South Africa’s constitution does not end at the water’s edge

South Africa’s constitution does not end at the water’s edge
Manuel Chang, Mozambique’s former minister of finance. (Photo: Ryan Rayburn / IMF / Flickr)

The Manuel Chang case is a chance for South Africa to show that even foreign policy is governed by law.

First published by ISS Today

The Manuel Chang case presents South Africa’s Ramaphosa administration with a serious dilemma – a stark choice between respecting the rule of law and maintaining good foreign relations.

Does it extradite the former Mozambican finance minister to his home country at the risk of flouting its own laws? Or does it extradite him to the US, thereby almost certainly antagonising a good neighbour, regional ally and fellow comrade in the “Former Liberation Movement” fraternity?

That’s the big decision President Cyril Ramaphosa and his Justice Minister Ronald Lamola must make. Last month, the High Court in Johannesburg upheld Lamola’s application to rescind the May decision of his predecessor Michael Masutha to extradite Chang to Mozambique.

The court sent the decision back to the justice minister – now Lamola – to review, on the grounds that Masutha didn’t consider all the relevant facts when he made his decision. Mainly he didn’t take into account that Chang still enjoyed parliamentary immunity from prosecution in his own country – a critical fact the Mozambican government concealed.

Chang is appealing the High Court decision and it seems likely that Lamola will oppose the appeal. That would indicate that he’s leaning towards the bold decision of sending Chang to face trial in the US, on the grounds that justice will more likely be served there than in Mozambique.

In Mozambique, the government has every incentive to obfuscate in case Chang incriminates other senior politicians and officials in the US$2-billion shipping loan scam. Through the corrupt deal, he and several other officials, shipbuilding executives and Swiss bankers allegedly received millions of dollars in bribes. Fears have even been voiced that Chang could be “disappeared” if he returns to Mozambique, as he seems to know too much.

The US case against some of his co-accused is, meanwhile, producing some intriguing testimony. Jean Boustani, a salesman in the Cherbourg-based shipbuilding company Privinvest, seemed to contradict himself. He is accused of offering bribes to Chang and two other Mozambique officials and three Swiss bankers to get loans and a big contract to build fishing trawlers and military patrol craft.

At some moments he seemed to be suggesting that what he paid the officials were not really bribes but rather the inevitable fruits of extortion, “because that was the cost of doing business in Mozambique”.

At other times Boustani seemed simply to be denying the charges, testifying that when he told his Privinvest boss Iskandar Safa that Mozambique officials were demanding bribes, Safa told him not to hand over any money “but just keep tango dancing with these guys and let’s see where it will go”.

This gives a whole new meaning to the expression “It takes two to tango”. Three bankers have already testified, however, that Boustani paid them multimillion-dollar bribes.

Where does this leave Lamola? He will probably announce soon if he intends to oppose Chang’s appeal against South Africa’s High Court decision. And where will he eventually extradite him to? In July Chang supposedly resigned from Parliament so, according to the Mozambique government, he may now be legally charged.

Nevertheless, the Mozambique government’s credibility in this case has been shot to pieces, giving Lamola good reason to doubt that Chang would ever be properly charged in Mozambique. Whereas it’s pretty clear that if he stands trial in the US, the defrauded and otherwise abused people of Mozambique would probably discover how the shipping scam worked and who else in government and perhaps elsewhere was implicated.

Lamola and Ramaphosa are aware of the high stakes. If they send him to the US, not only will it anger Mozambique but probably many other Southern African Development Community (SADC) allies, especially former liberation movements.

The same is true of the “RET crowd” back home, as one official describes them – i.e. the Jacob Zuma/Ace Magashule “radical economic transformation” faction of the ruling ANC who will no doubt accuse Lamola and Ramaphosa of colluding with imperialists against ANC allies.

Advocate Max du Plessis, appearing in the Johannesburg High Court case for the Helen Suzman Foundation – a friend of the court – put the other side of the decision well. He argued that the South African government was obliged to put law before politics, including foreign politics.

He cited a “cohort” of recent judgments by the country’s highest courts insisting that even the most political decisions are not immune from legal challenge. Nor does the field of international relations provide a cloak which shields such decisions from judicial scrutiny.’

Du Plessis mentioned three cases that most sharply illustrated this point. One was the setting aside of the then international relations minister’s decision to grant immunity from prosecution to then Zimbabwean first lady Grace Mugabe for alleged assault in Sandton.

Another was various courts’ decisions that Pretoria had broken the law in failing to arrest and detain then Sudanese president Omar al-Bashir when he visited South Africa. He was wanted for genocide by the International Criminal Court. And lastly the court’s decision to order Ramaphosa to reverse Zuma’s decision to withdraw South Africa from the SADC Tribunal.

Each of these cases succeeded, and relief was granted, despite the potential foreign policy implications,” du Plessis said. “Why? Because our courts police the rationality of the executive’s decision making, in all situations. As [Judge Kate] O’Regan put it so powerfully: ‘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’.”

The High Court accepted that argument. So now we have another court decision – to add to Du Plessis’s growing list – insisting that the law should trump foreign policy. Trouble is that in practice it usually doesn’t.

These court decisions risk creating a parallel universe to the real world of foreign policy where such rulings have been largely ignored by Pretoria. Is this about to change with the Chang decision?

Is it naive to hope that Lamola decided to seek the court’s opinion so he could send Chang to where justice is most likely to be done – the US – and then justify the decision to the ANC’s Mozambique Liberation Front comrades (not to mention the ANC itself) on the grounds that “the law made me do it”? DM

Peter Fabricius is an ISS consultant.


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