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UPDATE: Republic of Mozambique – Legal System and Research

 

By Paula Rainha

Update by Orquídea Massarongo Jona

 

Orquídea Massarongo Jona graduated from Faculdade de Direito da Universidade Eduardo Mondlane in 2002, having joined the Mozambican Bar Association (2004). Orquídea obtained an LL.M at University of Stellenbosch, Cape Town (South Africa) where she was awarded a Master’s Degree in International Trade Law (2003). She practiced law at José Caldeira & Associados (JCA). Currently Orquídea  works at the Faculty of Law, Universidade Eduardo Mondlane as a Full Time Lecturer; she is also enrolled at the Center for Human Rights at the same University as a Project Manager and Researcher. Her areas of research interest are Trade law and human rights.  Orquídea had also developed some consultancy work in areas such as trade in services, ethics on health research, humanitarian law and media law. She is currently doing her PhD in Human Rights at University of Ghent (Belgium).

 

Paula Rainha graduated from Faculdade de Direito de Lisboa in 2000, having joined the Portuguese Bar Association in 2002.  Paula studied for an LL.M at King’s College London in 2002-2003 and then practiced as a lawyer at Miranda, Correia, Amendoeira & Associados, the largest law firm working in Lusophone Africa. During that period, Paula followed the African Legal Systems course, with Prof. Armando Marques Guedes at Universidade Nova de Lisboa Law School. Currently Paula works with Thomson-Reuters in the area of online legal research and training in Southern Europe and Africa.

 

Published April 2013

(May/June 2011 update by Orquídea Massarongo Jona)

See the Archive Version!

 

Table of Contents

I. Mozambique’s Recent History

II. Country Profile

III. Mozambique’s Legal System

1. Political System

1.1 Executive Branch

1.1.1 The President

1.1.2 The Government

1.2 Legislative Branch

1.2.1 Parliament & Government

1.3 The Courts

1.3.1 Judicial Courts

1.3.2 Administrative Courts

1.3.3 Constitutional Council

1.3.4 Community Courts

2. Legal Sources

2.1 Primary Sources

2.1.1 Legislation

2.1.1.1 Legislative Procedure

2.1.1.2 Legislative Debate

2.1.1.3 Publication

2.1.2 Custom

2.1.3 Cases

2.2 Secondary Sources

2.2.1 Books about Mozambique

2.2.1.1 Books in Portuguese

2.2.1.2 Books in English

2.2.2 Journals about Mozambique

2.2.3 News sources about Mozambique

2.2.4 Public Information in Mozambique

3. Legal Education

4. Legal Profession

4.1 Lawyers

4.2 Judges

4.3 Public Prosecutors

5. Other Resources for legal research

5.1 Online Bookshops / Major publishers (Portuguese)

5.2 Online Bookshops/Major Publishers (English)

5.3 Online Library Catalogues (Portuguese)

5.4. Research Centres (inside Mozambique)

5.5. Research Centres (outside Mozambique)

I. Mozambique’s Recent History

Mozambique is living rather encouraging times, after decades of armed conflict. The country has enjoyed a remarkable recovery, achieving an average annual rate of economic growth of 8 per cent between 2006 and 2012, [[1]] the highest growth rate among African oil-importers. The country has been repeatedly pointed as one of Africa’s success stories in terms of economic development.

 

Despite the many persisting problems, Mozambique has been changing in a remarkable manner, namely since the 1992 Rome Peace Accords that put an end to the 16 year long civil war between the ruling party, Front for the Liberation of Mozambique (FRELIMO), and Mozambican National Resistance (RENAMO).

 

The peace agreements were preceded by the 1990 Constitution, which introduced the rule of law and a democratic multiparty system that had been absent from the country’s 1975 Constitution, enacted under the influence of Marxist-Leninist ideology.

 

The 1990 Constitution and the Rome Peace Accords opened way to the first democratic elections in 1994 supervised by the United Nations Security Council. Mr Joaquim Chissano – leader of FRELIMO - was elected President that same year and re-elected in 1999. In 2004, Chissano announced he was not running again for office. In the end of that year, Mr Armando Emílio Guebuza – also from FRELIMO - was elected President. In the year 2009, Mr Armando Guebuza was re-elected for the second term with 75 % of votes. In this election, there was a third visible actor at election process the MDM (Democratic Movement of Mozambique) party, which is mainly formed by ex- Renamo members, and regarded as movement for the youth. As per the results of the 2009 elections, now in parliament (Assembly of the Republic) there are three forces FRELIMO (74.6 %), RENAMO (17.6 %) and MDM (3.9%) and other parties all together with 3.7%, which is not enough to secure seats in parliament. As from this result out of 250 parliamentary seats, there is the following figure Frelimo with 191 seats, Renamo with 51 seats and MDM with 8 seats.

 

The 2004 Constitution - drafted, approved, promulgated and enacted during President Chissano’s office - entered into force the day after the validation and proclamation of the 2004 General election results, as quite symbolically set forth in its article 306.

 

The country entered in a process of  amendment of the Constitution. The Parliament through the Ad Hoc Committee for Review of the Constitution launched in February this year the Draft Law of the Revision of the Constitution which will undergo in a National Public Debate for 3 months until May 2013.  The main opposition party is against this review, as it considers inopportune to review the current Constitution of 2004. There are also voices indicating that the Draft Bill brings minimum and cosmetic changes.  For the Ad Hoc Committee for Review, this will reinforce the guarantee of citizens access to courts and justice, Some of the Proposals of the Draft Law are:  it determines October as the month for election (general and Local), adds functions and powers of the Ombudsman and the Council of State, Local Governments are enshrined, extension of term of 5 year for municipal bodies.

 

A particular event is that, 2013 opens the door for the election cycle, as the President of the Republic promulgated recently on 8 February 2013 the Electoral Package approved by Parliament, which set out the framework for the electoral census, composition and functioning of the National Elections Commission, provincial parliament (Assembleias Provínciais), and sets the elections time frame being the month of October. However, for 2013 the Council of Ministers determined recently for municipal elections in 2013 it will be on 20 November and October 2014 for General Elections (Presidential, legislative and Local Governments).

 

The Mozambican legal and institutional reforms that started in the early 90’s have continued until this day. Along the last two decades, Mozambique has seen important new legislation approved, such as:

 

  • Political Parties Law (Law 7/91 of 23 January);
  • Community Courts Law (Law 4/92 of 6 May);
  • Investment Law (Law 3/93 of 4 June);
  • Petition Law (Law 2/96 of 4 January);
  • Municipalities Law (Law 2/97 of 18 February);
  • Land Law (Law 19/97 of 1 October);
  • Arbitration Law (Law 11/99 of 8 July);
  • Mozambique Customs Law (Decree Law 3/2000 of 17 March);
  • Code of Administrative Litigation (Law 9/2001 of 7 July);
  • Custom Courts Law (Law 10/2001 of 7 July);
  • Tributary System Base Law (Law 15/2002 of 26 June);
  • Fiscal Benefits Code (Decree 16/2002 of 27 June)
  • Local Administration Law (Law 8/2003 of 19 May), amended by Law  11/12 of 8 February ;
  • Constitution (2004);
  • Family Law (Law 10/2004 of 25 August);
  • Civil Registry Code (Law 12/2004 of 8 December);
  • Code of Civil Procedure (Decree Law 1/2005 of 27 December) amended by Decree law 1/09 of 24 April;
  • Commercial Code (Decree Law 2/2005 of 27 December), amended by Decree law 2/09 of 24 April;
  • Industrial Property Code (Decree 4/2006 of 12 April);
  • Public Enterprises Law (Law 5/2012 of 8 February revoked  previous Law  19/91 of 3 August)
  • District Administration Organization Law (Decree Law 6/2006 of 12 April);
  • Notary Public Code (Decree Law 4/2006 of 23 August);
  • Social Security Law (Law 4/2007 of 7 February);
  • Labour Law(Law 23/07 of 1 August 2007);
  • Organic Law of the Judicial Courts (Law 24/07 of 20 August 2007);
  • Organic law of Public Prosecutors (Law 22/07, of 1 August) amended by Law 14/2012 of 8 February;
  • VAT Code (Law 32/07 of 31 December 2007);
  • Personal Income Tax Code (Law 33/07 of 31 December 2007);
  • Corporate Income Tax Code (Law 34/07 of 31 December 2007);
  • Law criminalizing trafficking of persons (Law 06/08 of 9 July 2008);
  • Law on Statute of judges (Law 7/09 of 11 March, amended by Law 3/11 of 11 January)
  • Law on Domestic violence  against women ( Law 29/09 of September)
  • Gambling Law (Decree 64/2010 of 31 December)
  • Social Gambling and Entertainment (Law 9/12 of 8 February)
  • Law of Promotion and Protection of Child  Rights ( Law 7/08,  of 9 de July);
  • Jurisdictional Organization for Minors (Law 8/08, of 15 July)
  • Public Expenditure Control Law (Law 26/09 of 29 September);
  • Bar Association Rules (Law 28/09 of 29 September); [[2]]
  • Administrative Court Organic Law (Law 25/09 of 28 September); [[3]]
  • Road Traffic Code (Decree-Law   1/11, of 23 March);
  • Law on Public-Private Partnership (Law 15/2011 of 10 August)[[4]]
  • Law on Protection of the Rights and interests of the victims, whistleblowers, declarants and witnesses (Law 15/12 of 14 August);
  • Law on Public Probity (Law 16/12 of 14 August)

 

In February this year, the Government extinguished the Technical Unit for the Law Reform (UTREL) and its functions were integrated at National Directorate of Studies and Legislation at the Ministry of Justice. This Department is expected to continue with the work of reforming the following legislation:

 

The Criminal Code is already at the Parliament, as a Draft Law, and the debate on that is expected to start soon this year (2013), being that consultations and requests for a legal opinion is already taking place.

 

There is also a debate on the new broadcasting Law in the country, whereas the National Information office (GABINFO) takes the lead, the actual status of this proposal is dormant.

 

The Insolvency Law is not yet approved; however, it was already submitted to the Parliament for debate and approval.

 

Another new legal event, and very important from 2012, is the Law on Detainee System (National Penitentiary System) as it reforms the all system and introduces new forms of social reinsertion for prisoners.

II. Country Profile

Mozambique is bordered by the Indian Ocean to the East, Tanzania to the North, Malawi and Zambia to the Northwest, Zimbabwe to the West and Swaziland and South Africa to the Southwest. It is divided in 10 provinces: Cabo Delgado, Gaza, Inhambane, Manica, Maputo, Nampula, Niassa, Sofala, Tete, Zambezia and the capital is Maputo. However, Maputo city alone for administration purposes is considered the 11th province.

 

Mozambique is a member of the United Nations, Southern African Development Community (SADC), the African Union (AU), the Organization of the Islamic Conference, the Community of Portuguese speaking countries (CPLP) and the Commonwealth of Nations.

There are plenty informative and up to date websites in English and Portuguese with Mozambique’s country profiles, general information, documents and papers on different topics:

III. Mozambique’s Legal System

Afrimap.org has published in September 2006 an extensive study on the Mozambique Justice Sector and the Rule of Law. This very informative and fairly up to date report offers a detailed and critical view of the Mozambican legal system in English.

1. Political System

The 1990 Constitution was prepared along the 80’s peace negotiations and its approval marked a turning point in Mozambique’s constitutional history. There was - for the first time - agreement between FRELIMO and RENAMO concerning the introduction of an extensive and modern bill of rights, a democratic multi-party political system and the shift to market economy.

 

This Constitution opened way to the 1992 Peace Accords, the first multiparty elections in 1994 and to more than a decade of extensive legislative reform.

 

The text of the Constitution of the Republic of Mozambique (hereinafter referred to as the Constitution) currently in force was adopted in 2004 and its scope was more to restate and expand the fundamental principles introduced by the 1990 Constitution than to break with the past.

 

According to article 133 and 134 of the Constitution, the sovereign bodies in Mozambique are the President, the Parliament, the Government, the Courts and the Constitutional Council. These are separate but interdependent bodies that abide by the Constitution and the law.

1.1 Executive Branch

1.1.1 The President

The current Constitution states that the President is the Head of State, Head of Government and Commander-in-Chief of the Defence and Security Forces.

 

The President embodies national unity, guarantees the Constitution, oversees the correct functioning of State bodies and represents the country domestically and internationally.

 

The President is elected by universal ballot for a five-year term and may be eligible for a second consecutive term or even further terms as long as discontinuous (articles 147 and 148 of the Constitution). Last Presidential elections were held in November and December 2004.

 

The Constitution gives the President vast powers (article 159 to 163 of the Constitution), including the power to promulgate laws, sign decree-laws and order their publication in the Official Gazette. Furthermore, the President can refer bills to the Constitutional Council for control of constitutionality. If a bill is declared unconstitutional, the President must veto and send it back to the Parliament.

 

The President has a consultative body called Conselho de Estado (Council of State) to which he presides. This body advises the President in very specific situations such as the dissolution of the Parliament, discharging the Government, declaration of war etc. (Title VI, Chapter III, articles 164 to 167 of the Constitution).

1.1.2 The Government

The Government’s structure, composition and activities result from articles 200 to 211 of the Constitution.

 

The Government is composed by the Prime Minister and the Ministers. The cabinet or collegial body (President, Prime Minister, Ministers, Deputy Ministers and Secretaries of State) is also called Conselho de Ministros (Council of Ministers).

 

The Prime Minister convenes and presides to the Council of Ministers by delegation of the President.

 

Besides having executive powers the Government has legislative powers as stated directly in articles 179, no. 3, 180, 181 and 204 no 1.d of the Constitution, through delegation of the Parliament.

 

The Council of Ministers has a web page within the Government’s website where general information is available although the information or documentation is not regularly updated. This page has useful contact details and websites for all ministries, provincial governments and local authorities (Districts and Municipalities). 

1.2 Legislative Branch

1.2.1 Parliament & Government

The Parliament (Assembleia da República) is a unicameral Assembly with 250 seats. Members are elected by proportional vote to serve five-year terms. Last elections were held in 2009 and next will be held in 2014.

 

The Parliament is Mozambique’s legislative body, having the power to approve laws on all matters by simple majority (except if otherwise provided in the Constitution).

 

The Executive proposes most legislation although individual Members of Parliament, Parliamentary Groups, Parliament Committees, the President and Government Members may also take legislative initiative.

 

The Constitution determines the areas in which only the Parliament can pass legislation (article 179 no. 2 of the Constitution) and all other areas in which the Parliament can delegate its legislative powers to the Government (articles 179, no. 3, 180, 181 and 204 no. 1 d) of the Constitution).

 

The Official web page of the parliament  provides information about activities and agenda of the Parliament.

1.3 The Courts

The current constitution of Mozambique devotes an entire section to the court structure (Title IX, article 212 to article 233).

 

In Mozambique, the courts are independent sovereign bodies that administer justice on behalf of the people. They guarantee and ensure compliance with the Constitution, laws and other legal provisions in force and safeguard the rights and legitimate interest of citizens and institutions (article 212 no. 1 of the Constitution).

 

Furthermore, article 213 of the 2004 Constitution explicitly says that the courts have an educational function: The courts shall educate citizens and the public administration in the voluntary and conscientious observance of laws, thereby establishing a just and harmonious social community”.

 

The main laws that regulate the Judiciary are:

 

 

In 2004, the UTREL has presented a Justice Administration System Framework, which aims at reforming the whole judiciary and much of the above legislation. This has not yet been approved but some of its suggestions have been enshrined in the Constitution upon the 2004 revision. 

 

Legal pluralism is recognized as a Constitutional principle in Mozambique (article 4 of the Constitution) hence, there may be other instances devoted to dispute resolution, including conducted by traditional and religious leaders.

 

According to article, 233 of the Constitution there shall be the following courts in Mozambique:

1.3.1 Judicial Courts

The Judicial Courts decide on civil and criminal matters and have jurisdiction in all matters not attributed to other courts.

 

·       Supreme Court (article 225 to 227 of the Constitution)

The Supreme Court is called Tribunal Supremo, is located in Maputo and has national jurisdiction. It is composed by the President, Vice-President and a minimum of seven professional judges appointed by the President after consultation with the Superior Council of the Judiciary. The Supreme Court currently works as 1st level court in a number of matters like criminal cases against public office holders etc. and as 2nd level for decisions of the court of appeals.

 

·       Court of Appeals

Article 223 no. 3 of the Constitution already referred the possibility of Tribunais Superiores de Recurso being created by law. The 2007 Organic Law of the Judicial Courts finally established that possibility. These courts hear appeals from the Provincial Courts thus reducing the Supreme Court’s workload. Since 2012, Appeal Courts entered in functions after the nomination of the first group of appeal judges (Juízes Desembargadores).

 

·       Provincial Courts

There are 11 Judicial Courts of Provincial Level - Tribunais Judiciais de Província (one per province, except Maputo that has two one for the province itself and another for the city) each with different divisions called “secções” for civil, labour, commercial, and criminal matters that decide 1st level in cases above a certain monetary threshold or years imprisonment. It also works as 2nd level for district court decisions. Appeals from the decisions of the Provincial Courts go directly to the Courts of Appeals. 

 

·       District Courts

There should be one Tribunal Judicial de Distrito for each of the nearly 130 Districts in Mozambique; there was an improvement on that, although a number of them have not yet been created.

 

·       Labour Courts (to be set-up)

These courts have been created by Law 18/92 of 14 October but have not yet been set up. Its functions are meanwhile exercised by special sections of the judicial courts. The Government is currently working on a new law for the labour courts.

1.3.2 Administrative Courts

 

·       Administrative Court

The Tribunal Administrativo (Administrative Court) was created in 1992 as the superior court in the hierarchy of the administrative, fiscal and customs courts (article 228 no. 1 of the Constitution).

 

The Court’s website contains a list of legislation relevant for the work of the administrative courts but it does not give access to any cases.

 

The Administrative Court oversees the constitutionality and legality of administrative decisions issued by the public administration, administrative contracts and it also enforces regulations.  

 

·       Customs Court

The Customs Court (Tribunais Aduaneiros) has been created by Law 10/2001 of 7 July and started operating one year later. Customs’ legislation can be found in the official website but not yet cases.

 

·       Fiscal Court

The Fiscal Courts (Tribunais Fiscais) were created in 2004, by the Law 2/2004 of 21 January to be in function in 2007, however the Fiscal Courts only began to operating in 2009 and the first group of judges were sworn also in 2009. There is 6 Fiscal Courts in all country distribute as follows: Maputo Provincial Court, Maputo City Court that has jurisdiction over  Inhambane and Gaza Province in the South; Sofala Court with jurisdiction over Manica; Zambézia Court; Nampula Court with jurisdiction over Cabo Delgado and Niassa Province and Tete Provincial Court. The appeals from the decisions of these courts are submitted to the Administrative Court as a superior court.

1.3.3 Constitutional Council

Introduced in the 1990 Constitution the Constitutional Council was only established in 2003 when it finally embraced the task of administering justice in legal-constitutional matters (article 241 of the Constitution) until then guaranteed by the Supreme Court.

 

According to article 245 of the Constitution the Constitutional Council has broad powers, one of the most relevant being judging the constitutionality of laws and legality of all other legislative acts and proposed referenda upon due request of:

 

  • The President of the Republic;
  • The President of the Parliament;
  • The Parliament (with support of at least 1/3 of its members);
  • The Prime Minister;
  • The Attorney-General;
  • The Ombudsman;
  • Group of 2,000 citizens.

 

The President can also request the Constitutional Council to evaluate the constitutionality of all legislation submitted for enactment before ratifying it. When legislation is considered unconstitutional, the President has to veto and return the proposed legislation to the Parliament (article 246 of the Constitution).

 

The Constitutional Council also works as an appeals court in constitutional matters. All court decisions that refuse the application of norms due to its unconstitutionality must be sent to the Constitutional Council (article 247 of the Constitution).

                                                                    

Decisions from the Constitutional Council must be followed by all citizens and state bodies and are not subject to appeal (article 248 of the Constitution). 

 

They are mandatorily published in the Official Gazette and have the following format:

 

  • Designation
  • Case number
  • Acronym of the Court
  • Year
  • Date

 

(e.g. Acórdão do Conselho Constitutional n. 16/CC/04 de 14 de Janeiro de 2004)

 

Since 2007, the Constitutional Council started to publish in books of all their decisions (Acórdãos & Deliberações), which is now in volume III, with decisions made until the year 2008. The decisions of the Constitutional Council can also be found at their website .

1.3.4 Community Courts

Although only recognized in the 2004 Constitution (article 223 no. 2) these courts have been functioning in Mozambique since colonial times and have had its legal framework set by Law 4/92 of 6 May.

 

These courts are widespread across the country. They deal with minor civil disputes and small crimes. Cases above a certain financial threshold or that involve imprisonment for more than 30 days should be referred to the judicial courts.

 

These courts try conciliation/mediation as first approach and when agreement is not reached, a decision is made in light of the principles of equity, good sense and justice.

 

The Government is revising community courts law in order to adequate it to modern justice requirements, namely linking the community courts with the judicial courts through an appeals system.

1.4 Attorney General

The Attorney General of the Republic is the superior organ of the Public Prosecutor, which constitutes a hierarchically organized magistracy. A vice-Attorney General assists the Attorney General.

 

It is also provided in the constitution, Assistant Attorney Generals (Procuradores Gerais Adjuntos) who are settled in divisions (secções) of the Supreme Court, Administrative Court and Higher Appeal Courts.

 

In each judicial court there is a representative of Public Prosecutor with same functions but in a lower level (Provincial and District).

 

The Attorney General is comprised by a Higher Magistracy of Public Prosecutors Council and a Cabinet against Corruption.

 

Every year the Attorney General provides an Annual Report to the Parliament where he is supposed to indicate the situation the country, in particular in regards to crime and other legal aspects.

 

The Attorney General website contains a list of legislation and main reports relevant for the work of Public Prosecution office.

2. Legal Sources

During colonial times, Mozambique was under Portuguese Law, although the traditional customary law was in many cases tolerated or tacitly accepted.

 

When independence arrived, Mozambique obviously rushed to repeal the old colonial system and its laws and rulings. However, the Portuguese legal tradition ended up being revived when the country started settling in the early 1990’s.

 

Mozambique’s legal system is considered a civil law based (at least the formal legal system) and legislation is the primary source of law. Courts base their judgements on legislation and there is no binding precedent as understood in common law systems.

 

Nonetheless, the 2004 Constitution recognizes the existence of legal pluralism, i.e. there are other normative systems that intertwine with the formal civil law based system.

 

As to secondary sources, books are in reduced number (both in English and Portuguese) but there is a considerably large number of journal articles, studies and papers (mostly in English), which can be found online albeit scattered through dozens of websites. Most of the books and articles to be found would more likely be classified under African studies, anthropology, history, human rights, political sciences, sociology, war studies or a mix rather than strictly under “Law”.

2.1 Primary Sources

2.1.1 Legislation

2.1.1.1 Legislative Procedure

Legislative initiative (article 183 of the Constitution) shall belong to the:

 

·       Members of Parliament;

·       Parliamentary Benches;

·       Parliamentary Committees;

·       President of the Republic; or

·       Members of the Government.

 

Bills proposed by the Parliament are called projecto de lei and bills proposed by the Executive are known as proposta de lei.

 

All bills are deposited with the President of the Parliament who submits them to the relevant Parliamentary Committee for distribution to the Members of Parliament. Bills are then analysed by the relevant working group who shall issue a detailed report and opinion.

2.1.1.2 Legislative Debate

Debate on the bills shall consist of a general first reading and a specialised second reading. Likewise voting shall consist of a vote on the first reading, a vote on the second reading and a final overall vote. The Parliament may only deliberate and make decisions when more than half of its members are present and laws can only be approved if more than half of the votes of the members present (article 184 of the Constitution).

 

Any draft laws that are definitively rejected shall not be assessed in the same legislative session.

 

After voting, the President of the Parliament signs the bill and submits them for enactment by the President.

 

The President shall sign and promulgate every law within 30 days of receipt. However, the President can refer any laws to the Constitutional Council to verify its constitutionality (163 no. 2 of the Constitution). The Constitutional Council notifies the President of its decision and the President has then two options: either veto and remand the bill to the Parliament or promulgate within 30 days of being notified of the Constitutional Council decision. In case a law is sent back to the Parliament and is then approved by a two-thirds majority, the President must promulgate and enact it.

 

In order to pass Decree-Laws the Government needs specific and detailed legislative authorisation from the Parliament (Article 179 no. 3, article 180 and article 204 no. 1d) of the Constitution). Decree-Laws passed by the Government are signed by the President of the Republic who shall then order its publication in the Official Gazette.

 

Decree-Laws are automatically ratified unless fifteen Members of Parliament demand to ratify it in the first Parliamentary session held after the publication of the Decree-Law in the Official Gazette (Article 181 of the Constitution). Non-ratification by the Parliament in case the Decree-Law is called for ratification equals revocation.

 

After signing and promulgation by the President all legislative acts are published in Series I of the Official Gazette otherwise, they will not be deemed in force (article 144 of the Constitution).

2.1.1.3 Publication

The Official Gazette (Boletim da República de Moçambique) is published in three Series.

 

Series I of the Official Gazette publishes laws, decree laws, decrees, resolutions, dispatches and other legislative acts. The date of the acts will be the date of publication in the Official Gazette. In case the law does not expressly determine a start date, it is understood that laws enter into force 15 days after publication.

 

Legislation published in Series I of the Official Gazette has the following citation format:

 

·       Type (law, decree etc.)

·       number (each type of act has an annual independent numbering)

·       year (two digit format)

·       date (day and month)

·       short description

 

(e.g. Lei Lei nº 2/2008 de 27 de Fevereiro de 2008, Estabelece o Sistema Nacional de Pagamentos e cria o Comité de Coordenação do Sistema Nacional de Pagamentos).

 

Series II of the Official Gazette publishes decrees, orders, dispatches and authorisations issued by the public administration and court decisions that demand publication.

 

Series III of the Official Gazette publishes land and mining concessions and permits, municipal regulations, approval of associations and foundations and companies’ articles of association.

The Government is obliged to publish and efficiently disseminate the Official Gazette but this has not been happening due to sever delays at the Official Printing Office. Although there is plenty legislation available online it must be said that online versions can never replace consultation of the official version on the Gazette which is in print format.

 

In any case, Mozambique’s official website can be a starting point for finding legislation organized by topics and the most recent years of Series III of the Official Gazette. The website also gathers other important government documents in Portuguese such as briefings, speeches, strategic documents, studies, budgets, policies, programmes etc. and an array of other important information. Since most of these laws would be in Portuguese, it may be useful to use the Global Legal Information Network to see a brief summary in English, where it exists.

 

There are two companies providing subscription-based access to the scanned Series I and Series III of the Mozambican official gazette (Boletim da Republica) from June 25 1975 in Portuguese.

 

 

Atneia’s service seems to be the most comprehensive and functional. One can find not only the acts but also the following additional information:

 

·       Names of entities/people mentioned in the Acts;

  • Links to and from revoked, amended or related Acts;
  • Additional to the official summary;
  • Classification according to the areas of the law;
  • Status of the Act;
  • Information about rectifications;
  • Technical remarks (mistakes in the text, inconsistencies, duplications);
  • Link to the PDF of the original act as published in the Boletim da República;

 

In addition, Atneia’s search engine is very user-friendly allowing users to search with the following fields:

 

  • Topic (Assuntos)
  • Summary (Sumário)
  • Entity (Entidade Abrangida)
  • Person (Pessoa Abrangida)
  • Type and Number of the Act (Tipo e Número do Diploma)
  • Number of the Act (Número do Diploma)
  • Date of the Act (Data do Diploma)
  • Gazette Number (Número do Boletim)
  • Gazette Date (Data do Boletim)
  • Type of Act (Tipo de Diploma)
  • Place (Lugar Geográfico)
  • Originating Entity (Entidade emissora)
  • Record Citation (ID do Registo)

 

Furthermore, together with Mozlegal, Atneia provides three subscription-based packs to Tudo Legal. With this service, users can have access all Mozambican legislation in Portuguese and to the English versions of more than one hundred Mozambican laws.

 

There is also a project called Legis-Palop funded by the program EUROPEAID to help in the creation of online databases with legislation,  cases and jurisprudence for the 5 Lusophone countries: Angola, Cabo Verde, Guiné Bissau, Moçambique e São Tomé e Príncipe. As per date 13 April 2011, PALOPs official database has more than 40 thousands registries whereas 36009 is the total number of legislation. It seems that currently the portal is regularly updated, since the last update was done few days before the conclusion of the current information. It is also a useful source that one can rely on.

 

There is also a website providing legislation and jurisprudence, the Mozambique Legal Institute in Portuguese and English, a project managed by the Mozambican Bar Association.

 

Some other websites offer some Mozambican legislation. In any case, one should verify if the legislation published in such websites is current. Below are some examples:

2.1.2 Custom

During colonial times, the formal legal and justice system only reached the urban areas therefore the vast majority of Mozambicans were governed by local customary law administered by traditional authorities.

A few years after independence the Government introduced the first Organic Law of the Judicial Courts (1978), which created four levels of courts: the Supreme Court, provincial, district and local courts. The local courts were supervised and administered by the Ministry of Justice and controlled by the local people’s assemblies. The originality of these courts was that it had judges elected by the local communities who would judge according to principles of equity, common sense and local values.

 

With the introduction of the rule of law and the independence of the executive, legislative and judiciary bodies, the court structure needed to be reformed.

 

Local courts then became community courts and are now ruled by Community Courts Law.

2.1.3 Cases

Mozambique has a civil law based legal system where legislation is the primary source of law. Therefore, cases do not have the binding authority as in common law systems and are not considered a source of law.

 

The Ministry of Justice used to publish compilations of jurisprudence from the main courts however, this publication has been discontinued.

The landmark cases would be decided by the Tribunal Supremo, which is the Supreme Court of the Country.  The Supreme Court started publishing compilation of jurisprudence on civil, minors and family matters, and it has now two Volumes.  The Third Volume is forthcoming and will cover decisions from 2004 to 2008. A few cases of the Supreme Court may also be found in Saflii’s website, a Southern African Legal Information Institute.

 

The Supreme Court has a website, where relevant jurisprudence can be found in relation to Criminal, civil and labour jurisdiction in the following link.

The contacts of the Supreme Court are:

 

Av Vladimir Lenine, 103 - Maputo
Tel: +258 21 321037/323306
Fax: +258 21 310674
Email: daf@ts.gov.mz

 

It may be also useful to check the Forum of the Lusophone Supreme Court Presidents and the CPLP Judicial Network. Although neither organization publishes, cases it may do so in the future and/or it may be easier to get access to the Mozambican Supreme Court through them.

 

The Administrative Supreme Court has a very good website but – again - the court has not yet uploaded any cases. The Administrative Court can be reached in:

 

Rua Mateus S. Muthemba nº 65 - Maputo

Tel: +258 21 490170/1

Fax: +258 21 498890

Email: ta@ta.gov.mz

 

The Constitutional Council has publications on their decisions, rulings and deliberations, with 4 Volumes, being the last one from 2012, with decisions from the years 2003 to 2011. More detailed decisions can be found at this website.

                                                              

Examples of List of Publications of Court Decisions (Supreme Court & Constitutional Council):

  • Conselho Constitucional, Deliberações e Acórdãos do Conselho Constitucional, Volume I:2003 a 2006, Edição CFJJ/Ministério da Justiça e Conselho Constitucional, Editora Kapicua, Livros e Multimedia, 2007

[Rulings and Decisions of Constitutional Court]

  • Conselho Constitucional, Deliberações e Acórdãos do Conselho Constitucional, Volume II:2007 a 2006, Edição CFJJ/Ministério da Justiça e Conselho Constitucional, Editora Kapicua, Livros e Multimedia, 2007

[Rulings and Decisions of Constitutional Court]

  • Tribunal Supremo, Acórdãos do Tribunal Supremo:Jurisdição Cível, de Menores e Laboral (1990-2003), Volume II Tomo 1, Edição Tribunal Supremo, Editora Kapicua, Livros e Multimedia, 2010

[Rulings of Supreme Court: civil, minors and labour matters]

  • Tribunal Supremo, Acórdãos do Tribunal Supremo:Jurisdição Cível, de Menores e Laboral, Volume II Tomo 2, Edição Tribunal Supremo, Editora Kapicua, Livros e Multimedia, 2011

[Rulings of Supreme Court: civil, minors and labour matters]

2.2 Secondary Sources

2.2.1 Books about Mozambique

 There are not a great deal of books dealing specifically with the Mozambican legal system, although there was an increase of publications during the year of 2009 and 2010. The following section indicates books published in Portuguese and in English about different topics pertaining to Mozambique.

 

Notwithstanding the attempt to point out the most recent legal publications, some of them may be partially outdated due to changes in the Mozambican legal system occurred after its publication.

 

This section also includes books that cannot be classified under the topic “Law” but that are considered to be of interest when researching the Mozambican legal system.

 

The ISBN is indicated whenever possible in order to help researchers finding them in library catalogues.  

2.2.1.1 Books in Portuguese

Abudo, José Ibraimo - Do Contrato de Depósito Bancário, Coimbra: Almedina, 2004;

ISBN 978-972-40-2272-7

[Bank deposit contract]

 

Abudo, José Ibraimo – Direito Comercial, Maputo: Universidade Mussa Bin Bique, 2009;

 [Commercial Law]

                                                                             

Alves, Sílvia; Gune, Boaventura; Rodrigues, Luís Barbosa – Código Civil e Legislação Complementar de Moçambique, Coimbra: Almedina, 2006;

ISBN 978-972-40-2101-0

[Civil code and complementary legislation]

 

Alves, Sílvia; Rodrigues, Luís Barbosa – Código Comercial e legislação Complementar de Moçambique, Coimbra: Almedina, 2006;

ISBN 978-972-40-2103-4

[Commercial code and complementary legislation]

 

Alves, Sílvia; Rodrigues, Luís Barbosa – Código Penal e Legislação Complementar de Moçambique, Coimbra: Almedina, 2006;

ISBN 9789724021003

[Criminal code and complementary legislation]

 

Alves, Sílvia; Rodrigues, Luís Barbosa; Nguenha, João – Constituição da República de Moçambique e Legislação Constitucional, Coimbra: Almedina, 2006;

ISBN 978-972-40-2104-1

[Constitution of the Republic of Mozambique and constitutional legislation]

 

Antunes, Carlos / Perdigão, Carlos – Legislação do Trabalho nos Países de Língua Portuguesa, Coimbra: Coimbra Editora, 2006;

ISBN 978-972-32-1405-9

[Labour legislation in the Lusophone countries]

 

Araújo, Artur - Os sistemas de governo de transição democrática nos P.A.L.O.P., Coimbra: Coimbra Editora, 2000;

ISBN 972-32-0779-6 / 978-972-32-0779-8

[Political systems of democratic transition in Lusophone Africa]

 

Brito, Luis; Castel-Branco, Carlos Nuno; Chichava, Sérgio; Francisco, António – Desafios para Moçambique 2010, Maputo: IESE, 2011;

ISBN 978-9899611473-4

[Challenges for Mozambique 2010]

 

Brito, Luis; Castel-Branco, Carlos Nuno; Chichava, Sérgio; Francisco, António – Desafios para Moçambique 2011, Maputo: IESE, 2011;

[Chalenges for Mozambique 2011]

 

Calengo, André Jaime – Lei de Terras Anotada e Comentada, Maputo, 2005;

[Annotated land law]

 

Câmara, João de Sousa da – Portugal na Commonwealth, Crise e Ressurgimento em Moçambique, Lisboa: Livraria Ferín, 1995;

ISBN 9789729694325

[Portugal in the Commonwealth, crisis and re-emergence in Mozambique]

 

Casimiro, Duarte da Fonseca - A Transmissão da Empresa à Luz da Lei do Trabalho Moçambicana, Coimbra: Almedina, 2006;

ISBN 9789724029351

[Transmission of companies in the light of Mozambican labour law]

 

Cistac, Gilles – Aspectos Jurídicos e Integração Regional, Maputo: Escolar Editora, 2012

ISBN 9789896700317

[Administrative Procedural Law Litigation: Theory & Practice]

Cistac, Gilles – Direito Processual Administrativo Contencioso: Teoria e Práctica, Maputo: Escolar Editora, 2010

ISBN 9789896700089

[Legal Aspects and Regional Integration]

 

Cistac, Gilles – Contributo para o Debate Sobre a Revisão Constitucional, Maputo: Ed Faculdade de Direito da Universidade Eduardo Mondlane, 2004;

[A Contribute to the debate over the Constitutional revision]

 

Cistac, Gilles – O Direito Eleitoral Moçambicano, Maputo: Ed. Faculdade de Direito da Universidade Eduardo Mondlane, 1994;

[Mozambican elections law]

 

Cistac, Gilles – Jurisprudência Administrativa de Moçambique 1994-1999, Maputo: Ed. Faculdade de Direito da Universidade Eduardo Mondlane, 2003;

ISBN: 978-902-47-9938-1

[Mozambique’s administrative cases 1994-1999]

 

Cistac, Gilles – O Tribunal Administrativo de Moçambique, Maputo: Ed. Faculdade de Direito da Universidade Eduardo Mondlane, 1997;

[Mozambique’s administrative court]

 

Cistac, Gilles – Direito do Processo Administrativo Contencioso (Teoria e Práctica), Volume I, Escola Editora, 2010;

ISBN 978-989-670-008-9

[Law of Administrative Litigation Procedure]

 

Cistac, Gilles; Chiziane, Eduardo (coordenação) – Aspectos Jurídicos, Económicos, e Sociais do Uso e Aproveitamento da Terra, Maputo: UEM: Imprensa Universitária, 2003;

[Legal, Economic and Social aspects of the right to use the land]

 

Cistac, Gilles; Chiziane, Eduardo (coordenação) – Turismo e Desenvolvimento Local, Maputo: UEM: NEAD, 2007;

[Tourism and Local Development]

 

Cistac, Gilles; Chiziane, Eduardo (coordenação) – 10 anos de Descentralização em Moçambique, Maputo: UEM: NEAD, 2008;

[10 Years of Decentralization in Mozambique]

 

Chiziane, Eduardo; Cossa, Victória (coordenação) – Um olhar jurídico-sociológico e económico sobre o HIV/SIDA em Moçambique, Maputo: UEM: Faculdade de Direito, 2009;

[A look at legal, sociological and economic on HIV/AIDS in Mozambique]

 

Comoane, Ana - Impacto da Política de Desenvolvimento em Turismo - O Caso dos PMAs, em Especial Moçambique: Contingências e Estratégias, Coimbra: Almedina, 2007;

ISBN 9789724032092

[Impact of development policies in the tourism sector – the case of PMAs, namely in Mozambique – contingencies and strategies]

 

Comoane, Paulo Daniel – A aplicação da Lei do Trabalho nas Relações de Emprego Público, Coimbra: Almedina, 2007;

ISBN ISBN 978-972-40-2937-5

[Application of labour law to public employment relations]

 

Baltazar Egídio – Manual do Processo Disciplinar, Maputo:Escolar Editora, 2011;

[Disciplinary Procedure Manual]

 

Guedes, Armando Marques – O Estudo dos Sistemas Jurídicos Africanos, Coimbra: Almedina, 2004;

ISBN 978-972-40-2161-4

[The study of African legal systems]

 

Gouveia, Jorge Bacelar – As Constituições dos Estados de Língua Portuguesa, Coimbra: Almedina, 2006;

ISBN 972-40-2879-8

[Constitutions of the Lusophone Countries]

 

Gouveia, Jorge Bacelar - Estudos de Direito Público de Língua Portuguesa, Coimbra: Almedina, 2004;

ISBN 972-40-2307-9 / 978-972-40-2307-6

[Studies of Public Law in Portuguese Speaking Countries]

 

Hodges, Tony; Tibana, Roberto - A Economia Política do Orçamento em Moçambique, Lisboa: Principia, 2005;

ISBN 978-972-88-1850-0

[The political economy of State Budget in Mozambique]

 

Ibraimo, Ibraimo: O Direito e a Fiscalidade: Um contributo para o Direito Fiscal Moçambicano, Maputo, 2002

[The Law & the Tax: Contribute to the Mozambican Tax Law]

 

Issa, Abdul Carimo; Garcia, Isabel; Jeque, Nelson & Timbane, Tomás – Código de Processo Civil (com alterações de 2005/2009, anotado e jurisprudência moçambicana)

[Civil Procedure Code – Amended, annotated and with Mozambican jurisprudence]

 

Libombo, Alda – Lei das Florestas e Fauna Bravia Anotada e Comentada, Maputo, 2005;

[Forests and wildlife law annotated]

 

Marroquim, Stayleir – A Responsablidade Civil dos Administradores das Sociedades Comerciais em Moçambique, ICJ-Faculdade d Direito da Universidade de Lisboa, Coimbra: Almedina, 2011;

ISBN 978-972-40-4580-1

[Liability of Company Directors in Mozambique]

 

Massarongo-Jona, Orquídea & Garcia, Augusto (Eds):  Reflexões Sobre o Direito do trabalho e Segurança Social em Moçambique e Macau, Maputo: Imprensa Universitária, 2012

[Reflections on Labor Law and Social Security in Mozambique and Macao]

 

Massarongo-Jona, Orquídea: Revista de Direitos Humanos: Direitos Sexuais, Reprodutivos e HIV/SIDA, Maputo: Escolar Editora, 2012

[Human Rights Journal: Sexual and Reproductive Rights and HIV/AIDS]

 

Neto, António Alberto – Instituições Politicas e Sistemas Constitucionais nos Países Africanos de Expressão Portuguesa, Lisboa: Livraria Kiazele, 2003;

ISBN 972-95998-7-4 / 978-972-95998-7-3

[Political institutions and constitutional systems in Lusophone African Countries]

 

Pinto, Rui - Direitos Reais de Moçambique - Teoria Geral dos Direitos Reais. Posse, Coimbra: Almedina, 2006;

ISBN 978-972-40-2619-0

[Property rights in Mozambique – general theory of property rights, possession]

 

Quadros, Maria Conceição; Chiziane, Eduardo – Manual do Direito da Terra, CFJJ: Maputo, 2004

[Land Law Manual]

 

Rodrigues, Luís Barbosa; Alves, Sílvia – Direito Internacional Público, Geral e Africano, Coimbra: Almedina, 2007

ISBN 9789724021058

[Public international law, general and African]

 

Santos, Boaventura Sousa; Trindade, João Carlos - Conflito e Transformação Social,
Uma Paisagem das Justiças em Moçambique, Lisboa: Edições Afrontamento, 2005;

Volume I – ISBN 9789723606409

Volume II – ISBN 9789723606546

[Conflict and social transformation, a landscape of justices in Mozambique]

Santos, José Carlos Gomes – Incentivos Fiscais ao Investimento no Contexto de Subdesenvolvimento e Competição Regional, O caso Moçambicano, Coimbra: Almedina, 2006;

ISBN 972-40-2652-3

[Tax incentives to investment in a context of sub-development and regional competition. The Mozambican case]

 

Serra Jr., Carlos – Lei do Ambiente Anotada e Comentada, Maputo, 2005;

[Environmental law annotated]

 

Timbane, Tomás Luís – A rescisão unilateral do contrato de trabalho com justa causa, Coimbra: Almedina, 2006;

ISBN 978-972-40-2936-8

[Unilateral termination with just cause of labour contracts]

 

Timbane, Tomás Luís – A Revisão do Processo Civil, FDUEM, Maputo, 2007;

 [Civil Procedure Reform]

 

Timbane, Tomás Luís – Lições de Processo Civil I, Maputo: Escolar Editora, 2010;

ISBN 978-989-670-011-9

[Civil Procedure Lessons]

 

Vasques, Sérgio – As Reformas Fiscais Africanas, Lisboa: Fim do Século, 1998;

ISBN 972-754-116-X / 978-972-754-116-4

[African tax reforms]

 

Vasques, Sérgio - Legislação Económica de Moçambique, Lisboa: Almedina, 2004;

ISBN 978-972-402-236-9

[Economic legislation of Mozambique]

 

Waty, Teodoro Andrade – Introdução ao Direito Fiscal, Maputo, 2002;

[Introduction to tax law]

 

Waty, Teodoro Andrade – Introdução ao Direito Bancário, Volume I, Maputo: Editora W&W, 2004;

[Introduction to Banking Law]

 

Waty, Teodoro Andrade – Introdução às Finanças Públicas e Direito Financeiro, Maputo: Editora W&W, 2004;

[Introduction to Public Finance & Financial Law]

 

Waty, Teodoro Andrade – Direito dos Seguros, Maputo: Editora W&W, 2007;

[Insurance Law]

 

Waty, Teodoro Andrade –Direito Económico, Maputo: Editora W&W, 2011;

[Economic Law]

 

Waty, Teodoro Andrade – Contributo para uma Teoria de Descentralização Financeira em Moçambique, Maputo: Editora W&W, 2010;

[A Contribute to a Theory of Financial Decentralization in Mozambique]

 

Wei Dan & Massarongo-Jona, Orquídea (Eds.)– Contribuições Jurídicas sobre a união de facto e Direitos sobre a terra em Macau e Moçambique, Macau-China: Tipografia Macau Hung Heng, 2011;

[Legal Contributions on Common-law marriage and Land Rights in Macao & Mozambique]

 

Liga de Direitos Humanos- Relatório sobre Direitos Humanos em Moçambique, LDH, 2009

[Mozambique Human Rights Report]

2.2.1.2 Books in English

Birmingham, David – Portugal in Africa, Athens: Ohio University Press, 2004;

ISBN 089680237X / 978-0896802377

 

Birmingham, David – The Decolonization of Africa, Oxford: Routledge, 1995;

ISBN 1857285409 / 978-1857285406

 

Birmingham, David - Frontline Nationalism in Angola and Mozambique, Oxford: James Currey Ltd, 1993;

ISBN – 0852550839 / 0852550839

 

Bur, Lars / Kyed, Helene Maria - State Recognition of Traditional Authority in Mozambique: The Nexus of Community Representation and State Assistance, Copenhagen: Nordic African Institute, 2005

IBAN 978-9171065476

 

Chabal, Patrick – Power in Africa: An Essay in Political Interpretation, Basingstoke: Palgrave MacMillan, 1993;

ISBN 033-35-5579-1 / 978-033-35-5579-8

 

Chabal, Patrick / Daloz, Jean-Pascal – Africa Works: Disorder as Political Instrument, Oxford: James Currey Ltd, 1999;

ISBN: 978-085-25-5814-0

 

Chabal, Patrick / Daloz, Jean-Pascal - Culture Troubles: Politics and the Interpretation of Meaning, London: Hurst & Company, 2005;

ISBN 185-06-5800-5 / 978-185-06-5800-9

 

Chabal, Patrick / Birmingham, David / Forrest, Joshua / Newitt, Malyn / Seibert, Gerhard / Andrade, Elisa – A History of Postcolonial Lusophone Africa, London: Hurst & Company, 2002;

ISBN 185-06-5589-8 / 978-185-06-5589-3

Guedes, Armando Marques / Lopes, Maria José - State and Traditional Law in Angola and Mozambique, Coimbra: Almedina, 2006;

ISBN 978-972-40-3051-7

 

Finnegan, William – A Complicated War: The Harrowing of Mozambique, Berkeley: University of California Press, 1993;

 

Mancuso, Salvatore (Editor) – The Harmonization of Commercial Laws in Africa and its Advantage for Chinese Investments in Africa, University of Macau, 2008

ISBN 978-99937-970-4-3

 

Newitt, Malyn – A History of Mozambique, London: Hurst and Company, 1994;

ISBN 978-185-06-5172-7

 

Newit, Malyn – Portugal in Africa: The Last Hundred Years, London: Hurst and Company, 1981;

ISBN 090-58-3849-1 / 978-090-58-3849-6

 

Newitt, Malyn / Chabal, Patrick / Macqueen, Norrie (ed) - Community & the State in Lusophone Africa, London: Kings College London, 2003;

ISBN: 189-77-4715-2 / 978-189-7747-1

 

Sachs, Albie / Welch, Gita Onwana - Liberating the Law: Creating Popular Justice in Mozambique, London: Zed Books, 1991

IBAN 978-0862329211

 

Young, Tom / Hall, Margaret - Confronting Leviathan: Mozambique Since Independence, London: Hurst, 1997;

ISBN 978-1850651161

2.2.2. Journals about Mozambique

Searching with the words “Mozambique” and “Moçambique” in journals included in an online database such as Westlaw can be a starting point, as it brings out hundreds of articles. In addition, some of the libraries indicated below catalogue journal articles about Mozambique.  Below are a few links to full-text articles that can be found for free on the internet:

 

Sara Araújo - Pluralismo Jurídico e Emancipação Social: Instancias Comunitárias de Resolução de Conflitos em Moçambique;

[Legal pluralism and social emancipation: dispute resolution in Mozambique]

 

Bastos, Fernando Loureiro – O Direito Internacional na Constituição Moçambicana de 2004;

[International law in the 2004 Mozambican constitution]

 

Chiziane, Eduardo - As Autarquias Locais e o Desenvolvimento do Turismo em Moçambique;

[Municipalities and the development of tourism in Mozambique]

 

Chiziane, Eduardo - Implicações Jurídicas do Debate sobre a Implementação da Legislação das Terras;

[Legal Implications of the debate over the implementation of the land laws]

 

Chiziane, Eduardo – As tendências de re-concentração e re-centralização administrativa em Moçambique; [[12]]

[Trends of Concentration and administrative re-centralization in Mozambique]

 

Cistac, Gilles – Historia do Direito Processual Administrativo Contencioso Moçambicano;

[History of the administrative litigation procedure in Mozambique]

 

Correia, José Sérvulo - A Execução das Sentenças Proferidas em Recurso Contencioso pelo Tribunal Administrativo de Moçambique;

[Enforcement of administrative court decisions in Mozambique]

 

Fernandes, Juliano Augusto -  Inserção de Ministério Publico nos Tribunais;

[The presence of the public prosecutor in the courts]

 

Fragoso, Américo Oliveira – Contratos de Adesão no Novo Código Comercial de Moçambique;

[Standard form contracts in the new Mozambican commercial code]

 

Fragoso, Américo Oliveira - O HIV/SIDA em Moçambique - Breves Considerações Jurídico-Laborais;

[HIV in Mozambique – Legal implications on labour]

 

Timbane, Tomas - A Revisão do Processo Civil de 2005;

[The 2005 revision of the code of civil procedure]

 

Vicente, Dário, - Arbitragem e Outros Meios de Resolução Extrajudicial de Litígios no Direito Moçambicano;

[Arbitration and other forms of dispute resolution in Mozambican law]

2.2.3 News sources about Mozambique

The three main official sources for news in Mozambique are: Jornal de Notícias, Televisão de Moçambique and Rádio de Moçambique. In any case news in Portuguese (and English but to a smaller degree) about Mozambique can be found by using any search engine. There are also private sources with broad acceptance in Mozambique, who provide independent news, namely: STV (Soico Televisão), Televisão Independente de Moçambique (TIM), MIRAMAR, Jornal O País, Semanário Savana, Semanário Zambeze e MediaFax.

 

Also three good sources for news in English are “The Investor” the weekly newsletter of Club of Mozambique, the BBC’s Africa Section and IBA’s LegalBrief.

2.2.4 Public information in Mozambique

There is a general lack of public information and of uniformity and consistency in the analysis of published data. The National Statistics Institute should be responsible for publishing statistics about the country however; this has not been the case for the legal and justice sector.

 

Most of the information about the legal system comes from the speeches given by the President of the Supreme Court when opening the judicial year and from the print publication Estatisticas Judiciais, which is anyway published with a two-year delay over the collection of data.

3. Legal Education

There were an increasing number of universities or institutions providing higher education in Mozambique offering a 4-year degree in law:

 

4. Legal Profession

4.1 Lawyers

Decree Law 4/75 of 16 August ordered all Mozambican law firms and practices to be closed, thus banning legal private practice in the country. There should be instead a National Service for Legal Consultancy and Assistance - Serviço Nacional de Consulta e Assistência Jurídica (SNCAJ) – under the Public Prosecutor’s Office, which ended up never being created.

 

 

Lawyers had to wait until Law 3/86 of 16 April, which regulated legal consultation and assistance to the citizens, to see themselves dully considered by the state as guardians and developers of legality and justice.  The activity of the lawyers was developed through INAJ (National Institute of Juridical assistance).

 

In 1994 there were major developments for law practitioners, as it was established the Mozambican Bar Association by Law 7/94 of 14 September to regulate the profession of lawyers and the creation of IPAJ to guarantee legal assistance and access to justice to those citizens without means. The IPAJ (Institito de Patrocínio e Assistência Jurídica) is structured under the Ministry of Justice.

 

Since 2009, there is a new law n° 28/09, of 29 September regulating the profession of Lawyers, which revoked the previous regulation of Law n° 7/94, of 14 September.

 

Nowadays lawyers are legally qualified individuals who are members of the Mozambique Bar Association. To be admitted to the Mozambique Bar Association law graduates need to go through a two-year internship with a practising lawyer. After that, they perform a National Exam to be admitted at the Bar Association as a Lawyer.

4.2 Judges

Judicial courts in Mozambique have professional judges and elected judges.

 

Professional judges should have a degree in law and legal training provided since 1999 by the Centre for Legal and Judicial Training (CEJJ). Elected judges are elected community members who represent citizens in the courts.

 

The career of professional judges is ruled by the Constitution, the Organic Law of the Judiciary and the Statute of Judicial Magistracy. Essentially the Higher Council of the Judiciary nominates and manages professional judges in all judicial courts and recommends judges to be nominated to the Supreme Court. These would be selected through public tender amongst judges with over 8 years of experience.

 

The President of the Republic nominates the President and Vice-President of the Supreme Court, after consultation with the Higher Council of the Judiciary, the President of the Administrative Court and the President of the Constitutional Council. These nominations need to be ratified by the Parliament.

Elected judges should be proposed by social, cultural, civic and professional organizations and associations. On the other hand, it is the Parliament who should organize the election of judges to the higher courts. Elected judges can participate in first instance trials but cannot conduct any interpretation of the law. They can only decide on factual matters only grounds of common sense and equality.

 

4.3 Public Prosecutors (article 234 to 240 of the Constitution)

The Public Prosecutor (Ministério Público) constitutes an organized hierarchy magistracy, which is subordinated to the Attorney General of the Republic (Procurador Gerald a República).

 

Public Prosecutors should have a degree in law and legal training provided by the Centre for Legal and Judicial Training (CFJJ).

 

The Constitution, the Organic Law and the Statute Magistracy of Public Prosecutors rule the public prosecutors. Essentially the Higher Council nominates and manages public prosecutors in all courts.

 

 

The Public Prosecutor represents the State in Courts, Controls the legality of acts, represents incapable, absent persons, and defends the interest of minors.  More details about Public Prosecutors and Attorney General can be found  here.

5. Other Resources for legal research

5.1 Online Bookshops / Major publishers (Portuguese)

In the absence of a prolific Mozambican legal publisher, this section gives an indication of some online publishers/bookshops where researchers can find and order books about Mozambique in Portuguese:

 

5.2 Online Bookshops/Major Publishers (English)

This section indicates a few bookshops where the English language publications listed above can be found and the main English language publishers that have books about Lusophone Africa and Mozambique.

 

5.3 Online Library Catalogues (Portuguese)

The Mozambican National Library does not yet have a website or an online catalogue. This was recently re-opened after 18 months of refurbishment and enlargement.

There is also the Main Library at Universidade Eduardo Mondlane, called “Biblioteca Brazão Mazula” with on line catalogue. To access this library one can go to this webpage. Other National Libraries are indicated below:

  • Biblioteca do Centro de Formação Jurídica e Judiciária (CFJJ);
  • Biblioteca da Faculdade de Direito da Universidade Eduardo Mondlane
  • Biblioteca da Ordem dos Advogados de Moçambique
  • Mediateca do BCI
  • Biblioteca do Tribunal Supremo
  • Biblioteca da Assembleia da República
  • Instituto de Camões (Embaixada de Portugal)

 

In any case, all of the Portuguese language books listed above (and more) and journal articles can be found in the catalogues of the Portuguese National Library and Portuguese university libraries listed below. They may be available for inter-library loans.

 

 

A few examples of Portuguese keywords that can be used to search these catalogues: África, Moçambique, PALOP, Colónias, Colonização, Colonial, Lusófono, Lusofonia.

5.4 Research Centres (inside Mozambique)

There are few research centres in Mozambique. However, they produce comprehensive studies about Mozambican legal system. Some suggestions:

  • CEA – Centro de Estudos Africanos, Faculty of Arts (UEM)
  • CEDIR- Centre of Studies on Regional Integration and SADC Law
  • CDH – Centre For Human Rights, Faculty of Law (UEM)
  • CFJJ – Centro de Formação Jurídica e Judiciária (Ministry of Justice)
  • CIP – Centro de Integridade Pública
  • CEDES – Centro de Estudos e Desenvolvimento
  • EISA – Electoral Institute for Southern Africa (Mozambican Branch)[[13]]
  • IESE – Instituto de Estudos Sociais e Económicos [[14]]

5.5 Research Centres (outside Mozambique)

There are many research centres focusing on African studies. Below are a few suggestions of centres that housed recent research projects about Mozambique and that have very good (and searchable) online library catalogues.

 



[[1]] The GDP growth rate is 7, 2% in 2010, as per the UN Statistics Division of 2012. Source http://www.eisa.org.za/WEP/moz2.htm