25 November 2007
Maputo — Both the private security companies, and the trade union representing security guards, have written to Mozambican President Armando Guebuza asking him to seek an opinion from the Constitutional Council as to whether the new regulations governing this sector of activity are in violation of the constitution, reports the latest issue of the Maputo weekly "O Pais".
Despite its name, the Constitutional Council is in fact a court, and rules on matters of interpreting the Constitution. There is no appeal against its decisions.
The new regulations governing security companies were approved in April, but not published until September. They amazed the companies because they sought to change completely their status.
One key clause determines that, in all security companies, the majority of the shares must be owned by Mozambican citizens. All managers and directors of the companies must also be Mozambicans.
The sweeping changes that these demands imply for the companies must be implemented within six months - which the companies regard as quite impossible.
They regard the government decree as retroactive: for nobody who invested in the security sector has any inkling that their companies might suddenly be nationalised. The Association of Private Security Companies (AEMSP) therefore takes its stand on Article 57 of the Constitution, which states "laws may only have retroactive effects when they benefit citizens and other legally recognised entities".
The government decree also, in AEMSP's view, "violates general principles of law, namely the principles of legal certainty and security, respect for acquired rights. the non-retroactive nature of laws, and the protection of legitimate trust".
AEMSP argues that the new regulations discriminate against foreign investors, and are therefore in sharp contrast with the government's declared policy of attracting foreign investment.
In its letter to Guebuza, AEMSP warns that when a decree is issued with retroactive effects, which "damages acquired rights", and which conflicts with both the Constitution and other laws, then "Mozambique becomes a country where nobody can be secure about anything. which creates discontent and insecurity among investors".
A further clause in the regulations demands that all security guards must have performed military service - in other words, the companies can only recruit from among demobilised soldiers. But the companies have run out of the initial pool of demobilised troops - those demobilised from the government army and from Renamo in 1993/94, at the end of the war of destabilisation.
Today, the armed forces (FADM) are small, recruiting a couple of thousand conscripts a year, and the numbers leaving, in the security companies' view, will not provide enough labour to fill all the posts for security guards (currently about 22,000).
Taken literally, the regulations would imply sacking the thousands of guards who were never in the army.
The AEMSP says that in October the Interior Ministry had assured it that the controversial decree had been "suspended for alterations". But this has been denied by the spokesperson for the General Command of the Police, Pedro Cossa, who told "O Pais" that companies that had not restructured themselves within six months would face penalties.
But the six months are up (if counted from the decree's date of 30 April), no company has restructured, and nobody has been fined.
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