A SENIOR lawyer says it may not be legally possible for the government to extradite the 70 suspected mercenaries to Equatorial Guinea for trial over their alleged coup plot.
Former Law S
ociety of Zimbabwe president Sternford Moyo says legislation cannot be applied in retrospect as a general principle in law.
“The Extradition Act of Zimbabwe appears to be contrary to the general principle that statutes should not, as a general rule, operate retrospectively,” Moyo said, “in that it appears to authorise the minister to enter into an extradition agreement in respect of an offence committed before the date of the extradition agreement.”
Mugabe has reportedly agreed to extradite the suspects to oil-rich Equatorial Guinea in exchange for fuel.
However, the extradition treaty with Equatorial Guinea was signed at least 47 days after the alleged mercenaries were arrested in Harare.
The suspects, who are currently on remand to May 26, were allegedly on their way to the West African nation to overthrow President Teodoro Obiang Nguema Mbasogo.
Moyo’s statement came as lawyers for the suspects began a high court action in Pretoria on Wednesday demanding that South Africa’s government prevent their extradition.
The men’s lawyer, Alwyn Griebenow, had given President Thabo Mbeki and senior cabinet members an ultimatum to intervene or face legal action. “We have had no response. We have issued papers in court. We are serving on them now in the Pretoria High Court,” Griebenow said on Wednesday. “What we are requiring firstly is that they, as a matter of extreme urgency, consult with the Zimbabwean government and ask either for the release or extradition of our men back to South Africa.”
Griebenow said they wanted an “undertaking” that the suspects would not be extradited to Equatorial Guinea because they would not get a fair trial in a country notorious for human rights abuses.
Moyo said although the Extradition Act covered offences in Zimbabwe and other countries, whether the alleged crimes were committed before, on, or after the date of the commencement of the agreement, the treaty should “precede the request for extradition”.
Moyo said it was “generally accepted in international law that an offence of a political character is not an extraditable offence”.