Maputo — Mozambique's Constitutional Council, the country's supreme body in matters of constitutional and electoral law, has rejected the appeal from the main opposition party, the former rebel movement Renamo, against the disqualification of its candidate for mayor of Maputo, Venancio Mondlane, in the municipal elections scheduled for 10 October.
The Council's decision, taken on Monday and published on its website on Tuesday, was unanimous - which means that the judge appointed by the Renamo parliamentary group, Manuel Franque, agreed with the other five judges that Mondlane was ineligible.
Mondlane was once the rapporteur of the parliamentary group of the second opposition party, the Mozambique Democratic Movement (MDM), but in July he defected to Renamo, and was immediately chosen to head the Renamo list of candidates for the Maputo Municipal Assembly - meaning that if Renamo were to win the municipal election in Maputo, he would become mayor.
Angered at Mondlane's desertion, the MDM called on the National Elections Commission (CNE) to disqualify him. The CNE voted in favour of the MDM's petition by nine votes to seven. The key argument used to disqualify Mondlane was that a 1997 law on municipalities states that anyone who resigns from a municipal office may not stand in the next round of municipal elections.
Mondlane was elected a member of the Maputo municipal assembly in the local elections of 2013. The following year he was elected as an MDM member of the national parliament, the Assembly of the Republic, and resigned his municipal assembly seat,
The MDM argued, and members of the CNE from the ruling Frelimo Party agreed, that this resignation meant that Mondlane cannot stand for election in the October municipal elections.
In its appeal against the CNE Renamo argued that the clauses in the 1997 law used by the CNE are unconstitutional, because they limit the fundamental right of standing for election. Renamo added that the October municipal elections take place in a "totally new" legal framework, following amendments to the constitution and the electoral legislation earlier this year.
The main change which those amendments brought to municipal elections is that they abolished direct election of mayors. Instead of two ballot papers, one for the mayor and one for the municipal assembly, voters will now vote only for the Assembly and the head of the winning list automatically becomes Mayor.
So, if the election law really is "totally new", Renamo argued, then Mondlane's 2014 resignation is irrelevant.
Unfortunately for this argument, the current municipal election law is not "totally new". In its reply to Renamo's appeal, the CNE pointed out that the norm from the 1997 law has not been changed. The new law says exactly the same thing - namely that someone who resigns from an elected municipal office may not stand in the next round of elections.
"There is no doubt about the will of the legislator to penalise this behaviour (i.e. resigning). Otherwise the legislator would have de-penalised it in the new law, which did not happen", said the CNE.
It could be added that the new law was passed by the Assembly of the Republic unanimously in July - which means that the Renamo parliamentary group voted in favour.
The Constitutional Council concentrated on Renamo's constitutional arguments and found them deeply flawed. Renamo claimed that the relevant parts of the 1997 law are unconstitutional - but the council retorted that a basic feature of the Mozambican system is that all norms in the country's legal order "are presumed constitutional unless declared unconstitutional by the relevant body" - i.e. by the Council.
And nobody had ever asked for the Council's view of the 1997 law on municipalities. The Council cannot simply declare a law unconstitutional just because that is what a political party wants.
The Council pointed out that the Constitution itself gives the list of bodies that may ask the Council to decide whether a particular norm or law is unconstitutional. The list includes the President of the Republic, the Attorney-General, the Ombudsman, at least a third of the parliamentary deputies, and at least 2,000 citizens.
It does not include political parties, and so Renamo cannot expect the Council to react to an electoral appeal by declaring a 20 year old law unconstitutional.
If Renamo really wants to overturn the 1997 law, it has enough parliamentary deputies to submit a request to the Council - but it has never done so.
Since there is no appeal against the Council's rulings, Venancio Mondlane has been definitively removed from the municipal elections. This means that Renamo's mayoral candidate becomes the man who was number two on its list, Herminio Morais. He was a Renamo general during the war of destabilisation, and is currently a director of the state fuel company Petromoc.
A much shorter and more elegant case for Mondlane was written by a former Constitutional Council judge, Teodato Hunguana. In an opinion piece published by the independent daily "O Pais" in late August, Hunguana argued that Mondlane had not really resigned from the Maputo municipal assembly at all.
Nobody can be a parliamentary deputy and a member of a municipal body at the same time. This incompatibility meant that somebody in Mondlane's position had no choice but to give up his seat in the municipal assembly. Hunguana said this is automatic and does not depend on the deputy concerned writing a letter of resignation.
The CNE, he said, "cannot now draw non-existent legal effects from irrelevant resignations". Nobody should be punished just because they are elected to parliament - all that the law imposes in this case is that they cannot hold parliamentary and municipal office simultaneously.
Renamo would have had a much stronger case had it used this argument. But it did not, and has paid the price.
A second mayoral candidate is in exactly the same position as Mondlane. Silverio Ronguane, the MDM candidate for mayor of Matola, resigned from the Matola Municipal Assembly in 2014 when he was elected to parliament. But nobody has complained about Ronguane, either to the CNE or to the Constitutionals Council, and so it seems he will remain a candidate.