Ian Khama suffers setback in bid to stop possible extradition

Former Botswana president Ian Khama, who now calls SA home, has suffered a legal setback after he failed to convince the South Gauteng High Court that his possible arrest and extradition to his homeland would be unconstitutional.

Khama, who fell out publicly with his successor and former deputy, Mokgweetsi Masisi, told the court that he fears the Botswana government is going to seek to extradite him and that this would put his life at risk.

He said this is because he was a victim of a “co-ordinated, state sponsored attack by the incumbent president of Botswana for expressing his opposition” to what he says are Masisi’s “authoritarian policies and decisions”.

In April 2022, Khama was charged in Botswana with 13 counts relating to alleged unlawful possession of seven firearms and ownership of unregistered firearms.

This was followed by a summons calling on Khama to appear in the Broadhurst regional magistrate’s court to answer those charges.

Khama did not appear in person, but sent his attorneys who said neither they nor Khama received the summons, but learnt of the matter though social media.

A media article then surfaced in Botswana in June, saying the state was aware that Khama was living in SA and was considering his extradition.

Khama, through his lawyers, wrote to SA’s National Prosecuting Authority (NPA), justice minister Ronald Lamola and others, saying he had learnt that the Botswana government might seek his extradition. He requested an opportunity to submit representations to the appointed magistrate before any warrant for his arrest was issued.

The director of public prosecutions in Gauteng, in a letter dated June 27 2022, said his office’s hands were tied.

“Your request that your client (Khama) be allowed to make representations to the magistrate when an application for the warrant of his arrest is made, cannot be agreed to due to the fact that there is no provision of (sic) such a procedure in the Extradition Act No 67 of 1962,” the director said.

“Any facts that your client wish (sic) to place before the magistrate, to substantiate his claim that the charges to [be] brought against him in Botswana have been trumped up, must be placed before the magistrate after his arrest and when he appears before the said magistrate. 

“This office will, however, as a courtesy to your client, be amenable that he be informed before his arrest so that he can report to the SAPS and the necessary formalities be taken care of before the matter is placed on the court roll.”

Khama was not satisfied with the NPA’s response, particularly the usage of the word ‘when’ instead of ‘if’ in the response.

He told the court that he interprets the NPA letter to imply that the prosecuting authority will apply for his arrest imminently.

SA and Botswana have an extradition agreement in place.

The NPA threw cold water on this argument and said to date it had not received a request from Botswana for Khama’s extradition.

The former statesman, who was president for 10 years until stepping down in 2018, asked the court for a declaratory order that the court that would hear his possible extradition consider his representations and that the SAPS, national director of public prosecutions and minister of justice give his attorneys reasonable notice of an application to arrest him.

The NPA, SAPS and department of justice said Khama’s application is premature and academic because there is no pending extradition request issued for him nor is there a request for a warrant of arrest.

A full bench of the South Gauteng High Court on Friday found that permitting a magistrate to consider or call for representations before a warrant of arrest would defeat the purpose of the Extradition Act and provide a magistrate with the authority to decide whether the extradition process should proceed.

The court found that section 5(1)(b) of the Extradition Act, which empowers a magistrate to issue a warrant of arrest for any person accused or convicted of an extraditable offence committed within the jurisdiction of a foreign state, is unconstitutional.

“In this case, the Republic of South Africa is bound under a reciprocal extradition protocol with Botswana. It is in the interest of the country that these obligations are honoured,” the judgment reads.

“The minister in terms of the act is the person to make the policy-orientated decisions in this regard. To achieve this, a person sought to be surrendered must be available for surrender should such a decision be made. This is achieved by the arrest of such a person.”

The judges also said it is important for SA, as a sovereign state, that it enacts laws that foster its reciprocal treaty obligations in extradition matters.

“Not only is this imperative for international comity, but it also ensures that SA is better able to meet its own obligations to pursue criminal justice against perpetrators within our own borders.”

The full bench was made up of judge president Dunstan Mlambo, and judges Raylene Keightley and Rean Strydom. The judgment was unanimous.

Khama was represented by a high-powered legal team, which included Dumisa Ntsebeza and Anton Katz.

Khama in April, in conversation with Trevor Ncube, vowed to unseat Masisi when the country heads to the polls in 2024.

“I have apologised to the nation for bringing this upon them and I have said that I will do my utmost to get him out of office in the next election,” he said.

Attempts to get hold of Khama and Botswana authorities proved futile.

khumalok@businesslive.co.za