By Dr André Thomashausen
The decision by the High Court in Johannesburg on November 10 to order the extradition of Manuel Chang to the US is a victory for the rule of law in South Africa and the rule of international law in the combating of webs of corruption.
I personally feel confirmed and justified in my many appeals and comments since January 2019 for Chang’s extradition to the US. My revelation in this paper on May 20, 2019 (“The Mozambique debt heist and its conmen”) alerted the South African government that the request for the extradition of Chang to Mozambique was a scam because Chang enjoyed absolute immunity from prosecution at home, where the Constitution also prohibits the extradition of a national to any foreign country, including of course the USA, where Chang was indicted on several criminal charges in 2018.
Chang, the “minister of hidden debts”, was detained while passing through Johannesburg to Dubai, where he wanted to spend the festive season of 2018 and where he continues to hide most of the funds he embezzled and appropriated wrongfully.
He signed off on some €2 billion (about R35.1bn) in fraudulent sovereign bonds from Mozambique that are now worthless. The victims are, first and foremost, countless investors in the US who were duped into buying these bonds.
Now that Chang might be extradited, finally sent to the US, there is hope that he will get his day in court where he can explain where the stolen funds are hidden.
The special Kroll forensic audit report commissioned by the Swedish government concluded that at least $600 million (about R9.3bn) disappeared without a trace. But the extradition, already delayed for 35 months, will be delayed further by Chang’s partners in crime in Maputo and Johannesburg, who have spent and continue to pay millions of rand in legal fees paid to derail the course of justice.
This month, Judge Margaret Victor step by step identified the opportunism of the initial Mozambican request, made at a time when Chang was not even a suspect of any crime in Mozambique and enjoyed parliamentary immunity from any prosecution.
These two crucial elements were deliberately withheld from the South African authorities, just as much as the prohibition in the Mozambique
Constitution for any national to be extradited to a foreign country which rule would frustrate any American extradition request, should Chang have been allowed to return home.
And further that, a first arrest warrant against Chang was a scam and fraught with illegalities. Moreover, it was and is still being withheld from South Africa that as a former member of the Council of Ministers, Chang in Mozambique may not, under threat of imprisonment, reveal anything that passed his desk and maybe even his conscience, while he was the Minister of Finance who instructed the Banks in Switzerland not to transfer the huge amount of €2bn to the National Bank of
Mozambique, but amazingly, into the accounts of private companies abroad.
The main basis of the judgment is that the order of Minister of Justice Ronald Lamola at the end of August to send Chang home to Mozambican authorities, who had already prepared a welcoming reception for him in the VIP airport lounge in Maputo (including French champagne and delicate and delicious “canapés”), is an order that does not obey the most basic rules of South African administrative law and offends the fundamental rule of law guarantees of the Constitution.
The court concluded that Lamola’s order was opportunistic and irrational by lacking the objective and verifiable motivation required by the law. Thus, the court declared the order null and void.
Considering that the extradition agreement with the US pre-dates the SADC Extradition Protocol, and because the American request predated the Mozambican request with Chang having been formally charged as an accused in the US for crimes against victims who are US nationals, while in Mozambique Chang to this day is merely sought as a witness and a suspect, the High Court concluded rightly that the only lawful and constitutionally-allowed decision is to grant the extradition request made by the US.
There will be no immediate enforcement because the intervening parties may apply for leave to appeal, and to do so, they may demand to first receive the final and authorised text of the ruling of the court, which may take a couple of weeks.
The hopes that Mozambique might abandon the pursuit of its vexatious litigation war so as no longer to frustrate Chang’s right to be heard and tried in court has already been disappointed.
The stubborn and tempestuous Mozambique State Attorney Beatriz Buchili, a confidante of President Nyussi, immediately instructed her legal team to prepare applications for leave to appeal and even a petition for direct access to the Constitutional Court. Chang’s already 34 monthslong detention will thus be cruelly prolonged, without good reason or prospects of success.
* Dr André Thomashausen is Professor emeritus of International and Comparative Law at Unisa
** The views expressed here are not necessarily those of IOL and Independent Media.