UPDATED: South African court rejects Mozambican request to appeal Chang case
File photo: Lusa
The Mozambican Attorney General’s Office (PGR) is to appeal to the South African Supreme Court of Appeal, arguing that former Finance Minister Manuel Chang enjoyed “conditional immunity”, and should therefore be extradited to Maputo, an official source says.
The PGR’s new argument is set out in an application to be considered on Wednesday by the Gauteng High Court in Johannesburg, in which Maputo is seeking an appeal against the decision of 1 November by Judges Colin Lamont, Denise Fisher and Edwin Molahlehi, who ordered the South African government to review the extradition of Manuel Chang, detained in South Africa at the request of US authorities who want to him to be tried in the US for international fraud.
In the document, to which Lusa has had access, the Mozambican state accuses the panel of judges of having “erred” when it considered that the Southern African Development Community (SADC) extradition protocol prevented the extradition of Manuel Chang to Mozambique.
Mozambique’s PGR argues that this regional legal instrument “only prohibits the extradition of those who have absolute immunity”.
“Chang’s immunity is not absolute, but conditional and, accordingly, the immunity referred to in Article 4 (e) does not apply to Chang,” the PGR argues.
The Public Prosecutor’s Office, headed by Attorney General Beatriz Buchili, an appointee of former president Armando Guebuza, since July 2014, complains that “civil law countries require the presence of the accused in order for his immunity to be lifted, and a person who has fled or is absent from the country cannot have his immunity waived except if he is first extradited to the country.”
The PGR considers that the South African panel of judges “erred” in its interpretation of the application of Mozambican law to allow for a deputy to be arrested and prosecuted in Mozambique.
“This immunity is enjoyed as long as the national parliament has not given its consent (for arrest, detention or trial),” the PGR says.
On the grounds it intends to present to the South African Supreme Court of Appeal in an attempt to prevent Manuel Chang’s extradition to the United States, the authorities argue that “Mozambican law does not provide immunity from prosecution”.
Mozambique insists that “once the Mozambican parliament consented to Chang’s arrest, the former ruler had no immunity at the time of his country’s extradition request”. “The extradition request (by Mozambique) was based on the consent that the national parliament granted,” the document maintains.
In response to another note by the SA judges, “the lack of will and aptitude” of the Mozambican authorities to accuse and prosecute since 2015 the former ruler and Frelimo politician, the PGR says that the South African court “erred in its analysis since Mozambique has not failed to prosecute Mr Chang as a result of his immunity as a member of parliament”.
“Mozambique has not indicted Mr Chang because of the legal assistance it expected from the United States in light of its request for mutual legal assistance,” Maputo maintains, accusing the US court of “misconduct in [regard to] requests for mutual legal assistance.”
Mozambique, the PGR concludes, “was willing and able to prosecute Chang effectively once [his] immunity [is] formally waived after due (parliamentary) process is followed.”
South Africa’s current Justice Minister Ronald Lamola has indicated that he will comply with a court decision authorising Mozambique to appeal to a higher court in South Africa, although a government source said he could oppose Mozambique’s appeal as soon as leave is granted.
The case hearing is scheduled for Wednesday at the Gauteng High Court in Johannesburg.
On November 1, the High Court of South Africa, Gauteng Division, ordered Minister Lamola to determine whether the former Mozambican finance minister should be extradited to his country or to the US. Ronald Lamola argued that his predecessor acted “illegally and irrationally” in deciding to extradite Chang to Mozambique.
Manuel Chang, 62, has been detained in Modderbee Prison outside Johannesburg since December 29 of last year at the request of the US.
The former finance minister, who was arrested at Johannesburg’s OR Tambo International Airport on his way to Dubai, is sought for trial in a New York court for fraud, corruption and money laundering.
The detention and US extradition request of Manuel Chang, which Mozambique disputes, is related to his role in providing financial guarantees from the Mozambican government of former president Armando Guebuza for loans contracted by public maritime safety and fishing companies Ematum, Proindicus and MAM, without the loans being reported to the Assembly of the Republic and the Administrative Court of Mozambique, as was legally required.Source: Lusa
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