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Rogue actors or rogue state? The abduction of Abdella Abadiga and assassination of Frans Mathipa

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Paul Hoffman SC is a director of Accountability Now.

One hopes, perhaps in vain, that the South African state was not engaged in an illegal rendition of Abdella Abadiga to the American authorities at a time when the Lady R’s visit to Simon’s Town was freshly in the news.

Very little is known about the fate of alleged Isis leader Abdella Abadiga who was abducted at the Mall of Africa in December 2022 in full view of the mall’s security cameras.

What is known is that the Hawks officer assigned to investigate the abduction, Lt Col Frans Mathipa, was shot and killed while driving on the N1 towards the Hammanskraal turn-off in a northerly direction. He was on duty and on his way to collect information regarding the kidnapping of Abadiga. The US Treasury Department had placed Abadiga on a sanctions list in March 2022 for allegedly funding and co-ordinating Isis activities in Africa.

Read more in Daily Maverick: A Russian Doll, Part Two — Who assassinated Frans Mathipa and how is the SANDF involved?

Jonny Steinberg, who has a talent for summarising, tells the story succinctly in Business Day on 29 September 2023 under the heading “SA on the brink of being a state-approved killer country”:

“Abadiga was abducted, together with his bodyguard, from a Gauteng shopping mall. The two men have not been seen since. Abadiga’s brother laid an abduction complaint and Hawks detective Frans Mathipa was assigned to investigate.

“Mathipa soon discovered that three vehicles registered to a front company owned by the SANDF’s Special Forces were in the mall precisely when Abadiga disappeared. He applied successfully to a court to obtain the cellphone records of the Special Forces members at the mall that day. Special Forces stalled, and while they were stalling, Mathipa was shot dead in his car by a skilled marksman while on his way to talk to informants about the case. 

“There is more to the story, but this is a short column, and these are the essentials. We do not know for certain that Special Forces members killed Mathipa, but it seems overwhelmingly likely. And here’s the thing. President Cyril Ramaphosa has said nothing. Police minister Bheki Cele, whose senior detective has been killed, has said nothing. Defence minister Thandi Modise, whose personnel may well have murdered a police officer doing his work, has said nothing.”

The police are obliged to investigate the shooting of their colleague, Parliament is obliged to exercise oversight over the members of the executive identified by Steinberg, and they, in turn, are obliged to account for the entire saga from Mall to Hammanskraal offramp and beyond.

It is important for constitutional democracy under the rule of law that they do so diligently and without delay in the spirit of responsiveness that is meant to permeate good governance.

KK Mohamed case

The facts set out above (excluding possibly speculative conclusions drawn by Steinberg) bring to mind a not dissimilar saga that played out in 2001 and ended in litigation in the Constitutional Court aimed at saving an alleged terrorist bomber from the electric chair in the US.

The court itself summed up the argument advanced on behalf of the man concerned, KK Mohamed, as:

“The main contention on behalf of the applicants (supported by the amici curiae) was that Mohamed’s arrest, detention, and handing over by the South African authorities to the FBI agents and his removal by them to the United States were part and parcel of a disguised extradition in breach of the law. More particularly the South African authorities were said to have breached the provisions of the Aliens Control Act and the regulations published thereunder. Even more pertinently, Mohamed’s constitutional right to life, to dignity and not to be subjected to cruel, inhuman or degrading punishment had allegedly been infringed.”

The matter arrived as one of extreme urgency in our apex court because by the time the case was ripe for hearing in Johannesburg, Mohamed was facing trial, and the real possibility of execution, in New York. The court put it thus:

“The case before this Court is an urgent application for leave to appeal against a judgment in the Cape of Good Hope High Court. In that Court the applicants sought declaratory and mandatory relief against the government arising out of Mohamed’s arrest in Cape Town on 5 October 1999, his subsequent detention and interrogation there by South African immigration officers and his handing over to agents of the United States Federal Bureau of Investigation (the FBI) for interrogation and removal two days later to New York, there to stand trial.”

It sketched the background further in relation to the New York trial:

“That case, a criminal trial, arises from events that took place on 7 August 1998 in Nairobi and Dar es Salaam. That morning, in quick succession, the United States embassies in those two cities were rocked by violent explosions that all but destroyed them. In Nairobi 212 were killed and more than 4,500 injured and in Dar es Salaam 11 were killed and 85 injured. A federal grand jury had been sitting in New York since the mid-nineties investigating the activities of an organisation called Al-Qaeda founded, led and financed by a Saudi multi-millionaire, Osama bin Laden. The grand jury concluded that the attacks on the two embassies were the work of Al-Qaeda in its ongoing international campaign of terror against the United States and its allies.”

After considering arguments put forward by all interested parties the court observed that:

“If the South African authorities had sought an assurance from the United States against the death sentence being imposed on Mohamed before handing him over to the FBI, there is no reason to believe that such an assurance would not have been given. Had that been the case, Mohamed would have been dealt with in the same way as his alleged co-conspirator Salim. The fact that Mohamed is now facing the possibility of a death sentence is the direct result of the failure by the South African authorities to secure such an undertaking. The causal connection is clear between the handing over of Mohamed to the FBI for removal to the United States for trial without securing an assurance against the imposition of the death sentence and the threat of such a sentence now being imposed on Mohamed.”

The court accordingly made the following findings:

“We accordingly conclude that it has not been established that any agreement which Mohamed might have expressed to his being delivered to the United States constitutes a valid consent on which the government can place any reliance. Its contention in this regard is accordingly rejected. The handing over of Mohamed to the United States government agents for removal by them to the United States was unlawful. That is a serious finding.

“South Africa is a young democracy still finding its way to full compliance with the values and ideals enshrined in the Constitution. It is therefore important that the state lead by example. This principle cannot be put better than in the celebrated words of Justice Brandeis in Olmstead et al v United States: ‘In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously… Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example… If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy’.”

In the result, the unanimous court made the following orders:

“3. The order in the court below is set aside and in its place the following order is made:

“3.1 It is declared that the handing over of Mohamed at Cape Town on or about 6 October 1999 by agents of the South African government to agents of the United States for removal by the latter to the United States for him to stand trial in the Federal Court for the Southern District of New York on criminal charges in respect of which he could, if convicted, be sentenced to  death, was unlawful in that:

“3.1.1 It infringed Mohamed’s rights under sections 10, 11 and 12(1)(d) of the Constitution to human dignity, to life and not to be treated or punished in a cruel, inhuman or degrading way, inasmuch as a prior undertaking was not obtained from the United States government that the death sentence would not be imposed on Mohamed or, if imposed, would not be executed.

“3.1.2 In terms of the provisions of Chapter VI of the Aliens Control Act 96 of 1991 read with regulation 23 of the Aliens Control Regulations published under section 56 of the said Act, there existed at the time of Mohamed’s removal from the Republic of South Africa no authority in law to deport or purportedly to deport or otherwise to remove or cause the removal of Mohamed from the Republic to the United States.

“3.1.3 In terms of section 52 of the Aliens Control Act 96 of 1991 the removal of Mohamed from the Republic could not validly be effected before the expiry of a period of three days after he had been declared a prohibited person.”

It is fervently to be hoped that the disappearance of Abadiga and his bodyguard does not turn out to be an intervention tainted by illegality. One hopes, perhaps in vain, that the SA state was not, in the light of the lessons learned in the Mohamed matter, engaged in an illegal rendition of Abadiga to the American authorities at a time when the Lady R’s visit to Simon’s Town was freshly in the news.

Let’s all hope that the South African government has not accepted the invitation to anarchy that Justice Brandeis alluded to and warned against in the passage quoted with approval by our highest court and reproduced above.

May the sanitising light of openness and accountability reveal that SA is not becoming the “killer country” to which Steinberg’s headline alludes. DM

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