Africa-Press – South-Africa. A recent high court ruling in Malawi, which insists witnesses outside the country in the Bushiri extradition matter be physically present in Malawi, could be a much sought-after victory by the Bushiri defence, but what cost to comity between South Africa and Malawi? asks Omphemetse Sibanda.
Come and get me if you can! This is the latest twist in the South African extradition request to the Malawian authorities for Shepherd Bushiri and his wife, Mary, to face the South African criminal justice system.
The couple skipped South Africa in 2020 after being granted bail.
It has been reported in the Malawian media that the Lilongwe High Court on Monday ordered that witnesses from South Africa attend the extradition case against Bushiri in Malawi, and physically testify in the ongoing extradition case.
“The witnesses to the extradition hearing will testify physically in the presence of the chief resident magistrate here in Malawi on a date and time to be appointed by the court,” said Judge Bruno Macdonald Kalemba in his ruling.
The extradition request is in connection with accusations that the Bushiris were involved in criminal activities of fraud and money laundering in South Africa. This ruling effectively overturns a decision by Malawi’s chief magistrate, who ordered that the witnesses from South Africa could testify virtually.
What is happening? One should not read too much into this about-turn by the courts in Malawi, but one wonders about the positive headlines Bushiri is making around the world, such as his Goshen City being awarded as one of 30 emerging business brands in the Middle East and Africa by the Middle East and North Africa (MENA) emerging markets. He is turning out to be a national hero in Malawi.
According to the brief by the MENA’s Jury and Selection Committee:
It was France’s former president, Francois Hollande, who personally handed the award to Goshen City at MENA’s 8th awards ceremony in Dubai.
By the way, Dubai is the same city where Atul Kumar Gupta and Rajesh Kumar Gupta have fled to and are now opposing extradition requests by South African authorities. The Gupta brothers are accused persons in two criminal matters. The first matter in the State v M.P Thabethe and 17 Others, Park Road Cas 971/2/2021 (the Nulane matter) and the other matter is the State v M.P Thabethe and 27 Others, Park Road Cas 200/7/2017 (the Estina matter).
Bushiri’s extradition is one of the high-profile extradition and mutual legal assistance matters flagged by Justice and Correctional Services Minister Ronald Lamola in July 2022.
One would have hoped that the comity of relations between South Africa and Malawi would allow common sense to prevail when it came to the testimony of witnesses outside of Malawi. To start with, the South Africa Foreign Courts Evidence Act, No. 82 of 1962 (FCA), makes it possible for Malawi to apply to a judge of the high court to facilitate the taking of evidence to be used in courts in Malawi.
Requesting for facilitation of evidence through South African courts is also provided for in the Malawian Evidence by Commissions Act, 9 of 1967 [Chapter 4:03]. Part I of the Act makes provision for evidence by commissions outside Malawi in both criminal and civil proceedings.
Relevant to the witness testimony in the Bushiri matter, Article 3 states: “Where in any criminal proceedings in Malawi an order for the examination of any witness, who is to be found outside the jurisdiction of the Malawi courts, has been made, and a commission, order or another request for the examination of such witness has been addressed to a court of competent jurisdiction in the country in which such witness is to be found, such court or the chief judge thereof may nominate any judge or magistrate or another judicial officer within the jurisdiction of such court to take the examination of such witness and any deposition or examination so taken shall be admissible in evidence to the same extent as if it had been taken by or before the court to which the said commission, order or other request was addressed.”
Article 4 goes on to say: “Whenever, in pursuance of sections 2 and 3 any person is examined outside Malawi, such person may be examined on oath, affirmation or otherwise in accordance with the law in force in the place where the examination is taken, and any deposition or examination so taken shall be as effectual for all purposes as if the witness had been so examined before the court in Malawi ordering the examination.”
Sought-after victory for Bushiri
It came as a surprise, though not unlawful, that the high court is insisting on witnesses outside Malawi to be physically present in Malawi. This ruling appears to be a much sought-after victory by the Bushiri defence against the extradition request. But at what cost to comity between South Africa and Malawi, and the established practice of mutual legal assistance between the two countries?
Mutual legal assistance in criminal matters is a process by which states seek help in gathering evidence for use in criminal cases. This hardnosed approach by countries where South Africa is requesting the extradition of fugitives from the South African justice system will nullify efforts to see to it that justice is served. We might as well forget about bringing state capture and other high crimes fugitives to book.
The big question is: Are we facing an era where countries that should assist in bringing the accused person to book are willing to overlook their alleged crimes and human rights violations?
Research shows that this is often the case when security, diplomatic or commercial gains become an obstacle to extradition. What is coming out clear from the Bushiri matter is that criminal-justice cooperation is being obstructed under the guise that it undermines core values of individual freedoms and human rights, such as the safety and security of Bushiri.
Already we know that the extradition request is an uphill battle because Bushiri’s defence overtly and covertly argued about the fear of unfair trial in South African courts. Indeed, human rights concerns and unfair trial practices do often affect the willingness of requested countries to extradite.
Perhaps Malawian policymakers and judicial actors see the extradition of Bushiri as running contrary to their values and domestic norms, and would not want to be complicit in gifting to SA its philanthropist and national hero.
For now, the score is Bushiri 1 – South Africa 0.
For More News And Analysis About South-Africa Follow Africa-Press
