Maputo — Mozambique's former rebel movement Renamo has submitted a request to the Constitutional Council, the country's highest body in matters of constitutional law, to declare parts of the current electoral law unconstitutional.
Should the Council accept the Renamo arguments, it will become almost impossible to hold the general elections scheduled for this year.
Renamo's main complaint is that the National Elections Commission (CNE) judges complaints about the counting of votes. In Renamo's view this function should be exercised by the law courts, or by special electoral courts.
Renamo claims that the CNE is "an interested party" in the elections and should therefore not judge complaints. Under the current system, the CNE and its local bodies "are acting as judges in their own cause", Renamo argues.
Renamo parliamentary deputy Saimone Macuiana told the independent television channel STV "the CNE is part of the electoral process, so it makes no sense that the commission produces decisions, and that those not satisfied with the decision have to appeal to the same body that produced them".
The scheme presented by Renamo is that an election complaint would be presented, first at the polling station, and if not solved there, the question would go to a court, and the final appeal would be, as it is today, to the Constitutional Council.
However, the current election law was passed in December 2006 - and only now, 27 months later, has Renamo reached the conclusion that it is unconstitutional. The Constitutional Council will doubtless find this delay intriguing.
In 2006, the ruling Frelimo Party used its parliamentary majority to approve the electoral law, after 18 months of deadlock in an ad-hoc commission set up to produce a consensual law. There was no consensus because Renamo insisted on a law that would give it the power of veto on the CNE.
When the matter came to a vote in the Assembly, Renamo refused to participate in the vote. Instead its members disrupted the session. They sang, chanted, howled, banged their shoes on the tables, but were unable to prevent approval of the new law.
The Renamo objection to the process of appealing electoral disputes first to the CNE and then to the Constitutional Council is entirely new. Appeals to the CNE featured in all other Mozambican electoral laws from 1994 onwards, and Renamo did not object. Even in 2006, Renamo had a long list of objections to the package of electoral legislation, but this power of the CNE was not among them, and there was no suggestion from Renamo then that this power might be unconstitutional.
As for Renamo's call for "electoral courts", this would require a constitutional amendment. The current constitution, adopted in 2004 with Renamo's full consent and participation, stipulates the types of court that may exist in the country. The Constitution mentions labour, fiscal, customs, administrative and maritime tribunals, but not a word about electoral courts. In 2004, such an idea was simply not on Renamo's agenda.
New courts cannot be created ad-hoc, but must be provided for in the constitution. Renamo wants an electoral court in each of the 128 districts - which would mean at least 128 electoral judges. Given the dramatic shortage of legal personnel of all kinds in the country, it is hard to see where they could possibly come from.
As for remitting election disputes to the normal law courts, given the slow pace of the Mozambican legal system, this would be guaranteed to slow down the announcement of election results. Furthermore, there are still many districts that do not possess law courts.
Frelimo deputies told AIM on Monday that they regard Renamo's appeal to the Constitutional Council as an attempt to postpone the elections. They said that, given Renamo's current disorganized and demoralized state, it would find general elections in 2009 highly inconvenient, and so would like to delay them for at least a year.