If Mozambique is going to renounce the government guarantee on most of the $2 bn in secret debt, it will need to argue that the then Finance Minister Manuel Chang acted unconstitutionally and illegally is signing the guarantee. And it would help Mozambique's case if Chang were to be charged and eventually convicted for his action. Two recent international cases show that senior figures can be convicted of serious crimes and not be punished, and that this is acceptable to the international community. The simplest way forward would be for Chang to plead guilty, avoiding a long trial, and a plea bargain could be agreed (technically not allowed in Mozambique) or President Filipe Nyusi could agree in advance to pardon Chang under article 159 of the constitution.Christine Lagarde, Managing Director of the International Monetary Fund (IMF), was found guilty on 19 December of “negligence with public money” in approving a Euros 400 million payout of taxpayers’ money to controversial French businessman Bernard Tapie; she was the French finance minister at the time and acted against the advice of experts. Tapie has since been ordered to repay the money. Although clearly a serious crime relating to a very large amount of money, the special court decided she should not be punished and that the conviction would not constitute a criminal record. Within hours of the court’s decision, the IMF executive board convened a special meeting which gave Lagarde its full support. (Guardian UK 19 Dec)
The other case is less well known. On 18 November the former director-general of the Portuguese spy agency (Servico de Informacoes Estrategicas de Defesa, SIED), Jorge Silva Carvalho, was convicted in a secret trial of violation of state secrecy, aggravated invasion of privacy and abuse of power. He was given a suspended sentence of four and a half years in prison, and thus walked free. After leaving SIED he was hired by Ongoing, one of the largest private companies in Portugal, and was convicted of giving Ongoing secret SIED documents. He was also convicted of invasion of privacy for commissioning secret investigations of the head of the company that owns the newspaper Expresso after it published details of the provision of secret documents. (AIM Pt 18 Nov)In both cases, very senior officials committed serious crimes, but went free. Clearly neither the IMF nor Portugal (and thus the donor community) could object to Chang pleading guilty and then going free. But a guilty plea by Chang would add considerable weight to Mozambique refusing to recognise the government guarantee of the secret loans.