Lamola’s decision: Is South Africa promoting the rule of law or pleasing the Greeks and Trojans at the same time?

The decision by South Africa’s newly appointed minister of Justice and Correctional Services, David Lamola, to halt his predecessor’s decision made in May this year to extradite Mozambique’s former Finance minister, Manuel Chang, to Mozambique rather than to the United States of America is open to various interpretations. This volte face by South African authorities, which may have significant regional political implications, can be interpreted as part of President Ramaphosa’s domestic and regional effort to strengthen the rule of law and therefore a major effort for regional stability by the newly elected administration. 

After the Kempton Park Magistrate’s Court concluded that Manuel Chang was legally extraditable both to the US (the first applicant) and to Mozambique (the second applicant), the former minister of justice, Michael Masutha seemed to have sealed his fate in deciding it in favour of the neighbouring Mozambique. In making this decision, Masutha said to have considered the nationality of the accused; the place where the offences were committed; the offended country (Mozambique); and the request by the accused himself to be sent back home rather than facing justice in the US where he is accused of fraud. 

However, a few weeks ago, it also emerged that a platform of Mozambican civil society organisations, Forum for Budget Monitoring (Fórum de Monitoria do Orçamento– in Portuguese) had submitted an appeal to the South African High Court contesting Masutha’s decision right before the legal deadline. This move was made after it also emerged that the first applicant, the USA, had decided not to file an appeal against Masutha’s decision, which could pave the way for the accused to finally live up to his dream to return home. 

Behind the Americans not appealing Masutha’s decision, rumours abound about an alleged secret deal with the Mozambican authorities. The Americans are said to have preferred to exchange Chang with Mozambique granting their intelligence the right to monitor mosques in the country. It seems as though the Americans are interested in gathering intelligence on the so-called Islamic insurgency in the natural gas rich Cabo Delgado Province. A mapping of mosques in Mozambique for this purpose has already begun to the total disgruntlement of the very powerful and influential local Islamic community which, less than three months before the elections (15 October 2019), has already promised to punish the ruling Frelimo electorally if this decision prevails. 

America’s new interest to monitor terrorist activities with impact in an economically strategic area in the country makes perfect sense especially considering the claim by Islamic State (ISIS) of a recent attack by the local insurgents, which may point to ISIS’s presence in the area. The attacks, which include burning of properties and beheadings, began in October 2017 and have already claimed nearly 200 lives. Economically, the USA is present in the area mainly through its hydrocarbon explorer Anadarko Petroleum. The American company announced, on 18 June 2019, a US$20 billion gas investment in the area, which could double Mozambique’s gross domestic product. More significant investment decisions are also expected to be announced soon for the same area.  

Meanwhile in South Africa, contrary to his predecessor who believed that the decision to extradite Chang to Mozambique rather than to the USA would be the best service to justice, Lamola did not see any service to justice in this decision. His office made this clear when referred to his predecessor’s decision as “irrational and inconsistent with the constitution.” While Masutha’s decision had certainly pleased Frelimo, who wants Chang back in Mozambique, Washington, who had expressed the very same wish as the ruling Frelimo, received it with great disappointment. This may have certainly put South Africa in a very tight spot diplomatically. 

In fact, any political decision by South Africa on this matter would have had this as outcome: pleasing one but seriously disappointing another. But by returning this case to the justice system, Lamola’s move has certainly taken the uncomfortable political responsibility off the African National Congress’s shoulder. It is now the court and not the minister who has the final say on this matter. In this new scenario, regardless what the court decision will be, South Africa will have at least “tried” to please both countries. First, through Masutha, by having decided in favour of the Mozambicans and, now through Lamola, whose request for review may potentially work in favour of the USA.  

But, Lamola also seems to have saved South Africa of great embarrassment because the Mozambican parliamentary speaker has just confirmed that the parliamentary immunity of her fellow colleague and party comrade, Manuel Chang, has in fact never been lifted. It was on the basis of an existing case against the accused at home that the Kempton Park magistrate’s court conclusion that Chang could also face justice in Mozambique was made. The accused prevailing parliamentary immunity status would make any arrest upon his return home illegal if not impossible. 

Furthermore, Verónica Macamo (Speaker of parliament) has also acknowledged the “mistake” of the Permanent Parliamentary Committee to have allowed the Attorney General’s Office to file for the extradition in South Africa without fulfilling the House and constitutional requirement of lifting Chang’s immunity first. This “mistake” by the Frelimo dominated House is perfectly in line with Lamola’s assumption that deciding in favour of Mozambique “may not be legally permissible”. Under these conditions, sending Chang home where he enjoys parliamentary immunity and has no known criminal case against him would certainly be a huge embarrassment to Ramaphosa’s anti-corruption efforts. However, attentions are now focused on the High Court of South Africa: on whether they will manage to please both Greeks and Trojans.        

* Fredson Guilengue works for the Rosa Luxemburg Stiftung – Southern African Office in Johannesburg, South Africa.