The treaty will enable the countries to help each other in criminal investigation and prosecution of crimes through mutual collaboration and extradition of accused hiding in either of the country post committing a crime or who is wanted in requesting country. The negotiations pertaining to the concerned treaty initiated in 2010 and after prolonged negotiations for around eight years, both the countries finally signed the treaty. The treaty covers several criminal acts including but not limited to, torture and criminal acts punishable with the death penalty.
The foregoing treaty is an outcome of serious criminal matters wherein the accused leave the country post committing an offence in either of the states. It is a move that could pave the way for the forceful return of the famous Gupta Brothers who has been declared as “Fugitive from Justice” by South African Court.
The Gupta Brothers Case
The Indian brothers, who are among one of the richest South Africans are under investigation for alleged corruption. A public inquiry was initiated against them for corruption along with the scandal-tainted erstwhile president of South Africa, Jacob Zuma. The investigations were initiated to gather evidence which will prove that the former president organized pillage of government-owned coffers and allowed them to select ministers which are known as “State Capture”. A minister has given testimony against the parties involved in the concerned scandal. The brothers fled to UAE in early 2018 as criminal investigations for alleged corruption was accelerated.
It is believed that international criminal justice strikes for a balance between respecting a states’ sovereignty and integrity of the territory. The correct and adequate procedure for a state (the requesting country) is to request another state (the requested states) for mutual collaboration and cooperation for mutual assistance in legal matters in gathering evidence and extradition of an accused. A perpetrator can be extradited if the requesting state complies with the extradition agreement and the domestic laws of the requested country. Thus, in the present circumstances, the UAE courts will determine, whether the request for extraditing Gupta brothers should be considered or not on the grounds if it complies with the extradition treaty as well as the domestic laws. The treaty signed between the two states determine the types of offences in which extradition will be possible and the instances under which the requested state can refuse it.
The Treaty Itself
The preamble of the treaty reaffirms the parties’ concerns towards the magnitude of the offences such as international terrorism and other crimes of serious nature. It further states that the parties agree to extradite persons hiding in their country who have been charged under or are convicted of an offence for which they can be extradited. Such offences are certainly punished under the domestic laws of both the countries, by way of imprisonment for a period not exceeding 1 (one) year or for a more serious penalty.
In addition, the treaty empowers the requesting country to seek extradition in the cases involving violation of laws pertaining to taxation, customs duty, and foreign exchange. In such cases, the extradition will be granted in if the requested country do not have the same laws or laws for such offences. However, the request for extradition will be rejected by either country if the offenses committed by the accused is of political nature or any other offense which is in violation to the law of military of either country.
An extradition treaty makes it easier for countries to extradite people who are hiding in another country. However, South Africa does not require an extradition treaty with any country as there is a specific extradition act and international mechanism which allows them to extradite people who are hiding in their state.
It is pertinent to highlight that the treaty will be applied retrospectively with particular reference to the Gupta Brothers’ case accused of collaboration with a former president of South Africa and other senior-level government officials for corruption and state capture. With the treaty in place, the proceedings for the concerned case can begin, and the accused can be brought in the country to face criminal charges.
The South African Ministry has also received eight other requests for mutual collaboration with other countries in criminal matters and obtaining shreds of evidence for criminal proceedings.