Abduction of Fugitives and Jurisdiction

FOR DECADES BEFORE 1991, when it came to questions of criminal jurisdiction in cases concerning a trial of a fugitive abducted from a foreign country, courts rigidly followed the legal maxim mala captus, bene detentus, which translates to: “wrongfully captured, legally detained”.

This maxim was premised on the principle that once a person is under the authority of court and has been charged in accordance with the law, he could be tried, and if convicted, sentenced regardless of the mode by which such a person was brought under the jurisdiction of that court.

The South African Court of Appeal in 1978 had to determine whether or not South African courts would have jurisdiction in circumstances where certain freedom fighters were abducted from Swaziland and brought into South Africa to stand trial.

The Court of Appeal found that international law did not operate to oust the court’s jurisdiction because of the abduction.
Notwithstanding the abduction of the concerned freedom fighters, the trial court was found, on appeal, to have been entitled to conduct the trial.

The South African law changed for the better when in a case involving Mr Ebrahim in 1991, a member of Umkhonto we Sizwe, the Court of Appeal found that the trial court which convicted and sentenced him to 20 years’ imprisonment lacked jurisdiction to try him given the wanton breach of international law during his abduction in Swaziland.

It proceeded and set aside both his conviction and sentence.

Later on in Zimbabwe a fugitive, who was brought before a court to stand trial after he was handed over to Zimbabwean authorities by Botswana, was convicted and sentenced.

He appealed to the Supreme Court of Zimbabwe that the trial court did not have jurisdiction due to his unlawful abduction from Botswana.

The Supreme Court opined that where agents of the state of refuge (Botswana), without resort to existing extradition procedures (if they exist), voluntarily surrendered a fugitive for prosecution to another state (Zimbabwe), the receiving state (Zimbabwe), if it has not exercised any force upon the refuge state, would not have violated international law.

This was because the fugitive was arrested by Botswana agents, without collusion with Zimbabwe, and was voluntarily handed over to Zimbabwe.

Therefore, the Supreme Court found that the trial court had jurisdiction primarily because Zimbabwe was not involved in the alleged abduction in Botswana.

In a Namibian case involving a high treason fugitive taken from Botswana with the involvement of Namibian agents and brought to Namibia, the Supreme Court of Namibia found that the trial court did not have jurisdiction because of the collusion between Botswana and Namibian officials at the time when the fugitive, one Mr Likanyi, was taken from Botswana.

Likanyi, therefore, succeeded in his appeal against his conviction and sentence by convincing the court that the trial court did not have jurisdiction over him because he was brought within its jurisdiction in violation of international law.

The Supreme Court, once it found that Namibian agents took Likanyi into custody on Botswana territory and that they restricted his liberty while in Botswana, it must have followed that he was under their coercive power already in Botswana. Something that negated any voluntary surrender.

The actions of Namibian agents in Botswana when extracting Likanyi were, therefore, found to be sufficient to constitute the performance by Namibian agents in Botswana, of an act of arrest in violation of international law.

The Supreme Court, therefore, did not follow the olden maxim referred to at the beginning of this piece.

It rather followed pro liberty principles largely sourced from Roman Dutch Law to the effect that a court will exercise its power to decline jurisdiction where the prosecution, the police or the executive had been involved in a breach of international law or the law of another state when bringing a fugitive before court.

The overriding principle is, therefore, that courts must decline jurisdiction in respect of a fugitive who was abducted with the involvement of agents of the receiving state.

Furthermore, where agents of a receiving state connive with those of the refuge state to breach extradition laws or customary international law rules when bringing a fugitive before a court of the receiving state, the court must decline to exercise jurisdiction.

Therefore, international law does not countenance violation by one state of the territorial sovereignty of the other. In fact, it is a violation of international law for a state to carry out an act of sovereignty such as an arrest in another state’s territory.

It would not matter that such a sovereign act of arrest is sanctioned or otherwise authorised by the country on whose domain the coercive act of arrest is being carried out.

Therefore, the recent reported abduction of a head of state by foreign agents in another country appears to be palpably inconsistent with international law when considered from the Namibian legal perspective. So, mala captus, bene detentus must, therefore, be jettisoned in all jurisdictions.

*Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and is the author of seven law publications.

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