In our previous post, here, we explained how the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) used its authority under the Global Magnitsky Human Rights Accountability Act (“GloMag”) to sanction brothers Ajay, Atul and Rajesh Gupta (the “Guptas”), and their business associate Salim Essa, effectively barring them from the U.S. financial system. OFAC took this action based on alleged massive corruption involving public funds and public office.
The UAE and South Africa ratified an extradition treaty in mid-2021.[1] Interpol subsequently issued red notices for the Guptas, and the UAE arrested Atul and Rajesh Gupta in mid-2022.[2] However, the Dubai Court of Appeal ruled earlier this year that the Guptas could not be extradited to South Africa because of the failure of the South African authorities to meet strict standards for legal documentation in the extradition treaty between the two countries.[3] In this post, we examine the Dubai Court of Appeal’s ruling and what it means for the South African authorities moving forward.
Background
The Guptas face widespread allegations of bribery and money laundering, related to their alleged looting of upwards of 500 billion South African rand (approximately USD 26 billion) from state coffers over the course of a decade or more. The Guptas fled to Dubai in 2018 when former South African President Jacob Zuma was unseated. South Africa has since been taking efforts to bring the Guptas back to South Africa to stand trial.
Failed Extradition
On February 13, 2023, the Dubai Court of Appeal rejected South Africa’s extradition request, since it“did not meet the strict standards for legal documentation as outlined in the extradition agreement between the UAE and South Africa that entered into force in April 2021.” Specifically, it is reported that the extradition request failed to include an active arrest warrant as is required by the terms of the extradition treaty.[4]
What Next?
South Africa’s Justice Minister, Ronald Lamola, said the country would “promptly appeal” the Dubai Court of Appeal’s decision, while the UAE’s Justice Minister, His Excellency Abdullah bin Sultan bin Awad Al Nuaimi, underscored that the “South African authorities are able to resubmit the extradition request with new and additional documentation.”[5] To that end, the countries continue to cooperate and, on June 15, 2023, they established a joint task force to re-examine the request for extradition.[6]
Additional Considerations
As extradition has become ever more important given the growth of transnational criminal organizations, including those involved in terrorism, drug trafficking, and cybercrime, it is imperative that extradition requests—which seek the surrender of someone across borders for prosecution or punishment—be submitted and adjudicated precisely in line with the terms that two countries have agreed upon and memorialized in treaty-form.
The UAE has ratified a raft of extradition treaties (bringing the total number of extradition treaties to which it is a party to 37, with a further eight awaiting ratification) and, at the time of writing, has approved 30 extradition requests this year alone, including a high-profile request from Denmark for the extradition of Sanjay Shah, who is accused of defrauding Danish tax authorities of over 9 billion Danish crowns (approximately USD 1.32 billion).[7]
[1] Reuters, UAE ratifies extradition deal with S. Africa as hunt for Guptas intensifies, (June 9, 2021).
[2] United Arab Emirates Ministry of Justice, UAE arrests Rajesh Gupta and Atul Gupta in Response to International Request, (June 7, 2022).
[3] Reuters, UAE Dismisses S. African request to extradite Gupta brothers, (April 7, 2023).
[4] Id.
[5] Id.
[6] Eyewitness News, (June 7, 2023).
[7] Reuters, UAE starts extradition process of British suspect in Danish fraud case, (April 5, 2023).
