UPDATE: Republic of Mozambique – Legal System and Research

By Orquídea Massarongo-Jona and Isaura Ernesto Muhosse

Orquídea Massarongo-Jona is a practicing lawyer (business, oil and gas, and labour law) and a Senior Researcher at the Center for Human Rights (CDH). She is responsible for the Implementation of the Local Human Rights Master’s Program. Currently, she is completing a Ph.D. at Ghent University in Belgium. She graduated from Universidade Eduardo Mondlane (2002) and obtained an LL.M at University of Stellenbosch, Cape Town in South Africa where she was awarded a master’s degree in International Trade Law (2003). Her areas of research interest include international trade law (WTO); human rights law, in particular the African System; and health ethics and trade law related to human rights (business and human rights), with particular interest on issues relating to women and vulnerable populations. Currently, she is pursuing research in oil and gas law. She has been a Facilitator at Post Graduate Program on Human Rights at Human Rights Center (IGC) at the University of Coimbra, on the African Human Rights System, since 2016.

Mrs. Massarongo-Jona is also a lawyer and the current Vice-President of the Mozambican Bar Association 2020-2023, a member of the Council of Directors of the Regional Master’s Programme in Human Rights and Democratization in Africa (HRDA) in partnership with other 10 African Universities Coordinated by University of Pretoria. In 2021, she became a Board Member of IHRDA and is a member of National Research Ethics Committee since 2005 and member of the Lusophone Association for the Right to Health (ALDIS) based in Coimbra (Portugal).

Isaura Ernesto Muhosse is a research assistant who holds a degree in law from the Eduardo Mondlane University (Faculty of Law) and a degree in Planning, Administration and School Management from the Pedagogical University (Maputo). She has been a staff member at the Eduardo Mondlane University Faculty of Law since 2001 and worked as an assistant academic register until 2013. She participated as an assistant researcher in the preparation of a paper on "Media Rights" in Mozambique in 2018/19; the compilation of the Human Rights instruments in 2020; and the draft law on Safeguards Measures in Mozambique in 2020.

Published in November/December 2022

(Previously updated by Orquídea Massarongo Jona in May/June 2011 and in April 2013)

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1. Recent History of Mozambique

Independent Mozambique inherited a colonial economic structure characterized by an asymmetry between the north and the south of the country and between the countryside and the city. The South was more developed than the North, and the city was more developed than the countryside. The absence of economic integration and the extreme oppression of labour were the most dominant characteristics of this asymmetry.

The development strategy formulated to reverse this asymmetry was based on a centrally planned socialist economy. However, unfavourable regional and international circumstances, natural disasters and a 16-year internal military conflict made the strategy unviable. External indebtedness (about$5.5 billion USD in 1995) forced the country to radically change to a market development strategy, affiliating itself to the Bretton Woods Institutions and the consequent adoption of a Structural Adjustment program, starting in 1987.

Since then, the country has been experiencing remarkable economic growth. The Gross Domestic Product (GDP) has been growing at an average of over 7-8% per year, even reaching double digit levels. Inflation is below 10% until 2015. The trend is to keep it in single digits. In monetary terms, Mozambique has one of the most liberalized exchange rate regimes in Africa. External trading partners have enough reasons to inspire great confidence for the country in the ability of the monetary authorities to maintain adequate volumes of means of payment abroad. The Central Bank's foreign reserves have been above six months of imports of goods and services, at least until 2015. The State, through the execution of its fiscal policy, regulates and stimulates the most important socio-economic areas and creates a good business environment that is very favourable to the development of private initiative.

The legal reforms in the scope of financial, fiscal, labour, commercial and land legislation carried out by the government contribute significantly to strengthen this good environment, with the respective attraction of national and foreign private investment. The country's economic potential for attracting investments in agro-industry, agriculture, tourism, fishing, and mining is enormous. Projects such as Mozal, the Cahora Bassa dam, rail-port corridors, and tourist complexes throughout the country have contributed significantly to putting Mozambique on the route of major regional and international investment, information available in: Despite the country's remarkable economic growth, many Mozambicans continue to live below the poverty line. Combating absolute poverty is therefore one of the Government's main priorities.

The 1992 Rome Peace Agreements, which put an end to the 16-year civil war between the ruling party, the Liberation Front of Mozambique (FRELIMO), and the Mozambican National Resistance (RENAMO), contributed greatly to the country's economic progress. The peace accords were preceded by the 1990 Constitution, which introduced the rule of law and a democratic multi-party system, which did not exist in the country's 1975 Constitution, promulgated under the influence of Marxist-Leninist ideology.

The 1990 Constitution and the Rome Peace Accords paved the way for the first democratic elections in 1994, supervised by the United Nations Security Council, in which Joaquim Chissano - president of FRELIMO at the time - was elected President of the Republic of Mozambique for a 5-year term in accordance with the constitution of the Republic of Mozambique and was re-elected in 1999. Since then, the democratic process continued its course and in 2005 the third multi-party presidential elections were held in which Armando Emílio Guebuza - also of FRELIMO, was elected President of the Republic and re-elected in 2009.

The 2009 electoral process was marked by the emergence of a third party called the Democratic Movement of Mozambique (MDM) composed mostly of former Renamo members and led by Daviz Simango, after he was expelled from Renamo in 2008. Daviz Simango led MDM, also considered a movement for youth, until the date of his death on 22 February 2021. Since the 2009 elections the Mozambican Parliament (Parliament) has had three political forces, namely FRELIMO, RENAMO and MDM.

In the elections, Mozambicans elect not only the President of the Republic, but also the members of the Assembly of the Republic and the members of the Provincial Assemblies. The 2004 Constitution - drafted, approved, promulgated, and published during President Chissano's term in office - came into force the day after the results of the 2004 general elections were validated and proclaimed.

In 2010, an ad hoc commission was created to revise the constitution, which would focus on the following aspects: strengthening the guarantee of citizens' access to the courts and justice, the culture of work and entrepreneurship, expanding the powers of the Council of State, and establishing October as the month for both general and local elections. It was envisaged that the mother law would also include deputy ministers in the composition of the Government, the enshrining of local governments in the Constitution and the strengthening of the Ombudsman's intervention. However, there were differences of opinion on the relevance of constitutional revision at that time, considering it inopportune as it would bring minimal changes.

In May 2018, the proposal for a punctual revision of the constitution was approved by the Mozambican parliament This revision provides for some innovations in the Mozambican constitutional order, such as the creation of decentralized provincial and district governance bodies. As from the 2019 general elections, provincial governors will be elected. They will be heads of the list of parties, coalitions of political parties or groups of voters, and will no longer be appointed by the head of state.

In the future, district administrators will also be elected. On a transitional basis, until the 2024 elections, the district administrator will be appointed by the Minister of State Administration, after consultation with the provincial governor. Mozambican legal and institutional reforms that started in the early 1990s have continued until today. Over the past two decades, important new legislation has been passed in Mozambique, such as the following. Some legislation can also be found on the Tribunal Administrativo Republica de Mozambique – Legislation.

The Parliament is the highest legislative body in the Republic of Mozambique. It is responsible for determining the rules governing the operation of the State and economic, social, and political life through laws and deliberations of a generic nature, as provided for in Article 168 and Article 178 of the Constitution of the Republic of Mozambique (CRM). Now, for the purposes of legislative reform or revision, the following have the initiative to legislate: the deputies, the parliamentary benches, the committees of the Assembly of the Republic, the President of the Republic, and the Government, as provided for in Article 182(1) of the CRM.

In addition to legislative acts of the Assembly of the Republic, the process of legal reform can operate through normative acts of the Council of Ministers in the form of decree-laws and decrees. Here it is important to remember that the decree-laws of the Council of Ministers require legislative authorization from the Assembly of the Republic, as stated in Article 179 of the CRM.

There used to be a body called the Legal Reform Technical Unit (UTREL) which had several specific functions in legal reform and, fundamentally, with the objectives of ensuring the integrated planning, coordination, articulation, execution and monitoring of legal reform programs and projects. However, UTREL was terminated by Decree 18/2013 of 10 April, as this fulfilled the main objective of its creation.

Meanwhile, the process of legal reform has been continuous, either because of the lack of law and other specific normative acts governing certain matters or aspects of social, economic, political, and cultural life of the country, or because some legislation in force is out of step with reality or has several gaps. Therefore, since its extinction, several legal diplomas have been approved, of which we highlight the following:

In the above-mentioned legislation, it is worth highlighting the approval of the new Family Law (NFL) which brought improvement regarding the patrimonial effects of fact union. In the new law, the legislator made the temporal requirement of three years to produce patrimonial effects of the fact union coincide with the period in which the spouses must be married if they wish to initiate legal separation of people and goods by mutual consent (Article 194 NFL) or a non-contentious divorce (Article 200(2) NFL).

In addition to changing the assumptions that lead to the production of property effects, the legislator expressly states for the first time in the NFL that of fact union is also relevant for succession purposes and others foreseen in other legislation. The legislator also introduced the administrative recognition of the existence and termination of the partnership (Articles 209 and 210 of the NFL) and the judicial recognition of the existence and termination of the partnership (Article 211 of the NFL). Meanwhile, under the previous Family Law, the proof of the fact union was essentially testimonial.

The approval of the new law on succession: this law brought improvement as regards the position of the surviving spouse in the order of heirs, moving from the fourth to the first position. In the old law, the children were first, followed by the parents and siblings of the deceased and only then the wife or husband.

The other innovation brought by the new law has to do with the need for a judicial action for the unworthiness to produce its effects. And once the unworthiness is declared, the unworthy person loses the capacity to inherit in all kinds of succession and his call is considered non-existent and he is considered, for all legal purposes, a possessor in bad faith of the respective property.

The insolvency law (law 1/2013, of 4 July) that establishes the legal framework for insolvency and the recovery of commercial entrepreneurs was also approved. The approval of this law aims to make it possible to overcome the situation of impossibility to comply with obligations due by commercial entrepreneurs in order to allow the maintenance of the source of production of employment of workers and the interests of creditors, thus promoting the stimulus and preservation of economic activity and its social function, amendment of the Tenancy Law, approved by Decree no. The amendment of the Tenancy Act, approved by Decree no. 43525, of 7 March 1961, in what concerns the termination of the agreement due to default by the tenant and eviction as a proper judicial means to cease occupation of a building, and the derogation of the Civil Procedure Code, approved by Decree-Law no. 44129, of 28 December 1961, in what concerns the liquidation of assets, and of the Tax Execution Code, approved by Decree no. 38088, of 12 December 1950, in what concerns execution in the case of bankruptcy or composition with creditors.

Regarding the Criminal Code after being approved by law 35/2014, of 31 December, due to some gaps it had, it was revoked by law 24/2019, of 24 December and with the wording given by law 17/2020, of 23 December and revokes article 2 of decree-law 182/74, of 2 May. The proposal of the new broadcasting law was submitted in December 2020 to the Parliament by the Council of Ministers.

2. Country Profile

Mozambique is bordered by the Indian Ocean to the east, Tanzania to the north, Malawi and Zambia to the north-west, Zimbabwe to the west and Swaziland and South Africa to the south-west. It is divided into 10 provinces: Cabo Delgado, Gaza, Inhambane, Manica, Maputo, Nampula, Niassa, Sofala, Tete, Zambézia and the capital is Maputo. However, Maputo city is considered the 11th province on its own for administrative purposes. Improving information including districts.

Mozambique is a member of the following organizations:

The above organizations contain informative and updated websites in English and Portuguese with general information, articles, and documents on different topics of Mozambique.

3. Political System

After a long period of colonial war, Mozambique became independent from Portugal in 1975, adopting at that time a communist regime, with only one political party (Frente de Libertação de Moçambique - Frelimo), and maintaining close relations with Cuba and the former Soviet Union. In 1990 a new constitution was promulgated, prepared in the course of the peace negotiations of the 1980s, which culminated in the signing of the Rome peace agreement between FRELIMO and RENAMO in 1992. The approval of this Constitution marked a turning point in Mozambican constitutional history, as for the first time an extensive and modern declaration of rights, a democratic multiparty political system and the transition to a market economy were introduced. This constitution paved the way for the first multiparty elections in 1994 and more than a decade of extensive legislative reform.

The 1990 Constitution underwent modifications in 2004. In 2004 the constitutional text expanded the fundamental rights and individual freedoms of citizens and recognized legal pluralism, i.e., the existence of various normative and conflict resolution systems. The 2004 constitutional text, currently in force, was adopted not to break with the past, but to reaffirm and expand the fundamental principles introduced by the 1990 Constitution.

In 2018 the Assembly of the Republic, the legislative body par excellence, approved the law for the punctual revision of the Constitution (Law 1/2018, of 12 June). This revision brought some innovations to the Mozambican constitutional order, such as the creation of decentralized provincial and district governance bodies. As of the 2019 general elections, provincial governors will be elected, that is, they will become heads of the list of the parties, coalitions of political parties or groups of voters, and will no longer be appointed by the head of state. District Administrators will also be elected.

Another innovation of this revision was the institution of the figure of Secretary of State, who is appointed by the President of the Republic, with the function of ensuring the performance of the exclusive sovereign functions of the State, in accordance with the law. which are not the object of the decentralization process. According to articles 133 and 134 of the Constitution, the sovereign bodies in Mozambique are the President of the Republic, the Assembly of the Republic, the Government, the Courts and the Constitutional Council. These bodies are based on the principles of separation and interdependence of powers enshrined in the Constitution and must obey the Constitution and the laws.

3.1. Executive Power

3.1.1. The President

The current Constitution states that the President is the Head of State, Head of Government and Commander-in-Chief of the Defense and Security Forces. The President embodies national unity, guarantees the Constitution, supervises the proper functioning of the organs of State and represents the country at the national and international level.

The President is elected by universal suffrage for a five-year term and can be eligible for a second consecutive term or even for other terms, if they are discontinuous (Articles 148 and 147 of the Constitution). The Constitution gives the President of the Republic extensive powers (Articles 158 to 162 of the Constitution), including the power to promulgate laws, sign decree-laws and order their publication in the Boletim da República. In addition, the President can refer draft laws to the Constitutional Council for review of constitutionality. If a bill is declared unconstitutional, the President must veto it and send it back to Parliament.

3.1.2. The Government

The structure, composition and activities of the Government are provided for in Articles 199 to 210 of the Constitution. The Government is also called the Council of Ministers and is composed of the President of the Republic, the Prime Minister, and the Ministers. It is presided over by the President of the Republic, and, by delegation of the latter, the Prime Minister may convene and preside over sessions of the Council of Ministers. The Vice-Ministers and the Secretaries of State may be summoned to participate in the sessions of the Council of Ministers.

The Council of Ministers ensures the administration of the country, guarantees its territorial integrity, watches over public order and the security and stability of citizens, promotes economic development, implements the State's social action, develops, and consolidates legality, and carries out the country's foreign policy. In addition to having executive powers, the Government has legislative powers in matters that do not fall within the exclusive competence of the Assembly of the Republic, by means of legislative authorization from the Assembly of the Republic, as established in Articles 178 no. 3, 180, 181 and 203 no. 1. d) of the Constitution. Laws passed by the Council of Ministers take the form of decree-laws by means of delegation of powers following the constitutional prerogative of legislative authorisation by Parliament, to expressly state that the executive has no direct mandate to legislate.

The Council of Ministers has a webpage on the Government website where general information is available, although the information or documentation is not regularly updated. This page has useful contacts and websites for all ministries, provincial governments, and local authorities (Districts and Municipalities). The President has an advisory body called the Council of State, which he chairs. This body advises the President in very specific situations, such as the dissolution of the Assembly, the dismissal of the Government, the declaration of war, etc. (Title VI, Chapter III, Articles 163 to 166 of the Constitution).

3.2. Legislative Power: Parliament and Government

The Assembly of the Republic is the Mozambican Parliament, constituted and regulated in Title VII of the Constitution. According to the Constitution, it represents the Mozambican people and is unicameral in composition. In representation of the Mozambican people, it exercises the essential aspects of national sovereignty: it has legislative power, approves the State Budget, controls the Government's action and performs the rest of the functions attributed to it by the Constitution.

The Mozambican Constitution, following the principle of the division of powers, defines and regulates the three basic powers: legislative, executive, and judicial. The first is entrusted to the Assembly of the Republic, the second to the Government of the Nation, and the third to the courts of justice. According to the configuration derived from the constitution, the Assembly of the Republic is a complex body of a representative, deliberative, inviolable, and continuous nature.

It consists of 250 deputies, 184 from Frelimo, 60 from Renamo and 6 from the Mozambique Democratic Movement (MDM), elected by universal, free, equal, direct, and secret ballot, under the terms of Article 169 of the Constitution. All Mozambicans in full use of their political rights for a five-year term of office are eligible to vote. It is regulated by the Constitution of the Republic and by the Rules of Procedure, which is an internal instrument that regulates its functioning. Parliament meets annually in two ordinary sessions, one from September to December and the other from February to June.

The Assembly of the Republic can be dissolved, by the President of the Republic, if it rejects the Government program after debate and prior hearing of the Council of Ministers and prior mandatory and positive pronouncement of the Council of State. In the event of dissolution, the elected Assembly shall begin a new legislature, with the mandate lasting the remainder of the previous legislature under the terms of Article 187 of the Constitution.

However, there are limits to dissolution. Under Article 188 of the Constitution, the dissolution of the Assembly of the Republic cannot occur in the event of a state of siege or emergency, during its duration and until the sixtieth day following its cessation. It may also be dissolved for constitutional requirements. For example: by the expiration of the five-year term of the legislature (mandate of deputies) provided for in Article 184 of the Constitution, in which case the Assembly of the Republic shall be dissolved and the President of the Republic, using the powers conferred upon him by Article 158 of the Constitution, shall immediately proceed to call general elections under the terms of Article 187 of the Constitution.

The Constitution determines the areas in which Parliament may pass legislation Article 178.2 of the Constitution and all other areas in which Parliament may delegate its legislative powers to the Government (Articles 178.3, 180, 181 and 203.1 d) of the Constitution). Under Article 182 of the Constitution, the legislative initiative belongs to: the deputies, the parliamentary benches, the President of the Republic, the committees of the Assembly of the Republic and the Government. However, deputies and parliamentary benches may not submit bills that directly or indirectly involve an increase in State expenditure or a decrease in State revenue, or that alter in any way the current economic year. The official website of the Assembly of the Republic provides information on Parliament's activities and agenda.

3.3. Judicial Power

Mozambique became independent in 1975 and Law No. 12/78 of 2 December - the Judicial Organization Law - marked the beginning of the construction of a system for the administration of justice in Mozambique. The system was characterized by a unitary structure that manifested itself in the articulation between customary law and state law, the latter being subordinated to the values, principles and objectives set out in the constitution, on the one hand, and, on the other, in the interaction between the formal and informal courts.

In the organization of the courts, at the top of the pyramid was the Supreme People's Court, whose functions were exercised on an interim basis by the High Court of Appeal, created by Law No. 11/79 of 12 December. As far as the Supreme People's Court is concerned, its constitution only occurred in 1988, a fact that represented the highest point in the implementation of the system initiated with the creation of the basic people's courts, namely the provincial people's courts, replacing the district courts, the district people's courts, replacing the municipal courts, and the locality people's courts, where the justice of the peace had operated, culminating with the implementation of the neighbourhood people's courts.

The 1990 Constitution introduced profound changes in the organization of the State in general, which were reflected in the system of justice administration itself. In effect, the Constitution established a new legal framework, based on the principle of separation of powers, which led to the elevation of courts to the status of sovereign bodies, which are subject to the following structural principles Autonomy of the courts in relation to the other powers of the State; Mandatory compliance with the decisions of the courts; Prevalence of the decisions of the courts over those of other authorities; Independence of judges in the exercise of their functions, owing obedience to the law and the Constitution; and Impartiality, irresponsibility and immovability of judges.

In effect, by raising the courts to the category of sovereign bodies, the political Constitution of 1990 dedicated a chapter to this matter (Chapter VI), defining the general principles in section I, the Supreme Court in section II and the Administrative Court in section III. Although the Constitution dedicates a chapter to each of those courts, the range of competencies of the Supreme Court is reinforced by being defined as the highest judicial body with jurisdiction throughout the national territory (paragraph 2 of Art. 168) and the guarantor of the uniform application of the law (paragraph 3 of Art. 168). To dispel any doubts in this regard, the legislator more clearly consecrated this position in the Judiciary Organization Law (law no. 10/92 of May 6, now revoked) by stating in its Article 33, paragraph d) that the Plenary of the Supreme Court is responsible for "judging in the last instance and on points of law, the appeals lodged from decisions made in the various jurisdictions provided for by law". We must also highlight among the attributions of the Supreme Court those arising from Article 208 of the Constitution of the Republic.

The 1990 Constitution of the Republic establishes, in its Article 167, the type of courts with legal existence in the Republic of Mozambique, and expressly rules out the establishment of courts to try certain categories of crimes. As can be seen in that command, the courts have been staggered according to their specialization. The Supreme Court and other judicial courts appear as a specific type. The judicial organization law (Law 10/92, of 6 May) was repealed by Law 24/2007, of 20 August, as amended by Law 24/2014, of 23 September and Law 11/2018, of 3 October.

The current Constitution of Mozambique (approved law 1/2018, of 12 June) dedicates an entire section to the court structure (Title IX, Article 211 to Article 232). In Mozambique, 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 interests of citizens and institutions (Article 211(1) of the Constitution). It further establishes in Article 212 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:

Legal pluralism is recognized as a constitutional principle in Mozambique (Article 4 of the Constitution). Therefore, the Mozambican legal system admits other normative systems of conflict resolution if they do not contradict the Constitution of the Republic.

3.3.1. Judicial Courts

As stated above, the courts are organs of sovereignty enshrined as such in Title IX, Chapter I, Articles 211 to 232 of the Constitution of the Republic. The Courts, as organs of sovereignty, aim to ensure the attributions that the State proposes, namely, to guarantee and strengthen legality as an instrument of legal stability, guarantee respect for the laws, ensure the rights and freedoms of citizens, ensure the legal interests of the different organs and entities with legal existence, (Article 211 of the Constitution). It follows from these assumptions that the courts are independent both in relation to the other powers or organs of the State and in relation to each other.

In Mozambique there are the following types of courts defined by the Constitution: Supreme Court, Administrative Court, and Judicial Courts. The Supreme Court and the Judicial Courts are part of the common jurisdiction and rule on civil and criminal matters and have jurisdiction in all matters not assigned to other courts. Still in the common jurisdiction there are the community and arbitration courts. In the administrative jurisdiction we find the administrative, fiscal, customs and maritime courts.

Supreme Court (Articles 224 to 226 of the Constitution): The Supreme Court is called Tribunal Supremo and is the highest body in the hierarchy of judicial courts, is located in Maputo and has national jurisdiction. It is composed of the President, Vice-President, advisory judges, and elected judges. Professional judges are nominated by the President of the Republic, upon proposal of the Superior Council of the Judiciary, after being approved in a public competitive examination through curricular evaluation, open to magistrates and national citizens of reputable merit, all with law degrees and in full enjoyment of their civil and political rights. The Supreme Court currently functions as a 1st level court in various matters such as criminal cases against public office holders, etc. and as a 2nd level court for appeals court decisions.

Superior Court of Appeal: The Superior Courts of Appeal are courts of appeal par excellence and function as courts of second instance and first instance. As courts of second instance, they hear appeals against decisions rendered in the provincial courts of appeal; conflicts of jurisdiction between the courts of appeal and other entities within their area of jurisdiction; conflicts of jurisdiction between the provincial courts within their area of jurisdiction, etc.

As courts of first instance, they try criminal cases involving professional judges and public prosecutors from provincial courts, as well as criminal cases involving elected judges from provincial courts for acts relating to the exercise of their functions, etc. It is composed of judges, both judge advocates and elected judges. The presiding judge of the High Court of Appeal is appointed by the President of the Supreme Court.

Provincial Judicial Courts: There are 11 Provincial Level Judicial Courts distributed across the 10 provinces, i.e., 1 for each province, except for Maputo province which has two, one for the province itself and another for the city each with different divisions called "sections" for civil, labour, commercial and criminal matters which decide the 1st level in cases above a certain monetary threshold or years of imprisonment. It also acts as a second tier for decisions of the district courts. Appeals from decisions of the Provincial Courts go directly to the Courts of Appeal.

District Judicial Courts: There should be one District Judicial Court for each of the almost 130 Districts in Mozambique; there has been an improvement in this, although some of them have yet to be created.

Labour Courts: These courts were created by Law 10/2018, of 30 August, and have competence to administer justice for conflicts arising from legal-labour relations and to appreciate contraventions of labour and social security norms. The first court to become operational was the Maputo City Labour Court, inaugurated on 25 April 2019. The labour court exercises its jurisdiction throughout the national territory, in accordance with the judicial division established by law. The labour courts are organized into provincial labour courts and district labour courts.

3.3.2. Administrative Courts

The Administrative Court was established in 1992 as the highest court in the hierarchy of administrative, fiscal and customs courts (Article 227.1 of the Constitution). The Tribunal's website contains a list of legislation relevant to the work of the administrative courts but does not provide access to any files. The Administrative Court supervises the constitutionality and legality of administrative decisions issued by the public administration, administrative contracts and enforces regulations.

Customs Court: The Customs Court (Tribunal Aduaneiro) was established by Law 10/2001 of 7 July and started operating a year later. The customs legislation can be found on the official website.

Fiscal Court: In the Mozambican legal system, the fiscal courts are competent bodies to administer justice, in disputes arising from legal-tax relations, under the terms of Article 1 of Law 9/2018, of 27 August and its constitutional consecration is found in Article 222 of the Constitution. The Tax Courts were established in 2004 by Law 2/2004 of 21 January, now revoked, to commence operation in 2007, however they only commenced operation in 2009 and the first group of judges were sworn in in 2009.

There are six Tax Courts throughout the country distributed as follows: Maputo Province Fiscal Court, Maputo City Fiscal Court which has jurisdiction over Inhambane Province and Gaza Province in the South; Sofala Province Fiscal Court with jurisdiction over Manica; Zambézia Province Fiscal Court; Nampula Province Fiscal Court with jurisdiction over Cabo Delgado and Niassa Province and Tete Province Fiscal Court. Appeals from decisions of these courts are submitted to the Administrative Court as a superior court.

The tax courts were created to guarantee an effective separation of powers between the Administrative and Judicial powers in tax litigation, and access to them by citizens to enforce their legally protected rights or interests.

3.3.3. Constitutional Council

The Constitutional Council was created by the 1990 Constitution, its functions were temporarily exercised by the Supreme Court until 3 November 2003, when the Constitutional Council came into existence as an autonomous institution. The nature and attributions established by law to the Constitutional Council, namely the appreciation and declaration of the unconstitutionality of laws and the illegality of normative acts of State bodies, electoral litigation, and the legality of the constitution of political parties, their coalitions and respective names, acronyms and symbols, confer upon the Constitutional Council a relevant role in the consolidation of the Democratic Rule of Law in Mozambique, available in Portuguese.

The unconstitutionality of laws and the illegality of normative acts practiced by organs of the State:

The President may also request the Constitutional Council to assess the constitutionality of all legislation submitted for promulgation before ratifying it. When legislation is deemed unconstitutional, the President must veto and return the proposed legislation to Parliament (Article 245 of the Constitution).

The Constitutional Council also functions as a court of appeal in constitutional matters in the case of a refusal to apply any judgment or decision on the grounds of unconstitutionality and when the Attorney General or the Public Prosecutor requests an abstract review of the constitutionality or legality of any rule, the application of which has been refused on the grounds that it is unconstitutional or illegal (article 246 of the Constitution).

The decisions of the Constitutional Council must be followed by all citizens and state bodies and are not subject to appeal (Article 247 of the Constitution). And they are mandatorily published in the “Boletim da, República” and have the following format: Name, Case number, Court Acronym, Year, Date. See for example, Constitutional Council Ruling n. 03/CC/2015 of 6 July.

Since 2007, the Constitutional Council has started to publish all its decisions (Judgments & Deliberations) in books, which is now in volume VII. The decisions of the Constitutional Council can also be found on its website.

3.3.4. Community Courts

Although only recognized in the 2004 Constitution (article 222 no. 2) in the wording given by Law 1/2018 of 12 June, these courts have been operating in Mozambique since colonial times and had their legal framework established by Law 4/92 of 6 May. These courts are spread throughout the country, deal with civil disputes, minor and petty crimes. Cases above a certain financial threshold or involving imprisonment for more than 30 days must be referred to the judicial courts. These courts attempt conciliation/mediation as a first approach and when no agreement is reached, a decision is made in the light of the principles of equity, common sense, and justice. The decisions of the Community Courts are appealable to the District Court

3.4. Office of the Prosecutor General

The Office of the Prosecutor General is the highest body of the Public Prosecution Service, which constitutes a hierarchically organized magistracy. It is composed of a Prosecutor-General, a Deputy Prosecutor-General assisting the Prosecutor-General, Deputy Prosecutors-General who are established in divisions (sections) of the Supreme Court, Administrative Court, and Higher Courts of Appeal. In each judicial court there is a Prosecutor-General with the same functions, but at a lower level (Provincial and District). The Prosecutor General's Office is composed of a High Judiciary called the Superior Council of the Prosecutor's Office and an Anti-Corruption Office.

Every year the Prosecutor-General presents an Annual Report to the Parliament where he/she must indicate the situation of the country, regarding crime and other legal aspects.

The website of the Attorney General's Office contains a list of legislation and the main reports relevant to the work of the Public Prosecutor's Office.

4. Sources of Law

During the colonial era, Mozambique was under Portuguese law, although traditional customary law was in many cases tolerated or tacitly accepted. When independence came, Mozambique obviously rushed to repeal the old colonial system and its laws and decisions. However, the Portuguese legal tradition was eventually revived when the country began to settle in the early 1990s.

4.1. Primary Sources

The Mozambican legal system is based on civil law (at least the formal legal system) and legislation is the main source of law. The courts adjudicate cases in accordance with ordinary laws and the Constitution, there is no binding precedent as in common law systems. Therefore, the primary source of Mozambican law is the law.

However, the 2004 Constitution, as amended by Law 1/2018, of 12 June, recognizes the existence of legal pluralism, that is, there are other normative systems that intertwine with the system based on formal civil law. As for secondary sources, books are few (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, although scattered across 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 science, sociology, war studies or a mixture, rather than strictly under "Law".

4.1.1. Forms of Publishing Laws

Legislation published in the I Series of the Bulletin of the Republic has the following citation format:

For example, Law No. 2/2008 of 27 February 2008, Establishes the National Payment System and creates the National Payment System Coordination Committee.

Series II of the Bulletin of the Republic publishes decrees, orders, dispatches, and authorizations issued by the public administration and court decisions that require publication. Series III of the Bulletin of the Republic publishes land and mining concessions and permits, municipal by-laws, approval of associations and foundations, and company by-laws.

The Government is obliged to publish and disseminate the Bulletin of the Republic efficiently, but this has not been happening due to severe delays at the National Press Service. Although much legislation is available online, it should be said that online versions can never replace consultation of the official version in the Official Gazette, which is in printed form.

In any case, the official Mozambican website can be a starting point to find legislation organized by topics and by the most recent years of Series III of the Official Gazette of the Republic of Mozambique. The website also brings together other important government documents in Portuguese, such as briefings, speeches, strategic documents, studies, budgets, policies, programs, etc. and a range of other important information. Since most of these laws are in Portuguese, it would be important to use the Global Legal Information Network to view a summary in English, where it exists.

There are two companies providing subscription access to Series I and Series III of the Bulletin of the Republic of Mozambique, 25 June 1975, in Portuguese.

The inBR1 service appears to be the most comprehensive and functional. It is possible to find not only the acts, but also the following additional information:

In addition, inBR1's search engine is very user-friendly, allowing users to search with the following fields:

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

There is also a project called Legis-Palop funded by the EUROPEAID program to help create online databases with legislation, cases, and jurisprudence for the five Portuguese speaking countries in Africa: Angola, Cape Verde, Guinea Bissau, Mozambique and Sao Tome and Principe. As of 13 April 2011, the official PALOP database has more than 40 thousand records, while 36,009 is the total number of legislations. It appears that the portal is now regularly updated, so it is also a useful source to rely on.

There is also a website with legislation and jurisprudence, the Instituto Jurídico de Moçambique in Portuguese and English, a project run by the Mozambican Bar Association.

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

4.1.2. Custom

During the colonial era, the formal legal and justice system only reached urban areas, so most Mozambicans were governed by local customary law administered by traditional authorities. A few years after independence, the Government introduced the first Organic Law for the Judicial Courts (1978), which created four levels of courts: The Supreme Court, provincial, district and local.

The local courts were supervised and administered by the Ministry of Justice and controlled by the local assemblies of the population. The originality of these courts was that they had judges elected by 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 judicial bodies, the structure of the courts needed to be reformed. The local courts then became community courts and are now governed by the Law of the Community Courts.

4.1.3. Cases

Mozambique has a legal system based on civil law where legislation is the main source of law. Therefore, cases do not have the binding authority as in common law systems and are not considered as a source of law. The Ministry of Justice used to publish compilations of case law from the main courts, however, this publication has been discontinued. Landmark cases would be decided by the Supreme Court, which is the country's High Court. The High Court has started publishing case law compilations on civil, juvenile, and family matters, Some High Court cases can also be found on the website of SAFLII, a Southern African Legal Information Institute.

The High Court has publications, where relevant case law can be found in relation to criminal, civil and labor jurisdiction. Unfortunately, the jurisprudence is mainly available in printed format. The website provides general information about the available publications. The Supreme Court contact details are: Av Vladimir Lenine,103, - Maputo | Tel: +258 21 321037/323306 | Fax:+: +258 21 310674 | Email: daf@ts.gov.mz | Website: www.ts.gov.mz.

It may also be useful to check the Forum of Lusophone Supreme Court Presidents and the CPLP Judicial Network. Although neither organization publishes, cases may be published in the future and/or access to the Mozambican Supreme Court may be easier through them. The Supreme Administrative Court has a very good website but - again and can be contacted at the following address: 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 its decisions, rulings, and deliberations, with 7 Volumes.

Examples of Publication List of Court Decisions (Supreme Court and Constitutional Council):

4.2. Secondary Sources

4.2.1. Books on Mozambique

There are not many books dealing specifically with the Mozambican legal system, although there was an increase in publications in recent times. The following section indicates books published in Portuguese and English on different topics related to Mozambique.

Although an attempt has been made to point out the most recent legal publications, some of them may be partially out of date due to changes in the Mozambican legal system after their publication. This section also includes books that cannot be classified under the topic of 'Law' but are considered of interest when researching the Mozambican legal system. The ISBN is indicated whenever possible in order to help researchers find them in library catalogues. Books in Portuguese

Most of the law books published by Mozambicans were published by Escolar Editora, which makes them available in printed format only. Books in English

4.2.2. Journals Articles 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:

4.2.3. News Sources about Mozambique

The three main official news sources in Mozambique are: Jornal de Notícias, Televisão de Moçambique and Rádio de Moçambique. In any case, news in Portuguese (and English, but to a lesser extent) about Mozambique can be found through any search engine. There are also private sources with wide acceptance in Mozambique providing independent news, namely: STV (Soico Televisão), Televisão Independente de Moçambique (TIM), MIRAMAR, TVSucesso, Strong Live, Mega TV, Tv Muniga, Gungu TV, Media Mais TV, Jornal O País, Semanário Savana, Semanário Zambeze and 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.

4.2.4. 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.

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

6.1. 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 practicing lawyer. After that, they perform a National Exam to be admitted at the Bar Association as a Lawyer.

6.2. 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 eight 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.

6.3. Public Prosecutors

The Public Prosecutor's Office, subject to Articles 233 to 239 of the Constitution, constitutes an organized hierarchical magistracy which is subordinate to the Prosecutor General of the Republic (Procurador Gerald a República). Public Prosecutors shall have a Law degree and legal training provided by the Centre for Legal and Judicial Training (CFJJ). The Constitution, the Organic Law and the Statute of the Judiciary of the Public Prosecution Service govern Public Prosecutors. Essentially, the Superior Council appoints and manages the Public Prosecutors in all courts. The Public Prosecutor's Office represents the State in court, controls the legality of acts, represents incapacitated persons, absentees, and defends the interests of minors. More details on Public Prosecutors and the Attorney General can be found here.

7.1. 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:

7.2. 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.

7.3. Online Library Catalogues (Portuguese)

The Mozambican National Library does not yet have a website or an online catalogue. There is also the Main Library at Universidade Eduardo Mondlane, called “Biblioteca Brazão Mazula” with online catalogue. To access this library, one can go to this webpage. Other National Libraries are indicated below:

In any case, all 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.

7.4. Research Centres (Within Mozambique)

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

7.5. Research Centres (Outside Mozambique)