EXTRADITION: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Extradition (Designated Commonwealth Countries) Order
Extradition (Republic of Portugal) Order
Extradition (Republic of South Africa) Order
Extradition (The United Arab Emirates) Order
EXTRADITION (DESIGNATED COMMONWEALTH COUNTRIES) ORDER
(under section 4)
(24th October, 1997)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Designation of Commonwealth countries
S.I. 93, 1997.
This Order may be cited as the Extradition (Designated Commonwealth Countries) Order.
2. Designation of Commonwealth countries
All Commonwealth countries are hereby declared designated countries for the purposes of the Act.
EXTRADITION (REPUBLIC OF SOUTH AFRICA) ORDER
(under section 4)
(2nd May, 1969)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Application of Part II of the Act in the case of the Republic of South Africa
Schedule – Extradition Treaty between the Republic of South Africa and the Republic of Botswana
S.I. 56, 1969.
This Order may be cited as the Extradition (Republic of South Africa) Order.
2. Application of Part II of the Act in the case of the Republic of South Africa
So long as the Extradition Treaty between the Republic of Botswana and the Republic of South Africa, in respect of which instruments of ratification were exchanged on the 8th April, 1969, and the terms of which are recited in the Schedule hereto, remains in force, Part II of the Extradition Act, shall apply in the case of the Republic of South Africa, subject to the undermentioned conditions, exceptions or qualifications—
(a) the crimes which shall be deemed to be extradition crimes for the purposes of this Order and the Act shall be such as are specified in Article 2 of the Treaty;
(b) Articles 4, 5 and 9 of the Treaty shall have effect notwithstanding anything contained in or omitted from Part II of the Act.
SCHEDULE
EXTRADITION TREATY BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE REPUBLIC OF BOTSWANA
The State President of the Republic of South Africa and the President of the Republic of Botswana—
desiring to regulate by mutual agreement the relations between their two countries in the sphere of extradition of criminals;
have agreed to conclude a treaty to that effect and have for this purpose appointed as their Plenipotentiaries:
The State President of the Republic of South Africa:
Dr The Honourable Hilgard Muller
The President of the Republic of Botswana:
The Honourable Moutlakgola Palgrave Kediretswe Nwako
The Plenipotentiaries, after having exchanged their respective full powers, found to be in good and due form, have agreed as follows—
ARTICLE 1
Obligations to Extradite
The Contracting Parties undertake to surrender to each other, subject to their respective laws on extradition and in accordance with the provisions and conditions laid down in this Treaty, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence.
ARTICLE 2
Extraditable Offences
Extradition shall be granted in respect of offences which are in terms of the laws of the requesting Party subject to the jurisdiction of that Party’s highest court of appeal in criminal matters, provided that they are punishable, both under the laws of the requesting Party and of the requested Party, by imprisonment for a maximum period of at least twelve months or by some more severe penalty. Where a sentence has been imposed after conviction in respect of any such offence, extradition shall be granted irrespective of the nature or period of the punishment imposed.
ARTICLE 3
Political Offences
Extradition may be refused if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.
ARTICLE 4
Military Offences
Extradition for offences under military law which are not offences under ordinary criminal law is excluded from the application of this Treaty.
ARTICLE 5
Fiscal Offences
Extradition shall be granted in accordance with the provisions of this Treaty for offences in connection with taxes, duties, customs and exchange, only if the Contracting Parties have so decided by exchange of notes in respect of any such offence or category of offences.
ARTICLE 6
Capital Punishment
Extradition may be refused if under the law of the requesting Party the offence for which extradition is requested is punishable by death and if the death penalty is not provided for such offence by the law of the requested Party.
ARTICLE 7
Pending Proceedings for the Same Offence
The requested Party may refuse to extradite the person claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested.
ARTICLE 8
Non bis in Idem
Extradition shall not be granted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the offence or offences for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences.
ARTICLE 9
Lapse of Time
Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by reason of lapse of time from prosecution or punishment for the offence for which extradition is requested.
ARTICLE 10
The Request and Supporting Documents
1. The request shall be in writing and shall be communicated through the diplomatic channel or such other channel as may from time to time be agreed upon by the Contracting Parties.
2. The request shall be supported by—
(a) if the person claimed is a person accused, the original warrant of arrest issued in accordance with the law of the requesting Party and prima facie evidence of the commission of the offence by such person;
(b) if the person claimed is a person convicted, the original or a certified copy of the record of the conviction and enforceable sentence and a statement showing how much of the sentence has not been carried out;
(c) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible;
(d) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law; and
(e) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity.
ARTICLE 11
Documents relating to Evidence
The authorities of the requested Party shall admit as evidence in any proceedings for extradition any deposition, statement on oath or affirmation, any record of a conviction, any warrant, and a copy or translation of the aforesaid documents, if it is authenticated—
(a) in the case of a warrant, by being signed, or in the case of any other original document by being certified, by a judge, magistrate or other competent officer of the requesting Party or, in the case of a copy or translation, by being certified to be a true copy or translation of the original; and
(b) either by the oath of some witness or by being sealed with the official seal of the Minister of Justice or other competent authority of the requesting Party,
or in such other manner as may be permitted by the law of the requested Party.
ARTICLE 12
Supplementary Information
If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Treaty, the latter Party shall request the necessary supplementary information and may fix a time limit for the receipt thereof.
ARTICLE 13
Rule of Speciality
1. A person who has been extradited shall not be proceeded against, or sentenced or detained with a view to the carrying out of a sentence for any offence committed prior to his surrender other than that for which he was extradited, nor shall he for any other reason be restricted in his personal freedom, except in the following cases—
(a) When the Party which surrendered him consents thereto. A request for consent shall be submitted, accompanied by the documents mentioned in Article 10, paragraph 2, and a legal record of any statement made by the extradited person in respect of the offence concerned. Consent shall not be withheld when the offence for which it is requested is itself subject to extradition in accordance with the provisions of this Treaty.
(b) When the person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
2. The requesting Party may however take any measures necessary to remove the person from its territory, or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time.
ARTICLE 14
Re-Extradition to Third State
Except as provided for in Article 13, paragraph 1(b), the requesting Party shall not, without the consent of the requested Party, surrender to a third state a person surrendered to the requesting Party and sought by the said third state in respect of offences committed before his surrender. The requested Party may request the production of the documents mentioned in Article 10, paragraph 2.
ARTICLE 15
Provisional Arrest
1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
2. The request for provisional arrest shall state that one of the documents mentioned in Article 10, paragraph 2(a) or (b), exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought.
3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request.
4. Provisional arrest may be terminated if within a period of 18 days after arrest the requested Party has not received the request for extradition and the documents mentioned in Article 10, paragraph 2. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.
5. Release shall not prejudice re-arrest and extradition if a request for extradition is received subsequently.
ARTICLE 16
Conflicting Requests
If extradition is requested concurrently by more than one state, either for the same offence or for different offences, the requested Party shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and possibility of subsequent extradition to another state.
ARTICLE 17
Surrender of the Person to be Extradited
1. The requested Party shall inform the requesting Party by the means mentioned in Article 10, paragraph 1, of its decision with regard to the extradition.
2. Reasons shall be given for any complete or partial rejection.
3. If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender.
4. Subject to the provisions of paragraph 5 of this Article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him thereafter for the same offence.
5. If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree on a new date for surrender and the provisions of paragraph 4 of this Article shall thereupon apply.
ARTICLE 18
Postponed or Conditional Surrender
1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party for an offence other than that for which extradition is requested or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party.
2. The requested Party may, instead of postponing surrender, surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement between the Parties.
ARTICLE 19
Handing Over of Property
1. The requested Party shall, in so far as its law permits and at the request of the requesting Party, seize and hand over to the latter property—
(a) which may be required as evidence; or
(b) which has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently.
2. The property mentioned in paragraph 1 of this Article shall be handed over even if extradition, having been granted, cannot be carried out owing to the death or escape of the person claimed.
3. When the said property is liable to seizure or confiscation in the territory of the requested Party, the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over to the requesting Party on condition that it be returned.
4. Any rights which the requested party or third parties may have acquired in the said property shall remain unaffected. Where these rights exist, the property shall be returned without charge to the requested Party as soon as possible after the trial, unless such rights have been waived.
ARTICLE 20
Transit
1. Transit through the territory of either Contracting Party shall be granted to the other Contracting Party in respect of the extradition of any person from a third state in accordance with the following provisions—
(a) A request for transit shall be submitted in the manner prescribed in Article 10, paragraph 1.
(b) The provisions and conditions laid down in this Treaty shall mutatis mutandis apply to such a request as if it were a request for the extradition of the person concerned.
(c) The Party requested to grant transit may require the production of the documents mentioned in Article 10, paragraph 2.
(d) If the person claimed is to be transported by aircraft through the territory of either Contracting Party, the following provisions shall apply—
(i) If no intermediate landing is to be made, the requesting Party shall notify the Contracting Party over whose territory the flight is to be made and shall confirm that a warrant of arrest or a conviction and enforceable sentence exists and shall give an assurance that in view of the facts known to it and considering the documents in its possession there is no reason why transit in accordance with this treaty should be refused. In the case of an unscheduled intermediate landing the notification concerning the use of air transport shall have the effect of a request for provisional arrest as provided for in Article 15, and the requesting Party shall submit a formal request for extradition.
(ii) If an intermediate landing is to be made the provisions of paragraphs (a), (b) and (c) shall apply.
2. Any right of transit arising from the operation of paragraph 1, shall be exercised in accordance with such conditions as the requested Party may prescribe.
ARTICLE 21
Languages to be Used
Where the Republic of South Africa is the requested Party, the documents to be produced shall be accompanied by certified translations into Afrikaans or English if the originals are not in one of these languages. Where the Republic of Botswana is the requested Party, the documents to be produced shall be accompanied by certified translations into English if the originals are not in this language.
ARTICLE 22
Expenses
1. Expenses incurred in the territory of the requested Party by reason of the arrest, detention and maintenance of the person claimed and any court proceedings arising from the request for extradition shall be borne by that Party.
2. The requested Party shall bear the expenses occasioned by the conveyance of the person claimed to its frontier or port of embarkation while expenses occasioned by the transportation of such person from that frontier or port to the territory of the requesting Party shall be borne by the latter Party.
3. Expenses incurred by reason of transit through the territory of a Party requested to grant transit shall be borne by the requesting Party.
ARTICLE 23
Application of the Treaty
This Treaty shall apply to offences committed and sentences imposed before or after the date on which it comes into force.
ARTICLE 24
Ratification and Entry into Force
1. This Treaty shall be ratified. The instruments of ratification shall be exchanged as soon as possible.
2. This Treaty shall enter into force thirty days after the date of the exchange of the instruments of ratification.
ARTICLE 25
Termination
This Treaty shall be terminated six months after written notice of denunciation has been given by either of the Contracting Parties.
IN WITNESS WHEREOF the respective Plenipotentiaries have signed this Treaty.
DONE in duplicate in the Afrikaans and English languages, both texts being of equal force and effect: Provided that if there is any uncertainty concerning the interpretation of the Treaty, the English text shall prevail.
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For the Republic of South Africa: |
H. MULLER |
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For the Republic of Botswana: |
M.P.K. NWAKO |
EXTRADITION (REPUBLIC OF PORTUGAL) ORDER
(under section 4)
(1st August, 1970)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Application of Part II of the Act in the case of the Republic of Portugal
Schedule I
Schedule II
S.I. 63, 1970.
This Order may be cited as the Extradition (Republic of Portugal) Order.
2. Application of Part II of the Act in the case of the Republic of Portugal
So long as the Extradition Treaty between the Republic of Botswana and the Republic of Portugal, in respect of which letters were exchanged on the 6th February, 1970 and the terms of which are recited in Schedule I to this Order, remains in force, Part II of the Extradition Act, shall apply in the case of the Republic of Portugal, subject to the conditions, exception or qualification that the crimes which shall be deemed to be extradition crimes for the purposes of this Order and the Act shall be such as are specified in Article 2 of the Treaty and set out in Schedule II to this Order.
SCHEDULE I
Your Excellency,
I have the honour to acknowledge receipt of your Note Number CP. 8/38, dated 21st January, 1970, the contents which are as follows:
I have the honour to refer to the Treaty between Great Britain and Portugal for the Mutual Surrender of Fugitive Criminals signed at Lisbon, October 17th, 1892 and applied to the former Bechuanaland Protectorate and to state that it is the understanding of the Government of Botswana that the Government of Portugal is in agreement:
(a) that this Treaty should apply between the Republic of Botswana and the Government of Portugal, unless otherwise terminated in terms of Article XVIII, pending the conclusion of a new treaty; and
(b) that a formal agreement should now be concluded.
I should be grateful for your confirmation that the Government of Portugal is in agreement with the foregoing and that the official publication in both our countries of this letter and of the reply letter of the Government of Portugal, concurring therein and that the lodging of the said letters with the Secretary-General of the United Nations shall constitute an agreement on the Mutual Surrender of Fugitive Criminals between the Government of the Republic of Botswana and the Government of Portugal.
I have the honour to be,
Your Excellency’s obedient servant,
E.S. Masisi,
Minister of State.
I have the honour to state that the Government of Portugal is in agreement with the foregoing, and that Your Excellency’s letter and this reply will constitute an agreement on the Mutual Surrender of Fugitive Criminals between the Government of the Republic of Botswana and the Government of Portugal.
I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.
Jose Eduardo do Menezes Rosa,
Ambassador of Portugal.
SCHEDULE II
The crimes or offences for which the extradition is to be granted are the following—
1. Murder (including assassination, infanticide and poisoning), or attempt or conspiracy to murder
2. Manslaughter
3. Maliciously wounding or inflicting grievous bodily harm
4. Assault occasioning actual bodily harm
5. Counterfeiting or altering money, either metallic or of any other kind representing the first named, or uttering counterfeit or altered money of any of those kinds
6. Knowingly making any instrument, tool, or engine adapted and intended for counterfeiting coin
7. Forgery, counterfeiting or altering, or uttering what is forged or counterfeited or altered
8. Embezzlement or larceny
9. Malicious injury to property, if the offence be indictable
10. Obtaining money, goods, valuable security by false pretences
11. Receiving money, valuable security, or other property, knowing the same to have been stolen, embezzled, or unlawfully obtained
12. Crimes against Bankruptcy Law
13. Fraud by a bailee, banker, agent, factor, trustee, or director or member, or public officer, of any Company, made criminal by any law for the time being in force
14. Perjury, or subornation of perjury
15. Rape
16. Carnal knowledge, or any attempt to have carnal knowledge, of a girl under 16 years of age
17. Indecent assault
18. Administering drugs or using instrument with intent to procure the miscarriage of a woman
19. Abduction
20. Bigamy
21. Child-stealing
22. Abandoning children, exposing or unlawfully detaining them
23. Kidnapping and false imprisonment
24. Burglary or house-breaking
25. Arson
26. Robbery with violence
27. Any malicious act done with intent to endanger the safety of any person in a railway train
28. Threats, by letter or otherwise, with intent to extort
29. Piracy by law of nations
30. Sinking or destroying a vessel at sea, or attempting or conspiring to do so
31. Assaults on board a ship on the high seas, with intent to destroy life or to do grievous bodily harm
32. Revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas against the authority of the master
33. Dealing in slaves in such a manner as to constitute a criminal offence against the laws of both States.
Extradition is also to be granted for participation in any of the aforesaid crimes, provided such participation be punishable by the laws of both the Contracting Parties.
Extradition may also be granted, at the discretion of the State applied to, in respect of any other crime for which, according to the laws of both the Contracting Parties for the time being in force, the grant can be made.
The Portuguese Government will not deliver up any person either guilty or accused of any crime punishable with death.
TREATY SERIES NO. 7
1894
TREATY
between
GREAT BRITAIN AND PORTUGAL for the MUTUAL
SURRENDER OF FUGITIVE CRIMINALS
Signed at Lisbon, October 17, 1892
Ratifications exchanged at Lisbon, November 13, 1893
EXTRADITION (THE UNITED ARAB EMIRATES) ORDER
(section 3(4) read with section 3(5))
(28th December, 2018)
ARRANGEMENT OF PARAGRAPHS
PARAGRAPH
1. Citation
2. Application of the Act in the case of the United Arab Emirates
3. Extradition Crimes
S.I. 197, 2018.
This Order may be cited as the Extradition (The United Arab Emirates) Order.
2. Application of the Act in the case of the United Arab Emirates
The Extradition Act shall apply between Botswana and the United Arab Emirates with respect to surrendering of any fugitive criminal, subject to the conditions, exceptions or qualifications as are specified under paragraph 3 of this Order.
(1) The crimes which shall be deemed to be extradition crimes for the purposes of this Order and the Act shall be crimes which—
(a) in terms of the laws of the requesting country, are subject to the jurisdiction of that requesting country’s highest court of appeal in criminal matters; and
(b) are punishable, both under the laws of the requesting country and of the requested country, by imprisonment for a maximum period of at least two years or by some more severe penalty.
(2) Where a sentence has been imposed after conviction in respect of a crime referred to in subparagraph (1), extradition shall be granted irrespective of the nature or period of the punishment imposed.