The South African prosecution recently said in the media that they will issue extradition requests of two Rwandan nationals, Ismael Gafaranga and Alex Sugira in order to respond before courts to the allegations of the murder of Patrick Karegeya.
This legal opinion canvasses four principles of law that makes such request problematic.
1.The ‘Nationality Exception’
2.‘He who comes into equity must come with clean hands.’
3.The Prohibition of refugees to conduct subversive acts.
4.‘Nemo auditur propriam turpitudinem allegans’
Legal Analysis:
1.The ‘Nationality Exception’
-The Rwandan Constitution in its Article 29(8) (2) stipulates: ‘Rwanda cannot extradite any Rwandan to another country.’ In this article our Constitution is exceptionally categorical: ‘Rwanda cannot’!
Like most countries Rwanda applies what is known in international law as the ‘Nationality Exception’; which is a century-old ‘Principle of non-extradition of nationals’ for prosecution or enforcement of a sentence abroad. Accordingly, Rwanda has no vocation of outsourcing its justice system and may not voluntarily surrender its own citizens to be tried abroad. This is not to be confused with a country claiming its own nationals exiled in another country to face justice in their country of origin.
In any event, conditions for extradition compel the requesting country (South Africa) to build a strong case against the persons being prosecuted before the request is considered by the host country (Rwanda).
However, according to judges in South Africa, the prosecutors did not do their job properly: The Ransburg magistrate’s court where the ‘Karegeya case’ was initially filed decided to drop it in what they termed as: inadequate investigations. ‘A number of outstanding statements, documents, and information that requires to be investigated’ – the judges declared.
2.‘He who comes into equity must come with clean hands.’ One cannot seek redress to an act of which he or she was found guilty, a legal principle goes.
It has been almost a decade since Rwanda filed requests with the South African government for the extradition of Kayumba Nyamwasa and Patrick Karegeya (now deceased) for acts of "terrorism and creating a terror criminal organization,” South Africa did not oblige.
3.‘Nemo auditur propriam turpitudinem allegans’: no one can be heard to invoke his own turpitude.
Let us recap what South Africa desires: ‘We have consistently refused to honor Rwandan requests to extradite Rwandan known terrorists. One of the terrorists was killed on our territory. We suspect Rwandans did it – but our own South African courts dismissed our case because we have no proof. But still, we want Rwanda to extradite its own nationals that we suspect.’
This is circus! As someone who read law in South Africa I feel terribly deflated.
Interestingly, I was expecting South African prosecutors to issue arrest warrants against, say Rwanda’s Minister of Justice, Rwanda’s Ambassador to South Africa or any other public officials. Why? Because for seven years or so, South Africans have missed no media opportunity to declare that the murder of late Karegeya was linked to the Rwandan government – only to issue arrest warrants for two private individuals going about their business, with no official affiliations.
If South Africa has ignored extradition requests by Rwanda duly filed through diplomatic and Interpol channels it may not turn around then and request Rwanda to extradite its innocent citizens, being witch-hunted by desperate prosecutors, whom according to South African judges are incompetent.
4.The Prohibition of refugees to conduct subversive acts.
-The UN Refugee Convention of 1951 does not protect any person who has committed crimes against peace, war crime or a crime against humanity and serious non-political crimes outside the country of refuge prior to his/her admission to that country as a refugee [Art. 1(f)].
-The ‘OAU Convention governing the specific aspects of refugee problems in Africa’ of 10 September 1969, makes a distinction between a refugee who seeks a peaceful and normal life and a person fleeing his country for the sole purpose of fomenting subversion from outside and urges host countries to discourage such criminal acts. (Art. 1)
Art. 3(1). Every refugee […] shall abstain from any subversive activities against any member state of the OAU. The African convention urges states to prohibit refugees residing in their territories from attacking any AU Member ‘by any activity likely to cause tension between Member States, and in particular by use of arms, through the press, or by radio [our emphasis].’
Yet, the RNC leaders partly based in South Africa have been making incessant hostile declarations in all forms of media without being held accountable by their host countries including South Africa.
-The OAU [founding] Charter in its Preamble 8o Stipulates the following:
‘Persuaded that the Charter of the United Nations and the Universal Declaration of Human Rights, to the Principles of which we reaffirm our adherence, provide a solid foundation for peaceful and positive cooperation among States’.
By virtue of harboring persons who pose a threat to another AU member State, namely the self-proclaimed Rwandan terrorists who publically declared their intention to conduct crimes against the Rwandan territory, South Africa itself violated international law.
Moreover, The Rwanda National Congress is a para-military militia whose expressed mission is to attack Rwanda.
The status of Kayumba and Karegeya as terrorists is undeniable in law. Granted the government may have vested interest in calling Kayumba and Karegeya terrorists. However, the qualification of terrorist was arrived at following evidence, testimonies and warlike declarations of the said subjects in the media, making clear their intentions to conduct crimes on the Rwandan territory, followed by the formation of a militia group which conducted violent incursions into Rwanda as well as a UN report which further buttresses Rwanda’s position.
All converge to qualify Kayumba, Karegeya as ‘subversives as defined by the OAU Refugee Charter.’
South Africa has no extradition treaty with Rwanda. However, these individuals were in blatant and open violation of the United Nations and African Union’ refugee conventions respectively and jointly.
Legal Opinion: It is our legal opinion, that Rwanda should not honour such frivolous request and I suspect South Africa is expecting no less. The call for extradition is in fact no serious request but a scapegoat of the South African prosecution which has miserably failed to elucidate in merits a murder case and treated it as a token for self-projection in the media.
It is ironic that peace-seeking Africans do not find safety on South African soil, yet self-proclaimed criminals, hell-bent at aggressing sister African countries do – the latter possibly explaining the former.
The views expressed in this article are of the author.