South Africa's new justice minister Ronald Lamola has shown a creditable commitment to the rule of law rather than political solidarity with former liberation movements. He has halted the extradition of former Mozambican finance minister Manuel Chang to Mozambique.
Chang may now face extradition to the United States (US) on corruption charges in a €2 billion fraudulent loan scheme for the purchase of fishing and military patrol vessels by the Mozambique government. Chang allegedly received millions of dollars in kickbacks for abetting the massive scheme that also defrauded many international investors.
Chang was arrested on 29 December last year while passing through Johannesburg's OR Tambo airport on an Interpol warrant requested by the US and confirmed by a local magistrate. In January the US asked South Africa to extradite him to the US for trial, along with several other banking and shipping company officials implicated in the case.
Only then did Mozambique's government apply for his extradition to that country to face charges arising from the scheme that has devastated the country's tiny economy. In April this year the Kempton Park Magistrate's Court ruled that Chang could legally be extradited to either Mozambique or the US.
Masutha must have known that Mozambique would probably fudge the Chang case
On his last day in office, 21 May this year, Lamola's predecessor Michael Masutha decided to extradite Chang to Mozambique, mainly on the grounds that since the alleged crimes were committed there, that was the logical place to try him. Mozambique's Fórum de Monitoria do Orçamento (FMO), a civil society watchdog, launched a court application to overturn Masutha's decision. It doubted that Chang would face prosecution in Mozambique.
A day before Masutha's decision, André Thomashausen, attorney and University of South Africa professor of international law, pointed out in an Independent Online article that the National Prosecuting Authority (NPA) had 'gullibly' accepted the Mozambique prosecuting authority chief's assurances that Chang's immunity from prosecution had been lifted, so he could and would be prosecuted on returning to Mozambique. This assurance persuaded the Kempton Park magistrate that Chang was extraditable to Mozambique.
In fact, Mozambique's National Assembly had only lifted immunity for Chang's detention and questioning by police, not his arrest and prosecution. No formal indictment had been laid against Chang and investigations were supposedly under way - more than five years after his alleged offences.
On 13 July, Lamola's office announced that he had halted Chang's extradition to Mozambique, and was seeking a high court order reversing Masutha's decision to extradite him to Mozambique. Lamola was also opposing Chang's application to be extradited to Mozambique, and wouldn't oppose the FMO's application to stop Chang's extradition.
Lamola's grounds for this about-turn, his statement said, were that extraditing Chang to Mozambique would be 'unlawful and unconstitutional'. It would contravene South Africa's constitution and Extradition Act and the Southern African Development Community (SADC) extradition protocol, on the basis of which the extradition was sought.
Extradition is only possible if the suspect doesn't have immunity and is charged with the crime in question
This was because all these instruments - logically - only allow extradition if the suspect doesn't have immunity from prosecution and is in fact charged with the crime for which extradition is sought.
South Africa's justice department Director-General Vusi Madonsela's affidavit on behalf of Lamola to the high court is revealing. Thomashausen's article, which Madonsela cites extensively, suggests incompetence on the NPA's part in not fully grasping the implications of Mozambican law concerning immunity, and therefore probably inadvertently misleading the Kempton Park Magistrate's Court.
Madonsela's affidavit comes close to painting a different picture - one of Masutha deliberately ignoring such evidence. Madonsela notes that on the day before he announced his decision to extradite Chang to Mozambique, Masutha had received a memorandum from the justice department's principal state law adviser on international law.
It informed him of the concerns of Thomashausen, the US embassy and the FMO - that Chang wouldn't face prosecution in Mozambique as his immunity hadn't been lifted. Masutha was urged to order that Chang be extradited to the US instead. Madonsela expresses some puzzlement at why Masutha ignored this expert advice.
Reading between the lines, perhaps Masutha - a holdover from the Jacob Zuma administration with all its problems with the law - made his decision in line with the African National Congress's solidarity with a fellow former liberation movement, rather than the rule of law.
The previous justice minister swung towards a political solution; Lamola swung towards the law
The then international relations minister Lindiwe Sisulu had already divulged months before the Kempton Park court ruling that Chang would be extradited to Mozambique. This reinforces the suggestion that the former justice minister's decision did not lean towards the interest of justice.
Masutha must have known that the ruling Mozambique Liberation Front (Frelimo) party would probably fudge the Chang case, fearing that any further revelations - including from a US court case - could embarrass the party in an election year. And Chang could also reveal in a US court the complicity of more senior politicians and officials.
Lamola's recent decision doesn't necessarily mean Chang will soon be en route to the US. FMO coordinator Jorge Matine told ISS Today that Mozambicans were 'delighted' with Lamola's decision and hoped it would pressure their government to lift his immunity and prosecute him.
However Madonsela's affidavit suggests that he and Lamola believe justice would be best served if Chang were extradited to the US. This is partly because he accepts US assurances that if Chang first stood trial in the US, it would be prepared to send him to Mozambique after that. (Although presumably only after serving time if jailed, and to either face new charges or to serve all or part of his sentence in Mozambique.)
Madonsela says it's unlikely that Mozambique would send him to the US after trying him at home (if indeed it would try him at all, one might add). Either way, it's looking more likely that Mozambicans may well discover the full extent of complicity in the notorious shipping scam. And possibly quite soon, as the US trial is scheduled to start on 7 October - one week before Mozambique's general elections.
Extradition is a complex politico-legal process. 'The ultimate decision is taken by the justice minister, so that's political,' says legal expert Anton du Plessis, Executive Director of the Institute for Security Studies. 'But the minister still needs to comply with the law, including South Africa's treaty obligations. That's why the immunity question in this case is so important.'
The Chang case hinges on the issue of immunity. The previous justice minister swung towards a political solution and Lamola swung the other way - towards the law. That bodes well for the future. Domestically, 'Lamola has lots of work to do if he wants to restore South Africa's commitment to the rule of law, and this is a good start,' says Du Plessis.
Internationally, the FMO's Matine thinks Lamola has created a good precedent for South Africa to tackle other corruption cases, including trying to extradite the notorious Guptas from Dubai to face charges relating to state capture.
Beyond that, could we also see some restorative legal action, perhaps even the revival of the SADC Tribunal that the Zuma administration helped neuter? Lamola has created high expectations. Can he match them?
Peter Fabricius, ISS Consultant