SADC Legal Affairs & African Union Court of Justice Protocols; SA/India Treaties on Extradition & Mutual Legal Assistance in Cri

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
6 October 2004
SADC LEGAL AFFAIRS AND AFRICAN UNION COURT OF JUSTICE PROTOCOLS; SA/INDIA TREATIES ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

Acting Chairperson: Mr B Mkhaliphi (ANC)

Documents handed out:
Justice Department: Treaty between the Governments of RSA and India on Extradition
Justice Department: Treaty between the Governments of RSA and India on Mutual Legal Assistance in Criminal Matters
Justice Department: Protocol of the Court of Justice of the African Union
Justice Department: Protocol on Legal Affairs in the Southern African Development Community (Part 1)
Justice Department: Protocol on Legal Affairs in the Southern African Development Community (Part 2)

SUMMARY
A delegation from the Department of Justice briefed the Committee on the SA/India Treaties on Extradition and Mutual Legal Assistance in Criminal Matters, as well as the Protocol on the African Union Court of Justice. The delegation clarified certain Committee concerns regarding the extradition of people to third countries, and countries that enforced the death penalty. The delegation emphasised that extradition and mutual legal assistance went hand in hand. Members raised several issues during the discussion about the African Court of Justice. Questions regarding gender representation, the role of civilians and judges were also answered. The delegation did not brief the Committee on the Protocol on Legal Affairs in SADC as scheduled, as it was no longer applicable.

MINUTES
The Department delegation consisted of Ms S Taitai, Policy Unit: Parliamentary Officer, Mr H van Heerden, Legal Advisor: Department of Justice, and Mr S Thendisa, Legal Advisor: Department of Justice.

Ms Potoma (Clerk) apologised on behalf of Mr L Mokoena (Chair, Limpopo) who could not attend the meeting due to his tour to the USA. Members agreed that Mr B Mkhaliphi (ANC, Mpumalanga) should act as Chair.

The Chair was concerned that NCOP procedure had not always been followed in the past. Members of the NCOP were permanent delegates, but little input came from the NCOP. Treaties and Protocols were brought to the Committee in order to get more input from the NCOP.

Treaty between the Government of RSA and the Government of the Republic of India on Extradition
Mr van Heerden (Legal Advisor) said this Treaty was the same as any other Treaties that have been agreed to the Committee. He took the Committee through the document and briefly read through its 23 articles. The aim of the extradition treaty was to ensure more effective co-operation in the prevention and suppression of crime, and to affirm nations' respect for each other's legal systems and judicial institutions.

Treaty between RSA and India on Mutual Legal Assistance in Criminal Matters
Mr van Heerden briefly presented the document and emphasised that the Treaty only referred to criminal matters. On 17 October 2003, the President had approved that the Minister for Justice and Constitutional Development could sign the Treaties with India on behalf of the South African Government. The Governments of the RSA and India wished to improve the effectiveness of both countries in terms of investigation, prosecution and suppression of crime, including terrorism-related crimes, through co-operation and mutual legal assistance.

Discussion
The Chair asked whether the delegates could clarify the 'exchange of instruments'.

Mr van Heerden said such an exchange was a function of the Department of Foreign Affairs. After treaties had been approved, that Department drafted the instruments and presented them to their Minister for signing. The Department would instruct the South African Ambassador to India to look through the treaty. It would be published in the Government Gazette to inform the public that the treaty was in force.

The Chair said there was a fine line between mutual legal assistance and extradition. He asked the delegation to define the terms.

Mr Thendisa (Legal Advisor) said extradition referred to the intention to prosecute a person. Mutual legal assistance was to ask assistance to gather evidence.

The Chair asked whether mutual legal assistance allowed other countries to interrogate a suspect without implying that person would eventually be handed over to the government.

Mr Thendisa said that referring to particular suspects was problematic. Mutual legal assistance had been mainly used for weaknesses.

Mr van Heerden said the Department had been willing to negotiate about mutual legal assistance. When the Department negotiated an extradition treaty, they would normally include mutual legal assistance as the two aspects were inter-related.

Mr D Wroth (DA, Free State) asked the delegation to clarify the aspect of third countries. Could a person be extradited to a third country?

Mr van Heerden said the Department had made a provision for the issue of third countries in Article 18 of the Extradition Treaty. The 'Requesting State' would not extradite a person to a third country for an offence committed before that person's surrender - but there had been exceptions.

The Chair asked if Article 18 meant that an extradited person could only be extradited to a third country if the state allowed it. Mr van Heerden confirmed that a person would not be extradited unless the Requesting State gave its consent.

Mr S Shiceka (ANC, Gauteng) reiterated this document had been presented for information purposes only, and the Committee could not make any changes.

The Chair elucidated that the purpose of the briefing had been to enrich Members' knowledge, but it also formed part of NCOP procedure. He asked what would happen when an extradition did not go according to plan, such as in the recent case in Botswana. There should be a condition that stated that South Africa would not extradite people to countries that enforced the death penalty. Treaties could often "go wrong".

Mr van Heerden asked whether the Chair referred to the Bosch case where a woman had been extradited to Botswana. The Chair said any case study would be appropriate.

Mr van Heerden clarified that Ms Bosch had not been extradited to Botswana, but had been arrested there. The Department of Justice would make the necessary assurances before they would extradite a person to another country. The Minister would not sign a certificate for extradition if there was any doubt whether the person would be ill-treated.

Mr J le Roux (DA, Eastern Cape) asked if it would be possible for a South African citizen to serve his/her sentence in South Africa although he/she had been sentenced in India.

Mr van Heerden said the issue referred to the surrender of convicted offender and it fell under the Department of Correctional Services.

Mr F Adams (NNP, Western Cape) asked if the Treaty could protect the South African cricket team for instance, from charges stemming from any misconduct in other countries.

Mr van Heerden said the Treaty would have no impact. South Africa could extradite a person even in the absence of the two treaties.

The Chair said further details would be finalised in Committee's next meeting.

Protocol of the Court of Justice of the African Union
Mr Thendisa briefly went through the document. The African Union Ministers of Justice had adopted the Protocol at the second Ordinary Session of the AU Assemble on 11 July 2003. The document was very comprehensive and covered all aspects of the African Court of Justice, from its establishment and judges, to its inner workings.

Discussion
The Chair asked the delegation how many states had ratified the Protocol and when South Africa had done so in comparison with other countries.

Mr Thendisa said there had been three ratification rounds of the Protocol. The heads of states had adopted the Protocol on 11 July 2003 at the AU Summit. The Protocol had to be signed before it could be ratified. Minister Dlamini Zuma had signed the Treaty immediately after Parliament had opened. Thus, South Africa had been one of the first countries to sign the Treaty.

The Chair asked how many states had signed the Protocol. Mr Thendisa said he was not sure.

Mr Shiceka (Gauteng) expressed doubt on the abilities of the delegation from the Department of Justice. He requested that the Department would send more senior officials in future that could answer such reasonable questions. He asked whether there had been a timeframe with regards to the signing of the Treaty.

Mr Thendisa said signing the Treaty had not been an open-ended process. He referred to Article 59 (3) and said that as soon as a Protocol came into force, the Member States would accede to the Protocol.

Mr Shiceka (Gauteng) said the Treaty referred to gender representation, a notion that had been initiated by the European countries. He asked what would happen if they only sent male judges. Would a formula be followed?

Mr Thendisa said there had been prior discussions around this issue. Equal gender representation had been stipulated in Article 7(3) of the Treaty. The Department had proposed that at least five judges be female.

Mr Shiceka said courts should not only involve judges, but also civilians in the legal process. He asked why it could not be implemented in this case.

Mr Thendisa said the issue of the inclusion of civilians had never been raised. The African Court of Justice had to follow certain criteria and required qualified people. The Court was an international organ that needed the necessary qualifications.

Mr Shiceka disagreed and said people with high moral values should also be added as part of a civilian section. South Africa had been "selling" their morals and values in the Court. The inclusion of civilians in the process had slipped the minds of the Department. The Chair noted that the Department should consider this issue further in future.

Mr le Roux (Eastern Cape) disagreed with the inclusion of civilians. The idea of the Court was to seek justice. The Chair said that civilian inclusion had been in line with South African processes. Thought should be given to the inclusion of lay people to ensure increased legitimacy for the Court.

Mr M Mzizi (IFP, Gauteng) felt that the Protocol should be ratified. The Pan African Parliament had been an extension of the South African Parliament. He asked who should ratify the Protocol. Mr Thendisa said Member States should ratify the Protocol.

Mr Mzizi (Gauteng) asked for clarification on Article 31 of the Treaty on 'refusal of evidence' in the Court. The term/concept of refusal of evidence had been too strong. He asked whether the Court could use the concept of 'inadmissible evidence'.

Mr Thendisa said the Court could decide to disregard evidence, as there should be finality.

Ms S Leo (DA, Northern Cape) said the Committee should be consistent with the message they send out. She asked about the rationale behind some judges serving a four-year term, while others served six years.

Mr Thendisa referred to Article 8 that dealt with the judges' tenure in office. The actual term had been four years, but the judges served an added two years to guide new judges through the process. This had ensured a continuous flow of experienced judges.

The Chair said the Committee should inform the public about the treaties and the protocols.

Mr Thendisa referred to Articles 3, 4 and 6 that dealt with composition, qualifications and the list of candidates. There were five regions and each would have to send two judges. One region would send three to make up the eleven judges. In SADC, South Africa would never have more than three judges.

Protocol on Legal Affairs in the Southern African Development Community
Mr Thendisa said that this Protocol had been developed during 2000, while the legal sector of the SADC had still been in place. It aimed at providing mechanisms through which the SADC Legal Sector could carry out its functions. The Legal Sector, together with other sectors, had been phased out during the rationalisation process and replaced with Directorates. It was thus unnecessary to ratify this Protocol.

Discussion
Mr Mzizi (Gauteng) said Article 2(a) and 2(b) had been contradicting.

Mr Thendisa said other countries could gain or lose when a country chose to withdraw. The next meeting would clarify and finalise certain issues.

The Chair said that at the time of submission, the Protocol had been appropriate.

Mr Thendisa said the SADC Directorate had discussed the issue and it had shown to South Africa's Parliamentary Officer. It had been understood that the Protocol could not be ratified. Only the Integrated Committee of Ministers (ICM) could establish sub-committees if necessary. It did not make sense to continue with the existing Protocol that also had certain legal problems.

The meeting was adjourned.