OPINION: In the Matter of Alex Saab, Can Constitutional Court Maintain Independence and Pushback Against Political Pressure?

It has been reported that there were times this past weekend in Accra at the ECOWAS Heads of State Summit when it was hard not to feel sorry for the forlorn figure of President Jorge Fonseca.  Who needs to a speak with a head of state with neither a mandate nor any obvious political favours to trade? Especially when he represents a nation which has done far more this past year than any other ECOWAS Member State to challenge the very cohesion of the community and the centrepiece of its integration efforts, namely, the ECOWAS Court of Justice.

Jorge Fonseca knows that Prime Minister Ulisses Correia is using him as a sacrificial lamb to justify a political pact which he has concluded with the United States regarding Alex Saab. In addition, the Prime Minister’s refusal to have the courage to publicly admit to his electorate what he has agreed with the United States – what is the full extent of the quid quo pro – makes it easy to understand why President Fonseca looked distracted in Accra. Let us not forget that Jorge Fonseca has been a loyal public servant of the Republic of Cabo Verde for many decades, but it is clear from his body language these past weeks that he cannot wait for his time as a public official to end.

As a reminder, Cabo Verde has placed itself in direct defiance of the ECOWAS Court of Justice over the fate of Venezuelan diplomat Alex Nain Saab Moran, who has been detained on the island of Sal since 12 June 2020. He is being held on the basis of an extradition request from the United States which has accused him of money laundering in relation to a social housing project in Venezuela in the period 2011-2015. Quite why the United States feels that it has a right to interfere in a matter which should clearly and obviously be dealt with by the sovereign state of the Bolivarian Republic of Venezuela is not a matter for this article, but there is no legal basis for justifying this extraterritorial judicial overreach. Other than it being a politically motivated excuse, of course, to bring about regime change in Venezuela.

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Alex Saab vehemently denies the charges, as illustrated in a recent booklet (“Alex Saab: Separating the Truth from the Myths”) and, after several setbacks in Cabo Verde, won a significant legal victory on 15 March when the ECOWAS Court declared that his “detention was illegal, that he be released immediately, the extradition process be terminated and he be paid $200,000 in moral damages”. Despite the jurisdiction and decision of the ECOWAS Court being binding upon Cabo Verde, in an extraordinary slap to the face of both ECOWAS and the ECOWAS Court, on 16 March the Cabo Verde Supreme Court ruled to extradite Alex Saab.

Saab’s defence, led by Dr Jose Manuel Pinto Monteiro, has appealed to the Constitutional Court which is expected to hear pleadings in the next week.

The Honourable Justices of the Constitutional Court have a history of independence and in the absence of leadership from the President, the reputation of the Cabo Verde legal system as being one of the most independent and free from political intervention in Africa rests on their shoulders. This is no idle dramatic statement on our part.

After a year of near silence on one of the most important issues in its history to have faced Cabo Verde from an international reputation point of view, it is difficult to understand why Prime Minister Ulisses Correia is refusing to take the lead and explain why he has taken the political decisions which he has. These are the decisions which now risk alienating Cabo Verde not only from its closest neighbours in ECOWAS but also risks making it a pariah state in front of the United Nations. All because of a series of political decisions taken at the behest of Prime Minister Correia.

1. The United Nations Human Rights Committee ruled on 8 June that Cabo Verde should suspend the extradition of Alex Saab and urgently permit him to be examined by specialist doctors of his choice. To date Prime Minister Ulisses Correia has not even acknowledged to his own people that a highly respected UN body has instructed Cabo Verde to act in this way. The political decision not to respond to such an august body can only have come from the very top.
2. The ECOWAS Court of Justice  on 15 March ordered Cabo Verde that Alex Saab’s detention was illegal. Despite this being a binding decision, on 16 March the Supreme Court ruled to extradite Alex Saab. The political decision to renege on a treaty obligation can only have come from the very top.
3. The Court did, however, state that if the Executive branch decided to recognise Alex Saab’s as a Special Envoy, then of course Alex Saab could be freed immediately. The political decision not to recognise his immunity and inviolability can only have come from the very top.
4. At the time of his arrest on 12 June 2020, Alex Saab told the arresting officer he was a diplomat and had the papers to prove it. The political decision not to recognise Alex Saab as a Special Envoy immediately can only have come from the very top.
5. A few hours after Alex Saab’s arrest Venezuela communicated with Cape Verde, informed it of his status as a Special Envoy and invoked his immunity and inviolability. At that point, under the 1961 Vienna Convention and customary international law at that point Cabo Verde had no grounds to detain Alex Saab any further. But it did. The political decision to violate international law and the 1961 Vienna Convention could only have been make at the very top.
6. Finally, and perhaps most damagingly, on 25 June 2020 Interpol cancelled the Red Notice it had issued against Alex Saab. Once it had been told he was a diplomat and had immunity and inviolability, Interpol recognised that the Red Notice had been issued in contravention of its own rules. No civilised country at that point could claim to have any justification for the continued detention of a lawfully appointed diplomat. To its eternal shame, Cabo Verde just ignored the appeals of Venezuela to release its Special Envoy. The politic decision to illegally detain a diplomat came from the very top.

Six times Prime Minister Ulisses Correia has taken a political decision to override Cabo Verde’s obligations under international and domestic law. Six times the reputation of Cabo Verde has been mortally stabbed. The people of Cabo Verde must understand that there is no length to which the Prime Minister will not go to sacrifice his country’s reputation at the altar of American judicial overreach.

Cabo Verde must hope and pray that the Honourable Justices of the Constitutional Court will stand tall and strong and stem this tide of political enslavement and show to ECOWAS, Africa and the United States that Cabo Verde is a nation of law-abiding people. Cabo Verde won its freedom from colonial masters not so that it can be enslaved under the insatiable demands of a new master but to live as a nation of free men and women with an African identity.