9 November 2017

Mozambique: Clause Used to Deny Registration to Association of Gay Mozambicans Declared Unconstitutional

Maputo — Mozambique's Constitutional Council, the highest body in matters of constitutional law, has struck down as unconstitutional a clause in the Law on Associations which had been used as an excuse not to register the country's sole association of gay, bisexual and transgender citizens, Lambda.

The ombudsman, Jose Abudo, acting on the request of Lambda and a number of other civil society organisations, requested the Constitutional Council to declare the clause unconstitutional. The Council agreed, and in a ruling dated 31 October struck down the clause.

The Council acted with remarkable speed, since the ombudsman's request was only made in September. The Council ruling at no point mentions Lambda or sexuality, but takes its position solely on the contradiction between the Law on Associations and the Constitution.

The Council based its ruling on Article 52 of the Mozambican Constitution, which states that associations are banned if they are military or paramilitary in nature or if they "promote violence, racism or xenophobia or pursue aims contrary to the law".

Thos who did not wish to register Lambda could not possibly argue that Lambda is violent, paramilitary, racist or pursuing illegal goals, and so they fell back on the clause in the 1991 law on freedom of association which states that associations must rest on "the moral, social and economic order of the country and not offend the rights of third parties or the public good".

Arguably this was legal at the time, since the 1990 constitution left the regulation of freedom of association in the hands of parliament, which then, in the 1991 law, introduced the vague concepts of "moral order" and not offending "the public good". It is these concepts which have been used as an excuse not to register Lambda.

But the Council pointed out that the Constitution was amended in 2004, and the section on freedom of association states quite clearly the grounds on which associations may be banned. It says nothing about the "moral order" or "the public good".

The Constitution also states that the law "may only limit rights, freedoms and guarantees in the cases expressly envisaged in the Constitution". Hence parliament lost the power which the earlier constitutional text had granted it to regulate freedom of association. As from 2004, only a constitutional amendment, and not any lower type of legislation, could add restrictions to the freedom of association.

The constitution thus did not allow parliament to restrict associations on grounds of "the moral, social and economic order". No ordinary law can add to the type of limitation on freedom of association expressed in the Constitution.

The offending clause in the 1991 law had thus been tacitly revoked by the 2004 Constitution. Nonetheless the six judges of the Constitutional Council unanimously declared the clause unconstitutional.

Lambda has been struggling for official recognition for almost a decade. Repeated requests to the Ministry of Justice, the body in charge of registering associations, have borne no fruit. Although some of the past Justice Ministers have been prepared to work with Lambda on an informal level, none have agreed to register it.

A Lambda spokesperson told AIM on Thursday that he regarded the Constitutional Council ruling as "a great victory". He said Lambda would contact the Ministry of Justice yet again, send the Ministry the Council's ruling and await the Ministry's response.

Pf/ (570) 451117 NAMPULA INTERIM MAYOR ARRESTED FOR FIREARMS OFFENCE

Nampula (Mozambique), 9 Nov (AIM) - The Mozambican police have arrested the interim mayor of the northern city of Nampula, Manuel Tocova, for the illegal possession of a firearm, according to the independent daily "O Pais".

Tocova was detained shortly after giving a statement to the Criminal Investigation Service (SERNIC).

The paper's source, who was not named, said that the gun came into Tocova's possession in 2015 when he illegally hired it from a former parliamentary deputy "from another political party". He promised to pay 3,000 meticais (about 50 US dollars) a month for the gun.

But Tocova stopped paying, and the former deputy decided to denounce him to the police. When Tocova returned to Nampula, after spending several days in his home district of Monapo, the police called him in to make a statement.

Initially he denied the accusation, but eventually he admitted that he was in illegal possession of a gun. The police have also detained the former deputy.

Tocova is a member of the opposition Mozambique Democratic Movement (MDM). But he is also a demobilised soldier who fought for the rebel movement Renamo during the war of destabilisation. He only switched his loyalties from Renamo to the MDM on the eve of the 2013 municipal elections. This history makes it almost certain that the former deputy who hired the gun out to Tocova was from Renamo.

Meanwhile Tocova's supporters are fighting to maintain control of Nampula Municipal Council, despite court rulings that their appointment was illegal. When Tocova became interim mayor, following the assassination on 4 October of Mayor Mahamudo Amurane, he threw Amurane's collaborators off the Municipal Council, and appointed ten councillors and six heads of administrative posts loyal to him.

The sackings and appointments were clearly illegal because the municipal legislation states that, in the period between the death or resignation of a mayor and the ensuing by-election, the interim mayor can only undertake routine tasks of day-to-day management. Such tasks do not include the wholesale removal of city councillors.

The Nampula Administrative Tribunal on Wednesday gave a second ruling on the matter, which reinforced the first one last week, rejected by Tocova's faction because it did not take the form of a full "acordao" (sentence). This time the sentence came from the collective of all the judges of the Nampula Tribunal, and once more it rejected Tocova's sackings and appointments as null and void.

The Council spokesperson, Faizal Adamugy, told reporters on Wednesday that Amurane's team would be back at their posts on Thursday, and all would return to normal.

He showed the journalists the Tribunal's ruling and declared "all the councillors who were dismissed shall resume their positions, and we are asking the police to intervene to recover the municipal assets, vehicles and office keys so that they can be returned to the legitimate office holders".

He pledged that Amurane's team will continue working with Tocova (apparently unaware of the interim mayor's problems with the police).

Despite Adamugy's optimism, normality did not return to Nampula Council on Thursday. Instead, Tocova's appointees declared that the Administrative Council's ruling was not definitive since they intended to appeal against it.

Tempers frayed, and the Amurane and Tocova councillors screamed at each other in front of television cameras, coming close to fist fights. Despite the Tribunal's ruling, Tocova's team had no intention of surrendering the offices, or the keys to municipal vehicles.

One of Tocova's men, Adelino Marques, told reporters that he is the legitimate councillor for institutional matters, and that it was "illegal" for the former councillors to return to their jobs, while an appeal against the Tribunal ruling was under way.

He said that Tocova himself would lodge the appeal, but admitted that he had been unable to speak to Tocova. No doubt that was because Tocova was under arrest. If he is kept in detention for much longer, he will be unable to lodge an appeal within the legal time limit.

Mozambique

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