OPINION: Manuel Chang is not an accused in Mozambique and thus does not qualify for extradition under the SADC Extradition Protocol. As this is a question of foreign law, evidence to that effect should be led in the ongoing proceedings before the High Court, writes Professor André Thomashausen.
Former Mozambique finance minister Manuel Chang remains detained in South Africa since December 2018, and is awaiting extradition to either the US or Mozambique.
As finance minister under then President Armando Guebuza, it was Chang’s task to find the money for an ambitious maritime security programme and other armament requirements proposed by UAE based company Privinvest.
In a country that does not have the skills levels to manufacture wheel barrows, complex integrated weapons and electronic surveillance systems were supposed to support ultra-fast naval strike craft for a budget exceeding 2 billion euro.
Chang engineered the Mozambique Hidden Debts.
Two billion euro sovereign loans were never submitted to Parliament and were paid out to private banking accounts, outside the official accounting channels of the Mozambique National Bank.
In May last year the loans were swiftly and unbureaucratically paid out by Swiss bankers on Chang’s instructions, and were declared unconstitutional by Mozambique’s Constitutional Court.
As shown in May this year in a study by the Mozambique NGO CIP, the total of Mozambique’s exposure from the hidden (or rather stolen) debts now stands at $15 billion, equivalent to the entire GDP of Mozambique in 2019.
On the UNDP Development Index, Mozambique ranks 180th out of 188 countries, with a total of just under 3 million children suffering from chronic malnutrition and some 4 million adults reduced to an average of one food intact every two days.
In the US, Chang was indicted in a criminal trial for defrauding Americans who had invested in the defaulting Mozambique Bonds, issued to raise the 2 billion Euro loans.
Chang was detained in South Africa in December 2018, to be extradited to the USA.
A few weeks after his detention, Mozambique submitted a hastily compiled own concurrent extradition request, citing on a pro-forma warrant for Chang to appear and testify as a witness in criminal proceedings in Maputo.
They disguised that he enjoyed immunity from any prosecution as a member of Parliament.
On May 20, 2019 my article in this paper exposed the Mozambique extradition request as a scam.
Newly appointed Minster of Justice Roland Lamola revoked a decision by his predecessor to extradite Chang to Mozambique.
In papers to the court, his then director-general Vusi Madonsela referred specifically to the disclosure by this paper that Mozambique disguised that Chang enjoyed immunity from any kind of prosecution.
Sixteen months later, on August 23, this year, Lamola has now announced that Chang will be extradited to Mozambique after all, since he no longer enjoyed immunity as an MP.
His new director-general Doctor Mashabane, in an affidavit dated August 26, falsely stated that the provisions on concurrent extradition requests contained in the South African Extradition Treaty with the USA of 1999 and the SADC Extradition Protocol of 2002 “are mirror images” of each other (at par 40 of the Affidavit) so that South Africa would be free to choose as it found most expedient.
The actual wordings of the provisions reveal glaring differences.
While the treaty with the US demands first and foremost that the dates of the concurrent requests as well as the nationality of the victims of the crime(s) and the “possibility of any subsequent extradition between the respective states” must inform a decision, the SADC Protocol focusses on the nationality of the person to be extradited and “the interests of the respective states”.
The requirements do not “mirror” each other and the provisions in the treaty with the US must prevail, if the international law principle of Observance of treaties (Pacta sunt servanda) is to be respected.
Earlier treaties are never invalidated by subsequent treaties entered into by different parties.
The nationality of the victims of Chang’s alleged crimes are American, the US request precedes the (anyhow invalid) Mozambican one and because of a prohibition in Mozambique’s constitution (Art 67 s4) to extradite nationals, an extradition to Mozambique would frustrate for definite the request made by the USA.
What both extradition treaties have in common, however, is that potential witnesses do not qualify for extradition.
Only persons convicted or required to stand trial can be extradited.
And this is where South Africa has once again been scammed by Mozambique.
In his affidavit to Court of 31 August, Lamola relies on what he assumes to be true, namely that Chang is now an “accused” under Mozambique law. This is false.
The stages of criminal proceedings under Mozambique’s Code of Criminal Procedure of 1929 are unknown in South African criminal procedure.
The old Portuguese and now also Mozambican code distinguishes between persons implicated, incriminated, and indicted.
Chang is characterised in the papers submitted by Mozambique as an arguido in two criminal investigations, file numbers 1/PGR/2015 and 58/GCCC/2017/EP.
These investigations have not been admitted to trial and in all likelihood will never reach the stage of being capable of admission to trial.
The trial currently under way in Maputo is case number 18/2019/C and in it Chang is not charged as an accused.
He has merely been listed by the prosecution as a witness to be heard.
As a simple check with anyone familiar with Mozambique law and procedure could have informed Lamola, an arguido in Mozambique is not an accused.
It is the designation of a person whom the authorities suspect may have committed an offence and no equivalent term exists in South African law.
An arguido is a person whom the police have decided to question and he has the right to be accompanied by a lawyer.
The arguido must be presented with whatever evidence is held against them, and unlike a witness has the right to remain silent, not to answer any question that may incriminate him, and does not face legal action for lying.
Most importantly, a person who has arguido status is not being formally accused of a crime, arrested or charged.
The status of the arguido is similar to that of being “questioned under caution” under the Police and Criminal Evidence Act in the UK or being questioned in the USA after being read ones “Miranda Rights”, specifically the right to legal representation, the liberty to refuse to answer questions, and the admissibility in court of statements taken.
In summary, Chang is not an accused in Mozambique and thus does not qualify for extradition under the SADC Extradition Protocol.
As this is a question of foreign law, evidence to that effect should be led in the ongoing proceedings before the High Court.
* Dr André Thomashausen is a German attorney and professor emeritus of international law (Unisa).
** The views expressed here are not necessarily those of IOL and Independent Media.