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Mozambique: Constitutional Fears Lead to Abolition of Anti-Corruption Forum
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Agencia de Informacao de Mocambique (Maputo)
3 January 2008
Posted to the web 3 January 2008
Paul Fauvet
Maputo
Mozambique's fight against corruption, regarded as such a priority by both the government and by its foreign partners, has suffered a setback with the abolition of the Anti-Corruption Forum, on grounds that the presidential decree establishing the Forum last March was unconstitutional.
The call to abolish the Forum came from the former rebel movement, Renamo. Although the Renamo parliamentary group loses no opportunity to denounce the government as "corrupt", it was also the only voice raised to demand that the Anti-Corruption Forum be scrapped.
The Renamo parliamentary deputies requested a ruling on the Forum from the Constitutional Council, the body that has the final word in matters of constitutional law. When the Council approached President Armando Guebuza to ask him to defend the decree creating the Forum, he reacted by revoking the decree.
In a letter dated 27 December, Prime Minister Luisa Diogo, who chaired the Forum, told its other members that the body had been abolished. She explained that Guebuza had revoked the decree in light of a previous Constitutional Council ruling of 6 November, which declared the creation of the Legality and Justice Coordinating Council (CCLJ) unconstitutional.
Since the Forum was set up in exactly the same way as the CCLJ, Guebuza had good reason to fear that the council would declare that it too was unconstitutional. He therefore prevented such a declaration by revoking the March decree. With this pre-emptive move, there is nothing for the Council to consider.
The whole affair is a classic triumph of form over substance. Nobody (not in public, at any rate) denies the importance of the fight against corruption, or of coordination between the various bodies involved in the administration of justice. Renamo has successfully sabotaged both initiatives by arguing that Guebuza used the wrong mechanism
In both decrees, Guebuza was using his power under 146 of the Constitution to "strive for the correct functioning of state bodies". However, in its ruling on the CCLJ, the Constitutional Council argued that the power of the President expressed in this article is too general to cover the creation of an entirely new body, consisting of senior figures drawn from the executive and the judiciary.
Elsewhere in the Constitution, the President is given a series of powers, which the Council believed provided the detailed fleshing out of Article 146 - and it could not see any way to fit the CCLJ into those powers.
It was not good enough to argue that the President has "implicit powers" to set up such bodies - for such implicit powers, the Council argued, must flow from explicit powers. And, although the Constitution grants a large number of explicit powers to the President, none of them covered the decree on the CCLJ.
A second, related argument was that the CCLJ violated the constitutionally enshrined separation of powers. Figures from the executive and the judiciary were yoked together, and the council objected to "institutionalising a relationship between bodies which, by constitutional imperative, are independent and autonomous".
This was particularly evident in a clause in the decree which made the President of the Supreme Court chairperson of the CCLJ and the Minister of Justice the deputy chairperson. In this case, the executive, far from being separate from the judiciary, was made subordinate to it.
Exactly the same formal arguments could be raised against the Anti-Corruption Forum - namely that Guebuza's powers under Article 146 of the constitution do not cover the creation of an entirely new body, and that its composition, with the Prime Minister as chairperson, and the Attorney-General as deputy chair, violates the separation of powers.
Nonetheless, when one looks at the tasks of the Anti-Corruption Forum it becomes clear that Renamo's triumph is also a serious blow against transparent governance. The Forum was a consultative body of 78 members (including parliamentarians, religious leaders, representatives of business, trade unions, NGOs and the 11 provincial anti-corruption forums) intended to promote debate on matters of good governance and the fight against corruption.
It was also charged with monitoring implementation of the government's anti-corruption strategy, and giving opinions on the successes achieved and the obstacles faced. It was also entitled to draft proposals aimed at making the anti-corruption fight more effective.
The Forum was also unlike most state bodies in that it was completely open to the press, a decision taken by its members at the very first meeting of the Forum. Such a body could play a useful role in obliging the government to act on its promises to curb corruption.
All is not lost, however, in that the government could now recreate the Anti-Corruption Forum by submitting a bill on the matter to the country's parliament, the Assembly of the Republic. There is no doubt that the Assembly has the constitutional power to pass a law creating such a body. The question of separation of powers could be easily dealt with by inviting figures such as the Attorney-General to attend Forum meetings, but not giving them any position in the Forum.
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The earliest a bill can be submitted to the Assembly is the start of the next sitting, in late February. If the parliamentary group of the ruling Frelimo Party decides to make such a bill a top priority, a new Anti-Corruption Forum could perhaps be up and running by April.
Mr Paul Fauvet has once again missed the point. Well, well,well... let´s fight corruption yes!!!! But not breaking the constitution. The decree was inconstitutional yes. Having an inconstitutional body is already a good ground for corruption. The abolition of the Anti-Corruption Forum is not a setback as mr P.F says. It is actually cleaning the yard. Those who want to fight corruption must do it with clean hands, clean and constitutional instituitions(the Anti-Corruption Forum was not). Praise be to Renano "the former rebel movement).
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