The question of whether to extradite former Mozambique finance minister Manuel Chang either to his home country or the United States (US) is ticking like a timebomb on South African President Cyril Ramaphosa's desk.
He confronts a lose-lose dilemma. If Chang is sent home, South Africa will be accused of undermining justice since there are doubts that Mozambique's courts will hold him to account for the corruption and fraud he's accused of. A Mozambique civil society financial watchdog, if not the US itself, would probably challenge that decision in court.
And a decision to extradite Chang to the US will upset the ruling Mozambique Liberation Front (Frelimo) party. Frelimo is a political ally and a fellow former liberation movement of Ramaphosa's own African National Congress. Maputo could also challenge that decision in South Africa's courts.
Already last week, Mozambique further tightened the screws on South Africa by launching an application for the Johannesburg High Court to order Justice Minister Ronald Lamola to extradite Chang 'without further delay.' Maputo complained it was 'grossly unreasonable' that he'd been detained for over 28 months.
Chang was arrested on 29 December 2018 at OR Tambo International Airport en route from Maputo to Dubai. The warrant was issued at the US's request after it charged him with fraud and corruption. In a major scam, Chang had signed off on about US$2 billion in loans to Mozambique in 2013 and 2014. This was to buy a fleet of 24 apparently overpriced and inappropriately specified tuna fishing trawlers, six patrol vessels and support equipment and services.
Opposing Lamola and others in the SA government is a hardline faction sympathetic to Frelimo
The massive government debt was concealed from the Mozambique public and interested parties like the International Monetary Fund, which suspended support to the country in 2016 when the loans came to light.
The US claimed jurisdiction in the case. It said Mozambique's creditors had sold some of the loans to US investors who lost their money when irregularities in the fishing project were revealed.
The US argues that the project was intended only to elicit loans and divvy them up among Mozambique officials like Chang, banking agents and employees of the Lebanese shipping company Privinvest, which supplied the ships. In any case, not one tuna was caught by Mozambique or prevented from being caught by anyone else.
Ideally, Ramaphosa's decision should be simple. In law, he should follow Lamola's advice, which, official sources say, is to send Chang to the US. This option is supported by the stronger legal argument, which is that the former minister is unlikely to be properly prosecuted in Mozambique.
Those doubts first arose in 2019 when Mozambique requested Pretoria to extradite Chang only after South Africa arrested him and the US had asked it to extradite him. Maputo also failed to disclose that Chang still enjoyed immunity from prosecution in Mozambique as a Member of Parliament. In May 2019, then justice minister Michael Masutha ordered that Chang be extradited to Mozambique.
But soon after replacing Masutha, Lamola challenged his predecessor's decision in the Johannesburg High Court. In November 2019 the court set aside Masutha's order, sending it back to Lamola to review in light of the fact that Chang still had immunity and hadn't been charged in this case in Mozambique.
The legal case for sending Chang home was stronger since Maputo indicted him and removed his immunity
Since then, Chang has been indicted in Mozambique, and his immunity seems to have expired - though some legal experts question this. Nevertheless, Lamola still apparently believes that sending him to the US is the better legal choice because of the lingering doubts about the sincerity of Maputo's intention to seek justice.
After all, Mozambique did nothing about Chang for five years and acted only after the US did. This suggests that Maputo sought his extradition to avoid him giving embarrassing testimony in a court in New York. Privinvest had recently told a London court that it had given money to Chang but also to Mozambique's President Filipe Nyusi. It claimed the payments had been 'donations' to Frelimo - apparently legal in Mozambique - and not personal bribes.
Opposing Lamola and others in Ramaphosa's cabinet and among his advisers is a hardline faction sympathetic to Frelimo. This is supposedly led by Ramaphosa's security adviser Charles Nqakula - a former state security minister and High Commissioner to Maputo - who wants Chang sent home to Mozambique.
Some present Ramaphosa's dilemma as a straightforward choice between doing the right thing legally - dispatching Chang to the US - and the politically expedient thing, which is sending him home. It's not quite as straightforward as that, lawyers close to the case say.
An extradition lawyer involved in the case told ISS Today that the legal case for sending Chang home had become stronger since Maputo had indicted him and he'd supposedly lost immunity. He noted that Ramaphosa would have to weigh up pertinent factors, namely that Mozambique is a neighbour, an ally, part of the same region and that Chang is after all a Mozambican national.
Extraditing Chang to Mozambique could have negative repercussions for Ramaphosa at home
But those in South Africa's government who favour sending him to the US insist their case is stronger. They argue that the US was the first to seek his extradition and that Mozambique's request was manifestly reactionary. 'How can you believe a government that does nothing for five years and then suddenly asks for extradition after someone else has?' one official asked ISS Today.
Mozambique's quest for a Johannesburg High Court order compelling Lamola to announce a decision has raised pressure on Ramaphosa if only to avoid awkward litigation. This week he met Nyusi on the sidelines of French President Emmanuel Macron's summit in Paris on financing Africa's post-COVID-19 recovery.
South African officials said both Chang and the Islamist insurgency in northern Mozambique were discussed. The two issues may be connected. South Africa is pushing for Nyusi to accept Southern African Development Community (SADC) military intervention against the insurgents, but Nyusi seems to be resisting. So this may not be a good time for South Africa to annoy him. The SADC region might also take offence at Pretoria preferring the US to a fellow SADC member.
Political expediency aside, the legally more robust decision would be to send Chang to the US, where ordinary Mozambicans are more likely to learn how US$2 billion of their money evaporated.
Sending him to Mozambique could have negative repercussions for Ramaphosa at home. He has staked his political fortunes on fighting corruption and is allowing the law to deal with corrupt ANC members such as former president Zuma and recently suspended secretary-general Ace Magashule. It would not reflect well if Ramaphosa were to make a decision on Chang motivated by political expediency rather than respecting the law.
Peter Fabricius, ISS Consultant