Home Affairs officials not above the law

Home Affairs staff act as though they’re exempt from the law, court judgments and the constitution, writes Carmel Rickard.Johannesburg - It was a good start to the writing year: a strong, important judgment by a senior judge, expressing his concern about officials of the Department of Home Affairs, who act as though they are above the law.

But the responses from readers over the past week has taken me by surprise.

A few were angry with the people who took up the case – and with my report of the judgment as good news.

Others told of their own horrific experiences at the hands of departmental officials and cheered on lawyers who challenged the department’s violation of the constitution and its values.

If you missed it, this was the story of Edwin Samotse, sought by the authorities in Botswana for alleged murder. He escaped from his home country to South Africa, raising the question how South Africa should respond to Botswana’s request that he be extradited for trial.

Officials of the Department of Home Affairs had three blocks to sending him home, any one of which should have stopped them.

Our highest court says no one may be sent to stand trial in a country where the death penalty applies unless that country agrees not to seek or carry out the death penalty.

Second, the minister of justice and correctional services had issued a certificate barring Samotse’s surrender.

Last, the high court had, in this very case, ordered that he not be returned to Botswana.

Yet the unthinkable happened. Samotse disappeared and his lawyers found he had been extradited – against the law, against a court order and against a ministerial instruction.

For some readers, these are non-issues. He’s a killer, they say, and South Africa shouldn’t be protecting him.

This week I asked the lawyers closest to the case why they got involved in this controversial matter.

Samotse was represented by Legal Aid South Africa, while Lawyers for Human Rights (LHR) worked with Legal Aid SA, playing a key role as a friend of the court and an additional applicant in the matter.

Legal Aid SA’s chief legal executive, Patrick Hundermark, said his organisation took up Samotse’s case “because it is a crucial rule-of-law issue”.

“If you have officials who do not comply with the rule of law, who undermine it, then the way is open for ordinary people to act the same way and take the law into their own hands,” he said.

Achmed Mayet, who heads Legal Aid SA’s impact litigation unit, agrees: “Departmental officials took the law into their own hands when they extradited Samotse despite rulings of the Constitutional Court. The judges said there had to be an undertaking in writing not to seek or impose the death penalty (before there could be extradition). And Botswana refuses to give this undertaking.”

Mayet, who has been involved in similar cases, said Department of Home Affairs officials have shown “a pattern of ignoring the constitution and court judgments”. They wanted to deport Samotse regardless of the law – and they did.

“Some people might say we are defending criminals,” said Hundermark. “But at this stage, Samotse, for example, is merely a suspected criminal.” Like anyone else, he is entitled to a fair trial – and he may be acquitted.

The South African constitution protects “anyone in South Africa”, he added.

Once the highest court has found the death penalty is unconstitutional, that’s it, said Hundermark. “We are legally obliged to deal with the consequences.”

And the consequences are not always predictable. In addition to cases like that of Samotse, for example, Legal Aid SA is fighting the extradition of two South Africans to Botswana for trial because that country does not provide Aids treatment for non-Botswana citizens in its prisons.

If the men – one has Aids and the other a serious TB-related condition – were convicted and sent to jail it “would amount to a death penalty”, Hundermark said.

For David Cote of LHR, the Samotse case warranted involvement because LHR was “extremely concerned” by ongoing official action in direct contravention of two previous Constitutional Court judgments. “The rule of law was clearly implicated,” he said.

LHR was also concerned about the department’s initial attempts to deny responsibility for the illegal extradition.

But though more clarity emerged about who is to blame in Samotse’s case, Cote remains concerned that even the new protocols announced by the department won’t be enough to keep recalcitrant departmental officials in check.