Blasts Suspect Illegally Sent to U.S., S. Africa Court Says

The Constitutional Court here ruled Monday that the South African government acted unconstitutionally in sending a suspected American Embassy bomber to the United States to face the death penalty and should have instead sought to protect him from this punishment.

The hand-over to the FBI of Tanzanian citizen Khalfan Khamis Mohamed was rife with irregularities, Constitutional Court President Arthur Chaskalson said. While the court has no power to remedy the wrongs against Mohamed, he said, he ordered that the ruling be immediately sent to the U.S. court where Mohamed’s trial is being held.

“The rights at issue here are the right to human dignity, the right to life and the right not to be treated or punished in a cruel or inhuman or degrading way,” Chaskalson said. South Africa’s constitution prohibits the government from facilitating such punishment.

Mohamed is one of four defendants being tried in U.S. District Court in Manhattan in connection with the 1998 bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people and injured thousands. The jury, which has had the case for more than two weeks, will resume deliberations today.

It was unclear what impact the South African court’s findings might have on the proceedings, though Mohamed’s lawyer could raise the issue before Judge Leonard B. Sand.

Mohamed’s lawyer in South Africa said he was happy with the ruling.

“We believe, when put before the jury, it will be used successfully in the defense of Mr. Mohamed,” Anwar Albertus told Associated Press. “We believe it will assist us quite greatly in the American court.”

Jerome Ramages, another of Mohamed’s lawyers in South Africa, argued that even if his client had consented to extradition, as authorities here maintain, the government was obliged to secure an agreement from the U.S. ensuring that he would not face the death penalty.

Another bombing suspect, who took refuge in Germany, was extradited to the U.S. only after German authorities received an understanding that he would not be executed. He is to be tried later this year.

“Khalfan Mohamed would have been in the same position,” Ramages said. “His life would not have been in jeopardy if the South African government had followed the correct procedure.”

The South African court disputed that Mohamed, who was arrested in Cape Town in October 1999 after an FBI stakeout, was properly informed of all his rights, as required by the constitution. These included the right not to incriminate himself and a 72-hour waiting period before deportation, Ramages said.

Mohamed was sent to the U.S. the day after his arrest on a specially chartered aircraft. The FBI questioned him at length as he waited at a special holding facility at Cape Town International Airport.

Justice Ministry spokesman Paul Setsetse said his department would comply with the Constitutional Court decision and communicate the judgment to the New York federal court through diplomatic channels.

However, he argued that Mohamed had been liable to deportation for illegally entering the country. He had been living in Cape Town under an assumed name and with a false passport. He applied for asylum with the bogus identification but was subsequently caught while trying to renew his temporary residence permit.

“We believe that the proper procedure was followed in that Mr. Mohamed was not extradited but was deported as an illegal immigrant,” Setsetse said. “The principle is that we were actually sending him out of the country as an illegal alien.”