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SA says it did everything by the book to secure the Guptas’ extradition – how can we be sure?

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

In the furore that followed the South African government’s failed bid to have Atul and Rajesh Gupta extradited from the United Arab Emirates, the DA put the blame squarely at the feet of the Justice Department and the National Prosecuting Authority.

The DA is calling for accountability for the government’s failure to have the Gupta brothers extradited from the UAE. Glynnis Breytenbach, the party’s shadow minister of justice and constitutional development, said in a statement issued on 7 April that the Justice Department bungled the extradition process with an ulterior motive.  

“The question now stands, whether there was ever serious intention to successfully extradite these perpetrators, bearing in mind the consequences that would have ensued for so many highly placed ANC members.”

Minister of Justice Ronald Lamola seems to be accusing his UAE counterparts of having negotiated in bad faith, acted surreptitiously and flouted the extradition treaty.

Normally, I would have said: What is the fuss about? We always knew extraditing the Guptas from the UAE was never going to be a walk in the park. Particularly if the repatriation request was to be led by a less-prepared division of the government of South Africa. Why blame the UAE? There is a growing impression that the UAE, by allowing the Guptas to leave the country or not handing them to South African authorities, points to a certain amount of nose-thumbing going on.

Extradition is a complex and internally acceptable process simplified by the presence of treaties between nations. It is undergirded by the comity of nations and values of international judicial cooperation to combat crimes. Extradition is unlike rendition, where states have been resorting to unilateral action to apprehend the suspect, be it through forcible abduction in another jurisdiction (rendition) or forcible abduction in another jurisdiction and transfer to a third state (extraordinary rendition).  

Rendition justice has been practised in the US. A typical example is the classified National Security Decision Directive 207, where President Ronald Reagan authorised several renditions from locations where the US government could not secure custody through extradition procedures. 

I am not suggesting that South African law enforcement agencies resort to the rendition practice. The point made here is that extradition follows some strict formalities and procedures.

As I previously opined in Daily Maverick, there was always a long and complex legal road ahead before the Guptas could be extradited to South Africa. Little did I know the complexity would be a result of what we did or failed to do as the South African government.

The big question

In the UAE, the extradition of requested persons is governed by Federal Law No. 39 of 2006 on International Judicial Cooperation in Criminal Matters (“Extradition Law”). The big question is whether the South African government complied with the requirements or conditions for extraditions – it was up to the South African government to comply with the UAE requirements, not vice versa.

The main elephant in the room with regard to this failed Gupta extradition relates to information provided to UAE authorities. Has the South African government submitted all documents, including additional documents and information, that may have been requested by the UAE authorities, if it deemed that the information submitted is insufficient? Lamola argues that the extradition was denied on a technicality. 

Read more in Daily Maverick: ‘A duplicitous game’ – UAE criticised after Guptas extradition request debacle 

“The reasons provided for denying our request are inexplicable and fly in the face of the assurances given by Emirati authorities that our requests meet their requirements,” Lamola has argued. The South African government is adamant that it did everything right.

“South Africa ticked all the boxes and did everything that was required to ensure that our extradition had the best possible opportunities for successful application. There was nothing more that South African authorities could have done,” said Adv Shamila Batohi, national director of public prosecutions. Who is fooling who? 

Under Article 11 of the Judicial Cooperation Law, a request for extradition has to be submitted with all information and documents translated into Arabic and officially ratified by the competent authorities. Documents required include, amongst others, a copy of the legal text which applies to the crime and the prescribed penalty in the requesting country; and an official copy of the investigation statement of offence and the warrant of arrest issued by the competent foreign judicial authority in which indicated the type of crime, the acts attributed to the requested person, date and place of its commitment if the request concerning a person is the subject of an ongoing investigation.

According to a report from the UAE, for its part in explaining the reason for the decline to extradite, “[f]or the extradition request concerning the charge of fraud, article (3/9) of the extradition treaty stated that the extradition request shall be accompanied by a copy of the arrest warrant order, whereas the submitted documents for the two accused were attached with the cancelled arrest warrant order, thereby failing to meet the extradition conditions.” 

In the UAE view, no arrest order was submitted for the charge of corruption. 

“Concerning the charge of corruption, article (3/9) of the extradition treaty stated that the extradition request shall be accompanied by a copy of the arrest warrant order, whereas the submitted documents are free of the arrest warrant order of the two accused for the charge of corruption, thereby failing to meet the extradition conditions.”

We are informed that the UAE denied the extradition on the charge of money laundering as the charge falls within its jurisdiction over the matter, and also that the arrest warrant on the fraud and corruption charges was cancelled. This, in my view, is not a technicality but a fact, if indeed the submitted charge sheet was cancelled. 

I do not see how a cancelled warrant of arrest could have secured the extradition. The cancelled warrant of arrest served the purpose of nullifying the South African government’s request for the Gupta extradition. In summary, it made the extradition invalid ab initio

It is difficult to comprehend how the UAE would have handed the Guptas to the South African authorities when the documents submitted to facilitate the extradition suggested that charges had been dropped. 

The bottom line

We can scream our lungs out and blame the UAE government or diplomatic relations, but the bottom line is that under the UAE law and practice – where incomplete documents are received by the requesting country – the head of Public Prosecutions usually refers the matter to the court with a letter recommending not to accept the request made by the country due to incomplete documents. 

legal firm in the UAE reports a failed bid by the German Government that the UAE extradite a German citizen accused of committing financial crimes under German Law. Apparently, in “its request, the German Government provided all of the requested documents to the UAE but not the investigation report.” Also, “the German Government did attach the arrest warrant that contained the description of the crime, the time and location of the crime”. But, “the UAE Court concluded that such description did not equate to an investigation report and rejected the extradition request.” This is evidence of how strict the UAE is regarding the formalities of the request for extraction, and clearly a cancelled charge sheet was never going to make it. 

The aim of extradition is to vindicate the right of the requesting state to prosecute persons who had violated its laws. Therefore, the obligation was on the South African government to at least meet, without fail, the requirements of its extradition treaty with the UAE. So far, commentators and observers have addressed the failed Gupta extradition and not probed why the government of South Africa sent the UAE authorities a cancelled charge sheet. 

We have rushed to grab the whole saga as a political weapon against the “failing” ANC. This approach, however, fails to explain many of the key contours of extradition requests made by South Africa. And I must repeat: where were the South African consular and diplomatic channels in the UAE when things were happening and the authorities back home were clueless? 

Why would the UAE authorities throw the South African Ministry of Justice under the bus if the two governments have been in communication all along? Do the UAE authorities even consider the South African government as “a government”, assuming that indeed it has betrayed our justice system? 

Read more in Daily Maverick: The Guptas are gone. No one is to blame, everyone did their best. The end

What “technicality” is being referred to by Lamola when he notes that the UAE declined extradition on a technicality? What requests for further information were sent by the UAE authorities and if any, were such requests responded to promptly? Finally, did the South African government send as supporting documents for extradition a cancelled charge sheet? 

I would not discount the possibility that interest group politics may heavily influence the UAE’s decision on whether to comply with its obligations under the extradition treaty with South Africa. Unfortunately, nothing so far suggests that the UAE unduly favoured the Guptas, until proven otherwise. 

The only conclusion for a bystander is that the South African government failed to comply with all extradition requirements – whether by design, incompetence, or a group of officials paralysed by bureaucratic processes aggravated by an astonishing degree of sloppiness. Period. The consequence is that increasingly, transnational criminal groups are diversifying their crimes, markets and networks. 

Increasingly, national and transnational criminal groups will be emboldened to diversify their crimes and networks knowing that no criminal liability will ensue (at least not from the South African criminal justice system). 

Unfortunately, the South African government has invested a substantial amount of resources in this application and all may have gone to waste. And the wastage is not about to end any time soon. 

There is talk of an appeal to the UAE, but it is nonsensical to appeal to the UAE if the Guptas are no longer in their jurisdiction and have found a hiding place as citizens of some safe haven called Vanuatu, as confirmed in a recently released statement by the director-general of the justice department, Adv Mashabane; or some other country that couldn’t care less about what South Africa thinks.

Read more in Daily Maverick: South Africa’s extradition logjam – ‘Stalingrad on steroids’ or incompetence?

Since their Interpol Red Notice has expired, South Africa will have to apply for a new one. A Red Notice is merely a “lookout” notice – a request to law enforcement worldwide to locate and provisionally arrest a person wanted for prosecution or to serve a sentence pending extradition. 

As “lookout” notices and not “international arrest warrants”, the majority of Red Notices are restricted to law enforcement use only. Of course, there may be cases where the public’s help is needed to locate an individual. So far, we know that Interpol, in terms of its Constitution, cannot force or compel the law enforcement authorities in any country to arrest someone who is the subject of a Red Notice. 

Once again, my take is that the Gupta brothers will not be on their way to South Africa to face their State Capture crimes any time soon. DM

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Comments - Please in order to comment.

  • Mike Meyer says:

    Nobody in the cANCer wants the Guptas anywhere near a South African Court. They have too many stories to tell.

  • Jo Stielau says:

    So right, Omphemetse, but one thread no one is looking at in depth, but you touch on in the phrase ” whether by design”, is to question how badly the ruling party does NOT want the Guptas in court! Can you imagine how much dirt the Guptas have to dish up on past and present members as their reduced sentence deal? We’d be looking at a whole new tsunami of Gupta “leaks”.

  • Hermann Funk says:

    “The South African government is adamant that it did everything right.” These fools haven’t done anything right for the last twenty years. It also appears that Batohi has been appointed to protect the big criminals of the ANC rather than facilitating justice.

  • Franz Dullaart says:

    “The only conclusion for a bystander is that the South African government failed to comply with all extradition requirements – whether by design, incompetence, or a group of officials paralysed by bureaucratic processes aggravated by an astonishing degree of sloppiness. Period.” This is the most plausible conclusion given what we know about Eskom, SAPO, DENEL, SAA, Home Affairs, Transnet, etc., etc.

  • Johan Buys says:

    How will we know? Well, if SARS prosecutes the Guptas tax affairs it would show some intent. It is 99% certain their corrupt income was not declared here and bribes deducted as expenses. SARS has a better chance of going after anybody anywhere’s money than Justice department has of extraditing people to stand trial for criminal offences.

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