In the wake of the Gupta brothers’ extradition debacle and alleged reports that they successfully bought Vanuatu citizenship, an article in The Guardian with the headline, Citizenship for sale: fugitives, politicians and disgraced business people buying Vanuatu passports caught my attention.

A controversial “golden passports” scheme or citizenship-by-investment programme run by Vanuatu, a South Pacific nation with a population of 319,000 spread across 80 islands, has enabled more than 2,000 people to purchase passports.

According to The Guardian, those granted citizenship include “a slew of disgraced businesspeople and individuals sought by police in countries all over the world” and do enjoy visa-free access through 130 countries.

Notable notorious figures grated Vanuatu citizenship include:

• Hayyam Garipoglu, a Turkish banking mogul imprisoned over a multimillion-dollar embezzlement scandal and also sentenced for harbouring his nephew after his nephew had murdered a 17-year-old girl;
• Ghali Belkecir, the former head of Algeria’s Gendarmerie, the military force in charge of law enforcement, who has four warrants out for his arrest; and
• Vinay Mishra, a former Indian politician facing corruption allegations in India.

There is just something about Vanuatu in the same way there is something about the Guptas.

Vanuatu is not just a small island: it is a tax haven, with no income, corporate or wealth tax; South Africa has no extradition treaty with it; and it is an “island of interest” to world powers such as the US and the Peoples’ Republic of China.

It was recently reported that the US was making plans to open an embassy in Vanuatu “to boost its diplomatic presence in the Pacific to counter China’s growing influence”.

Passport-for-sale programme

If the Guptas are now citizens of Vanuatu under the island’s “passport-for-sale” programme, it may soon be difficult to trace them.

There is no guarantee that they won’t legally or even surgically change their identity.

The Guardian notes that an advertising brochure for the programme claims that “once you are granted citizenship, you can change your name by sending us a letter that explains your motivation … and your passport will be issued with your new name”.

What, then, would prevent the Guptas from changing their names after clearing the Vanuatu Financial Intelligence Unit process, allowing them to enter countries where their criminal background would not allow them to? 

The Guptas’ South African citizenship remains tied to broad legal and constitutional responsibilities, which include having to respect the laws of the country that gave you citizenship.

The question remains whether their South African citizenship can be revoked or deprived.

“We can’t take back the passport before we take away the citizenship. We must start there. We are chasing them because we believe they belong to us. So, if we take away that citizenship, do we still have any rights?” Home Affairs Minister Aaron Motsoaledi said.

Indeed, any attempt to strip the Guptas of their South African citizenship is a pickle. But that does not justify giving up too easily. 

Legal opinion

In his address, the minister said he would be soliciting advice from legal experts with regard to the revocation of the Gupta’s citizenship, and whether South Africa would still be able to have them extradited if they were no longer South African citizens or South African nationals.

The following is my legal opinion, which you may confirm with the Office of State Attorneys or Home Affairs’ legal experts.

On the issue of revocation of citizenship, there are several permutations to consider.

First, the right of everyone to a nationality is enshrined in Article 15 of the Universal Declaration of Human Rights and is recognised in many other international and regional human rights instruments.

International law prohibits arbitrary deprivation of nationality, and this has been reaffirmed by the General Assembly in its resolution 50/152 and the Human Rights Council in its resolutions 7/10, 10/13, 13/2, 20/5 and 26/14.

Thus, a move to revoke the Guptas’ South African citizenship must be consistent with South Africa’s international obligations. In particular, the government must ensure that the two fugitive Gupta brothers are not going to remain stateless.

Prima facie evidence suggests that the Guptas have at least dual citizenship. That is, they hold the golden passport issued by the nation of Vanuatu and the green passport issued by the democratic Republic of South Africa. If their South African citizenship was revoked, they would not be stateless.

The legal landscape regarding the revocation of citizenship for fugitive citizens is complex and varies depending on the jurisdiction and the specific circumstances of each case.

In the US, for example, the Supreme Court held in the 1958 case of Trop v. Dulles that the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits the government from revoking a person’s citizenship as a form of punishment.

Ernesto Trop, who had deserted from the US Army during World War 2, was subsequently convicted by a court martial. As a result, Trop’s citizenship was revoked by the US government, making him stateless.

The court also noted that citizenship was a “constitutional guarantee of its force and dignity”, and that the government’s power to revoke citizenship should be narrowly construed and subject to strict scrutiny.

The court, however, left open the possibility that Congress could revoke citizenship as a means of enforcing its immigration and naturalisation policies. 

Stateless

State Capture is akin to a coup d’état and therefore a serious crime in the case of the Guptas. Canada’s supreme court has held that the government can revoke a person’s citizenship if they obtained it through fraud or misrepresentation.

The court has also held that citizenship cannot be revoked if doing so would render a person stateless unless exceptional circumstances called for revocation even when it rendered a person stateless.

What is important from Canadian case law and with Canada being a country that greatly influenced our Bill of Rights, the government must weigh the importance of enforcing the integrity of the citizenship system against the harm that may be caused by statelessness. 

In South Africa, section 20 of the Constitution which the minister referred to provides for the protection of citizenship. It states that “no citizen may be deprived of citizenship”. 

The operative word is “may” and it means that section 20 is permissively couched to allow citizenship to be revoked under special circumstances as set out in enabling legislation.

The South African Citizenship Act of 1995 is the primary legislation governing the acquisition, retention and loss of South African citizenship. In terms of the act, circumstances under which citizenship may be lost include the voluntary renunciation of citizenship, the automatic loss of citizenship by a person who acquires citizenship of another country through naturalisation and fails to inform the South African authorities, and the automatic loss of citizenship by a person who voluntarily acquires citizenship of another country and does not take the necessary steps to retain their South African citizenship.

In the context of section 20 of the Constitution, there appears to be no confusion regarding the ability of the minister to revoke the Guptas’ citizenship as long as it can be justified under section 36 of the Constitution.

My opinion is subject to caution that a distinction must be made that section 20(1) of the Constitution relates to deprivation of citizenship, which can be as a result of revocation by the minister, and the loss of citizenship under section 6 of the Citizenship Act of 1995 as amended.

For instance, in the case of Democratic Alliance v Minister of Home Affairs and Another 48418/2018 (6 August 2021), the high court dismissed an application by the DA in which it challenged the constitutionality of section 6 of the Citizenship Act because it sanctions automatic loss of citizenship when a citizen, who is not a minor, acquires the citizenship or nationality of another country through voluntary and formal action, other than marriage, and did not apply to the minister for the retention of the South African citizenship.

Based on this decision and section 6, it can also be argued that the Gupta brothers automatically lost their South African citizenship when they allegedly obtained their Vanuatu citizenship, and, as such, their continued use of the South African passport is illegal.

No uniform law

Last, on the question of whether South Africa will still be able to have them extradited if they are not holding South African citizenship or not South African nationals. 

For illustrative purposes only, and assuming that indeed the Guptas are now Vanuatu citizens, the minister’s question should be reframed as follows: Will Vanuatu be obligated to extradite its citizens to South Africa? 

The reality is that there is no uniform rule prescribing or prohibiting the extradition of nationals in international law or state practice.

Yes, the practice of protecting nationals from extradition was based on the idea that one had a fundamental right to be tried by the judge of one’s own country and that only national judges had jurisdiction to prosecute a case against nationals or citizens of a country.

The 1957 European Convention on Extradition in Article 6, for example, gave contracting states a “right to refuse extradition of its nationals”. In their opinion published by the American Bar Association, William Julié and Juliette Fauvarque note that based on this convention, Poland has declared that it will under no circumstances extradite its nationals.

On the other hand, the Netherlands declared that nationals may not be extradited “for purposes of prosecution” provided the requesting state guarantees that the person claimed may be returned to the Netherlands to serve the custodial sentence there.

Modern-day bilateral and multilateral extradition treaties have rendered moot arguments about the right to be tried by one’s national courts. 

A small nation such as Vanuatu that seeks to engrain itself in developed nations will, through extradition agreements or state practice, recognise the legitimacy of a sovereign state such as South Africa to assert its criminal jurisdiction over any person who was alleged to have committed a crime on its territory, irrespective of their nationality.

The odds may be in South Africa’s favour that the Guptas were not Vanuatu citizens at the time of the alleged offences.

Facing justice

In conclusion, the advice to the Department of Home Affairs is that it is still possible to have the Guptas surrendered to South African authorities. Also, nothing prevents the revocation of their South African citizenship if they will not be left stateless.

Section 8 of the Citizenship Act, read with section 20 of the Constitution, empowers the minister by order to deprive any South African citizen by naturalisation of his or her South African citizenship if he is satisfied that it is in the public interest that such citizen shall cease to be a South African citizen.

Further, the state must move with speed to determine if the Guptas have not automatically lost their citizenship in terms of section 6 of the Citizenship Act by taking up citizenship of another country.

Why would it be in the public interest to allow the Gupta brothers to retain their South African citizenship if they will never avail themselves before the South African justice system?

Our government should stop making excuses to not rigorously seek the surrender of the Guptas or to revoke their South African citizenship if not already lost. Denationalised Guptas can still be brought to face South African justice. Extradition treaties can be negotiated and signed at any time between countries. It is thus possible that a treaty may be signed or negotiated between Vanuatu and South Africa, if not already in place. DM