Arguments on extradition: South is responsible for Bushiri’s whereabouts, not Malawi


* It’s a total long journey that will take one year to get

* Malawi to rely on information provided by SA—Kazako

By Duncan Mlanjira

On legal formal technicalities, Prophet Shepherd Bushiri and his wife Mary are in South Africa and not in Malawi, contends Sea Breeze News, a computer and Internet website.

It continues to say that many people think that it’s very easy to get the Bushiris extradited back from Malawi to South Africa to face the charges against them, “but I say no — it’s a total long journey that will take one year to get the response from the State of Malawi to say ‘yes’ or ‘no’ to the South African State.

Malawi Information Minister Kazako

This was also alluded to by the Minister of Information, Gospel Kazako when approached for his comment, who said the government has no details as to how, with who and when Bushiri got to Malawi.

Asked if the government would be investigating, Kazako said it would rely on information provided by the South African government.

Sea Breeze News says formally, the Bushiris are not in Malawi according to the migratory formalities and for this reason, South Africa is responsible for their whereabouts and not Malawi.   

The website also says the Bushiris are holders of the Malawi’s diplomatic passports, which is very expensive to get, and it entitles immunities to them from being tried in any legal courts of law in a host country — in this case South Africa — without any formal letter to the country of origin to clarify the crime on why they have taken the suspects to court.

“In this case, it means that the Prophets cannot face the charges in a foreign land, but in their country of origin, because the diplomatic passports protect them.   

“The State of South Africa must write a letter to the High Commissioner Of Malawi in South Africa about the dissapearance of the Malawi’s diplomatic citizens (the Prophets) from South Africa and they must explain very well why they are searching for them.

“Mind you, I have already said that the Prophets cannot be charged in South Africa, no matter what type of crime they have committed, just because of the diplomatic passport. So their letter to the Malawi Embassy will be rebuffed/nullified on legal technicalities of diplomacy.

Malawi SA Embassy

“The Embassy can take a legal action against the host country to investigate about the welfare of its diplomatic citizen who are being sought after by the host country.

“If they discover that they are being mistreated and passing injustices, harrassment or intimidation from the host country, they can take legal actions against the host country according to the level or the type of passport the citizens hold.”

The author continues to say that if South Africa insists on capturing the Bushiris’ whereabouts, they can, and they will have to apply for the extradition documents of the suspects to the Supreme Court of Malawi, and it will be a legal battle that will take a long period of time to judge the case — minimal of 3 months.

Extradition law

“In which in the end, the State of South Africa will lose, because the Prophets diplomatic passport says they can only be charged by Malawian Courts, and not South African.   

“In all former legal proceedings against the Prophets while in South African territory, the Malawi State can file a lawsuit against violations of formalities and privileges of the diplomatic passport holders, that can cost a very big amount of money to compensate the Prophets. This is also a legal battle.

SADC extradiction protocol

“A lawsuit can be made against the State false allegations that the Prophets have no permanent residence and false allegations that they don’t hold the diplomatic passport. Of which they all have.  It will end in tears to compensate the Prophets.   

On the procedure of on legal technicalities for extradition, the author says the Malawi Minister of Justice receives the extradition request from a foreign state via diplomatic channels (s 4(1)).

“The Minister will then issue a notification to a magistrate who in turn will issue a warrant of arrest (s 5(1)(a)). The arrest and detention are aimed at conducting an extradition inquiry.

The Bushiris

“A person detained under a warrant of arrest is brought before the Magistrate in whose area of jurisdiction the person is arrested whereupon the Magistrate must hold an inquiry with a view to surrender such person to the foreign state concerned (s 9(1)).

“If on consideration of evidence adduced at the inquiry, the Magistrate finds that the person before them is liable to be surrendered to the foreign state, the Magistrate shall issue an order committing such person to prison to await the minister’s decision with regard to their surrender (s 10(1)).

“The Magistrate must, forthwith, issue the committal order together with the copy of the record of proceedings to the Minister. The Minister may order or refuse surrender to the requesting foreign state (ss 10(4) and 11).

Court appearance

“Any person against whom an order under s 10 has been issued has the right to appeal to the High Court and no order for surrender of such person shall be executed before the right of appeal has been exercised or waived (ss 13 and 14).

“An extradition inquiry is regarded as a judicial and not an administrative proceeding. Extradition proceedings nevertheless remain sui generis in nature and can, therefore, not be described as criminal proceedings.”

The author continues to contend that there is an important difference between judicial and executive roles in extradition proceedings.

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“Although a magistrate fulfils an important screening role to determine whether or not there is sufficient evidence to warrant prosecution in the foreign state, the decision to extradite a person is ultimately an executive one.

“The pivotal role of the executive in extradition proceedings has been criticised.  Section 14 of the Act provides that an order for extradition may not be executed before the period allowed for an appeal (15 days) has expired, unless the right to appeal has been waived in writing or before such an appeal has been disposed of.

“So, the legal battle is just beginning,” says the author on Sea Breeze News website, whose link is posted on Facebook.

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