AllAfrica.com on April 12, 2012 released the following:
“BY WERNER MENGES
ISRAELI-BORN businessman Jacob ‘Kobi’ Alexander took his fight against a request for his extradition to the United States of America right to the heart of the matter in the High Court in Windhoek yesterday.
The specification of the United States as a country to which people can be extradited from Namibia is unconstitutional and should in any event not apply to Alexander, the leader of Alexander’s legal team, South African senior counsel Peter Hodes, argued during a hearing before Judge Kato van Niekerk.
If Alexander and his legal team succeed with their attack on the specification of the US in terms of the Extradition Act it could be the end of the extradition request which led to his arrest in Windhoek about five and a half years ago.
Alexander (59), who is free on bail of N$10 million, is wanted in the US on 35 criminal charges connected to allegations that he had committed fraud with the receipt of options to obtain shares in Comverse Technology Inc, a New York-based company that he had helped found in 1982 and ran until early in 2006.
He and his family have been living in Namibia since late July 2006. They previously lived in New York City.
The US authorities are alleging that Alexander became a fugitive from American justice in July 2006.
The proclamation through which the US was specified as a country to which the extradition of people from Namibia may be affected was signed by President Hifikepunye Pohamba on August 31 2006.
The proclamation was published in the Government Gazette on September 27 2006. Alexander was arrested in Windhoek on the same date.
All of the alleged acts over which the US authorities want Alexander to be extradited date from the period between January 1998 and March 2006.
Alexander is opposing the extradition request. He is denying that he is guilty of the charges filed against him in the US, and has stated that if he is ever extradited, he would “vigorously contest” those charges.
In the case in which Judge Van Niekerk started hearing arguments yesterday Alexander is asking the court to declare that the proclamation specifying the US as a country to which people can be extradited from Namibia is inconsistent with the Constitution and invalid to the extent that it applies to any request for Alexander’s extradition to the US.
In the alternative to that part of his application Alexander is asking the court to review and set aside the President’s decision to issue the proclamation.
He is also asking the court to declare that the proclamation does not give the US the status of a country to which persons can be extradited from Namibia.
He is further asking the court to review and set aside the decision of the Minister of Justice, Pendukeni Iivula-Ithana, to authorise Windhoek Regional Court Magistrate Dinnah Usiku to conduct the extradition enquiry in respect of the request for Alexander’s surrender to the US authorities.
Hodes argued that the proclamation was issued in order to result in the arrest of Alexander and to set in motion extradition proceedings against him – all of which resulted in a limitation of his constitutional rights.
He pointed out that in a letter which Iivula-Ithana – at that stage holding office as both Minister of Justice and Attorney General – wrote to the President on August 21 2006 she stated that the US would in due course be asking Namibia to surrender a fugitive who was wanted in the US, and that the US should for that reason be specified as a country for extradition in terms of the Extradition Act.
That letter indicated that the proclamation was aimed at Alexander – and for that reason, the proclamation is unconstitutional, Hodes argued.
He based this argument on an article of the Constitution which states that any law limiting any fundamental rights or freedoms protected by the Constitution must be of general application and “shall not be aimed at a particular individual”.
“Here it is aimed at a specific individual. That makes the proclamation unconstitutional,” Hodes said.
Senior counsel Wim Trengove, representing the President, Justice Minister and Prosecutor General, readily agreed that Alexander’s case had been the trigger for the proclamation. That does not make the proclamation unconstitutional, though, he argued.
The proclamation is not intended to operate only in relation to Alexander, and not for all similar extradition matters involving the US in future, Trengove argued.
Alexander’s situation brought to the fore the need to specify the US as a country in terms of the Extradition Act, Trengove said. “That is how legislation happens,” he remarked.
The interpretation which Alexander’s legal team has attached to the proclamation is fundamentally flawed, he argued.
The hearing of arguments is scheduled to continue today.”
Douglas McNabb – McNabb Associates, P.C.’s
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