Mozambican human rights activists seek justice in a corrupt and captured state
Development partners must fund the struggle for accountability. By Mark Heywood
In this interview, we talk to leading Mozambican human rights defender Professor Adriano Nuvunga, the director of Mozambique’s Centre for Democracy and Development and chairperson of the Fórum de Monitoria do Orçamento (FMO), as well as Arnold Tsunga, the chairperson of the Southern Africa Human Rights Defenders Network.
International development partners can talk about supporting clean governance and accountability, and then not be prepared to help pay for struggles that pursue those objectives.
They discuss the extradition case of former Mozambican finance minister Manuel Chang and the risks that activists in Mozambique are facing in using the law to seek justice in a corrupt and captured state. During 2021, one of the most interesting stories in the news was about the tug-of-war between the governments of Mozambique and SA over where Chang should be extradited to face corruption charges. In November 2021 a High Court in Gauteng overturned the decision of Justice Minister Ronald Lamola to extradite him to Mozambique and ordered that Chang be extradited to the US instead.
Since then the Mozambique government has brought an appeal to the Constitutional Court, as well as an application for leave to appeal to the High Court. But in the meantime, Chang remains in prison in SA. Mark Heywood: Can you tell us about the background to the case and the reasons you got involved?
Professor Adriano Nuvunga: When Manuel Chang was detained in Johannesburg en route to Dubai in 2018, human rights activists in Mozambique immediately saw an opportunity to seek justice.
When we learnt that he was detained as part of a request from the US, we didn’t think that the US justice system is better, or that we automatically want him to be tried there, but that this is a unique opportunity to have Manuel Chang face a serious and independent trial. Who were the organisations that decided to bring an application before a South African court to try to prevent Chang’s extradition back to Mozambique?
Nuvunga: The case was started by FMO, an umbrella organisation of watchdog NGOs.
To take advantage of an opportunity to ensure Chang faces justice, we needed to have lawyers. But at the beginning, we have to admit, a mistake was made; that mistake was to use a commercial firm, rather than
exploring public interest entities like the SADC Lawyers’ Association.
Arnold Tsunga: I think we have to look at it in context. Most recently, on 17 August 2021, the decision … issued by the minister of justice in South Africa, Ronald Lamola, to send Chang back to Mozambique created a sudden emergency from a public interest litigation perspective.
If Minister Lamola’s decision to return Chang to Mozambique had been executed before it was challenged in a court of law, then challenging it was no longer going to be useful, as it would become an academic exercise.
The sudden emergency created by the minister’s decision to send Chang back to Mozambique made our Mozambique colleagues in civil society settle for the nearest available and accessible lawyers in South Africa to challenge Minister Lamola’s decision.
In making a decision to extradite Chang to Mozambique, it appeared that the minister had not taken into account the responsibility of South Africa to contribute to fighting impunity from corruption in the Southern African Development Community region.
We then asked ourselves: which lawyers were closest to us to be able to do this? The legal costs factor did not rank as high as the question of the essence of time. How has this case unfolded?
Tsunga: It started with the request by the US via a warrant for his arrest, which led to his detention in November 2018 in Johannesburg. After he was arrested the Mozambique government tried to be clever. They also said, “No, no, no, we also want him [to face corruption charges in Mozambique]”.
This created an impression that South Africa had a choice between extraditing Chang either to the US or to Mozambique.
The Mozambican defenders concluded that since Mozambique had not issued a warrant for his arrest, and had not shown any prior interest to prosecute him, it meant that their issuance of a request for his extradition was a political as opposed to an accountability tool. The Mozambican defenders settled for the US as the best option for accountability. So when Minister Lamola made his decision in August 2021 that it is extradition to Mozambique, it was clear that Mozambique was a choice of impunity. Mozambican defenders were convinced that the US was the jurisdiction where there was a reasonable prospect of Chang being made to give a blow-by-blow account of his role in stealing billions of dollars from Mozambican public coffers.
Minister Lamola’s decision appeared to show that SA was not taking into account its serious responsibility of fighting corruption inside and outside SA and holding leaders to account for their role in the use of public funds. Mozambican defenders felt this case needed to be challenged in SA courts for a second opinion. When SA was almost on the verge of extraditing Chang to a geography of impunity, Mozambican defenders thought, “it can’t be on our watch!” They rushed to the nearest available lawyer. The lawyers got the result they wanted. But the pain of looking for money to pay legal fees is now suffered by a few defenders like Professor Nuvunga.
Are there threats to your personal safety?
Nuvunga: We have used the legal avenues, we have used the courts, in a context where we know – particularly in Mozambique – this means going against an entrenched system. The political elite want Chang brought home as a matter of their national interest.
We are going against it. By demanding that those who control public resources should be held accountable, we were really putting ourselves in situations of being persecuted. There are a number of threats that were made last year, including threatening to put bombs in my house. As I’m speaking, my family is temporarily relocated out of Mozambique for their safety.
But leadership is a choice. We have made the choice of doing the right thing, of pushing things in the right direction. Being a human rights defender is a choice. Once you have made that choice you have to bear the consequences of that. But at the moment we are feeling that we are left on our own.
The costs to keep the Chang case going are beyond our capacity. The Mozambique government will appeal and they can easily pay and our attorneys will ask us to make the payments we do not have and I don’t know where we get that money. So this is really frustrating.
We were keen to participate in this interview because it may help to put this case in the global domain. We want it to be known, we want this case to encourage other charities globally, to use the law and use courts to pursue justice for their people and societies.
But we also feel that this can be used to strengthen our protection a bit.
What is the cost of the litigation so far?
Nuvunga: The initial fee was around $20,000. Initially an agreement was reached for a one-off payment, but that was not knowing that we would have all these appeals and that all these appeals would mean new payments had to be made. Now the outstanding bills are more than $50,000.
Tsunga: For the preparation of the papers to oppose the appeal we have to pay a deposit of R325,000. The lawyers have told us that to go to the Supreme Court it’s R700,000. And if the matter goes to the Constitutional Court it will be another R700,000. So the costs are coming to about R1.7-million. Does that mean that if you can’t raise this money, you can’t oppose the application for leave to appeal?
Nuvunga: Exactly, this is where we are
today. In conclusion, what lessons would you like people to draw from your use of the courts for social justice?
Tsunga: It is important to look at how the Mozambique Human Rights Defenders’ Network, and FMO have been creatively trying to use litigation inside and outside Mozambique. Their aim is to try to achieve results around public accountability.
But it has been a very lonely situation for the professor at the level of costs. Because it’s one thing to say that impact litigation is very useful to bring about public accountability. But in real terms, you must understand the sleepless nights that the professor has been going through in terms of just getting development partners to support FMO to be able to carry out that type of work.
To be asked to pay $50,000 just for one case is quite a shock to the system. Then donors are not willing to come across to support that. But they expect human rights defenders to be impactful and effective.
How do we deal with that?
Development partners need to account to us on how much they’re committed to defending and strengthening democracy and accountable governance.
So that is why I thought this is an important conversation. It may achieve wider publicity of the strategy of using the law to protect communities. But it also shows the risks that defenders face. But also the costs, in terms of financial costs and the risk.
So that’s where we are and I want to place that on record!
I agree, I don’t think international development partners can talk about supporting clean governance and accountability, and then not be prepared to help pay for struggles that pursue those objectives. DM168