Khama's extradition imminent
High Court Judge, Godfrey Radijeng has dismissed with costs an urgent application by former President Ian Khama to set aside a warrant of arrest issued against him.
Khama challenged the warrant of arrest issued by the Acting Regional Magistrate South Mareledi Dipate after the DPP applied for his arrest so that he could be issued with summons and charge and then appear in court.
Khama filed an urgent court application seeking to strike down the arrest warrant issued against him by the magistrate court. He asked the High Court to set aside the warrant or stay its execution, citing a lack of evidence for his prosecution.
Justice Radijeng said the prayers or relief sought by Khama are declined and the alternative relief stands dismissed with costs. The judge said he is of the view that Khama has not fully canvassed the right or prima facie right he seeks to protect other than a bare or bald allegations of possible violation of constitutional rights.
“Further, given this setting, the Applicant has in my view not carefully dealt with the issue of irreparable harm, other than to make bald allegations that if the interim interdict is not granted, he stands to suffer harm.
“I am not persuaded that the Applicant has sufficiently canvassed the nature of the irreparable harm that would attach. I further agree with the Respondents that the Applicant has adequate alternative remedy in the form of damages should it later be determined that the warrant of arrest and or the process founding his prosecution was unlawful,” said the judge, who took the view that Khama has not holistically addressed and or set out the
requirements for the granting of the alternative relief (interim interdict).
Justice Radijeng explained that it seems to him that an objective assessment of Khama’s circumstances and in particular the mere issuance of the warrant of arrest against him in context of his absence from the jurisdiction of the court and on the uncontroverted averments of the Respondents, as to the purpose of seeking the warrant of arrest and it cannot be executed outside Botswana, present the matter as not urgent.
“An assessment of the Applicant’s premise of the application is that he fears that his arrest is imminent given the issued warrant of arrest; he does not say if the arrest is imminent in Botswana or in South Africa where it is acknowledged he presently is by both parties, given the lack of contrary evidence to the Respondent’s answer.
“The Respondents on the other hand present a process to the Applicant’s arrest to be a protracted approach or process given that he is out of the jurisdiction of the court and has not indicated when he is returning,” the judge stated.
Khama has argued in his founding affidavit filed with the court that it was improper, irregular, unreasonable, irrational, and contrary to law for the DPP to have brought an application for his arrest, when he (Khama) has as far back as the 19th of August 2022, filed and served a review application seeking to set aside the DPP’s decision to prosecute him.
He pointed out that the DPP is a party in the review application and was duly served with the said application. He said the warrant of arrest that he sought to be stayed or suspended or set aside threatens his right to liberty, in circumstances where he has committed no offence.
“I aver that the execution of the warrant will render nugatory the review application referred to and would be highly prejudicial to my constitutional rights which this court is duty bound to protect,” Khama had argued in vain.