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Ghost of Omar al-Bashir may have stopped South Africa’s justice minister in his tracks in Manuel Chang extradition saga
On Friday, 27 August, the South African and Mozambican governments surprisingly withdrew their demands that former Mozambican finance minister Manuel Chang should be sent home immediately and so Judge Molahlehi extended the order that Lamola should not send him to Mozambique until 17 September when the high court will fully review the question of his extradition.
First published in the Daily Maverick 168 weekly newspaper.
The ghost of Omar al-Bashir haunted the recent drama over Justice Minister Ronald Lamola’s attempts to extradite former Mozambican finance minister Manuel Chang back home – supposedly to be prosecuted for his role in the huge “hidden debts” corruption scandal dating back to 2013.
When it looked for a moment as though Lamola was going to put Chang on a plane to Maputo on 24 August – despite an impending court application to block him from doing so later that same day – a lawyer involved in both legal dramas said ominously: “This is starting to look like Bashir 2.”
That referred to the South African government allowing then president Omar al-Bashir to escape from South Africa in June 2015 – in open defiance of a high court order compelling the government to keep him in the country so he could eventually be handed over to the International Criminal Court (ICC) to face genocide and other charges arising out of massacres by his forces in Darfur.
Pretoria took a huge pasting in its courts and at the ICC for violating SA’s own laws and its international treaty obligations.
Lamola didn’t seem like the sort of person to put the government through the same embarrassment in recent days.
It was he, after all, who in 2019 had asked the Johannesburg High Court to overturn the decision by his predecessor Michael Masutha – in the last days of the Zuma administration – to extradite Chang to Mozambique instead of to the US, which had also asked South Africa to extradite him.
Chang had been arrested in transit at Johannesburg’s international airport on 29 December 2018 on a US arrest warrant. The US had charged him for fraud and corruption in the hidden debts scandal. Chang and many others allegedly took hundreds of millions of dollars in bribes to sign off on $2.2-billion in fraudulent international loans to Mozambique to buy a fleet of fishing trawlers and military patrol vessels. Not a tuna has ever been caught and the boats are rotting on shore.
Mozambique did nothing until the US charged Chang and then asked South Africa to extradite him. Then it also asked Pretoria to extradite him to Mozambique.
But Lamola’s lawyers told the high court in 2019 that it would be wrong to send Chang home to Mozambique because the government there had not even indicted him and was unlikely to, as he still enjoyed immunity from prosecution as a Member of Parliament – facts which Mozambique had concealed from Pretoria.
Lamola’s application was supported by the Fórum de Monitoria do Orçamento (FMO) – Forum for Monitoring the Budget – an umbrella body of Mozambican anti-corruption watchdog NGOs, which told the high court they were convinced that the Mozambican people would get no truth about what happened to the $2.2-billion loaned in their name, nor justice for Chang if he was sent home. They would only get the truth and justice they deserved in a US court.
The high court agreed and rescinded Masutha’s order in November 2019. It could have ordered Chang to be sent to the US but, not wanting to trespass into the executive’s domain, it instead sent the matter back to Lamola to make a proper decision based on all the facts. Then Chang went into a mysterious politico-legal limbo. Logically, Lamola should have sent Chang to the US, since it had become clear he would escape justice in Mozambique. That was what Lamola evidently wanted. But he ran into heavy resistance in the government.
Big supporters of Frelimo – apparently led by President Ramaphosa’s then security adviser, Charles Nqakula, who had been high commissioner to Mozambique as well as state security minister – bent the president’s ear to send him home.
“How could an ANC government betray a fellow former liberation movement by handing over one of its senior cadres to the US of all governments? How would that look to the many other former liberation movements in the region?” One could imagine the arguments. Ramaphosa, the great consulter, seemed trapped between the two opposing camps of advisers.
This echoed the dilemma his predecessor had faced in June 2015 about whether or not to hand al-Bashir over to the ICC. In both cases Pretoria was caught between South Africa’s commitment to justice and the rule of law on the one hand, and its solidarity with a fellow African government on the other.
So Chang remained in Modderbee Correctional Services in Benoni for almost two years after the decision about where to send him had landed on Lamola’s desk. Then suddenly, late on 20 August, the FMO, the US, the Mozambique government and other interested parties received letters from Lamola’s office to say he had decided to extradite Chang to Mozambique.
It looked like the supposedly idealistic young minister had abandoned his commitment to the rule of law. Or perhaps that he had simply lost the debate in Ramaphosa’s inner circle? There were strong suggestions that Ramaphosa’s decision may have had something to do with the Islamist insurgency in Mozambique’s northernmost province of Cabo Delgado. For many months Mozambican President Filipe Nyusi had resisted pressure from his regional peers to allow a Southern African Development Community (SADC) military force into Cabo Delgado to defeat the insurgents, as he had clearly been unable to do for more than three years.
In June Nyusi finally relented and gave the green light to the SADC force, at a SADC summit in Maputo, which Ramaphosa also attended. Did they have a quiet word on the sidelines about Chang? Did Nyusi say give me Chang and your SADC troops can come in? Hard to be sure. But certainly Nyusi budged and the force was approved and began deploying last month.
SA government sources insist there was no such crude trade-off, though Ramaphosa’s wish not to aggravate an already clearly unstable Mozambique may have been a factor. They point rather to the start of the first “hidden debts” trial in Mozambique on 23 August as the main proximate cause of Lamola’s decision. Nineteen other Mozambique officials and cronies – like Ndambi Guebuza, son of former president Armando Guebuza – appeared in a Maputo court this week charged with embezzlement, money laundering, corruption and other crimes in the case.
However, Chang is not an accused in this case and it was only on 24 August – when it looked like he was coming home soon – that the judge in that case called him as a witness. Mozambique authorities do say there is a separate case against him, however.
Another explanation for the timing of Lamola’s decision may have been the Mozambique government’s launch of an application in the Johannesburg High Court in May for an order compelling Lamola to make up his mind about extraditing him. It said his unreasonably long delay in reaching this decision was harming Chang’s rights.
But still Lamola’s decision on 20 August to extradite Chang came as a surprise. On 23 August the FMO wrote to him asking him to delay sending Chang home, until it could apply to the Johannesburg High Court for an order preventing that, pending a full inquiry on the merits of the decision.
Lamola denied the request, saying that Chang had already been in jail for several years and so it would be unfair to detain him any longer. He also indicated that the matter was out of his hands, as Chang had already been handed over to Interpol to be transported to Maputo.
So FMO filed its urgent application to the Johannesburg High Court on 24 August to block Chang’s extradition. In its affidavit it put a pertinent question. Lamola had taken almost two years to decide to extradite Chang to Mozambique. “Now suddenly there is an inexplicable rush to surrender Mr Chang?” it asked. Lawyers in the case heard that Lamola intended to put Chang on a plane on the morning of 2 August to pre-empt any order by the high court later that day to stop him.
This is when the previously mentioned lawyer who had worked on both cases commented that it was starting to look like Bashir 2.
That invocation of the ghost of Bashir may have stopped Lamola and the government in their tracks. On 25 August, Lamola did an about-turn and undertook not to send Chang home until the court had decided.
“We would not do a Bashir 2,” said a Justice official, though it was not clear if he meant that the government would not spirit Chang out, or if he meant the two cases were not comparable.
On Friday, 27 August, the South African and Mozambican governments surprisingly withdrew their demands that Chang should be sent home immediately and so Judge Molahlehi extended the order that Lamola should not send him to Mozambique until 17 September when the high court will fully review the question of his extradition.
The high court could then decide to extradite him to the US instead or hand the decision back to Lamola again to reconsider.
One of the ironies of this saga is that after all of the South African government’s agonising and soul-searching about whether or not to arrest al-Bashir in 2015, he was toppled in a popular revolution-cum-military coup in April 2019 – and the new government decided to hand him over to the ICC itself.
The sour aftertaste of the al-Bashir saga provoked the Zuma administration to withdraw from the ICC. But the court overthrew that decision too, because the government had not consulted Parliament.
In its dying days, the Zuma administration introduced legislation to properly pull South Africa out of the ICC. However, the Ramaphosa administration has let that bill gather dust in Parliament’s Justice committee – unable, it seems, to make up its mind on that question of justice either. DM168
This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.
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