7 January 2009
Maputo — By a vote of six to one, Mozambique's Constitutional Council, the highest body in dealing with electoral disputes, has rejected an appeal from the former rebel movement Renamo, calling for annulment of the 19 November municipal elections.
This is the third ruling from the Council rejecting Renamo appeals against the elections, but the first in which one of the judges has dissented. The ruling is dated 30 December, but was only made public on Tuesday.
The tone of the Council has hardened notably. It regarded this Renamo appeal as made in bad faith, and warned that in future political parties that make frivolous appeals may find themselves facing fines or a bill for legal costs.
The Renamo appeal was accompanied by a file containing 560 pages of documents alleging irregularities that had supposedly happened in 24 of the 43 municipalities. Some of these allegations dated back to the voter registration period (which ended in early August).
But the Constitutional Council works as an appeal court - it can only handle appeals made by candidates against decisions taken by the National Elections Commission (CNE). Renamo claimed it was appealing against a CNE decision rejecting its call to annul the election results - however no such CNE decision existed.
The CNE told the Constitutional Council that when Renamo made its complaint, the CNE had not yet taken any such decision. This alone was enough to make the Renamo appeal null and void.
The CNE announcement of the results, signed by all CNE members, including the two appointed by Renamo, was made on 4 December. But the key pages of the Renamo protest predated this decision.
The CNE did not take a position on the Renamo complaints until 9 December. Renamo claims it was not notified that the CNE had rejected its protests until 19 December. Yet the Renamo appeal against the CNE decision, channeled to the Council via the CNE, is dated 8 December - a day before the decision was taken, and 11 days before Renamo was notified of the decision.
Furthermore, Renamo did not bother to include a copy of the decision it was supposedly appealing against in the documentation it sent to the Council. "It is up to the interested party to identify clearly the decision against which it is appealing", the Council remarked, "just as it has the task of specifying the foundations, in fact and in law, of the appeal".
The Council concluded that, at the date of the Renamo appeal, there was no CNE decision to appeal against. Renamo later tried to claim that the appeal was against CNE decision 136/CNE/2008 of 3 December. This is the CNE decision on the results, which were formally announced the following day. It is not a decision rejecting Renamo claims.
Indeed, Renamo even admitted that it submitted one complaint to the CNE on 3 December, before the CNE had finished its session on the final count of the votes. It thus became unclear, the Council pointed out, exactly what stage of the electoral process Renamo was complaining against.
A general principle of Mozambican electoral legislation is that complaints can only be heard by the CNE (and later by the Council), if they were first presented where the supposed irregularity occurred. That is, if Renamo believed fraud was committed at a polling station, its polling station monitors should have protested at once. If Renamo was dissatisfied with some aspect of the intermediate count at municipal level, it should have complained then and there, and not days later.
"If the irregularities appealed against took place before the phase of the general count, the protests should have been made at those earlier stages", the Council pointed out. Renamo, it added, "cannot appeal against the decision on the general count by using as its bases facts supposedly decided in phases prior to that count".
It was also clear from the appeal that Renamo was well aware of the legal requirements for "prior objections", yet in most of the incidents mentioned in its dossier, Renamo had made no such prior objection.
Given the knowledge of the law displayed by Renamo, it must have known that its appeal fell outside the legal deadlines. Far from objecting when the supposed irregularities had occurred, it had waited a fortnight, raising the matter at the stage of the general count. The Council believed this was a deliberate act of bad faith. Renamo merely wanted to obtain a rejection from the CNE, so that it could appeal to the Constitutional Council.
The Council recalled that it had already warned against such behaviour in January 2005 when it rejected Renamo appeals against the December 2004 general elections on much the same grounds. The right of appeal was fundamental, it believed, but had to be exercised in the terms laid down in the law.
The Council was also highly critical of the CNE for taking a laid back approach to legal deadlines. The CNE has just three days to decide on a complaint from a candidate or party. Yet the CNE did not reject the Renamo complaint of 3 December until 9 December, six days later, and did not bother to inform Renamo of that decision until 19 December.
"Obstacles should never be put in the way of exercising rights", said the Council. "On the contrary, this exercise should be facilitated, and there should be no impediments other than those established in the law itself".
The Council warned that both hindering the exercise of rights and making appeals in bad faith are criminal offences under the country's electoral legislation. It suggested that both the CNE and participants in elections should pay careful attention to these clauses - for in future it would not hesitate to impose fines or legal costs on anyone found to be acting in bad faith.
Manuel Franque, one of the two Council members appointed by the Renamo parliamentary group, wrote a dissenting opinion. He argued that the principle of "prior objection" was an obstacle to electoral justice, since many of those taking part in elections did not have any legal training.
He claimed that, over the six general and local lections held in Mozambique since 1994, the principle of "prior objection" has proved "complex, impracticable and unjust, and as a result most of the irregularities are ignored or whitewashed".
He also disagreed with the principle that complaints should be made in the first instance to the CNE, since this meant that the CNE was judging cases to which it, or bodies subordinate to it, were parties. It therefore lacked "the necessary distance, neutrality, impartiality and independence" to deal with electoral disputes.
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