Speedily ratify protocol on fugitives

This can be done by the speedy ratification of the SADC Protocol on Mutual Legal Assistance in Criminal Matters that provides wide measures for legal co-operation between member-states. There is need for Sadc member states to move with speed in ratifying the protocol to stamp out crime ahead of the 2010 Soccer World Cup that will be hosted by South Africa. It is vital to ensure that by the time the world cup approaches, criminals will know that they have nowhere to hide in the region, and will look for new haunts if need be, as long as they do not mar the successful hosting of that show piece. The SADC protocol provides for co-operation in investigations, prosecutions or proceedings relating to offences involving transnational organised crime and corruption. According to the protocol, assistance shall be provided without regard to whether the conduct under investigation or prosecution in the requesting state constitutes an offence under the laws of the requested state. The protocol will go a long way in enabling police in a member state to facilitate prosecution of suspects wanted in connection with corruption who would have taken refuge in some SADC countries, particularly South Africa. Member-states are obliged to facilitate the appearance of witnesses or the assistance of persons in investigations as well as taking measures to freeze or forfeit the proceeds of crime. Upon request, a person in custody in the requested state shall be temporarily transferred to the requesting state to assist investigations or testify, provided that the person consents. When the person transferred is required to be kept in custody under the law of the requested state, the requesting state shall hold that person in custody and shall return the person at the conclusion of the execution of the request. The requested state shall also execute a request for the search, seizure and delivery of property to the requesting state if the request includes information justifying such action under its laws. However, the protocol shall not apply to the arrest or detention of a person with a view to extradition or the transfer of persons in custody to serve sentences. It shall also not apply to enforcement in the requested state of criminal judgments imposed in the requesting state except to the extent permitted by the laws of the requested state. The protocol that was tabled for signing on October 3 2003 has been signed by 13 of the 14 member states, with Mozambique’s signature still outstanding. It has however been ratified by only four countries Mauritius, South Africa, Tanzania and Zimbabwe; whilst Angola, Botswana, the Democratic Republic of Congo, Lesotho, Malawi, Mozambique. Namibia, Swaziland and Zambia are still to ratify the Protocol. The protocol requires ratification by two thirds of the signatory States in accordance with their respective constitutional procedures for it to enter into force 30 days after the deposit of instruments of ratification by two-thirds of the member states. Zimbabwe was the latest to ratify the protocol on April 5 this year. Legislators from the ruling Zimbabwe African National Union Patriotic Front (Zanu-PF) and the opposition Movement for Democratic Change (MDC), who normally do not agree to anything, assented to the protocol. Zimbabwe’s Justice, Legal and Parliamentary Affairs Minister Patrick Chinamasa told the Zimbabwean House of Assembly that the SADC protocol would clear some of the legal hurdles that Zimbabwe faced when suspects wanted in connection with corruption and various crimes fled to neighboring countries. The Zimbabwean minister said the document was central to efforts to harmonise legal systems in the region. He said any disputes between member-states in relation to mutual legal assistance would be referred to the SADC tribunal for arbitration. Contributing to the same debate, David Coltart (MDC legislator for Bulawayo South -a constituency in Zimbabwe’s second largest city) said the opposition welcomed the Sadc protocol. “Our law enforcement agencies have had problems in combating crime that goes beyond our borders. This is good and a welcome addition to our statutes,” said Coltart. Over the past five years fugitives from justice have been finding safe havens in the region due to lack of effective co-operation in the policing and investigation of criminals. Fugitives from justice in countries like Zimbabwe have been finding safe havens in South Africa, and vehicles stolen at gunpoint in South Africa have found ready markets in neighboring Malawi, Zambia and Zimbabwe. It is providential that the world body, the United Nations has also come up with a convention to buttress the regional protocol, this is in the form of the UN Convention against Transnational Organised Crime. The UN convention promotes effective co-operation among member-states in combating and preventing cross-border organised crime and provides for the extradition of suspects wanted in connection with organised crime, including corruption. The UN Convention against Transnational Organised Crime, which was ratified by Harare on the same day as the Sadc protocol, requires member-countries to establish domestic regulatory and supervisory systems for the monitoring and detection of organised crime. The convention also provides for the confiscation and seizure of proceeds from transnational organised crime. State parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation. Proceeds of crime or property confiscated by a state party shall be disposed of in accordance with its domestic law and administrative procedures. The extradition of suspects shall be subject to the conditions provided by the domestic law of the requested state or applicable extradition treaties, including conditions in relation to t he minimum penalty for extradition. Member states should also speedily ratify the UN convention, as it will go a long way in curbing terrorist activity in the region that has been used as a transition zone by illicit arms traffickers. The proliferation of and illicit trafficking in small arms are widely recognised as two of the biggest challenges faced by Southern Africa. The spread of small arms is directly, linked to high levels of crime, conflict, instability and underdevelopment. There is therefore growing pressure to address this problem, which was highlighted at the United Nations conference on illicit trade in small arms and light weapons held in July 2001. The region can not afford to have criminals continue finding safe havens and a lot of small arms floating around, if it is going to continue enjoying the distinction of being the most peaceful and stable of the continent’s five regional blocs.

April 2006
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