Guptas ‘effectively free’ as UAE stalls their extradition

The extradition case against the Gupta brothers, Ajay, Atul and Rajesh, wanted in South Africa to stand trial on charges related to state capture, might be a waste of time, according to a legal expert, because there is no incentive for the United Arab Emirates to hand them over.

The Organisation Undoing Tax Abuse (Outa) has laid charges of treason, racketeering, extortion, fraud and forgery against the Gupta brothers and Duduzane Zuma in connection with allegations of state capture.

Zwelinzima Vavi, general secretary of the SA Federation of Trade Unions (Saftu), said the extradition of the Guptas, who are apparently living in the United Arab Emirates (UAE), may have been intentionally stalled, because the UAE does not allow anyone to be extradited five years after the alleged crimes.

“In August, it will be the end of that five years. After that, the Guptas are free,” Vavi tweeted.

According to legal expert Richard Chemaly, it was unlikely the UAE would hand over the Guptas to be prosecuted because it was not in their interest.

“Legally, SA has an extradition treaty with the UAE, signed in 2018 and ratified by SA later that year – but the UAE has yet to ratify it into law,” Chemaly said. “The UAE is clearly reluctant to ratify. I assume this is due to little political interest in allying with South Africa and even less incentive to do so. There is a strong precedent set in the UAE relating to the five-year limitation.”

Chemaly said legally and politically, pursuing the extradition was a waste of time and SA should rather focus on more friendly nations and Interpol for assistance, because the UAE had a history for refusing extraditions.

“The UK wasn’t even able to get alleged tax evaders back from the UAE to stand trial in 2016, because the crimes were allegedly committed in 2008.”

This was a reference to the Dubai Cassation Court – the country’s highest court – rejecting an extradition request for three British brothers who allegedly conspired to launder money and evade taxes of nearly R2 billion.

“However, many core alleged crimes occurred more recently – but this delay seems set to continue because extradition agreements are based on international law, which is a very flimsy form of law based on agreements with limited accountability,” said Chemaly.

He said the Guptas would not exactly get off scot-free because South Africa does not have any form of limitations when it comes to time between a crime and when you may be convicted. A case would, therefore, still be open.

“The case will remain open on this side. It merely means they are not here to face the case and possibly never will be, so effectively free but never free to visit us and/or another country willing to help us out,” Chemaly said.

According to Justice Minister Richard Lamola’s address to the United Nations Convention against Corruption in Abu Dhabi in December, SA was being frustrated by the UAE for delaying the extradition process against the Guptas.

He said SA’s legal framework on international cooperation in criminal cases enabled it to provide the necessary assistance to other states on the basis of reciprocity.

The department of justice referred questions to the National Prosecution Authority, which did not respond by the time of going to press.

The UAE Embassy in Pretoria also failed to respond to questions.

Gupta brothers, Essa ‘excluded from US financial system’

The US department of the treasury’s Office of Foreign Assets Control (OFAC) sanctioned members of a significant corruption network in SA on 10 October last year, which leveraged overpayments on government contracts, bribery, and other corrupt acts to fund political contributions and influence government actions.

“OFAC designated Ajay Gupta, Atul Gupta, Rajesh Gupta, and Salim Essa for their involvement in corruption in SA,” its statement read.

“The Gupta family leveraged its political connections to engage in widespread corruption and bribery, capture government contracts and misappropriate state assets,” said Sigal Mandelker, treasury under-secretary for terrorism and financial intelligence.

“Treasury’s designation targets the Guptas’ pay-to-play political patronage, which was orchestrated at the expense of the South African people.

“The Guptas and Essa have used their influence to line their pockets with ill-gotten gains. We will exclude them from the US financial system.”

Passports ‘useless’

In December, two Gupta family members reapplied for SA passports but the department of foreign affairs has not made a decision on their application.

Home Affairs Minister Aaron Motsoaledi said at the time it was not clear whether they were renewing their citizenship but there were definitely applications for passports.

“We have got applications and we have kept them,” he said. “Obviously there is no way I would be stupid enough [to process them.] The department of justice is looking for them. They are in trouble. They can’t travel to any parts of the world because they are using SA passports,” Motsoaledi said.

Immigration website immihelp.com said, “India does not allow dual citizenship”.

Instead, people are granted an overseas citizenship of India for a “lifelong visa to India, and exemption from reporting to the police” during their stay.

– gcinan@citizen.co.za

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