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Lost in translation: Diplomatic tap-dancing stalls Gupta extradition moves

Ajay Gupta, left, and Atul Gupta. (Photos: Gallo Images / Business Day / Martin Rhodes | Gallo Images / Business Day / Robert Botha)

A much-vaunted extradition treaty between SA and the United Arab Emirates remains inactive some 14 months after it was signed by South Africa’s then-justice minister Michael Masutha and his counterpart, Sultan Saeed Al Badi. Why? Well, it’s a delicate matter, one also involving some unspecified issues the UAE has with the translation of the 31-page agreement.

South Africa swiftly moved to ratify an extradition treaty it had signed with the United Arab Emirates in September 2018, but there appears to be a hold-up in securing the final stamp that would pave the way for a strike against the notorious Gupta family.

The treaty is a vital instrument in South Africa’s quest to bring the Gupta brothers and their partner, Salim Essa, to South Africa to answer to alleged State Capture crimes.

But, Daily Maverick has confirmed that it is yet to be ratified by the UAE, in part, due to “translation” concerns raised by the UAE.

Signed, not quite sealed: the international treaty that could help bring the Guptas before a South African court.

What precisely the extent of those language hassles are, has been impossible to determine as Daily Maverick was unable to reach the UAE embassy via its contact details listed on the website of the Department of International Relations and Cooperation (Dirco).

But whatever the specifics, South African law enforcement is effectively stumped as no request for extradition can be made until those language hassles are ironed out and the treaty is ratified by the UAE.

Labelled as members of a “significant corruption network,” Ajay, Atul and Rajesh Gupta, along with Essa, were blacklisted by the United States in November under the country’s renowned Global Magnitsky Act.

While this move by the US was seen as a move that would greatly aid efforts by SA law enforcement to bring the Guptas to justice, it is clear that the prospect of extradition is still a long way off.

Recently, when British lawmaker Lord Peter Hain testified at the State Capture Commission in South Africa, he hinted at a behind-the-scenes hold- up and openly challenged Dubai ruler, Mohammed bin Rashid Al Maktoum to explain why the Guptas remain safely ensconced in Dubai.

It seems to me, either the government under the rule of Sheikh Mohammed bin Rashid Al Maktoum is wilfully sheltering a family that has looted astronomical amounts from South African taxpayers, or the SA authorities don’t have the will or capacity to bring them to book.”

Despite the signing of the treaty and a mutual legal assistance (MLA) agreement, the Guptas remain free to spend their ill-gotten gains abroad, thereby reducing any amount of cash that could be repatriated or recovered by SA, Hain told the commission.

The department of justice confirmed that the mutual legal assistance agreement has been ratified by the UAE, but said there were “ongoing engagements” to ensure the same is done in respect of the extradition treaty.

The ministry has been in contact with the UAE government to ascertain what can be done to ensure that the agreement/treaty become legally binding on both states,” the DOJ said in response to questions.

While the diplomatic negotiations around the treaty continue, albeit “delicately,” Daily Maverick has established that they are viewed as a stumbling block in the National Prosecuting Authority’s Gupta battle plan.

The NPA has confirmed that it’s banking on a gathering of international anti-corruption bigwigs and lawmakers in Abu Dhabi later this month to expedite efforts to get the Guptas back to South Africa.

A team from the National Prosecuting Authority will attend the eighth session of the Conference of State Parties to the United Nations Convention against Corruption to be held in the UAE capital between December 16 and 21.

The NPA said there have been engagements with authorities in the UAE since late 2018 and that it has requested the UAE’s minister of justice to “secure” the conclusion of the treaty.

The NPA will be meeting with them at the Conference of State Parties (Cosp) later this month to resolve any outstanding issues.”

Asked whether it has submitted any requests for information to law enforcement in the UAE, the NPA said: “Evidence has not yet been obtained but positive engagements with the UAE authorities are ongoing with a view to getting the necessary information.”

A back-up option is for SA law enforcement to rely on existing multilateral instruments such as the UN Convention Against Corruption (UNCAC), but this would be applicable only in the event the UAE does not make extradition dependent on a binding treaty.

In addition, the International Co-operation in Criminal Matters Act (ICMM) allows for the provision of evidence and the confiscation and transfer of the proceeds of crime between SA and foreign states.

This means that SA can issue a letter of request to the UAE asking that evidence be taken in that country to assist with criminal proceedings pending before an SA court.

Asked if it has indictments in respect of the Guptas and/or Essa ready to present to the UAE once the treaty is ratified, the NPA said:

These are all issues that are being finalised before travel to the UAE, as they will need to be addressed at the meeting with the UAE authorities at the December meeting.”

The agreements signed with the UAE provide for cooperation between the two countries to assist in the investigation and prosecution of crimes.

The preamble of the treaty document captures the objective: To cement sound relations between the two countries that are both “desirous” of strengthening and reinforcing cooperation in combating crime and as a result of a deep concern about the magnitude of rising trends in international terrorism and organised crime.

On the face of it, the treaty provides an effective mechanism for South African law enforcement to make a case for the UAE to act against the Guptas once presented with a request for the extradition of persons charged or convicted of various crimes covered under the agreement.

It sets out the specific circumstances for extradition, with a clear exclusion being crimes punishable by death, and bills as extraditable offences: crimes of attempting, conspiring to commit or aiding, abetting, inducing, or procuring the commission of, or being an accessory before or after the fact to any conduct considered a crime in both countries and punishable by a minimum of a one-year sentence.

Extradition may also be requested regardless of differences in the two countries if the crime for which an individual is sought relates to taxation, custom duties, exchange control or any other revenue matters.

Negotiations for the MLA and the treaty began back in 2010 and took eight years to be signed last year. South Africa took the treaty to Parliament in November 2018 to kick-start the ratification process.

Once ratified by both countries, it would take at least 30 days from the date of formal notification to actually come into force.

For now, South Africa’s quest for justice in respect of the Guptas remains in the hands of the UAE government – more than two years have elapsed since the #Guptaleaks emails surfaced in the public domain and 15 months of damning testimony at the Zondo Commission.

Repeated attempts to obtain comment from the UAE embassy in Pretoria were unsuccessful and this article will be updated once the embassy responds. DM

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