Analysis | Selby Makgotho: What if the UAE refuses to extradite the Gupta brothers?

Following the UAE’s decision to extradite the Gupta brothers, South Africa still has two options.Either appeal the verdict or start the extradition process from scratch, addressing all the issues raised by the UAE, writes Selby Marko.

The effectiveness of extradition proceedings between South Africa and the United Arab Emirates (UAE) needs to be reassessed.

Both countries are signatories and parties United Nations Convention against Corruption (UNCAC), It empowers them to cooperate with each other to ensure that corruption-related offenses are prosecuted. However, the South African version of the Gupta brothers’ extradition request paints a different picture.

In addition, the two countries have maintained and enjoyed strong bilateral diplomatic and economic ties since 1994. The UAE is currently South Africa’s 35th largest trading partner in terms of trade and investment opportunities.

UNCAC covers a wide range of issues related to mutual legal assistance (MLA), including preventive measures, criminalization and law enforcement, international cooperation, asset recovery, technical assistance and information exchange.

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South Africa ratified an extradition treaty with the UAE in 2018. The approval will depend on the extradition of three Gupta brothers – Atul, Ajay and Rajesh Gupta – who are accused of using their connections to win state contracts, misappropriate state assets, improperly influence ministerial appointments, and embezzle Billions of rands of state money.

It is widely believed that the Gupta brothers fled to the UAE because they owned several businesses and properties there. Rumors that the Gupta brothers were behind their cells appear to be largely untrue after they were allegedly spotted in Switzerland last month holding South African passports.

problem

As in the cases of Thabo Bester and Prophet Shepherd Bushiri, how easily these fugitives escaped detection in South Africa after committing crimes is a poignant question. This issue is significant given the protracted nature of extradition proceedings. Once fugitives do escape, the process of extraditing them back can be cumbersome and drain taxpayers as they have to take on the legal wrangling involved in bringing them back.

South Africa is going to send witnesses to Malawi to testify in the Bushiri case, and the scope of the involvement is unimaginable. The delegation that traveled to Tanzania this week after Bester’s arrest also cost taxpayers.

South Africa’s efforts to track down the Gupta brothers and bring them back to the country for full accountability have suffered a setback. Last week, the matter unfolded in ugly fashion, when it was revealed that it had been two months since a UAE court rejected South Africa’s application to extradite the brothers, citing legal technicalities related to paperwork.

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It is unbelievable that this important information was not disclosed to South Africa in a timely manner, despite South Africa’s best efforts to follow up on the matter to the best of our knowledge. Also, the text was transmitted in Arabic, which they also knew would be problematic when translating. Communication between the two countries is in Arabic and English. However, under constant questioning from Pretoria, the UAE chose to communicate only in Arabic and delivered the verdict late at night.

Chief Justice Raymond Zondo, in the findings of the State Captives Commission, found that the financial damage caused by the Gupta brothers was so great that it warranted further investigation. It is unacceptable for taxpayers’ wallets to flow to such unwarranted levels. If they had nothing to hide, the Gupta brothers would simply work with South Africa and provide their version of events, if any. Avoiding accountability is not an option.

The next question is what’s next for South Africa.

As the situation unfolds, the Ministry of Justice and the National Prosecution Authority (NPA) seem to have two main options: appeal the sentence or start the extradition process from scratch and resolve all the issues raised by the UAE.

In the Danish case of Anthony Mark Patterson, 51, the court granted the appeal based on “the weighing of pros and cons and important factors in favor of extradition”. It comes after Paterson tried to fend off efforts by his native Britain to extradite him to stand trial for nearly $121 billion lost on fraud charges.

read | More red notices and extradition deal: These are the options for SA to bring back Guptas

In such cases, should an appeal be lodged, Patterson case law can serve as a referral point for extradition, regardless of how long the extradition may be, as long as the legal requirements and documents submitted are met.

South Africa can rely on several decided ICJ cases and make a strong, convincing case to the UAE that extradition is in the best interest of justice; the Gupta brothers will not suffer any human rights abuses in South Africa; Their assistance will be useful to the courts.

Another consideration is to start extradition proceedings from scratch.

The UAE has shown it is not taking South Africa seriously, if recent developments are any guide. South Africa must now step up its efforts and put more pressure on its UAE counterparts to gain full cooperation.

This is no ordinary case, with accusations of misconduct involving money laundering, corruption, fraud, tax evasion, etc. growing. If the UAE is serious about its UNCAC and extradition treaty obligations, it should not keep South Africa in the dark and make it look like a beggar who cannot provide information on such a critical, sensitive and pressing issue.

It would be absolutely inappropriate to ignore the letter from South Africa. This case is about South African taxpayers. South Africans wonder whether the allegations against the Gupta brothers are true, and whether there is complacency at a time when the Gupta brothers are busy impoverishing the country’s financial gains.

– Selby Makgotho is a legal commentator and PhD student in Public Constitutional and International Law at Unisa.

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