Khalfan Khamis Mohamed, et al. v. President of the Republic of South Africa and Six Others, et al.

M is a Tanzanian citizen, who was residing in South Africa after obtaining a temporary residence permit, was wanted in the US on a number of capital charges in connection with the bombing of two US embassies in Africa. When seeking to renew his temporary residence permit, M was arrested, detained and questioned by South African immigration officials. One day later he was transferred to the US in the company of FBI agents where he was to stand trial in New York for “murder, murder conspiracy [and] attack on US facility”. The legal justification for his deportation put forward by the government was his illegal status under the Aliens Control Act (the Act) and the Aliens Control Regulations published thereunder. Under Regulation 23 a deported person shall be returned to the country they hold a passport for, is a citizen or national of, or has the right to domicile in. Under s 52 of the Act a person cannot be deported for 3 days until after they have been declared a prohibited person under the Act. An urgent appeal to the Constitutional Court was brought alleging that relief sought could have a bearing on the criminal trial in the US, which could expose M to the death penalty if he was found guilty. M challenged the validity of his deportation; the fact that the deportation involved the possibility of his capital punishment and the legal efficacy of consent sought to deport or extradite him. In particular M argued that these actions violated his constitutional right to life (s 11), to dignity (s 10) and not to be subjected to cruel, inhuman or degrading treatment (s 12).

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

1. The State’s power to deport can only be derived from the Act. Under regul 23 the State can determine the destination of deportation. However, regul 23 does not apply in the circumstances as the US is not a permitted destination as M did not have the requisite links to the US. Therefore the State was not authorized under the Act to deport M to the US.
2. More fundamentally, the State has an obligation to protect the right to dignity, the right to life and the right not to be treated or punished in a cruel, inhuman or degrading way. The death penalty is inconsistent with the values and provisions of the Constitution (S v Makwanyane & Anor 1995 (3) SA 391 (SACC) applied).
3. The distinction between deportation and extradition in this case is not relevant, as the procedures followed were unlawful however characterized. Further, M’s ‘deportation’ or ‘extradition’ would be unconstitutional, in any event, unless the State first sought an assurance that he would not be sentenced to death or if so sentenced would not be executed.
4. The immigration authorities failed to give any value to M’s right to life, his right to have his human dignity respected and his right not to be subjected to inhuman punishment by failing to secure such an assurance. There is no reason to believe that had an assurance been sought it would have been refused. The fact that the South African government co-operated with a foreign government to secure the removal of a fugitive from South Africa to a country of which M is not a national and with which he has no connection other than that he is to be put on trial for his life there, is contrary to the underlying values of the South African Constitution. It is clear that as a direct result of the failure to obtain an assurance, M is now facing the possibility of the death sentence.
5. Although the government has alleged that M consented to his deportation to the US this is not valid because he was not made aware of his crucial right to demand protection against exposure to the death penalty and he was at no time afforded the benefit of consulting a lawyer.
6. An order to the following effect is made: that handing over M was unlawful because it infringed ss 10, 11 and 12(1)(d) of the Constitution and because South Africa had no authority under the Act to remove M to the US and any removal should only have taken place 3 days after he had been declared a prohibited person under the Act. The full text of the judgment is to be conveyed to the trial judge in the US.

[Adapted from INTERIGHTS summary, with permission]

“[48] Our Constitution provides that “everyone has the right to life.” There are no exceptions to this right. However, like all other rights in the Bill of Rights, it is subject to limitation in terms of section 36 of the Constitution. The requirements prescribed by section 36 are that the limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including those mentioned in the section. These considerations were taken into account by this Court in Makwanyane in holding that capital punishment was not justifiable under the interim Constitution. In the light of” these provisions of our Constitution we can revert to the argument mentioned above that a “deportation” or “extradition” of Mohamed without first securing an assurance that he would not be sentenced to death or, if so sentenced, would not be executed would be unconstitutional.”

“[53] … Under our Constitution these rights are not qualified by other principles of justice. There are no such exceptions to the protection of these rights. Where the removal of a person to another country is effected by the state in circumstances that threaten the life or human dignity of such person, sections 10 and 11 of the Bill of Rights are implicated. There can be no doubt that the removal of Mohamed to the United States of America posed such a threat. This is perhaps best demonstrated by reference to the case of Salim who was extradited from Germany to the United States subject to an assurance that the death penalty would not be imposed on him. This assurance has been implemented by the United States and Salim is to be tried in proceedings in which the death sentence will not be sought.”

“[59] These cases are consistent with the weight that our Constitution gives to the spirit, purport and objects of the Bill of Rights and the positive obligation that it imposes on the state to “protect, promote and fulfil the rights in the Bill of Rights”. For the South African government to cooperate with a foreign government to secure the removal of a fugitive from South Africa to a country of which the fugitive is not a national and with which he has no connection other than that he is to be put on trial for his life there, is contrary to the underlying values of our Constitution. It is inconsistent with the government’s obligation to protect the right to life of everyone in South Africa, and it ignores the commitment implicit in the Constitution that South Africa will not be party to the imposition of cruel, inhuman or degrading punishment.”