The Constitutional Court has refused the Mozambique government leave to appeal against the high court’s decision to extradite its former finance minister Manuel Chang to the United States to face corruption charges. The court’s decision appears to have cleared the way for Chang to be transferred to the US, after spending more than four years in a South African prison.

This was the fourth unsuccessful attempt by Mozambique to get leave to appeal against the Johannesburg High Court judgment of November 2021 that Chang should be extradited to the US. Judge Margaret Victor overturned Justice Minister Ronald Lamola’s order in August of that year that Chang should be extradited to Mozambique.

Read more on Daily Maverick: Former Mozambican finance minister Chang a step closer to a US courtroom after appeal rejected

Lawyers believe Mozambique and Chang himself have now exhausted their legal remedies to avoid his being sent to the US to face charges including corruption for his complicity in a fraudulent scheme to borrow $2-billion from foreign banks to buy tuna fishing boats and patrol vessels in 2013 and 2014.

The Constitutional Court had once before refused Mozambique leave to appeal, and so had the Supreme Court of Appeal and the Johannesburg High Court which originally ordered his extradition to the US.

In 2019, the high court also overturned an order by Lamola’s predecessor, Michael Masutha, to extradite Chang to Mozambique, but sent it back to the new justice minister to be reconsidered.

Resigned to extradition

Ironically, Chang himself had stopped appealing and had in fact submitted an affidavit to the Supreme Court of Appeal last year saying he was content to be extradited to either Mozambique or the US – as long as progress was made in the extradition process.

He was clearly frustrated at spending almost four years behind bars in South Africa.

The Constitutional Court issued a brief judgment on Wednesday about the Mozambique government’s application, saying “there are no reasonable prospects of success on the merits of the application for leave to appeal”. It refused leave to appeal with costs, though condoning the Mozambique government for filing its application late.

The US issued a warrant for Chang’s arrest in 2018 on the grounds that US citizens had been affected by his alleged fraud.

As finance minister, he had signed off on $2-billion in loans to state agencies from Credit Suisse and  Russia’s VTB Capital. Though some ships were bought from an Abu Dhabi-based company called Privinvest, the fishing project was never launched and the US prosecutors claimed it was a fraudulent scheme from the start, to enable Chang and others involved to siphon off the $2-billion loan.

‘Americans defrauded’

The US said American citizens had invested in the secondary market for these two loans and had thereby been defrauded by Chang. 

When Masutha issued the order for Chang’s extradition to Mozambique in 2019, a Mozambican group called the Fórum de Monitoria do Orçamento (FMO) – Forum for Monitoring the Budget – brought an application to the Johannesburg High Court, arguing that the Mozambican government had no real intention of prosecuting Chang and that the Mozambican people would only discover what happened to their money if Chang were to testify in a US court.

In both its 2019 and 2021 judgments against the South African government’s attempts to extradite Chang to Mozambique, the Johannesburg High Court essentially argued that it would have been unlawful and irrational to send him home as he appeared to enjoy immunity from prosecution there, and Mozambique had issued no valid warrant for his arrest.

In their argument against the Constitutional Court granting the Mozambican government leave to appeal against Chang being extradited to the US, the FMO’s legal team, led by Max du Plessis SC with Eshed Cohen, argued that the Johannesburg High Court had been completely correct in rejecting Lamola’s order that Chang be extradited to Mozambique.

Lamola ‘overruled’

They recalled that evidence from Lamola’s own office had shown that he and his senior officials, and the legal experts they consulted, all believed that Chang should be extradited to the US. Though the lawyers did not say it, other sources have suggested Lamola was overruled by hardliners within the Cabinet who were sympathetic to Mozambique’s ruling Frelimo party. 

“Ultimately this application is about corruption and accountability,” the FMO legal team told the Constitutional Court. Corruption is a pandemic that scourges the African continent.

“Like South Africa, Mozambique is no stranger to corrupt officials, abuses of public powers and the greedy diversion of monies intended for public good into the pockets of unsavoury politicians.

“Mr Chang stands accused of corruption of the highest order. He is charged by both the United States of America and the Republic of Mozambique for various counts of corruption and fraud committed while he was Minister of Finance in Mozambique.

“He allegedly abused his public office to funnel foreign funds intended for community upliftment programmes to his cronies and bribers. Many of the foreign funds were from foreign investors. Mr Chang is at the heart of an unprecedented corruption scandal of international proportions.”

Chang was arrested at OR Tambo International Airport on 27 December 2018 en route from Maputo to Dubai on holiday. South African authorities arrested him following a request from the US.

Two extradition applications

On 29 January 2019, the US formally applied to South Africa to extradite Chang. It was only three days later, on 1 February 2019, that Mozambique applied to Pretoria to extradite Chang to Mozambique, even though his alleged offences had been committed in 2012 and 2014 and before Mozambique had charged him with any offence. 

The fact that Mozambique had not charged Chang some five years after his alleged offences strengthened the suspicions of the FMO and many others that it had no real intention of prosecuting him. DM