12 June 2012

Namibia: Ayoub's Release Request Refused

LEBANESE extradition target Fadi Ayoub's latest attempt to win his release from custody ended in failure in the High Court in Windhoek yesterday.

Ayoub (43), who is wanted in France on a more than 20-year-old rape charge, which he says he denies, was asking the court to order his immediate release from custody while further legal proceedings which he wants to pursue are pending in the High Court.

With those further proceedings Ayoub wants the court to review decisions taken by the Justice Minister and Windhoek-based Magistrate Elina Nandago as a result of a request from the French government for his extradition to France.

A month after hearing arguments in the matter, Judge Collins Parker dismissed Ayoub's application for an order for his release.

The judge found that, especially when the importance of an extradition in the context of a country's international relations is considered, the balance of convenience in the matter clearly favours the respondents in the case, which were the Minister of Justice, the Minister of Foreign Affairs, the Prosecutor General, Magistrate Nandago, and the head of Windhoek Central Prison.

"In all this one must not lose sight of the fact that extradition represents a systemic international effort to cooperate in the suppression of crime," Judge Parker said.

He said he had concluded that the risk that Ayoub could decide to flee from Namibia if he is released "is superlatively real".

If he did flee after being released that "will not only be injurious to Namibia in the sense that Namibia will be seen as a safe haven for the international club of fugitive offenders, but also injurious to the world for it would be a serious violation of the moral obligation which exists between Namibia and the world, particularly France, the requesting state," he said.

Ayoub was free on bail when he left France in early 1993, while the charge he was facing was still pending.

He was accused of having raped a woman in January 1992.

In January 1997, his trial proceeded to take place in a French court in his absence, and he was convicted of rape and sentenced to ten years' imprisonment.

Ayoub's lawyer, Norman Tjombe, based his request for Ayoub's immediate release on two sections of the Extradition Act which, according to Tjombe, state that nobody may be extradited if the offence for which the person's return is requested has prescribed through the lapse of time, or if the person has been convicted in his absence in the country requesting his extradition.

Tjombe argued that following the abolition of the death penalty in Namibia the offence of rape is also a crime which prescribes after 20 years, meaning that someone accused of such an offence has to be prosecuted within 20 years after the crime had been committed.

It is not as simple as that, though, Judge Parker indicated in his judgement.

What the Extradition Act actually states is that nobody may be extradited to a requesting country or kept in custody pending extradition if it appears to the Minister of Justice or the magistrate conducting an extradition enquiry that the offence he is accused of has prescribed, or that he had been convicted of the offence in his absence, the judge pointed out.

What this means is that the Minister of Justice must first have considered the matter and exercised her discretion in this regard before the court can be asked to intervene, he found.

"As far as these proceedings are concerned there is no basis upon which the Minister's exercise of discretion can be impugned," he stated.

Ayoub, who is married to a Namibian medical doctor and has valued his farming and business interests in Namibia at close to N$20 million, has been in custody since his arrest on March 1. A request by him to be released on bail was refused by Magistrate Nandago on March 2, and an appeal against that decision was dismissed in the High Court on April 30.

Magistrate Nandago is scheduled to conduct Ayoub's extradition enquiry from June 27.

South African senior counsel Piet van Wyk, assisted by Sakeus Akweenda, argued the respondents' case before Judge Parker.

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