The controversy surrounding the abscondment of the self-proclaimed prophet, Shepherd Bushiri and his wife, Mary, has sparked wide-spread debate concerning extradition processes, the legality thereof and, most importantly, the speed and efficiency with which the accused parties may be brought back to South Africa to face criminal charges. With the mounting questions regarding whether or not the Bushiris can be extradited, the legal avenues that may be pursued and the practical implications which follow deserve closer consideration. 

On the 20st of October 2020, the Bushiris were arrested in South Africa, along with their three co-accused, for their alleged involvement in acts of money laundering, theft and fraud, amounting to approximately R102 million. After being charged, the Bushiris were granted bail of R200 000 each and thereafter fled to Malawi, consequently violating their bail conditions. The unfolding of the aforementioned events begs the question of whether the fugitives will successfully be brought back through the extradition process, to stand trial in South Africa. 

Extradition is defined as the physical surrender by one state, namely the ‘requested state’, at the request of another state, namely the ‘requesting state’, of a person who is either accused, or convicted of a crime by the requesting state.  The purpose of the extradition request and of the relevant rules and laws that apply, is to ensure that the person who is sought to be extradited, will undergo a fair trial or hearing in the jurisdiction where the crime was committed. 

 
 The extradition process in South Africa is regulated by the Extradition Act 67 of 1962. Under the aforementioned Act, the extradition will normally be regulated by way of an agreement, or treaty, that exists between the requesting state and the requested state. Such an extradition treaty will regulate when and how the extradition process will unfold between those states. 

 

 Absent a treaty, a state may be required to surrender the requested person or to punish him under its own laws. 

 The requested state may surrender the requested individual only after there has been compliance with:-  any extradition agreement, which there may be between the requesting and requested state; and the domestic laws of the requested state, which normally includes the right of an accused person to challenge his or her extradition in Court, by way of proceedings in the requested state (in this case, in Malawi).  Where there exists an extradition treaty, whether bilateral or multilateral, the treaty will prescribe the requirements and the process for the extradition between the states concerned. 

 
An extradition treaty between South Africa and Malawi is in force and is valid and binding on fourteen states. This treaty is known as the Southern African Development Community Protocol on Extradition (“SADC Protocol”). This treaty is multilateral, whereby multiple states are party to it and have obligations and corresponding rights in terms of it.  The SADC Protocol sets out the requirements for a member state to request extradition. Firstly, the extradition request must be for an offence where the punishable sentence is more than six months imprisonment. Secondly, the conduct for which the accused is being sought must be a crime in both countries (double criminality). In addition, the requesting state must send a formal extradition request, through diplomatic channels, attaching to that request various documents, including an arrest warrant. 

Furthermore, the SADC Protocol prescribes circumstances where an extradition request must be refused. This includes where the requested state has substantial grounds for believing that the person being sought will be prosecuted or punished due to their race, religion or political opinion. The request must also be refused       if the accused has not received or would not receive a fair trial in the requesting state.  It is doubtful whether any of these defences would be available to the Bushiris. 

 Although the Extradition Act governs extradition requests that South Africa receives, there is no legislation governing outgoing requests by South Africa. Therefore, it will ultimately be up to the Malawian domestic legislation governing extradition to determine whether the Bushiri’s will be extradited. 

Under the Malawian domestic legislation, the Bushiris have, as a supposed act of co-operation, asked to appear before an Extradition Inquiry. However, should the aforementioned inquiry hand down a decision, which is adverse and against the interests of the Bushiris, the Bushiris will be entitled to appeal against such a decision to a Malawian Court.  Should the Court find that the Bushiris are to be extradited to South Africa, such a decision will be forwarded to the Malawian Justice Minister for execution, but the Bushiris will still have the opportunity to appeal against the Justice Miniter’s decision. Therefore, the internal, domestic process that the Bushiris will be subjected to, is likely to be extremely lengthy. 

 

 However, whilst the Bushiri case will inherently be cumbersome and lengthy, it provides South Africa with an opportunity to show its commitment to the SADC Protocol. Malawi-South African relations, will also, undoubtedly, be put to the test and, should the Bushiris indeed return to South Africa to stand trial, the practical effectiveness of the SADC protocol will have been successfully tested as well. Needless to say, the Bushiris, in absconding from South Africa and in then voluntarily surrendering to the authorities in Malawi, will seek to gain the considerable advantage of first being able to oppose extradition on “home soil”.


Article Courtesy of BBM Law