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Daniel Nemukuyu Harare Bureau—
MURDER suspects could avoid the death penalty in Zimbabwe by skipping the border into South Africa, which now says it will only extradite suspects if capital punishment is taken off the table. The National Prosecuting Authority has raised the fears following South Africa’s refusal to extradite Joshua Dube, who allegedly committed armed robbery and rape before fleeing to that country where he was arrested in 2009.

South Africa does not recognise the death penalty in its statutes and the differences with Zimbabwean laws has created a dilemma for the NPA which has since approached the Constitutional Court seeking an undertaking that no death penalty would be imposed on such fugitives if extradited.

Chief Law Officer Chris Mutangadura said in an affidavit he filed at the court that in the absence of an undertaking from the government to spare the suspects from death if extradited, prosecutions will be unlikely with South Africa unwilling to extradite.

Dube is still in a South African prison where authorities are now threatening to set him free on the basis that Zimbabwe is not making the required undertaking that he would not be hanged.

The NPA’s assurances that it would not pursue the death penalty against Dube if he was extradited were rejected by South Africa on the basis that it was not binding on the courts of Zimbabwe.

President Mugabe has since refused to make such an undertaking on the basis of public policy.
But in a test case that is likely to determine how several other related extraditions will be dealt with, the NPA on September 11 this year filed a constitutional application seeking an order compelling the courts in Zimbabwe to impose a non-capital punishment on Dube in the event that he is extradited and eventually convicted.

The NPA wants the undertakings to cover every extradition of murder suspects from countries that do not provide for the death penalty.
Chief Justice Godfrey Chidyausiku is yet to rule if the constitutional application by the NPA should be heard on an urgent chamber basis.

On December 10, 2009, the government formally requested for the extradition of Dube, but South Africa has refused to budge.
Mutangadura urged the Constitutional Court to rule in the state’s favour to manage the crisis that faces the state with regards to the case.

He said there were several other pending extradition requests between Zimbabwe and South Africa and that the court had to make a ruling that helps bring individuals who commit heinous crimes to justice.

“The fundamental issue is that if this Honourable Court does not intervene, there is a real risk or possibility that all murder suspects who have found hibernation in South Africa will not be extradited to Zimbabwe to face justice,” he said in the affidavit.

“I am responsible for instituting international requests for mutual legal assistance in criminal matters as well as extradition requests. My knowledge of such issues honestly shows that we have a big insurmountable hurdle to pass if we are to achieve our constitutional mandate to undertake criminal prosecutions on behalf of the State.

“Zimbabwe and South Africa are in close proximity to each other hence real risk of heinous criminals finding safe haven in South Africa as soon as they commit offences, among which murder is one of the most common offences…”

The Zimbabwean Constitution provides for the death penalty for male murder convicts aged between 23 and 69, while women are exempted from the punishment.
Capital punishment does not exist in the laws of South Africa and the same law also holds that no fugitive shall be extradited to a country where death penalty can be imposed unless there is an undertaking that the suspect will not be executed if found guilty.