Extraordinary Rendition And The Laws Of Nations

By Aloy Ejimakor

The act of extraordinary rendition by the State has led to the dramatic development of a fairly large body of jurisprudence in many nations. Both in civil and common law countries, the juridical reactions to extraordinary rendition is pretty much the same. The decided cases point to a vested and predictable universal rule on extraordinary rendition that should guide any judiciary that finds itself confronted with it.

For obvious reason, I will not name names or render my personal or professional opinion on the impact of extraordinary rendition on the validity of prosecution of the person renditioned. What I will do is to simply give excerpts of a few pertinent cases from the United Kingdom, New Zealand and South Africa that have, in addition to a few others, set universal precedents on extraordinary rendition.

First, we go with the United Kingdom where, in the matter of Regina versus Horseferry Road Magistrates Court, the House of Lords held that “Where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant”. This case was reported in 1994 and it is good law to this day, not only in Britain but in many other countries where the courts have cited to it with much approval.

Let us now turn to New Zealand, another common law country where the Court of Appeal, in Reg versus Hartley, held that “There are explicit statutory directions that surround the extradition procedure. For the protection of the public, the statute rightly demands the sanction of recognised court processes before any person who is thought to be a fugitive offender can properly be surrendered from one country to another. In our opinion there can be no possible question here of the court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute”.

Continuing, the Court stated that “Some may say that in the present case a New Zealand citizen attempted to avoid a criminal responsibility by leaving the country: that his subsequent conviction has demonstrated the utility of the short cut adopted by the police to have him brought back. But this must never become an area where it will be sufficient to consider that the end has justified the means. The issues raised by this affair are basic to the whole concept of freedom in society”.

It is instructive that, in reaching this judgment, the New Zealand court cited to cases decided not only in Australia, including particularly the Australian locus classicus in Brown versus Lizar. This case was reported in 1978 and it was cited by the House of Lords in reaching the decision it did in Regina versus Horseferry Road Magistrates Court.

Now, let us come home to Africa where, in Ebrahim versus Minister of Justice, the South African Court of Appeal, in as recent as 2000, considered the case of an appellant, a member of the military wing of the African National Congress who had fled South Africa while under a restriction order. Thereafter, he was abducted in Swaziland by agents of South African government and renditioned to South Africa. He was subsequently charged with treason, convicted and sentenced to 20 years imprisonment.

The appellant had, prior to his trial filed an application before a High Court, seeking to restrain his prosecution on grounds that his abduction was in breach of international law and thus unlawful. The application failed and the trial continued. On appeal, the Court of Appeal held that the common law regards the removal of a person from a foreign country in which he had been “illegally arrested” to another country as tantamount to abduction and thus constituted a serious injustice that should bar his prosecution.

Continuing, the court held that the individual had to be protected against unlawful detention and against abduction, that the State is bound by rules and “had to come to court with clean hands”, especially when the State itself is a party to the proceedings. The court stated that this requirement was clearly not satisfied when the State was involved in the abduction of a person across its borders.

Accordingly, the court held that appellant’s application to stop his prosecution on the basis of the extraordinary rendition should have succeeded. And “as the appellant should never have been prosecuted, the consequences of the trial had to be undone”. Expectedly, the Court proceeded to set aside the conviction of the appellant, and he walked free.

Ejimakor, a Lawyer, wrote in from Abuja.