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Extradition of Mozambique’s ex-finance minister to US reaffirms need to re-establish SADC Tribunal

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Arnold Tsunga is a human rights lawyer, principal managing partner at Tsunga Law International and convenor of civic space at Network-Africa.

When there are serious and widespread violations of human rights, money laundering and illicit financial flows; when cartels have gained a stranglehold over national resources and the economy, and act with seeming impunity, what options are there for lawyers and civil society? 

Lawyers and civil society in Mozambique worked with regional partners to oppose the extradition of the former minister of finance Manuel Chang – who is accused of involvement in the stealing of more than $2-billion from national coffers – from South Africa to Mozambique. After several years of legal process this has resulted in him finally being extradited to the US instead.

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

With Chang’s extradition to the US a fait accompli, people are asking: what are the lessons for the Southern African Development Community (SADC)? 

In June 2023, I wrote an article arguing that the Chang case shows how public interest litigation can further accountability for economic crimes in Africa.

However, it is important to point out that the Chang case must not be understood as suggesting the American legal system is better than the Mozambican legal system. Far from it.

Instead, the case shows that, in the eyes of Mozambican civil society, the chance of political interference with the independence of the judiciary and the prosecutorial process in the US is lower than it may be in Mozambique. In other words there is very little trust and confidence from Mozambicans in their own institutions of justice. 

That is squarely a domestic issue and not a geopolitical or geo-strategic issue. Restoration of public trust in institutions of justice is a responsibility of the authorities in, and can only be done by, Mozambicans. 

I personally know civil society colleagues from Mozambique who opposed extradition to Mozambique. They are highly patriotic citizens and pan-Africanists; it must have been a very painful decision for them to oppose Chang’s extradition to Mozambique instead of to the US. However, they were faced with limited options in terms of choosing between impunity and accountability. As recognised rights activists and anti-corruption campaigners, they chose accountability over impunity. 

Read more in Daily Maverick: The Case of Mozambique’s Manuel Chang: Civil society holds the corrupt to account

As civil society colleagues in Mozambique looked at options for ensuring justice and accountability outside of both Mozambique and the US, the stark reality of the disbanding of the Southern African Development Community (SADC) Tribunal stared at them. Faced with the belief that there could not be an independent prosecution in Mozambique, approaching a sub-regional court could have been an alternative. 

However, in their wisdom or lack of it, the SADC Heads of State, under the bad political influence of the late President Robert Mugabe of Zimbabwe, forcibly disbanded the only judicial organ of the sub-region, the SADC Tribunal. 

Why was the SADC Tribunal disbanded? 

Because it made judicial decisions that Mugabe disliked and angered him as head of state. He allegedly argued with his friends in SADC Heads of State meetings that they had created an animal they could not control.

But, again, why should a judicial organ be seen as “an animal” controlled by the executive organ? Treating it this way destroys the separation of powers and checks and balances and fuels impunity for rights violations. 

Thankfully, some courts such as the Constitutional Court of South Africa have since decided that the “participation of the President of the Republic of South Africa in stripping away the powers of the Southern African Development Community (SADC) Tribunal to hear individual claims was unconstitutional”.

The Tanzanian High Court has come to a similar conclusion.

So, what should we learn from this extradition mess? 

The main lesson is that governments in Africa must comply with requirements of Article 26 of the African Charter on Human and Peoples Rights and establish truly independent and impartial tribunals to adjudicate disputes and to combat impunity so as to entrench a culture of justice and accountability.

SADC states also need to ensure that the national prosecuting function is made independent and impartial so as to remove the current perception that exists in many states that the prosecutorial function is being instrumentalised to persecute opponents and to shield politically exposed criminals from accountability and justice for organised crime, including money laundering and illicit financial deals. 

For the SADC Heads of State, the earlier they re-establish a sub-regional court, with human rights jurisdiction and individual access, the better for everyone. This would mean people in the SADC are not left with the option of seeking justice in jurisdictions outside our continent. DM

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