I spoke recently to an international legal expert on immigration and “golden” passports (who has asked not to be named) for some clarity on the issues involved, and he says there is a way to repatriate the Guptas which does not involve extradition. It overlaps a bit with the Sam Bankman-Fried matter.

As it happens, there is an extradition treaty between the Bahamas and the US, but despite claims that Bankman-Fried was “extradited”, it’s a bit more complicated than that. Fraud charges were brought against Bankman-Fried in the Bahamas, and normally, countries don’t consider extradition until local charges have been heard.

Formal extradition usually takes months, if not years. But in Bankman-Fried’s case, he was on a plane back to the US within a few weeks. One of the reasons was that he waived opposition to being extradited, and the Bahamian authorities waived their right to hear the case before extradition.

Apparently, one of the issues was that he was being held at Bahamas’ Fox Hill prison, which is infested with rats and insects. Couldn’t happen to a nicer guy?

Bankman-Fried claimed he had waived opposition to extradition because he wanted to make his clients whole again (ja, right). More likely, he was advised about another way countries can ensure that wrongdoers return home to face the music.

Presto! The home country can simply cancel the suspect’s passport. It is then impossible for the accused to travel anywhere other than back home because no country will grant entry to someone without a valid travel document.

The Guptas

In the case of the Guptas, there are two additional complications.

According to what has been reported so far, the Guptas managed to avoid extradition from Dubai because Dubai doesn’t want to sully its reputation as a haven for financial crooks. Oops. Sorry, that is in fact incorrect. I mistyped there. Technically, it seems the Gupta brothers claimed they had citizenship of the Pacific island nation of Vanuatu through the island’s golden passport scheme. The island has a citizenship-by-investment scheme that costs about $130,000 and takes only a few months.

Consequently, the Dubai judge found, we think, that South Africa does not have any jurisdictional rights because the Guptas are suddenly citizens of another country. But, says my expert, there is a big problem because Vanuatu doesn’t in fact grant citizenship – it grants something called “honorary citizenship”, which is not quite the same thing.

There are other problems with Vanuatu’s system. Most golden passport countries have very strict screening mechanisms: if you face charges anywhere in the world, you are normally excluded from acquiring a golden passport. The reason is simple: if you grant crooks golden passports allowing them to travel to, say, the EU visa-free, you are implicitly making a mockery of the legal systems of the destination country; the very region whose forbearance you rely on to make your golden passport worth something.

In addition, it’s unpopular for granting countries to hand out passports to crooks because it devalues the passports of your own citizens.

But it turns out that Vanuatu’s screening system was more or less non-existent and, consequently, the EU has given the island notice that it won’t honour its visa-free status if it does not up its game.

That process is still under way and, trust me, the Gupta case has had enough publicity that the island is now under intense pressure. The island also has a problem with the UK because, apparently, Chinese spies were using Vanuatu’s passports to slip into the UK. Hence, the benefits the island got under its membership in the Commonwealth are also in question.

SA citizens

In any event, this “honorary citizenship” does get you a passport, but doesn’t give you citizenship in the proper sense. Hence, the Guptas are still, courtesy of Malusi Gigaba’s apparent open-door policy to foreign crooks, SA citizens.

But, you might wonder, why would the Guptas not just fall back on their old Indian passports? Well, because India doesn’t allow its citizens to be citizens of two countries. When the Guptas got South African citizenship, they automatically relinquished their Indian citizenship.

So, what could SA do? This depends on whether the Guptas got their Vanuatu passports before Interpol’s “Red Notice” was issued. If not, it would be pretty easy to invalidate their Vanuatu passports. But even if they were issued before the notice, SA could ask Vanuatu to formally withdraw their passports.

Presumably, the Guptas are in Dubai on temporary visas. When those expire, without the ability to use Indian or Vanuatu passports, they would have to leave the UAE, but wouldn’t be able to go anywhere except SA where they would be (we hope) arrested on arrival.

Would this work? I don’t know, but apparently it is the system the US uses for places where it doesn’t have a formal extradition treaty. 

I think it’s probably worth a shot. Even if it makes the Guptas’ lives a bit more difficult and prevents them from travelling to, say, Switzerland – the last place they were seen in public – it would be worth it. BM/DM