The constitutional court has left the South African government legally obliged to surrender former Mozambican finance minister Manuel Chang to the United States to face fraud and money-laundering charges after denying Maputo leave to appeal a high court order to that effect.
The apex court was the Mozambican government’s last legal hope of ensuring that Chang was extradited to Mozambique for his alleged role in Mozambique’s Secret Debt scandal, an elaborate fraud scheme that triggered a sovereign default in 2016.
But, in an order handed down on Wednesday, the court said there was no reasonable prospects of success on the merit of the application for leave to appeal a 2021 high court ruling in 2021 that set aside a decision by Justice Minister Ronald Lamola to extradite Chang to Mozambique.
On Thursday, Lamola’s office said: “We have noted the constitutional court order and will attend to it accordingly.”
In 2021, the Johannesburg high court’s Judge Margaret Victor held that Lamola’s decision to send Chang to Mozambique, despite four legal opinions advising otherwise and objections from NGOs on both sides of the border, was irrational.
She faulted him for not taking into account the fact that Chang may be a flight risk, nor that there was not a valid Mozambican warrant for his arrest or proof that his past immunity had lapsed.
“In the absence of a rational explanation by the minister for ignoring or not giving sufficient weight to these undisputed concerns, the requisite threshold for rationality has not been reached,” Victor said.
Lamola had in 2020 signed a memorandum recommending Chang be extradited to the US after receiving legal opinion that he may still enjoy immunity in Mozambique.
But a year later, the justice minister decided to extradite him to Mozambique after all in a change of heart that has never been credibly explained officially. Off the record, sources have said the realpolitik of complex relations with a neighbouring state prompted the rethink.
Lamola’s decision was taken on legal review by the Fórum de Monitoria do Orçamento, a Maputo-based umbrella body of civil society organisations. It argued that even if Chang’s immunity had been lifted, he may still be shielded by systemic corruption and largesse linked to his former job as a member of government.
After Victor set aside his decision, the minister said he would heed the court ruling.
But after the Mozambican government applied for leave to appeal, he was obliged to wait for the legal process to be exhausted.
In papers filed to the appellate court, Maputo argued that the high court had strayed impermissibly into the realm of the executive and further lacked the “requisite expertise” to substitute the minister’s decision to surrender Chang to Mozambique with its own.
The court was not competent to determine, in the case of competing extradition demands, which should take precedence, it said, and Victor erred not only on the law, but on the facts, including in finding that a Mozambican warrant of arrest for Chang was defective.
“The high court did not possess the necessary technical expertise which the minister and the department have. Nor is the high court an expert in making extradition decisions.”
It further argued that Chang lost immunity from prosecution after the 2019 elections when a new parliament was elected, and that Lamola knew as much when he agreed to surrender him to Mozambique.
The supreme court of appeal dismissed the application in December last year, four years after Chang was arrested at OR Tambo International Airport on 29 December 2018.
He was apprehended 10 days after he was indicted in a New York court on charges that include conspiracy to commit fraud, conspiracy to commit securities fraud and conspiracy to commit money-laundering, and an Interpol red notice issued.
Chang signed off on state guarantees for €2 billion worth of loans extended to Mozambican parastatals by foreign banks, including Credit Suisse.
The money, a fair share of which came from investors in the US, was ostensibly intended to support the development of Mozambique’s tuna fishing industry and pay for trawlers and coastal patrol vessels. But it flowed instead to Chang and his alleged co-conspirators, believed to include the son of former president Armando Guebuza.
As the high court put it: “None of the monies borrowed, except bribes, went to Mozambique.”
Chang’s decade-long tenure as finance minister ended in 2015
The Helen Suzman Foundation, which was joined in the high court challenge to Lamola’s decision to extradite Chang to Mozambique,” on Thursday said that ruling must now be implemented.
While the constitutional court’s decision represented a victory for the efforts of civil society to combat corruption in Southern Africa, it added, “sight cannot be lost of the Mozambicans who Mr Chang is alleged to have robbed —their loss, measured in opportunities missed at the hands of corrupt government, will go uncompensated whatever his fate”.
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