It is not often we see mental health issues played out within extradition proceedings quite so clearly as we are seeing them with the ongoing case of Shrien DEWANI. For those of you who don’t know the case, there is a very comprehensive timeline of events in the Guardian, on which the following three paragraphs are based.
Bristol based businessman Mr DEWANI married his bride, Anni in November 2010 and they flew to Cape Town for their honeymoon. On the evening of 13th November their cab was hijacked in a township on the outskirts of the city and whilst Mr DEWANI escaped (or was thrown out?), his wife was kidnapped and found the following morning, fatally shot and her body dumped in the cab.
Three days later, Shrien DEWANI left South Africa and within a week of the murder, three men from Cape Town were arrested and charged with kidnap and murder. By December 07th, one of the men has pleaded guilty and stated that he was offered R15,000 (£1,300) by DEWANI to kill his bride. That day, Shrien was arrested in Bristol by officers from the Metropolitan Police Extradition Unit and appeared before Westminster Magistrates for the commencement of extradition proceedings. He was remanded in custody pending a full extradition hearing.
Whilst on remand, he is thought to be suffering from a mental disorder and was transferred to hospital in Bristol – in April 2011 compulsorily detention under the Mental Health Act was necessary and in August, Westminster Magistrates Court ruled that he can be extradited to South Africa and the Home Secretary signed the paperwork to allow this to proceed. By this stage, a murder trial is pending for two accused who did not plead guilty and the South African prosecution system has announced that Shrien DEWANI will be indicted as the fourth murder suspect once he is returned to Cape Town.
The process that has since followed has been subject of some frustration to many, not least Anni DEWANI’s family and many commentators in South Africa. Allegations that it has protracted unnecessarily will not be helped by today’s news that application is to be made to take this case to the UK Supreme Court. The Magistrate Court had said “Yes,” then the High Court said “Not yet – think again” because it would be “unjust and oppressive” to remove him from the UK until he had recovered. Claims were made that he would be a suicide risk in South Africa and that insufficient arrangements were available to ensure his continued recovery. After more psychiatric evaluation, by Professor Nigel EASTMAN, no less; the Magistrates reconsidered the issues and said “Yes” for a second time.
By this stage, arrangements had been reached with South Africa mental health services about the location he would be held until he was fit to take part in the criminal justice process and with reports on the hospital in the Valkenberg Hospital, a forensic or secure unit, which Mr DEWANI’s lawyers have said meets their requirements in terms of standards of care.
The announcement that Mr DEWANI’s lawyers will seek the High Court’s authority to appeal to the Supreme Court is now going to further protract the process but for this application to succeed, his lawyers must persuade the High Court to agree that the case involves “a point of law of general public importance”. We wait to see.
The Cape Town taxi driver Zola TONGO pleaded guilty and was sentenced to 18yrs in custody, reduced because he offered information against Shrien DEWANI. Xolile MNGENI and Mzwamadoda QWABE from the Khayelitsha township area of Cape Town were still pending trial but by the mid-2012, QWABE had pleaded guilty and been sentenced to 25yrs in custody; MNGENI – believed to have been “the hitman”- maintained his innocence and stood trial in Cape Town in October / November 2012.
I had the briefest of insights into the level of interest in this case when my family and I were on holiday in Cape Town in November 2012 during MNGENI’s trial and having walked right past the High Court building in the centre of the city and to see the sheer level of interest and the size of the media scrum around the High Court was quite staggering – but then this case has attracted far more significant interest and protest in South Africa than the UK audience seems to realise:
In December 2012, just after MNGENI had been convicted of murder and kidnap and been sentenced to life in prison, a group of 500 women from the African National Congress’s Women’s League marched on the British High Commission in Pretoria to protest against the UK’s inability to extradite Shrien DEWANI to stand trial, linking it to broader problems around violence against women in South Africa which is a massive problem.
MENTAL HEALTH ISSUES
Back in the UK, Mr DEWANI was assessed in 2011 by various clinicians as suffering from depression and PTSD. The additional evaluation that preceded his second extradition hearing confirmed this by some of the most qualified forensic psychiatrists in the land. The questions arising from his condition for the extradition process are slightly different to those that would apply if he were preparing to stand trial for these offences in the United Kingdom; or if he were already in South Africa. For both UK and SA law, there would be issues about whether he is fit to plead and stand trial and that would be an assessment of whether he can understand the charges, instruct his counsel and understand the legal proceedings he is subject to, etc., etc..
But for extradition purposes, those questions are not the immediate ones – it was an issue of whether he was “too ill to be extradited and whether he would be a suicide risk in a South African prison.” The UK courts would have to consider his Article 2 right to life in the decision they make and the potential for him to take his own life is something the court is obliged to consider seriously. The initial hearing at the Magistrates court was occupied with this and an inevitable debate ensued about the South Africa prison system. Counsel for the South African government gave assurances, accepted by the court, that Mr DEWANI was sufficiently protected with the justice system and that the risk of suicide was not sufficiently pronounced to represent a bar to extradition. The High Court took a different view when they described it as potentially “oppressive and unjust” at that point in his recovery.
It was only in July 2013 that Magistrates again concluded, based on further medical evidence and upon greater assurances around the adequacy of treatment and care at the Valkenberg Unit in Cape Town, one of South Africa’s major psychiatric units, that extradition was again agreed. Now we see notification that Mr DEWANI’s lawyers are seeking the High Court’s permission to appeal to the Supreme Court, we must anticipate further, specific arguments. However, they must raise broader questions of law of public interest” to achieve this.
The third anniversary of Anni DEWANI’s murder is only a few months away – I just hope in one way or another, that this matter is brought to a conclusion. It is not just Mr DEWANI who is suffering psychologically – the strain on the victim’s family must be enormous.
Further reading –
- Judgement of the Magistrates Court (2011) – first authorisation of extradition to South Africa
- Judgement of the High Court (2012) – regarding the first appeal against extradition.
- Judgement of the Magistrates Court (2013) – second authorisation of extradition to South Africa.
- BBC News from 06th August 2013 – all previous BBC News items from 2010 are linked at the bottom of this piece.
- Judgement of the SA High Court (2012) – S v MNGENI
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