Archives for February 2021

On February 10, 2021, the South African Supreme Court of Appeal (SCA) issued a ruling denying international businessman Timothy Marsland’s request to be released on bail and his contention that Botswana’s request for extradition had been improperly handled by South African authorities. This final ruling comes at the tail end of an appeals process stretching back to soon after Marsland’s arrest in July 2019.

 

Marsland’s Arrest and Charges

 

Timothy Marsland is a businessman with dual citizenship in South Africa and the United Kingdom and residency in Botswana. He was also the founder and director of Capital Management Botswana, an asset management firm entrusted with the finances of several prominent institutions in Botswana, including the Public Officers Pension Fund (POPF) and First National Bank of Botswana (FNB).

 

On July 12, 2019, after Interpol issued a Red Notice for Marsland’s arrest at Botswana’s urging, Marsland was arrested by South African authorities at Johannesburg’s OR Tambo International Airport, where he had intended to board a Germany-bound flight.

 

According to Interpol, “A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” These individuals are not wanted by Interpol itself, and the Red Notice is not an arrest warrant; rather, it is a notification by Interpol to all member states that one member state is requesting the detainment of an individual.

 

Upon receiving a Red Notice, member states are under no obligation to actively pursue the arrest of the person concerned., In this case, a South African magistrate issued a proper arrest warrant for Marsland, allowing for his July 12 apprehension.

 

In the Red Notice issued for Marsland, Botswana, through Interpol, claimed that the investor had laundered 200,000 pula ($18,400 USD) from the POPF and had attempted fraudulently to obtain 71 million pula ($6.5 million USD) from FNB. Botswana also advanced 28 other criminal charges, almost all related to money laundering, which could result in up to 20 years in prison if Marsland were convicted.

 

The Extradition and Bail Issues

 

Since his arrest, Marsland has initiated a series of appeals in South African courts, seeking release on bail and challenging the procedural validity of the extradition process to Botswana.

 

In August 2019, the month after his arrest, a judge denied Marsland’s initial request to be released on bail. The denial of bail is a common feature in extradition cases where there is a risk of flight by the defendant; in this case, Marsland was arrested at the airport attempting to fly to Germany.

 

South African prosecutors then requested the opening of an extradition enquiry. In response, Marsland alleged that the South African Minister of Justice Ronald Lamola had not properly received from Botswana or conveyed to Marsland a notice for his extradition. However, the court maintained that the extradition request from Botswana had been properly received by South Africa within the standard of 30 days after the initial arrest, as set by the Southern African Development Community’s (SADC) protocols for extradition.

 

Ultimately, the appeal made its way to the SCA which issued its ruling on February 10. They denied Marsland’s request for bail due to the risk of flight and confirmed that Botswanan and South African authorities had followed the proper protocols in requesting extradition and receiving that request.

 

Marsland had argued that the request from Botswana had to be received directly by the South African Minister of Justice Ronald Lamola. However, the SCA concluded that this argument is invalid under Article 6 of the SADC extradition protocols. This statute cites “diplomatic channels” and “ministries” as the appropriate destinations for extradition requests, not any individual minister.

 

What Comes Next?

 

Now that the SCA has ruled against Marsland’s procedural objections to the extradition process, the extradition enquiry that South African prosecutors originally requested be opened in August 2019 can formally begin.

 

It now seems unlikely that Marsland will be able to avoid extradition to Botswana, unless South African officials decide that his case somehow does not merit extradition. South Africa’s push to begin extradition proceedings is a strong indicator that officials see no reason to refuse Botswana’s request at this point.

On February 3, 2021, the Canadian Department of Public Safety and Emergency Preparedness added 13 organizations to its List of Terrorist Entities, ranging from regional affiliates of the Islamic extremist groups Al Qaeda and ISIS to the U.S.-based hate groups Atomwaffen Division (AWD) and the Proud Boys. Prior to this latest announcement, the list contained 60 violent extremist organizations from around the world, the vast majority associated with Islamic extremism.

 

The Newly-Listed Entities

 

The designation of nine Islamic terror organizations is less striking than that of four new white supremacist groups, tripling the number of violent neo-Nazi organizations, as defined by the Canadian government, to six. The most prominent of these four groups are Atomwaffen Division and the Proud boys, who have come into the public consciousness in recent years due to their participation in deadly events like the 2017 Charlottesville Unite the Right Rally and the January 6, 2021 insurrection at the U.S. Capitol.

 

The Atomwaffen Division is based in the United States but has expanded into Canada, the U.K., and elsewhere, since its founding in 2013. Like many neo-Nazi organizations, AWD aims to bring about the collapse of society through direct, violent action against minority groups and government officials. To this end, AWD maintains a paramilitary training regimen at so-called “hate camps.” In 2019, before the organization as a whole was classified as a terrorist entity, Canada banned one of its leaders from entering the country.

 

The Proud Boys are a loose, all-male organization, self-described as “Western chauvinists,” with chapters operating across the U.S. as well as in Canada. They have frequently targeted Black Lives Matter (BLM) protests and committed acts of violence against BLM supporters. In the episode that seems to have directly prompted the Canadian government’s latest action, organized Proud Boys militias played a leading and pre-planned role in the Capitol insurrection.

 

Consequences of the Listing

 

This move is intended by the Canadian Government to deter terrorist activity in Canada by freezing any financial assets held by these groups in Canada and punishing any individual or organization that provides them financial or material support.

 

In order to list an organization as a terrorist entity, the Canadian Criminal Code mandates a rigorous investigation by both the Public Safety Department and the Department of Justice to ensure that the group meets the necessary legal thresholds to constitute a threat to Canadians’ safety, namely, that the group “has knowingly participated in or facilitated a terrorist activity.”

 

Canadian counterterrorism expert Sarah Teich, in a CBC interview, described the decision as “a real, meaningful, concrete move.” She added, “It makes it much, much harder for these groups to operate in any meaningful way in Canada. Canadians can no longer interact with them in any substantial way, and if they do, they could face a criminal offence.” Even buying Proud Boys merchandise could result in up to ten years in prison as it would amount to financial support of terrorism.

 

Underlining the seriousness of the Canadian Government’s resolve, Public Safety Minister Bill Blair stated, “There’s been an escalation … Countering this group has become an important priority for the government of Canada.” In the announcement, Blair also invoked the tangible consequences of right-wing extremism in Canada in the form of the 2017 Quebec City mosque attack and the 2018 Toronto van attack.

 

Analysis

 

The most telling aspect of the recent announcement is the fact that several homegrown U.S. hate groups are now considered on a par with foreign organizations such as the Taliban and Hezbollah in terms of the real threat they pose to Canadians. Their inclusion in the announcement is plainly tied to their role in the January 6 Capitol insurrection and their escalating pattern of violent action over the last several years.

 

This decision comes from one of the U.S.’s closest allies and signals a long and difficult road ahead for the Biden administration’s efforts to fight domestic extremism while reassuring American allies and reestablishing the country’s place as the leading global democracy and force against authoritarianism.

On February 5, 2021, the Prosecutor General of Namibia Shaky Sangala applied for the transfer of the Fishrot prosecutions to the High Court of Namibia. The multi-billion dollar Fishrot scandal involves alleged money laundering, contravention of the Namibian law titled Prevention of Organized Crime Act, corruption, conspiracy to commit corruption, fraud and tax evasion, and the evasion of justice.

The Scandal

Icelandic fishing company Samherji allegedly paid bribes to Namibian government officials for rights to fish for Namibian horse-mackerel. Namibia’s Financial Intelligence Centre the possible bribes added up to about $600 million dollars over the years that the bribery took place. Three Icelandic Samherji employees, Ingvar Júlíusson, Egill Helgi Árnason and Aðalsteinn Helgason are among the 26 parties charged in February. They will appear appear before the Windhoek High Court in Namibia on April 22, 2021.

News of the alleged bribes broke when former official at Samherji Johannes Stefannson leaked 30,000 documents to WikiLeaks after leaving the company. Stefannson was head of Samherji’s operations in Namibia from 2006 to 2011. After the documents began appearing on WikiLeaks, the company accused Stefannson of operating alone to carry out the bribe and money laundering schemes. Stefannson acknowledges having taken a part but denies the company’s characterization of his role. The bribes continued after his departure.

The scandal involved many high level officials in government. Prominent cabinet members accused of corruption include Bernhard Esau and Sacky Shanghala. The former served as minister of fisheries and marine resources at the time of the bribes. An affidavit provided in April 2020 to the Namibian Anti-Corruption Commission (ACC) by attorney Marén de Klerk suggests that even the Namibian President Hage Geingob may have played a role in the bribery scheme. The affidavit was leaked to the public and has fueled a debate about the extent of the president’s knowledge.

The trial of Former Fishcor chairman James Hatuikulipi. accused of an instrumental role in the bribery and corruption scandal, is currently scheduled for May 2021.

Reform to Come

Looking forward, Namibia must reform the system that it uses to award fishing rights. Following the Fishrot scandal, the country attempted to implement an auction-system for bidding rights. Unfortunately, many of the companies that won bids did not follow through on the payments that they promised in exchange for the rights. Namibia’s finance minister Ipumbu Shiimi commented that the government will make important changes following this unsuccessful auction.

He said, “We have learned good lessons from this auction and that will be valuable going forward. In the future, punitive measures will be introduced, including requirements for payment guarantees or bid securities before participation in the auction. This will ensure that bidders meet their financial commitments and will mitigate the risk of speculative bids. In addition, more time will be given to bidders to arrange their finances.”

It may be an uphill battle to purge the fishing industry of its current corruption issues and resolve these latest bidding issues.

The fishrot case illustrates the issues in public procurement and fishing rights facing developing countries.