The Botswana – South Africa Extradition Deadlock – Escaping Botswana’s Gallows

Abstract

Botswana, unlike its economically more powerful neighbour, South Africa, retains capital punishment, (death by hanging), for the crime of murder where no extenuating circumstances are found. Presumably fearing the imposition of this penalty, individuals charged with murder in some cases cross the border into South Africa. According to South African law, an individual can only be extradited from South Africa to a country that imposes the death penalty when the country has given an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out. Botswana refuses to give the undertaking. Applying both its domestic law and treaty right, South Africa refuses to extradite. This is the Botswana – South Africa extradition deadlock, which has reared its head in at least two notable cases, hereinafter referred to as Tsebe and Samotse cases. This paper reviews and discusses the Botswana Extradition Act of 1990; decisions in the Tsebe and Samotse cases; and proposes solutions to unlock the Botswana – South Africa extradition deadlock.