Africa

EXTRADITON AMBITION

Justice Minister Lamola urges high court not to send Mozambican ex-finance minister Chang home

Justice Minister Lamola urges high court not to send Mozambican ex-finance minister Chang home
Manuel Chang, Mozambique’s former minister of finance. (Photo: Ryan Rayburn / IMF / Flickr)

The Johannesburg High Court has been urged to set aside former justice minister Michael Masutha’s decision to extradite Mozambique’s former finance minister Manuel Chang to his home country.

Justice Minister Ronald Lamola, a Mozambican watchdog NGO monitoring the budget and South Africa’s Helen Suzman Foundation have told the Johannesburg High Court that former justice minister Michael Masutha’s decision to extradite Mozambique’s former finance minister Manuel Chang to his home country had been unconstitutional because he had not taken into consideration at the time that Chang still enjoyed immunity from prosecution in Mozambique as a member of parliament.

The case pits South Africa’s commitment to the law against its foreign policy interests because it has to choose against the demands of an ally, Mozambique, against the requirements of its own law and constitution.

The three applicants told Judges Colin Lamont, Denise Fisher and Edwin Molahlehi that South Africa’s Extradition Act did not allow the government to extradite a person to a country where he might not be prosecuted. South African law demanded that Chang be prosecuted in South Africa or extradited to face prosecution elsewhere, as advocate Max du Plessis argued, on behalf of the Helen Suzman Foundation, a friend of the court.

So if the South African government released him from prison and allowed him to go home, there was no guarantee he would face justice for his alleged complicity in a huge $2-billion scam to defraud Mozambique by siphoning off bank loans that were meant to pay for a shipping project.

But lawyers representing the Mozambique government and Chang himself argued that Masutha had been empowered to make the decision as a member of the executive and that the courts should not interfere with his executive powers. They also insisted that the Southern African Development Community (SADC) Protocol on Extradition, which was the basis of their extradition request, did not preclude South Africa from extraditing a person who enjoys partial immunity in the country to which he is to be extradited. It only prevented extradition of a person who enjoys absolute immunity.

They argued that Chang’s immunity was not absolute when Masutha made his decision to extradite him to Mozambique. Advocate Anton Katz, representing the Mozambique NGO Forum de Monitoria do Orcamento (FMO — the forum for monitoring the budget) retorted that the SADC Protocol makes no such distinction between absolute and partial immunity.

The Mozambique government’s advocate William Mokhane later gave the assurance that Chang would be investigated on the charges related to the $2-billion fraud case if he were extradited to Mozambique. But Katz replied that South Africa’s extradition law only allowed a person to be extradited to stand trial, not merely to be investigated.

The South African government’s advocate Vincent Maleka asked Mokhane why, if the Mozambique government really intended to investigate Chang on the bribery and corruption charges, it had not done so much earlier.

The crimes for which Chang had been arrested at Johannesburg’s OR Tambo International Airport in December 2018 — on an international arrest warrant sought by the United States — were allegedly committed by him six or seven years ago.

And yet, as Maleka pointed out, Mozambique did nothing about them until after the US applied for his extradition in January 2019, when Maputo also asked Pretoria to extradite him, but to Mozambique. The US has formally charged Chang with a string of offences related to the fraud case, along with several other alleged co-conspirators, from Privinvest, the French shipbuilding company which built the vessels supplied to Mozambique, and from the Swiss bank Credit Suisse which lent the money for the shipping transaction.

The High Court is not being asked to decide if Chang should be extradited to the US instead of Mozambique. The lawyers for Lamola, the FMO and the Helen Suzman Foundation merely asked the court to set aside Masutha’s decision to extradite him to Mozambique so that the minister of justice — now Lamola — might decide where to extradite him, in the light of all the relevant facts.

The judges reserved judgment.

As Du Plessis and Katz in particular pointed out, this case has important implications for South Africa’s foreign policy. The Kempton Park Magistrate’s Court had ruled in April that the South African government could extradite Chang either to the US or Mozambique. Observers believe Masutha was influenced by political considerations in deciding to extradite him — against the advice of his legal experts — to South Africa’s neighbour and regional ally Mozambique, rather than the US.

But, as Du Plessis and Katz both pointed out, all of the government’s actions, including those in the foreign policy domain, are subject to the Constitution and the rule of law.

Du Plessis said this was why the court should reject the Mozambique government’s argument that Masutha’s decision to extradite Chang to Mozambique was an executive decision beyond the reach of the judiciary.

He cited recent rulings by the courts which had established the principle that even South Africa’s foreign policy decisions must be constitutional and legal. These were the setting aside of the Minister of International Relations’ decision to grant Grace Mugabe immunity against prosecution; the decision that the government had acted illegally in failing to arrest and detain then Sudanese President Omar al Bashir, who was wanted for genocide by the International Criminal Court; and the decision that then president Jacob Zuma’s participation in a decision by regional leaders to suspend the operations of the SADC Tribunal was unconstitutional, unlawful and irrational.

Each of these cases succeeded, and relief was granted, despite the potential foreign policy implications,” Du Plessis said, quoting Judge Kate O’Regan’s ruling that:

There is nothing in our Constitution that suggests that, in so far as it relates to the powers and obligations imposed by the Constitution upon the executive, the supremacy of the Constitution stops at the borders of South Africa”.

Katz said the high court ruling in the Chang case could set guidelines for other judges and magistrates in how to determine extradition questions. DM

Gallery

Please peer review 3 community comments before your comment can be posted

We would like our readers to start paying for Daily Maverick...

…but we are not going to force you to. Over 10 million users come to us each month for the news. We have not put it behind a paywall because the truth should not be a luxury.

Instead we ask our readers who can afford to contribute, even a small amount each month, to do so.

If you appreciate it and want to see us keep going then please consider contributing whatever you can.

Support Daily Maverick→
Payment options

Become a Maverick Insider

This could have been a paywall

On another site this would have been a paywall. Maverick Insider keeps our content free for all.

Become an Insider

Every seed of hope will one day sprout.

South African citizens throughout the country are standing up for our human rights. Stay informed, connected and inspired by our weekly FREE Maverick Citizen newsletter.