Manuel Chang must surely feel special these days. He is the first former Minister of Finance in history (or at least that history recorded on the internet) whose is being sought for corruption by two countries. As explained here, Chang was arrested in South Africa December 30 after the United States had filed a preliminary request for extradition. Two weeks later, Mozambique filed its own extradition request. Both countries want to bring him to trial for offenses arising from his alleged corrupt approval of government guarantees for bonds issued by private firms while minster. Soon after their issue, the bonds went into default, costing the impoverished nation (GNI per capita $1200) as much as $2 billion and throwing the economy into recession.
Which country will get to prosecute Chang will turn on how South African authorities construe recondite provisions in South Africa’s extradition treaties with the United States and Mozambique. As obscure as the provisions in the two treaties are, how South African authorities choose to interpret them will remain anything but. For their interpretation will have significant consequences for the global fight against corruption.
The U.S. – South Africa Extradition Treaty and the Protocol on Extradition governing extradition between South Africa and Mozambique contain identical language specifying how South Africa is to decide competing requests for extradition. “In determining to which State the person is to be extradited,” they both read, South Africa is to “consider all relevant factors.” These factors include, but the treaty language stresses are not limited to –
- whether the request was made pursuant to an extradition treaty;
- the relative seriousness of the offense when the requesting states seek extradition for different crimes;
- the time and place where the offense was committed;
- the dates on which the requests were received;
- the requesting states’ interests;
- the nationality of the victim; and
- the possibility of any subsequent extradition between the respective states.
(U.S. – RSA treaty article 15; Protocol article 11).
Lawyers for the United States and Mozambique are now busily crafting arguments as to why these open textured provisions favor extradition to their respective country. The United States will stress factor (d), “first come, first served,” and Mozambique factor (e), arguing that thanks to the damage Chang has caused, it has a far greater interest in the matter than does the U.S.
What South African authorities should focus on however (perhaps with help from a friend of the court brief by a sympathetic NGO) is the most relevant of all factors: the impact extraditing Chang to Mozambique will have on the global fight to curb grand corruption. The evidence shows the Mozambique extradition request is a sham. Meant to protect Chang by stymieing the U.S. extradition request rather than to actually prosecute him for corruption. If Mozambique gets away with this ploy, not only will Chang get off the hook, but it will set a terrible precedent for future efforts to hold corrupt elites to account for grand corruption.
The Mozambican authorities have known for at least two years, since Kroll Associates prepared a report on the bond guarantees, that Chang and cohorts were at the center of the scam. Yet only after South Africa arrested Chang at the request of the U.S. did the prosecution office formally charge Chang with an offense. Moreover, while Mozambique prosecutors say they sought information from the U.S. and other nations about the scam since early 2017, their method for requesting the information, the antiquated, time-consuming letters rogatory process, belies their seriousness. The United States and the other nations from which they say they sought mutual legal assistance in aid of their investigation are all parties to the UN Convention Against Corruption. It provides far more expeditious procedures for securing information from foreign law enforcement agencies. That Mozambique chose not to invoke the UNCAC procedures further shows its government had no interest in prosecuting the case – until Chang’s arrest in South Africa.
Finally, and most tellingly, unconfirmed reports from Mozambique say Chang has not been charged with a criminal offense in Mozambique. Only administrative violations of fiscal rules for which the penalty is a fine. If these reports are correct, if South Africa chooses to honor Mozambique’s extradition request over that of the U.S., rather than facing a stiff jail sentence and confiscation of his assets, Chang would be at risk (if and only if he is convicted) of a modest fine.
It is hardly farfetched to think Mozambican prosecutors have conjured up a case against Chang to prevent him from falling into U.S. hands. He is after all a senior member of FRELIMO, Mozambique’s dominant party, and he is surely privy to the inner-most workings of the party. One can imagine his FRELIMO colleagues wondering what he would do were the U.S. to offer to reduce his sentence in return for information on their wrongdoing.
It remains with South African authorities to decide whether to send Chang to the United States to face certain justice or to return him to Mozambique where the chances of his being held to account for crimes that have further impoverished an already very poor country are very, very doubtful. In the interest of deterring future Changs and bringing a measure of justice to the citizens of Mozambique, corruption fighters around the world should urge South Africa to choose wisely.