Chairperson, I will start with the RSA/USA Mutual Legal Assistance Treaty. This treaty between South Africa and the United States is the latest treaty in a series on mutual legal assistance in criminal matters signed by the United States with countries such as Argentina, the Bahamas, Canada, Hungary, Italy, Jamaica, Korea, Mexico, Morocco, the Netherlands, Panama, the Philippines, Spain, Switzerland, Thailand, Turkey, the United Kingdom and Uruguay.
Mutual legal assistance in criminal matters is a relatively recent development. It seeks to improve the effectiveness of judicial assistance and to regulate and facilitate its procedures. Each country designates a central authority, generally its justice department, for direct communication. The treaties include the power to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants and to serve processes.
Generally, the remedies offered by the treaties are only available to the prosecutors. The defence must usually proceed with the methods of obtaining evidence in criminal matters under the laws of the host country, which usually involves letters. It is impossible to appreciate the importance of treaties such as this without understanding the link between the increase in the incidence of crime and our transition to democracy, and the impact of globalisation on crime.
Our transition from apartheid authoritarianism to democracy has opened up our society, and, with factors such as modern transportation and financial infrastructure, inadequate border controls and reprioritisation of resources to address the inequalities of the past, huge gaps have emerged in which criminals, including international organised crime syndicates, can freely operate. Globalisation itself has created the perfect opportunity for criminals to successfully exploit the legal uncertainty brought about by its own processes.
Increasingly, there is a new jurisdiction for both criminals and the police, especially international ones. Criminals depend on their ability to exploit differences in efficiency between jurisdictions, and globalisation has greatly enhanced their prospects of doing so. In many cases, globalisation has helped place the international criminal outside the reach of the jurisdiction in which the crime was committed. For example, in which jurisdiction should an offence be prosecuted when it is committed on the Internet? How does a jurisdiction dismantle activities of an international criminal group when they bank their profits electronically in a tax haven and reside in a jurisdiction in which law enforcement has been weakened by corruption, and do so often under a false name or a falsely purchased passport? The above two examples show the increasingly difficult tasks being faced by law enforcement agencies across the globe in dealing with crime. They also prove how important international co-operation on criminal matters has become. Therefore, the Mutual Legal Assistance Treaty seeks to formalise and facilitate co-operation between South Africa and the United States on criminal matters. I have no doubt that such mutual legal assistance will greatly enhance the capacity of our police and prosecutorial services, and will serve as a useful tool in completing the criminal cases which, in the past, proved difficult to investigate and prosecute owing to jurisdictional problems.
With regard to the RSA/USA Extradition Treaty between South Africa and the United States, I think it is appropriate to direct the attention of the members to an incident that happened here in Cape Town last year. A certain person who applied for refugee status in our country was given temporary residence status pending the outcome of an application for extradition which was sought by the United States on charges relating to the bombing of the United States embassy in Tanzania. The said person was arrested in South Africa and, after being interrogated by certain officials of the Home Affairs Department, handed over to the United States agents and flown to America. He appeared in court and was informed by the presiding judge that the death penalty was a competent sentence in his case should he be found guilty.
The question raised by this case is: What would have happened to this person had an extradition treaty been in existence at the time between South Africa and the United States? Personally, I think it would have been unlikely that the person would have been handed over had we known that the death penalty could be imposed. This is because the extradition treaty between South Africa and the United States clearly stipulates that extradition may be refused by the requested state if the extradition is sought for an offence which is not punishable by death under the laws of the requested state - in this case, South Africa.
The treaty has certain obligations for the parties. One of the obligations is that the parties agree to extradite to each other, pursuant to the provisions of this treaty, persons whom the authorities in the requesting states have charged with or convicted on an extraditable offence.
We have a range of extraditable offences which I will not refer to. I would like to refer to one, though, in Article 4, which says that extradition shall not be granted for political and military offences. For the purposes of this treaty, some of the cases shall be considered political offences. One of them is murder or other violent crime against a head of state or deputy head of state of the requesting or requested state, or against a member of such a person's family, an offence for which both the requesting and requested states have the obligation, pursuant to a multilateral international agreement, to extradite the person sought or to submit the case to their respective competent authorities for decision as to prosecution. I now come to murder and any offence involving kidnapping, abduction and so on.
Notwithstanding rule 10(2), extradition shall not be granted if the executive authority of the requested state determines that there are substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person's gender, race, religion, nationality or political opinion. The executive authorities of the requested state shall refuse extradition for offences under military laws that are not offences under ordinary criminal laws.
The Select Committee on Security and Constitutional Affairs has dealt with the treaties, and all the parties have agreed to support the treaties. I therefore move that the House adopt the treaty. [Applause.]
Debate concluded.
Report adopted in accordance with section 65 of the Constitution.