The Saab case – a challenge to African independence

The saga over the detention, and possible extradition to the US, of Venezuelan diplomat Alex Saab, who was arrested by the Cape Verde authorities over a year ago, is now threatening the cohesion of the Economic Community of West African States (Ecowas). However, the case is also an excellent opportunity for Cape Verde to stand up for Africa’s rights against superpower pressure.

In a tussle reminiscent of the worst old days of the Cold War, an unedifying tug-of-war is unfolding between the micro-state of Cape Verde and the US on one hand, and the Court of Justice of the Economic Community of West African States (Ecowas) and the Bolivarian Republic of Venezuela on the other.

Caught in between the two is the 49-year-old Alex Saab, a Venezuelan citizen of Colombian origin. Saab was arrested by the Cape Verde authorities when the flight he was travelling on from Caracas, Venezuela, to Tehran, Iran, stopped for refuelling in Cape Verde. This was on 12 June last year.

The arrest was requested by the US and initiated by Interpol, relating to a money laundering allegation by courts in Florida, US.

This event and Saab’s detention has opened a Pandora’s Box of legal issues, as well as questions of national sovereignty, UN and AU human rights charters and the rule of customary international law. It has also set Cape Verde on a collision course with Ecowas, of which it is a member.

Saab, a businessman and accredited Venezuelan diplomat, is according to the US the chief deal-maker for President Nicolás Maduro of Venezuela. Maduro, like his predecessor, the socialist Hugo Chávez, has been in the US foreign policy gunsights for a long time. The US and several of its allies, do not recognise Maduro as President.

His defence lawyers filed submissions to the Ecowas Community Court of Justice (ECCJ) claiming that Saab had been illegally detained and demanding that he be released immediately and be provided with adequate medical care. A legal representative from Cape Verde was present during the hearing.

On 15 March of this year, in a judgement that sent shock waves across the Atlantic, the ECCJ said the arrest of Saab had been illegal, having been carried out without an appropriate Interpol Red Notice or arrest warrant. It ordered Cape Verde to immediately release Saab, terminate extradition processes and pay him $200,000 by way of compensation.

On the next day, 16 March, the Cape Verde Supreme Court, in a slap to the face of the ECCJ, approved Saab’s extradition to the US. It said that it was not bound by the regional court’s ruling as Cape Verde has not signed the Additional Protocol of 2005, which widened the remit of the Ecowas Court.

However, legal experts say that as part of the regional body, as well as a member of the AU, Cape Verde is legally bound to accept the rulings of the regional court.

Threat of sanctions

During a press conference in April called by his defence team, Nigerian human rights lawyer Femi Falana, who represents Saab at the ECCJ, said that proceedings against Cape Verde had commenced and that one of the smallest countries in Africa could find itself facing economic and political sanctions for defying an order from the Ecowas Court:

“We have set the engine in motion for imposition of sanctions on Cape Verde until the political authorities are prepared to obey the decision of the Ecowas Court.”

This would cause irreparable damage to West Africa’s regional economic community and to a larger extent, the African Continental Free Trade Agreement, which had demonstrated African unity during a time when many countries around the world have retreated into isolation.

The African Bar Association (AfBA), in a separate statement, warned of serious consequences and a potential splintering of the organisation if Cape Verde’s non-compliance goes unchallenged by the regional group.

Political motives

Responding to questions from journalists, Falana said he firmly believed that it was the Americans, under former President Donald Trump, who had put undue pressure on the Portuguese-speaking island. Falana referred to a report in the NY Times that reported on the presence of a US frigate patrolling the West African coast last year.

Although Falana made it clear that in his opinion the motives behind the arrest are political, he argued at the press conference that it was important to focus on the legal arguments rather than the political ones. The legal team released another statement at the end of April saying that the extradition request made by the US on 29 June 2020, on allegations of money laundering, was based on “unsubstantiated allegations founded on testimony from discredited informants”.

The same money laundering allegations, they said, had been investigated for three years by the Geneva Public Prosecutor. The investigation had been terminated in March this year with the Prosecutor concluding that “there was no additional element to continue the investigation on the count of Money Laundering”, effectively dropping the case. It was also agreed, according to the statement, that Saab’s legal costs in relation to the investigation “would be compensated”.

Saab’s advisors believe that the decision by the Geneva Public Prosecutor is the single most important new piece of news, proving that the American charges are unsubstantiated, but it seems to have gone unnoticed or been ignored by the Americans.

Further developments

In a recent interview, Daniel Fridman, a former US attorney and government adviser, warned that extradition requests could not be taken at face value.

In a diplomatic note dated 8 September 2020, the government of the US said that they would charge Saab with only one count of conspiracy and drop the remaining seven charges listed in the Extradition Request from June 2020.

This was in order to adhere to Cape Verde’s constitutional restriction on extradition if the extraditee faces the death penalty or a whole life sentence.

But these promises are without any substance, argues Fridman, as it is not the Executive but rather the courts that can provide such an undertaking.

In further developments, it was announced in May that renowned American lawyer Nancy Hollander had also joined the fray to work on the Saab case.

Hollander rose to public prominence for being the lead lawyer defending Chelsea Manning, the American soldier who leaked files to Wikileaks in 2013, and for also representing a Guantanamo Bay prisoner, Mohamedou Ould Slahi, later released without charges. The story of the latter formed the basis of the recently released Hollywood film, The Mauritanian, in which actress Jodie Foster plays Hollander.

Great opportunity to right wrongs

Right now Saab is under house arrest on the island of Sal. The decision of Cape Verde’s Supreme Court of Justice is now under appeal at the Constitutional Court of the Republic of Cape Verde. A verdict can be expected in June.

The Supreme Court of Cape Verde has also left it to the nation’s Executive to take a decision on the diplomatic status of Saab. Should they accept his diplomatic status, Cape Verde would then have to honour its international treaty obligations and release the diplomat. 

Much more than one person’s fate is at stake. For Africa, it’s the role of Ecowas and the unity of the regional community. Cape Verde’s own reputation is at stake, not only as a sovereign nation but also as an active and compliant member of Ecowas. Its reputation as one of the more progressive African countries is also at stake.

But leaving all that aside, Cape Verde has no vested interest in this case. Saab has not committed any crime against the country and the charge against him from the Florida case now seems likely to collapse. The case seems to pivot around Donald Trump’s personal animosity against Maduro and appears to be characteristic of the often random and chaotic foreign policy decisions he took.

For Cape Verde to turn its back on Africa in favour of someone who showed his disdain of the continent, especially now that he is no longer in office, would come with serious consequences.

It is also important to keep in mind that Joe Biden is at the opposite end of the spectrum to Trump; he is a unifier, not divider. Cape Verde will not want to find itself on the wrong side of the line when he comes to the continent.

By releasing Saab, Cape Verde would send a powerful message on the sovereignty of Africa, its support for the rule of international law, its solidarity with the rest of Africa and a fellow developing nation, and would enhance its reputation as a progressive country with a human face. It would also leave Africa out of disputes it can do without and bring the sorry saga to an end.

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The Saab case: Litmus test for Africa’s sovereignty

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