Is Frelimo abusing its majority in order to win this year’s election in Mozambique?

With 226000 Mozambicans living abroad, a sizeable proportion of the Mozambican electorate could be excluded from this year’s election unless special measures are taken to ensure their participation. Mozambican law guarantees the participation of all eligible voters in elections, including those living abroad, and provides measures to ensure that they can participate. It therefore seems entirely noble and honourable for the Mozambican government to ensure the participation of the Mozambicans living abroad in this year’s election.

However, certain aspects in the organisation of getting the votes from Mozambicans abroad seem to indicate that ensuring that every Mozambican can vote was not the only motive of the Frelimo government in getting those Mozambicans living abroad at the ballot box. Were they perhaps influenced by the fact that 226 000 votes can play a major part in keeping their grip on power?

This article looks at a recent court case in Mozambique where this was analysed.

BACKGROUND

On 21 July 2004 the Mozambican National Commission of Elections (CNE – COMISSÃO NACIONAL DE ELEIÇÕES) decided to update its voters’ role of Mozambicans living abroad from 6 to 25 September 2004 and to allow Mozambicans to vote in this year’s elections at its missions in South Africa, Malawi, Kenya, Swaziland, Tanzania, Zambia, Zimbabwe, Germany and Portugal, all of whom host significant Mozambican expatriate communities, as envisaged in article 27(2) of Law no 20/2002. It also decreed that the necessary conditions and control mechanisms required by Article 9(3) of law 18/2002 exist. The CNE then instructed the STAE to prepare dates for voting abroad. The Mozambican Technical Secretariat for Election Administration (STAE) initiated the project. The STAE is determined in art 27(1) of the aforementioned law to be the applicable state organ to administer elections. It is the duty of the CNE, amongst others, to “guarantee that censuses, electoral processes and referendums, are organised and implemented ethically and under conditions of complete freedom, justice and transparency” (art 7(1)(a) of law 20/2002), as well as “to ensure the equal treatment of citizens in all acts of the electoral process” (Art 7(1)(b)).

Article 9 of law 18/2002 determines that: (1) Elections take place in the entire national territory as well as abroad. (2) The geographic units to administer elections are (a) ….. (b) abroad, that area corresponding to the jurisdiction of the consular mission or of the diplomatic mission. (3) Elections mentioned in line b of the previous number, shall only take place if the National Commission of Elections confirms that the necessary material conditions and control mechanisms for the mentioned acts in regions that constitute a geographical post or unit for elections, have been created.

Article 15 of this law 18/2002 gives political parties the right to check that the electoral census takes place properly.

Renamo, the main opposition party, once it gained knowledge of this decision of the CNE, immediately approached the Constitutional Counsel to annul this decision on the grounds that the conditions set out in art 9(3) of law 18/2002 do in fact not exist, and because art 19 of the same law requires the Counsel of Ministers, and not the CNE, to determine the period to update the electoral role, following a proposal to that effect by the CNE. Therefore, they argued, that CNE acted ultra vires by publishing their decision in the media, in which they appointed STAE to take care of the logistics of updating the voters’ role. Initially, the Counsel of Ministers decreed an earlier period (28 June to 15 July 2004) for updating the voters’ role in the national territory only. It was Renamo’s argument therefore that, by sidestepping the law and determining an additional period for voters abroad, the Frelimo members sitting on the CNE are using and abusing their majority to vote and maintain fraudulent schemes, contrary to the national election laws, and that these actions are approved by the Assembly of Mozambique and promulgated by the president who is completely aware of the implications thereof, despite the violation of the laws, thereby acting outside the law and with complete impunity. In addition, the decision was only published 12 days after it was made, which, according to Renamo, was another irregularity.

In its defence, the CNE stated that it acted within the law because its decision of 21 July was based on the analysis made by STAE in terms of the aforementioned section 27(2) of law 20/2002.

It further stated that  it based its decision (to update the voter roll abroad) on the fact that the countries mentioned harboured a considerable number of Mozambican citizens,  the necessary funds for the census were guaranteed by the government, that the materials and necessary equipment were assured,  the Vienna Convention and Diplomatic and Consular Relations gave to embassies and consulates the important role to administer elections abroad due to the fact that they represent the Mozambican state in the places where the election would take place,  employees of the embassies and consulates would be recruited to be trained on the substance of elections,  the CNE approved the proposal by the STAE to involve Mozambicans living abroad in the work of the election by based on their past experience,  the accompaniment of the activities by the CNE was contemplated and programmed by STAE insofar as it concerns logistical aspects,  as required by law, the election would be monitored by political parties.

The CNE also based its defence on the basis that the elections abroad would only take place in embassies and consulates, supervised by Mozambicans resident in those countries, recruited according to the same criteria utilised for Mozambicans in Mozambique.

Another defence is that the CNE asked STAE to draft a proposal for a dateline for the activities, to be submitted to the CNE, containing a chronogram of all the necessary activities to be undertaken to manage the election abroad;

STAE presented this proposal to the plenary session on 28 July 2004, that served as the base for the CNE proposal to the Council of Ministers which resulted in the establishment of the period 6 – 25 September for the elections abroad.

According to the CNE, the discussions complied with sections 66 and 73 of the constitution which guarantee equality and voting rights for all citizens.

THE DECISION

The Constitutional Counsel rejected Renamo’s arguments. Regarding Renamo’s complaint that it took 12 days before the CNE’s decision was made public, the Counsel declared that there existed no elements that allowed it to judge the timeousness or not of the publication, and therefore the Constitution Counsel could pronounce nothing about it. This is in direct contrast with an earlier decision, quoted by the Counsel, wherein it was stated that such decisions must be published speedily in order to allow all interested parties to react thereto if necessary.

It proceeded to confirm the rights of all Mozambicans, including those living abroad, to vote, in terms of sections 66 and 73 of the Constitution.

The Counsel added that the constitutional principal of equality of all Mozambicans should not and cannot be interpreted in “absolute terms”, since the law has different provisions when the situations differ. Therefore, the rights of Mozambicans to vote abroad only exists when the CNE confirms that the necessary conditions and control mechanisms do in fact exist, as stated in art 9(3) of law 18/2002. So, despite Mozambicans living abroad having the same rights as those living at home, they can only vote if the CNE decides so in terms of the law.

It stated that the CNE decided to update the voters role and hold elections abroad since the conditions set out in art 9(3) exist. Renamo’s argument is that the CNE did not present the necessary guarantees and control mechanisms as required by that law, however, the Counsel held otherwise.

The counsel stated that Renamo is wrong because the duty to create this guarantees and control mechanisms rests on the government. The CNE only has to confirm that the guarantees and control mechanism exist. According to the counsel, it was up to Renamo to allege and prove that these conditions did not exist, and it held that Renamo did not prove this.

The court held that, since the CNE based its decision to implement the updating of the voters’ role abroad, since it was felt that effective conditions were created, the necessary funds were made available by the government, the materials and equipment ensured, it cannot be said that the CNE’s decisions was discretionary, unilateral or without grounds.

In terms of section 20 of law 18/2002 it is the duty of the CNE, to announce the updating of the voters’ role, up to 30 days before the start thereof, by means of official announcements (edicts), affixed to public places, and by means of social communications.

The court noted that there was an apparent inversion of the sequence of actions. The CNE met on 21 July 2004 to initiate the updating of the voters’ role abroad. STAE, in its press statement, made public on 28 July that the updating of the voters’ role abroad would take place from 6 to 25 September. This procedure by STAE was irregular because it confused two powers of the electoral organs (in terms of article 19 of the law, it is the duty of the CNE to announce the dates). However, the court noted that this defect was remedied because the Council of Ministers issued a decree on 30 July 2004 that established 6 to 25 September as the period for the updating of the voter records abroad, according to the court, in terms of section 19 of law 18/2002.

As a result, the court held that there is no grounds for allowing Renamo’s claim.

Discussion

The much vaunted law 18/2002 replaced an earlier law regulating voter records, that was published on 28 May 1997 as law no 5/97. The earlier 1997 law merely regulated the process, and determined that the period for the annual updating of the voter record is established by the Counsel of Ministers. Thereafter it was the duty of STAE to announce or make public this period up to 30 days before the start of the update by means of public notices and the press. There was no need to make sure that the proper control mechanisms and the necessary material conditions exist before the CNE could announce the update of the voter record. Under the old law, the updating was decreed mero motu by the Counsel of Ministers, under the new law a proposal from the CNE is required before the Counsel can do so. Under the current law the CNE is responsible for making public that the updating will occur, no less than 30 days for the operations start, whereas under the previous law it was the responsibility of STAE.

In the present case, there was apparently no proof that that these conditions and controls were in fact created. There was no voter education, and no provision was made to check that the updating did in fact take place in terms of the law. Although the court held that resources and money were made available by the government, this is by no means a guarantee that the updating of the voter roll will in fact take place freely. The CNE also just declared that the necessary guarantees and controls exist, and, bizarrely, the court found that that was sufficient. It is worrying that the court required no proof for the CNE’s decision.

The main difference between the old law and the new one was exactly that: to ensure that adequate guarantees and control mechanisms exist before a voter roll update is called. The court’s decision is therefore worrying since it allows an irregularity of the CNE to stand merely because the CNE declared that the necessary controls and guarantees existed. The fact that the court merely took the CNE’s word for it, is cause for concern, because it brings in doubt the independence of the judiciary, and, therefore, raises doubts about how fair and impartial the coming elections in Mozambique will be.

These guarantees and controls are of the utmost importance in a young democracy like Mozambique, and the court would have scored a major victory for democratic values if it at least required of the CNE to prove exactly how it determined that the necessary controls and guarantees exist. The consular staff that will handle the elections and voter rolls, were all appointed by the current government, and therefore it becomes even more important to ensure their impartiality and independence.

Further, the procedure followed to announce the period, followed the old act and not the new one. The STAE announced the period, which it was encumbered to do in terms of the old act, but in terms of the new act it is the duty of the CNE to do so. In addition, the CNE decided to update the voters’ roll, while, in terms of the new act, it is the duty of the Counsel of Ministers to do so.

Renamo’s arguments were therefore fully based on the law, and it highlighted the fact that there was a blatant disregard for the new law, which was designed to increase the protection of voters. It is also apparent that by “ratifying” this unfortunate state of affairs, the government must have been aware of the fact that proper procedure was not followed. Its disregard for the electoral law therefore raises serious doubts as to its motives, and it can certainly be interpreted to mean that they are trying to rig the elections by not ensuring the adequate guarantees and controls. Of greater concern is the fact that the Constitutional Counsel found nothing wrong with all the parties concerned not adhering to the law. It is the duty of the Counsel, as watchdog of the government, to ensure that the rules are followed so that there can be no room for doubts over the legitimacy of the outcome of the elections.

The Court should therefore have acknowledged the fact that the disregard by the CNE, Counsel of Ministers and STAE of the new law, that was designed to improve the legitimacy of Mozambican elections, was illegal. It should have set aside the decision to update the voters’ roll and ordered the government to adhere to the law. This raises doubts about the independence of the Constitutional Counsel, which, together with the government’s disregards for its own laws, is a huge cause for concern for the state of democracy in Mozambique. If the government knows that it can disregard the laws, and is assured of the backing of its courts, it can only spell trouble for the future of constitutional democracy, the rule of law and well being of its citizens in Mozambique.

Conclusion

Unless the Mozambican government overturns its decision (which is unlikely) to proceed with actions taken by means of an illegal decision, the elections in Mozambique stand little chance of being free and fair. It will also create or even reinforce the notion that Frelimo is committed to democratic values, and, in perpetuating the stereotyped image of African leaders, raise concerns that it intends staying in power irrespective of the means used to do so. The result of such actions, as has been showed so appallingly in Zimbabwe, is the abuse of human rights, the clamp down on freedom of speech and the press, and the gradual erosion of the constitution. This decision is therefore more ominous than just allowing an illegal government decision, it is an indication of much worse that could come.

EMILE MYBURGH (BCOMM, LLM (STELL)) ATTORNEY OF THE HIGH COURT OF SOUTH AFRICA