Prophet Bushiri's case (an analysis)

Prophet Bushiri was right to flee persecution from South Africa. From what I gathered, there is an impending danger to his life and that of his family(, wife and children). lf one is facing such problems, the only reasonable course of action, is to flee that particular place, (for safety reasons). Even in the Bible, we read about men and women of God who fled from areas or countries where their lives were in danger. For example, Jesus Christ (baby Jesus), was taken to a safe place by his parents. Another example, is David(before he became a King of lsrael), he ran away from King Saul who wanted to kill him, for fear that he was going to take over his throne. David had already been anointed by Prophet Samuel.

Although it is not right to evade law, but the law also permits it under certain circumstances, as mentioned by Prophet Bushiri. Other situations in which a person can also be allowed to flee, is when they flee to another country to seek refuge. This is allowed under international law, (Geneva Convention 1951, non-refoulement)The term refoulement means to return(refoule). In this case it means non-refoulement, means not to return a person whose life is in danger or impending danger or who fears persecution for his/her political beliefs or political opinion /ideology or religious belief or fear for being persecuted or killed just because of their race, tribe, nationality/ethnicity and /or their freedom is being threatened. So, under that international law that governs the seeking of asylum by refugees, the host country is sanctioned by that law of non-refoulment. Other scholars in law use the term'Principle of non-refoulement).

An epitome of a case that illustrate the 'Principle of non-refoulement', is that of the USA, whistleblower, Edwin Joseph Snowden. He breached the USA secret Act by leaking USA classified information of NSA. He used to work for the USA CIA. By so doing, he also breached his duty of confidentiality which he was obligated not to breach by his former employer. The duty of confidentiality, continues even after one has left that organisation. Snowden escaped to Russia, where he sought refugee and was granted a refugee status. Russia is prohibited from returning him to the USA, under the Geneva Convention of 1951(non-refoulement Principle or law).

Assuming that Prophet Bushiri and his wife had fled to a country which is not their native country, they could have sought refugee there(using the Geneva Convention of 1951). I cannot go into details of the procedures followed or the modalities to be followed.

If a person applies for asylum in that host country, even if the country where they are alleged to have commited the crime, wants them to be arrested by the interpol, this overrides that warrant of arrest. As demonstrated in the Snowden case, Russia cannot return him to USA. So, any warrant of arrest will not be effective. That means, it is unenforceable under such circumstances.

What Prophet Bushiri can do. The only way for Prophet Bushiri and his wife is for them to engage the services of a lawyer and file their case stating their grounds or reasons why their native country must not allow the enforcement of their warrant of arrest and deportation. That is they have to challenge that extradition order in the court. So, even if SA and Malawi signed an agreement of extradition, the court may use its discretion to depart from the normal procedure, due to the distinction of that case or complexity of that case.

What will happen if Prophet Bushiri and his wife are deported to SA?. The law is clear on that, they will not be granted any bail anymore until their case is exhausted. The reason being that they breached their bail conditions. When Police arrest a person alleged to have commited a crime, a caution statement is read or verbally mentioned by an arresting officer. That what that person says maybe used as evidence against them in a court of law. The reason why I have mentioned this, it is because Prophet Bushri issued a press conference statement that the SA state failed to provide security for him and his family. That his life and that of his wife were in danger. That statement is self-incriminating for Prophet Bushiri. The state will now use it as a reason for not granting them bail. So, they will be kept in jail for security reasons, until their case is finalised. The state will argue that it is denying them bail for security reasons. Furthermore, the state will make use the submission made by their defence team to apply for bail. In its submission, their defence argued that their client had a safe place to dwell in while on bail and that they were not of flight risk category. So, now the state will use that too as evidence to rebut the claim by Prophet Bushiri that their lives were in danger even during the previous episodes of their trial. So, the state will argue that, if Prophet Bushiri and his wife knew that their lives were in danger, why then they did not raise the issue upon applying for their bail?. In that way then Prophet Bushiri will not have any grounds for applying for bail again. And the state will argue that he is flight risk person. In that way he will be denied bail. I am not saying this is what I want to happen, but I foresee that situation taking place, using my legal reasoning.

It should be noted that the reasons for the state to deny one bail it is because; the accused persons might be of flight risk, their lives might be in danger(as Pro Bushiri claims now) or the accused persons are likely to interfere with the witnesses or are likely to jeopardise the on going investigations of that particular case in question. These are, but just some of the reasons. The state may state other reasons apart from these that I have mentioned above.

 Mrs Bushiri's way out: She might be granted bail due to that he has children to take care of. But, that is not guaranteed, as the state may asses to see if there is a convenient way in which those kids can be taken care of. Alternatively, the state may quash that by arguing that, Pro Bushiri's wife left those kids and went to Malawi, which means those kids can live without her.

Bushiri's wife can also argue that he went to Malawi under the duress of his husband. In other jurisdictions, there are such laws which protect women from being prosecuted for crimes committed, jointly with their husbands, if a woman can prove that their husbands influenced them to engage in such crimes or crime. For example, in the UK jurisdiction, if a woman is induced or undue influence is used to a woman by her husband to engage in something or is influenced by a man to take money from the bank, (Barclays bank Plc v O''Brien [1994]ase, Civil Case-equity ), upon failure to pay, a woman can use the defence of duress. In this case, Mrs Bushiri can argue that she was not given any opportunity to seek an independent advise by her husband. Her husband made that decision and she had no choice but to oblige. Though marriage is for better or worse, she might do this for the best interest of their children. Because if both are incarcerated, their children will suffer emotionally, physically and financially.

On one hand, the state may, through compassionate grounds grant them bail due to ill-health.

The state may also grant them bail and maybe arrange a suitable and safe place for them to reside, until their case has been exhausted. This in my view, will be done to maintain a good relationship between Malawi and South Africa. Thus because Pro Bushiri has involved the government of Malawi in that case. So, SA government might become soft in its approach of the pending case in question.

Please note that my opinion in this matter is not legal advise to any party involved in this case. But, rather it is my own legal analysis of this case. (with no prejudice or favour or fear). By Njabulo. libertyatliberty at gmail dot com