High court orders Mozambique’s ex-finance minister Manuel Chang to stand trial in US
Judge Margaret Victor has overturned Justice Minister Ronald Lamola’s decision to extradite Manuel Chang to Mozambique, calling it ‘irrational’.
The Johannesburg High Court has ordered that former Mozambican finance minister Manuel Chang must be extradited to the United States to face charges of corruption.
Judge Margaret Victor ruled that Justice Minister Ronald Lamola’s decision of 23 August this year to extradite Chang to Mozambique was inconsistent with South Africa’s Constitution and “falls short of the threshold of rationality”.
Judge Victor on Wednesday overturned the 23 August decision by Lamola to instead extradite Chang to his home country to face a range of charges related to a $2-billion “hidden debts” scandal.
The decision was therefore invalid and should be set aside and Chang should instead be extradited to the US to face the charges which the US government had set out in its extradition request to South Africa in January 2019.
Asked if Lamola intended to appeal against the judgement, his spokesperson Chrispin Phiri said the minister was considering his options.
“The ministry will study the written judgment as soon as it is made available and communicate a way forward in due course,” he said.
Judge Victor pronounced Lamola’s decision effectively irrational and unconstitutional because, she said, he had not fully explained his decision and had failed to properly take into account all relevant factors in reaching his decision.
In particular, he had failed to explain why he had decided to extradite Chang to Mozambique when most of his legal advisers had recommended that he should be extradited to the US.
The fatal evidence for Lamola’s case was clearly a justice department memo — which the department only produced when the lawyers for the other side demanded it — showing that even Lamola himself had agreed with the opinion of his advisers in July 2020 that Chang should be extradited to the US.
Judge Victor noted that Lamola had provided the court with no contemporary evidence of his reasons for his “change of tack” on this decision.
Lamola had only provided “ex-post facto” reasons for the about-turn, but Victor said this sort of after-the-fact rationalisation was “impermissible” and could not justify a decision as rational.
The judge said the other main factor Lamola had failed to consider in his decision was that the Mozambican government had not provided sufficient assurance that Chang no longer enjoyed immunity from prosecution in Mozambique.
She noted that at one point, Maputo and Chang had said that the former finance minister had never enjoyed immunity from prosecution for these sorts of crimes; at another point they had said his immunity had fallen away when he ceased to be a member of parliament last year; and then at another point it had said he would need to be extradited to Mozambique for his immunity against prosecution to be lifted there.
The judge also expressed concern that the Mozambican government had not made it clear that Chang’s immunity against prosecution might still apply to acts committed by him while he was still an MP — even if it no longer applied to his acts since he left parliament. These inconsistencies undermined confidence in Mozambique’s assurances that he would be prosecuted if returned to Maputo.
Judge Victor said she had also taken into account the inconsistencies in the Mozambican government’s explanations for why it had issued two different arrest warrants for Chang — one in January 2019 and another in February 2020. She noted that Lamola had only the first of these warrants before him when he made his decision to extradite Chang to Mozambique. Then the Mozambique government itself had said the January 2019 arrest warrant was inadequate, and issued the February 2021 warrant.
This raised questions about why Lamola had accepted the assurances of the Mozambique government about its intentions to arrest and prosecute Chang. Judge Victor said the requirements of South Africa’s Constitution and of the many international conventions against corruption which Pretoria had signed, had set a high bar for the minister to cross — which he had not done.
Chang was arrested in transit through OR Tambo International Airport in December 2018 on an arrest warrant issued by the US government, which had indicted Chang and other officials implicated in the tuna boat scandal, because it said many US investors in the project had been defrauded.
In January 2019, the US asked South Africa to extradite Chang to America to stand trial. It was only a few days later that Mozambique asked Pretoria to rather extradite him to Mozambique.
In May 2019, then justice minister Michael Masutha ordered that Chang be sent back to Mozambique. Mozambique’s Forum de Monitoria do Orcamento (FMO) — Forum for Monitoring the Budget, an umbrella organisation of watchdog NGOs — brought an application in the Johannesburg High Court for a court order to set aside Masutha’s decision.
FMO argued that if Chang were extradited to Mozambique, the government there would ensure that he did not reveal all he knew about the matter and that the people of Mozambique would be cheated of their right to know the full story about the hidden debts scandal — and who else in government was implicated. By contrast, a US court was likely to bring all these details to light.
Ironically, Lamola himself joined the case on the side of the FMO, which was also backed by the Helen Suzman Foundation as a friend of the court.
The court then set aside Masutha’s decision, mainly on the grounds that Chang clearly still enjoyed immunity against prosecution as he remained an MP. The court sent the decision back to Lamola to reconsider on the basis of all the facts, including Chang’s immunity status.
It was clear that Lamola believed Chang should be extradited to the US, as the revealing July 2020 Justice Department memo indicated. But he apparently faced strong resistance in the Cabinet and among some of President Cyril Ramaphosa’s advisers who backed Frelimo, fearing that extraditing Chang to the US could harm South Africa’s relations with Mozambique. These advisers clearly prevailed in the end and so Lamola seemed to have been ordered by Ramaphosa to extradite Chang to Mozambique.
But once again the Johannesburg High Court has intervened to remind Pretoria of its obligations to the rule of law, both domestically and internationally.
It is possible that Lamola could appeal against the High Court’s decision, but a lawyer familiar with the case warned that the Supreme Court of Appeal might deliver an even more unfavourable verdict.
The FMO’s legal team had demanded that the High Court order Lamola to personally pay the costs of the application to overturn his order. This was because, it argued, Lamola’s lawyers had filed court documents late with no good reason and had withheld the damning July 2020 memo until FMO’s lawyers had demanded it.
In the end, Judge Victor did order the Justice Department to carry the costs of the application — but did not require Lamola to do so personally.
A lawyer familiar with the case suggested that an appeal court might more closely examine Lamola’s “outrageous” conduct — including making up post-hoc reasons for his decision — and might order him to pay the costs of the case personally.
There does seem some risk that Judge Victor’s decision could damage the ANC government’s relations with its former liberation movement ally, Frelimo. But one lawyer suggested that Ramaphosa could always hide behind the law, telling Maputo “it was the courts that made me do it”.
Lamola’s decision to consider his next steps leave Chang still sitting in a South African prison, where he has languished for almost three years while politicians, lawyers and judges determine his fate. DM
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