Bushiri could exploit South Africa’s history of upsetting Malawi

When it comes to international law, few people understand that it’s less about being on the right side of legal instruments and more about being liked.

When then British Prime Minister David Cameron effectively vetoed a European treaty to tackle the Euro Crisis back in 2011, it didn’t bode well for the UK in Europe. Isolated, the rest of Europe went on and did a deal anyway regardless of the lack of unanimity.

This is an indication of the primary problem with international law; there is very little hard accountability. It’s not like there’s an international civil court which will force world leaders to abide by agreements. Even if there were, it’s not like there’s an international police force which will come to arrest a world leader for violating this fictional international civil court order.

The closest thing we have is the UN International Court of Justice, which has heard fewer than 200 cases since the 1940s. Even then, and its controversy aside, so what if a country violates its orders?

So, when it comes to the Bushiris, the question I get asked most often is: “How long will it take to get them extradited since there is an extradition treaty in place?”

Off the bat, there is a problem with the question itself, since it assumes that extradition is automatic and guaranteed just because there is a treaty. It isn’t. Malawi can simply refuse to extradite the Bushiris and this is even catered for in the SADC treaty (as well as the preceding bilateral agreement between South African and Malawi).

Even if Malawi refuses to grant extradition out of spite, the little South Africa could do to force their hand would be longwinded, costly, and probably ineffective.

And, lest we forget, Malawi has plenty of reason to be spiteful. It’s not like South Africa has been really nice to them in the past.

Back in 2013, then President Jacob Zuma zinged Malawi in what became known as his “I am not an African Speech”, claiming that we should not think like Africans, and that the N1 is not some national road in Malawi.

Around that same time, an extradition request from Malawi for a fugitive held in South Africa got caught up in our courts for some time, and most recently, we’ve effectively suspected their president of harbouring and smuggling fugitives in the Bushiris themselves.

We even halted the dude’s plane from taking off and diverted his team’s plans for hours.

So what reason does Malawi have to grant the extradition? It’s all about soft power.

How would the rest of SADC react if Malawi didn’t engage with the spirit of the treaty? What requests has Malawi made of other countries in the region that are still pending, which may be upset by Malawi’s actions against South Africa? How much weight does South Africa command and who owes who favours?

These and more questions are all factors that will weigh in on Malawi’s decisions. Even if they don’t want to extradite the Bushiris, the weight of South Africa’s soft power may compel them to.

But even if they were to go with the decision to extradite, the Bushiris are loaded and can put up a fight, both in Malawi and then eventually in South Africa. In other words, we’re in for the long haul.

Clutching at every straw available to them, from prejudice to racial bias to simply a blanket claim of innocence, the Bushiris seem prepared go the distance. What this is likely to do is expose the flaws in our legal system, which can be abused with enough power and money to cause delays so long, that eventually the appetite to pursue the case may be lost.

Perhaps the Bushiris took a page out of Carlos Ghosn’s book when he fled prosecution in Japan. The circumstances and merits are certainly different, but it points to a worrying potential trend where the wealthy have additional tools to avoid prosecution that the average person does not.

If this matter isn’t resolved and resolved swiftly, it will send a message to South Africans that the rule of law is split into two; one for those who can afford to game it, and another for the rest.

Already people are questioning our legal system and rule of law. We can ill afford this additional situation, lest we want our legal system to be the equivalent of some national road in Malawi.

Richard Anthony Chemaly -entertainment attorney, radio broadcaster and lecturer of communication ethics.

For more news your way, download The Citizen’s app for iOS and Android.