9.       Request for surrender

            (1) A requisition for the surrender of a fugitive criminal of any country, who is or suspected of being in Botswana, shall be made to the Minister by a diplomatic representative or consular officer of that country.

            (2) The requisition shall be accompanied by a warrant for the arrest of the fugitive criminal issued in that country with the request that the warrant be endorsed for the arrest of the fugitive criminal.

            (3) The Minister may transmit the warrant to a magistrate to endorse it for the apprehension of the fugitive criminal.

10.     Refusal to surrender where offence too trivial

            (1) Where the surrender of a fugitive criminal is sought under this Act, and it appears to a magistrate that by reason of the trivial nature of the case, or by reason of the application for the surrender of the fugitive criminal not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities of communication, and to all the circumstances of the case, be unjust or oppressive, or too severe a punishment, to surrender the fugitive criminal whether at all or until the expiration of a certain period, the magistrate may discharge the prisoner either absolutely or on bail, or order that he shall not be surrendered until after the expiration of the period named in the order, or may make such order in the matter as the magistrate thinks proper.

            (2) Any order or refusal to make an order of discharge under this section shall be subject to appeal.

11.     Endorsement of warrant

            (1) Where in a country to which this Act applies a warrant has been issued for the apprehension of a person accused of an offence punishable by law in that country and he is or is suspected of being in or on the way to Botswana, a magistrate to whom the warrant has been directed by the Minister under section 9, if satisfied that the warrant was issued by a person having lawful authority to issue it, may endorse the warrant in accordance with subsection (3), and the warrant so endorsed shall be a sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate, the person named in the warrant, and bring him before the endorsing magistrate or some other magistrate.

            (2) This Act shall apply whatever the date of the warrant and whether the offence is alleged to have been committed before or after the commencement of this Act or the application of this Act to that country.

            (3) An endorsement of a warrant shall be signed by the magistrate and shall authorise all or any of the persons named in the endorsement, and of the persons to whom the warrant was originally directed, and every police officer, to execute the warrant by apprehending the person named in it and bringing him before the magistrate or any other magistrate.

            (4) Where a warrant for arrest has been endorsed in terms of subsection (1), any magistrate may issue a warrant empowering a police officer to search for and seize any property-

     (a)     which may be required as evidence at the trial of the fugitive criminal; or

     (b)     which has been acquired as a result of the extradition crime.

12.     Provisional warrant

            (1) A magistrate, before the endorsement in pursuance of section 11 of a warrant for the apprehension of any person, may issue a provisional warrant for his apprehension, on such information and under such circumstances as would in his opinion justify the issue of a warrant if the offence of which that person is accused were an offence punishable by the law of Botswana.

            (2) A person arrested under a provisional warrant shall be discharged unless the original is produced and endorsed within such time as the magistrate thinks reasonable in the circumstances.

13.     Detention

            A fugitive criminal when apprehended on a warrant endorsed under section 11 or on a provisional warrant issued under section 12 shall be brought before a magistrate within 48 hours of his apprehension and the magistrate may issue a warrant for his further detention.

14.     Hearing of case and evidence

            (1) When a fugitive criminal is brought before a magistrate, the magistrate shall hold an inquiry with a view to the surrender of such person to the foreign country which has requested his surrender.

            (2) Subject to the provisions of this Act, the magistrate shall proceed in the manner in which a preparatory examination is held in the case of a person charged with having committed an offence in Botswana and shall, for the purpose of holding such inquiry, have the same powers, including the power of committing any person for further examination and admitting any person detained to bail, as he has at a preparatory examination so held.

            (3) Any deposition, statement on oath or affirmation taken, whether or not taken in the presence of the fugitive criminal, or any record of any conviction or any warrant issued in a foreign State, or any copy or sworn translation thereof, may be received in evidence at any such inquiry if authenticated to enable them to be produced in any court in Botswana or in the manner provided for in the extradition agreement concerned.

            (4) The magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is not an extradition crime or is an offence for which the prisoner may not be surrendered.

15.     Committal and discharge of prisoner

            (1) Subject to the provisions of section 8, in the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of the criminal is duly authenticated, and such evidence is produced as, subject to the provisions of this Act, would, according to the law of Botswana, justify the committal for trial of the prisoner if the crime of which he is accused was committed in Botswana, the magistrate shall commit him to prison.

            (2) Subject to the provisions of section 8, in the case of a fugitive criminal alleged to have been convicted of an extradition crime if such evidence is produced as, subject to the provisions of this Act, would, according to the law of Botswana, prove that the prisoner was convicted of such crime, the magistrate shall commit him to prison.

            (3) Where the magistrate is not satisfied with the evidence mentioned in subsections (1) and (2), he shall order the prisoner to be discharged.

16.     Special procedure for committal

            (1) Notwithstanding the provisions of section 15 where a special arrangement has been made with country to which this Act applies with regard to committal proceedings for the surrender of fugitive criminals to that country, the Minister may by order published in the Gazette direct that committal of fugitive criminals from that country shall be conducted in accordance with the provisions of this section.

            (2) The requesting country shall send to the Minister for transmission to the magistrate before whom the fugitive criminal is brought, a record of the case prepared by a competent authority in the requesting country in accordance with the provisions of subsections (3) and (4).

            (3) The record of the case referred to in subsection (2) shall contain-

     (a)     particulars of the description, identity and nationality of the fugitive criminal;

     (b)     the particulars of each offence or the conduct for which the surrender of the fugitive criminal is requested, specifying the date and place of commission, the legal description of the offence and the relevant legal provisions of the law of the requesting country, a copy of which shall be attached to the record;

     (c)     the original or certified copy of any document or process issued in the requesting country against the fugitive criminal;

     (d)     an abstract of the evidence acquired to support the request for the surrender of the fugitive criminal;

     (e)     a certified copy or reproduction of exhibits or documentary evidence.

            (4) A magistrate to whom a record of a case has been transmitted in accordance with subsection (2) shall not consider the case unless the record is duly authenticated by-

     (a)     the oath or affirmation of the person who prepared the record of the case, stating that the record was prepared by him or under his direction, and that the evidence has been preserved for use in court; and

     (b)     the certificate of the Attorney- General or his representative in the requesting country that he is satisfied that the evidence establishes a sufficient case to be tried in the courts of the requesting country, and that the evidence specified in the record exists and has been preserved for trial.

            (5) A certificate of the Attorney-General or his representative in the requesting country accompanying the record shall be admitted without proof of the signature or authority of the person appearing to have issued it.

            (6) Where a record of a case prepared in accordance with the provisions of this section has been transmitted to a magistrate, the magistrate shall consider the whole of its contents and without deciding whether the matters therein contained would be admissible under the laws of Botswana, may commit the fugitive criminal to prison to await his surrender if the matters recited in the record of the case, and any other evidence admissible under the law of Botswana, would be sufficient to warrant a trial of the charges for which the surrender has been requested.

            (7) The magistrate shall receive any evidence which may be tendered to show that the surrender of the fugitive is precluded by law.

            (8) This section shall not apply with regard to committal proceedings for the surrender of a fugitive criminal who has been convicted of an extradition crime.

17.     Report of committal to Minister

            Where a fugitive criminal is committed to prison to await his surrender under section 15 or 16, the magistrate shall forthwith send to the Minister notice of the committal together with any report on the case as he may think fit, and the fugitive criminal shall be so committed to await the warrant of the Minister for his surrender.

18.     Appeal

            Any person aggrieved by a decision of the magistrate in committal proceedings may, within 15 days of such decision, appeal to the High Court.