Former Mozambican finance minister Manuel Chang, who was extradited from South Africa to the US in July, has asked a New York court to dismiss all charges against him because he says the US government has violated his Sixth Amendment rights to a speedy trial.

Chang has been in custody for almost five years, after being arrested on 29 December 2018 on a warrant issued by the US Department of Justice while passing through Johannesburg’s OR Tambo International Airport.

The US charged him with money laundering and fraud arising from $2-billion in loans from the now defunct Credit Suisse bank and the Russian VTB Bank which Chang secretly signed guarantees for, to enable the Mozambican company to buy a fleet of fishing trawlers and patrol vessels.

The US has alleged that the scheme was just a pretext for Chang and other Mozambican officials, as well as bank officials and employees of the UAE-based Privinvest shipping company which supplied the vessels, to siphon off about $200-million in bribes from the loans. The US government got involved because the indictment says all the indicted officials defrauded US individuals who invested in the loans. 

Chang was transferred to the US in July after a protracted battle in the South African courts between the South African and Mozambican governments on the one side — who wanted him extradited to Maputo — and a Mozambican NGO, the Fórum de Monitoria do Orçamento (FMO or Forum for Monitoring the Budget), which wanted him extradited to the US because it feared if he was sent home, Mozambicans would never discover the full extent of the “hidden debt” scandal and which other senior government officials were implicated.

Read more in Daily Maverick: Former Mozambique finance minister Manuel Chang to fly to US to face graft charges

But even in the US, Chang is trying hard to avoid a trial.  

Chang’s lawyers last month presented the Eastern District of New York court with a Memorandum of Law in support of Chang’s motion to dismiss the indictment against him on the grounds of the long delay in bringing him to court.

Solitary confinement

The memo says that for the past five years, Chang suffered in solitary confinement in a jail in South Africa — “widely condemned for its inhumane conditions and human rights abuses”. This was because of an indictment filed in the Eastern District of New York which alleged conduct “having nothing to do with the United States, let alone Brooklyn, New York”.

“Mr. Chang is incomprehensibly charged — without any evidence or possible basis in fact — that by engaging in the ministerial act of signing loan guarantees as required by virtue of his position as Finance Minister of Mozambique during 2013-2014 — at the direct instruction of the then Minister of Defence and current President of Mozambique after all proper Governmental steps were taken to approve the programme — that he entered into a conspiracy in which Credit Suisse would sell securities to American investors in 2016, well after he left that post.”

The memo notes that there was a 29-day trial in the same court and on the exact issues in 2019 when Jean Boustani, a Privinvest official involved in the same deal, was acquitted of the same charges because the court could not find a connection between his actions and the sale of securities by Credit Suisse to Americans four years later.

Likewise, the memo says, there is no evidence that in 2013, when he signed the loan guarantees, Chang had “any idea of or possible involvement with any sale of any security to anyone at any time by anyone by Credit Suisse four years later”.

The memo goes on to say that after Boustani had been acquitted, the US government “became decidedly uninterested in Mr. Chang’s whereabouts or his suffering in the South African jail…”

Yet the US government caused Chang’s suffering by having him arrested in SA and then forgetting about him or at least “not taking a single action to secure his extradition”.

“To be sure, Mr. Chang’s incarceration has been entirely the responsibility of the United States Government, who specifically selected to have him arrested and detained in South Africa, knowing full well that Mr. Chang was unlikely to receive any due process, any rights, or to be extradited within any reasonable amount of time — and certainly without any active United States Government involvement.”

The memo said the guarantee of a speedy trial in the Sixth Amendment to the US Constitution “applies with full force when the defendant is outside the United States while the indictment is pending”.

“As the United States Supreme Court has held, it is the duty of the Government, not a defendant, to bring a case to trial swiftly wherever in the world the defendant is.”

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The memo said the US government chose to have Chang arrested in SA despite the US Department of State having warned for years “that South Africa’s legal system is overwhelmed, with about a third of detainees in South African prisons awaiting their day in court”.

Apart from subjecting Chang to appalling conditions in South Africa, “including solitary confinement”, the long delay in bringing him to court “has impaired Mr. Chang’s defence at trial”.

It said the memories of not only Chang, but also any witnesses he might call to his defence, had faded since he signed the loan guarantees 10 years ago. His access to documents that might have assisted in his defence has also diminished.

“These lost years in South Africa have not only jeopardized Mr. Chang’s right to a speedy trial, but also his right to a fair trial. Justice for Mr. Chang requires that the Indictment be dismissed, and with prejudice.” 

Chang’s lawyers said they had not yet received a reply from the court. DM