The world is shrinking for the Guptas – Paul O’Sullivan on extradition treaty

Corruption buster Paul O’Sullivan joined the BizNews Power Hour to discuss the news that the United Arab Emirates has ratified an extradition treaty with South Africa so that the Guptas can be brought back into the country. This could be good news given that the UAE is said to be where the Gupta brothers are living at present, but O’Sullivan is hesitant. “We’re getting information now that says they might have moved, but I haven’t been able to confirm it,” he says. O’Sullivan explains the complexities of the process and what could happen now. – Claire Badenhorst

Paul O’Sullivan on the different processes that must be followed:

You can’t make incursions into other countries’ sovereignty. And the United Arab Emirates, with or without the extradition treaty, I think the Interpol Red Notice would eventually hit the mark. Now, if one looks at the – and I haven’t seen any Interpol Red Notice yet because I don’t think it’s been actually activated – but if there was an Interpol Red Notice, I believe it’s going to relate to this so-called dairy farm.

I’ve always said that if you have to go after somebody, go for the low-hanging fruit and not necessarily everything that they’ve done because otherwise people get confused and even courts, you know, and judges, eventually they lose track of what’s going on. So go for something that’s easy to prove. And it sounds to me like this dairy farm project, for want of a better expression, it’s easy to prove. I think the money found its way into the country, out of the country, and back into the country to pay for a fancy wedding. And I believe there’s a nice little audit trial there, which the National Prosecuting Authority, a.k.a. ID, have been able to prove and that’s led to a raft of arrests. I think there’s been some bail applications this week as well and one of them was denied.

Al Capone was nailed on tax fraud. I think his bookkeeper became a state witness. In this case, the emails, the trove of emails commonly referred to as the Gupta leaks, several of those emails included emails to KPMG and back again explaining how to fiddle their taxes by couching the funds in different ways. But the bottom line is that money left the country and came back again. And that money was supposed to have been used for a dairy project which was going to create work for people that needed jobs.

On why it takes so long (and why you can’t just send in forces to fetch the Guptas): 

Well, you can’t send people in to go and grab them, you have to then follow the terms of the extradition treaty, and normally the way it works is an arrest warrant is issued in the home country. A copy of the arrest warrant and sufficient documentation to demonstrate that there’s a prima facie case would then be supplied to the country where the individuals are allegedly hiding and that country would then arrest the person, detain him pending an extradition trial, and then at that trial, he would have the right of defense and he would have the right to say, well, you know, all this stuff has been invented or whatever. I believe it’s what Mike Lomas is currently doing in the UK in respect of the Eskom/Trindade fraud and corruption case. So it’s not as clear cut as it may sound.

Now, notwithstanding the fact that there was no extradition treaty, Dubai is still a signatory to the United Nations – the protocol which combats money laundering and whatnot – and that’s enforced by Interpol. The United Arab Emirates are a signatory and member state of Interpol and now Interpol is an international police organisation, which is managed, if you like, as a UN body. So the Red Notices, they work in a different way and the way it works there is the details are supplied to Interpol, Interpol then publishes the Red Notice, and then any country – not just a country with whom you have an extradition treaty – can arrest that person and detain them and then notify the country that issued the Red Notice. They in turn, normally have 60 days or 30 days – I can’t remember what it is – to launch an application, a formal application to have the person extradited from that country in terms of the Interpol/UN rules, which Dubai is a signatory to. So we didn’t really need to spend a lot of time putting an extradition treaty together. Now, the beauty of extradition treaties is that it does cut away some of the red tape from the UN process or the Interpol process, because it works more in terms of the agreement, more good faith than law. So somebody in a senior position in South Africa would have to state under oath and with some of the evidence being provided, that the person is wanted to go on trial and then they would be extradited. That process is probably a bit quicker than the Interpol process, but not a hell of a lot quicker. So at the end of the day, the result would be the same.

On why South Africa had to wait for the extradition treaty to go through: 

The reason is before you can apply for extradition through treaty or via Red Notice, you have to have issued a warrant of arrest in the home country. So they only issued the warrant of arrest in the last couple of weeks. There hasn’t been a warrant of arrest with their name on it.

On what happens if the Guptas have found another location: 

You see, the point I made earlier was, if you know where the person is and the Red Notice has been issued, you notify the law enforcement agency, the Interpol office in that country. Now we have an Interpol office here in Pretoria, and it’s manned by police officers who are members of the South African Police Service. And the only difference between them and the other cops is that they work at that office in Pretoria, which is known as the Interpol office, but they [are] not technically members of Interpol. The country is a member of Interpol. Now, in order to get a Red Notice out, you have to issue an arrest warrant in the home country and then a period of time has to go by. Alternatively, you have to be able to say with a fair degree of accuracy that they are not in that country. Now, I think it’s easy to say that the people in question are not in South Africa. So a certificate would be issued that they’re not in South Africa. If you can’t issue that certificate, you then normally have to wait for, I think, 90 days before they will publish the Red Notice.

Now, Red Notices, there are two types. There are public Red Notices and there are non-public Red Notices. Now, the difference between the two is the non-public Red Notices only show up on law enforcement agency platforms, whereas the public Red Notices, any member of the public anywhere in the world can view them and see them. Some countries, as a rule, just don’t do public Red Notices, for example, the United Kingdom, if you go onto the Interpol website and you look for Red Notices from the United Kingdom, you won’t find any. South Africa does them publicly. Russia does them publicly. It varies from country to country. And then some countries will put some of their Red Notices in the non-public section because they don’t want the person that they’re seeking to arrest to know that they’re looking for them. So it’s quite a complex process. But at the end of the day, if they’re not in the UAE, wherever they are, they’ll either have to stay there and stay hidden or they’re going to get caught. So the world will get smaller for them.

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