: Republic of Mozambique - Legal System and Research
By Paula Rainha
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 May/June 2008
Table of Contents
I. Mozambique's Recent History
II. Country Profile
III. Mozambique's Legal System
1.1 Executive Branch
1.1.1 The President
1.1.2 The Government
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
2.1 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
2.2.1 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
4.1 Lawyers
4.2 Judges
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 (outside Mozambique)
Mozambique is living rather encouraging times. Recently praised by the World Bank Group President Robert Zoellick, 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 1994 general elections supervised by the United Nations. 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 Armando Emílio Guebuza - also from FRELIMO - was elected President.
The 2004 Constitution - still 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 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:
The Government's Technical Unit for the Law Reform (UTREL) is currently working in reforming the following legislation:
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.
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:
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.
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.
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).
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 although there is not much information or documentation available yet. This page has useful contact details and websites (when available) for all ministries, provincial governments and local authorities (Districts and Municipalities).
The 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 2004 and next will be held in 2009.
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).
Most legislation is proposed by the Executive although legislative initiative may also be taken by Individual Members of Parliament, Parliamentary Groups, Parliament Committees, the President and Government Members.
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 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. There has also been a proposal for new Bar Association Rules.
Legal pluralism is now a recognized 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:
The Judicial Courts decide on civil and criminal issues 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 would hear appeals from the Provincial Courts thus reducing the Supreme Court's workload.
· Provincial Courts
There are 19 Tribunais Judiciais de Provincia (one per province, except Benguela that has two) each with different divisions called "salas" for civil and administrative, family, labour, maritime, children & minors and criminal matters that decide 1st level in cases above a certain monetary threshold or x 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 but many 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. The UTREL is currently working on a new law for the labour 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 has been created by Law 10/2001 of 7 July and started operating the year after. Customs' legislation can be found in the official website but not yet cases.
· Fiscal Court
This has not yet been created.
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 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:
(e.g. Acórdão do Conselho Constitutional n. 16/CC/04 de 14 de Janeiro de 2004)
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.
UTREL 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.
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 can be considered 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".
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 know 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.
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).
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.