Blogging from Prague #5

An interesting deportation case from South Africa from more than a decade ago raises interesting issues related to deportation, extradition, and terrorism. We may recall Ali Abdul Saoud Mohamed who was tried in a New York federal court house for the bombings of U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998. Mohamed, who at times was a double agent for the CIA and for the Egyptian Islamic Jihad, eventually pled guilty to conspiracy, avoiding the death penalty and getting sentenced to life without possibility of parole.

What’s often overlooked is that Mohamed was apprehended in South Africa in a joint effort by the FBI and South African law enforcement. He was not warned about self-incrimination, the right to remain silent, nor the right to legal representation. His deportation was facilitated by allowing the U.S. to fly him out on a special U.S. – supplied airplane.

His legal representatives continued his fight, however, in South Africa. On May 29, 2001, the high Constitutional Court for the country ruled that his deportation was a grievous error because his removal essential amounted to an extradition. The Court wrote “The rights in issue here are the right to human dignity, the right to life and the right not to be treated or punished in a cruel, inhuman or degrading way. According to the argument the Constitution not only enjoins the South African government to promote and protect these rights but precludes it from imposing cruel, inhuman or degrading punishment. The Constitution also forbids it knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition of such punishment. In particular, this strikes at the imposition of a sentence of death. Therefore, even if it were permissible to deport Mohamed to a destination to which he had consented and even if he had given his informed consent to such removal, the government would have been under a duty to secure an undertaking from the United States authorities that a sentence of death would not be imposed on him, before permitting his removal to that country.”

Part of the Court’s order was that the South African government must “cause the full text of this judgment to be drawn to the attention of and to be delivered to the Director or equivalent administrative head of the Federal Court for the Southern District of New York as a mater of urgency.”

Importantly, the Court notes, this “is a serious finding. South Africa is a young democracy still finding its way to full compliance with the values and ideals enshrined in the Constitution. It is therefore important that the state lead by example. This principle cannot be put better than in the celebrated words of Justice Brandeis in Olmstead et al v United States:

“ In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously . . . Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example . . . If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

The South African case is Mohamed and Another v. President of the RSA and Others, 2001 SACLR LEXIS 37.

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