited instances where fugitives in neighbouring countries had been able to get away from receiving any punishment or even being trialed as they had fled to neighbouring countries and have not been extradited back as it was in accordance with the constitution of those countries.

“Some neighbouring countries cannot extradite fugitives back to a country that applies a penalty that is deemed unconstitutional in their own jurisdiction unless there are assured that the fugitive will not face the death penalty,” Mr Boko said.

He said the current act could not compel such countries to extradite if their preconditions could not be accomplished hence every murder suspect in Botswana might flee to neighbouring countries in an effort to escape the death penalty.

MP Boko noted that criminal jurisdiction was territorial, and that there was no way the proposed amendments would give Botswana the powers to prosecute on behalf of another country as it conflicted with the principles of territoriality in criminal jurisdiction.

Mr Boko called on the minister to fully consult with constitutional lawyers and experts to try and navigate some of the challenges that came with extraditions. ENDS