Local executed in China

Hundreds of South Africans are in foreign jails for drug trafficking. Why is our government not bringing them home?

South African Janice Bronwyn Linden was found guilty of smuggling three kilogrammes of crystal meth into China in 2009 and was executed by lethal injection this morning.

Her death has everyone talking: why was she not brought back to South Africa? Does our constitution not allow for the extradition of South Africans in international prisons?

Although the Department of International Relations says President Zuma did everything possible to prevent her execution, questions remain.

Last year, our Health Editor Elizabeth Atmore investigated the issue. This is an excerpt from her Trading With Their Lives report; it can be found in the July 2010 issue of FAIRLADY:

A cell closer to home...

‘If a foreigner is found guilty of committing murder in South Africa, our government will not deport them back to their home country to serve their sentence if that country has the death penalty. But if a South African citizen is sentenced to death in China or Thailand for example, our government doesn’t intervene,’ explains Michelle Roelofson - who, together with her husband Hans, has been collecting money to send care packages to South Africans in Thai jails. ‘So there’s this huge disparity in how we treat foreigners and how we treat our own citizens.’

‘Demanding that prisoners be brought back to South Africa to serve out their sentence isn’t about condoning or excusing what they’ve done,’ agrees Marion Hughes* (her 26-year-old daughter was released from a Peruvian jail last October). ‘We’re not saying that their sentence should be scrapped – we’re saying that we’ve got this fantastic constitution, which protects prisoners’ rights, but we don’t apply it to our own citizens.’

The National Director of Lawyers for Human Rights, Jacob van Garderen, believes that the government’s refusal to enter into prisoner transfer agreements with other countries goes against the principles of the South African Constitution, which lays out that South Africans are entitled to diplomatic protection. ‘In other words, the government must take steps to protect citizens against gross human rights violations.

‘In terms of Section 35(2) of the SA Constitution, every prisoner has the right to detention conditions that are consistent with human dignity, which includes the right to communicate with and be visited by spouses and children. Because of the cost involved, most families of prisoners being held overseas can’t exercise this right.’

The refusal to assist in bringing prisoners back to South Africa also ‘undermines the government’s objectives to reintegrate offenders back into society after serving their sentences,’ says Van Garderen. ‘This is one of the primary objectives of the correctional system in South Africa, but it could be argued that it’s almost impossible to work towards reintegration if the prisoner is held in a foreign prison without contact with his family.’

It’s partly because of this that Patricia Gerber, whose son Johan is serving a nine-year sentence in Mauritius after being sentenced in 2007 for bringing heroin into that country, has taken the government to court: she wants to force them to explain why they won’t bring her son home so that he can serve the remainder of his sentence in a South African jail. Each visit to Mauritius sets the Gerbers back tens of thousands of rands – and even then it’s not guaranteed that Patricia will see Johann for more than ten hours over the course of a month.

Her legal counsel, Advocate Anton Katz SC, said in his application to the court that ‘the promotion and fulfillment of human rights and the need for reintegration of offenders into their societies are constitutional reasons why people like Johann would benefit from being allowed to serve their prison sentences in their country of origin’.

So why is there no Prisoner Transfer Agreement?

According to the Department of Foreign Affairs website ‘no Prisoner Transfer Agreements exist between South Africa and any other country’, despite an announcement by then-Correctional Services Minister Ngconde Balfour in 2004 that his department was developing a draft  prisoner transfer treaty. Balfour’s predecessor Ben Skosana had previously made similar statements and, in 1999, the Thai government signed a prison transfer agreement put forward by then director of Foreign Affairs in Asia Robert McBride, although this was never ratified by South Africa.

Government officials would not reveal to FAIRLADY the reasons why nothing further had come of this treaty, saying that in light of the ongoing court battle between the government and Patricia Gerber it would be inappropriate to comment. However, counsel for the government Vincent Maleka SC argued in court in March last year that the policy of not signing such an agreement discourages South Africans from engaging in drug trafficking – an argument used in 2006 by then Deputy Foreign Minister Aziz Pahad, who said that signing such a treaty would send the wrong signal to people considering becoming drug mules.

Hughes, however, alleges that the reason South Africa remains one of only two countries without such an agreement is far more sinister.

‘Not a single person has given us a valid reason why they won’t sign, and that’s because too many high-ranking officials are themselves involved in the trade. The get kick-backs when people are caught carrying drugs – especially when the drug syndicates send one person through as a decoy, allowing them to get caught while five others slip through unnoticed. These officials can’t afford to have all these drug mules brought home, because the mules know too much...’

But Dayanand Naidoo, chief director of consular services at the department of international relations and co-operation, says that these allegations should be tested in court. ‘Our department is on record as saying that if anyone has proof of this, they should go to the police or the Hawks, or should bring about a private matter in our courts’.

Meanwhile, hundreds of South African citizens who accept that they have done something wrong and are more than willing to pay the price for their crime in prison in their own country, suffer and die in others.

*Name has been changed