Mutual legal assistance in criminal matters and the risk of abuse of process: a human rights perspective
CITATION: Kemp, G. 2006. Mutual legal assistance in criminal matters and the risk of abuse of process : a human rights perspective. South African Law Journal, 123(4):730-743.
The original publication is available at https://journals.co.za/content/journal/ju_salj
Mutual legal assistance, as one of the modalities of international co-operation in criminal matters, is generally regarded as primarily a foreign policy matter. In this article it is argued that the mutual legal assistance regime in terms of the International Co-operation in Criminal Matters Act 75 of 1996, and the way in which it is applied in South African law and practice, could lead to abuse of process. Requesting states with bad human rights records and unfair criminal justice systems can use mutual legal assistance provided by South Africa to bolster questionable proceedings in their jurisdictions. While acknowledging the role of the executive in matters of international co-operation (because of the foreign policy dimension), the author contends that the emerging system of international criminal law (of which bilateral forms of co-operation, including mutual legal assistance, form a part) emphasizes not only effective co-operation, but also respect for human rights and fair criminal justice processes. South African jurisprudence (especially in the context of extradition) shows that our courts are sensitive to human rights concerns in matters of international co-operation in criminal matters. Analysing <i>Thatcher v Minister of Justice and Constitutional Development & others</i> 2005 (4) SA 543 (C), this article maintains that our courts should, however, play a more proactive role when mutual legal assistance is requested so as to guard against possible abuse of process.