The question of whether the district courts can or cannot order recounts of votes remains unresolved, because the Assembly of the Republic (AR) says it cannot act because President Filipe Nyusi is not following Constitutional procedures. On the last possible day, 30 May, President Nyusi rejected the bill approved in April this year, which changed the recounting of votes. The constitution requires that the President explain any veto, but to date Nyusi has not done so. Without this, the AR will not consider a new amendment, and the current sitting of the AR - the last before the general elections - will end on 8 August.
The 2019 electoral law allows recounts of votes by the district elections commission, ordered by the CC or National Elections Commission (CNE). Recounts were always seen as safe because they do not formally alter the result, and so they can be ordered at a lower level. But that is not how the CC understands the matter.
Only last year after local elections did the CC say it did not accept the 2019 law. In response, the law approved by the AR in April extended the possibility and gave the district election commissions the right to order recounts. An angry battle between the Supreme Court (responsible for courts) and the CC (responsible for elections) commenced. So Nyusi vetoed the law.
The Centre for Public Integrity (CIP) has found that the AR Commission on Amending the Electoral Package believes that the President of the Republic has not duly explained the meaning of his veto of 30 May 2024. The Commission wrote requests this explanation, but has so far not yet received any response.
Under Article 162, paragraph 3, of the Constitution of the Republic, in the event of a veto, it is obligatory that the President of the Republic inform parliament in writing of the reasons for this decision.
Some members of the Commission say the veto notice submitted by the President to parliament presents an explanation that is ambiguous, and is not clarifying. They also question the merit of the President’s decision since the proposal to amend the law was passed by consensus and acclamation by the three parliamentary groups in the AR.
The notice from the President of the Republic gave as the reasons for his veto the fact that there are doubts about the procedural mechanism for applying Article 8, paragraph 4A, of Article 196A, paragraph 1, of the amendments of the law on the election of the President of the Republic and of the deputies of the Assembly of the Republic and of Article 161, paragraph 4A and Article 167, paragraph 1, of the law on the election of the provincial governor and of the members of the Provincial Assemblies. Fundamentally, these are provisions which give the district and city law courts the power to decide on recounting the votes in the event of electoral irregularities
What is certain is that the 10th ordinary sitting of the Assembly of the Republic should discuss, among other matters, the re-examination of the electoral package which will cover elections for the President of the Republic, the deputies of the Assembly of the Republic, the provincial governors and the members of the Provincial Assemblies, on 9 October. This sitting is due to close on 8 August. Hence there is every possibility that parliament will close its sitting without concluding the discussion and approval of the electoral law amendments, thus frustrating the wishes of the three parliamentary groups.
With the lack of submitting an explanation in time, as requested by the Commission on Amending the Electoral Package, in the event that the President does submit it in the coming days, there is a risk that parliament will find that it is short of time to hold a prudent discussion of the arguments that will be presented in the document. A further, perhaps still greater risk, is that parliament will run out of any time at all to discuss the document, which would mean holding the 9 October elections under the unamended electoral legislation.
In the first hypothesis, as already mentioned by CIP, if the electoral law is passed on the eve of the election campaign and the subsequent phases of the electoral process, there is the risk of promulgating a law which does not guarantee the assimilation and adequate interpretation and application of the solutions it offers by the stakeholders in the elections – the electoral management bodies, the political parties, the observers, and the voters themselves.
And if the current electoral legislation remains in force, which is the second hypothesis, there are risks that, during the coming general elections, we shall witness the same problems that occurred during the October 2023 municipal elections, with the district and city law courts and the Constitutional Council (CC) disputing who has powers over election disputes. In terms of the electoral laws in force, there are doubts as to whether the District and City Courts have the power to annul elections and order the recounting of votes. The CC claims that it, and it alone, has this power.
Both the CC and the CNE are bodies with an essentially political party structure. This means that often these bodies are accused of deciding in favour of the Frelimo Party – for example, when they receive requests to annul an election or to recount votes in electoral process with results damaging to the other competing parties.
Thus, it is relevant to consider that the delay in the President’s reply to the request to explain the meaning of his veto could impose constraints on the organisation and normal course of the elections, in contradiction to the prospects that had been projected by the stakeholders in the elections. Since the proposal was approved by consensus and acclamation, the veto may increase the level of distrust among those involved in amending the legislation.
CIP believes this shows how problematic it is to amend the electoral legislation during election years, always on the eve of elections, and depending on the interests of those proposing it. This is a phenomenon that has occurred in all electoral cycles, and raises questions about the transparency, freedom and fairness of the elections, in a year when Mozambique is celebrating 30 years of multi-party democracy, since the first elections, held in 1994.
President prevents parliament from solving the battle over recounting votes
Ivan Maússe
The question of whether the district courts can or cannot order recounts of votes remains unresolved, because the Assembly of the Republic (AR) says it cannot act because President Filipe Nyusi is not following Constitutional procedures. On the last possible day, 30 May, President Nyusi rejected the bill approved in April this year, which changed the recounting of votes. The constitution requires that the President explain any veto, but to date Nyusi has not done so. Without this, the AR will not consider a new amendment, and the current sitting of the AR - the last before the general elections - will end on 8 August.
The 2019 electoral law allows recounts of votes by the district elections commission, ordered by the CC or National Elections Commission (CNE). Recounts were always seen as safe because they do not formally alter the result, and so they can be ordered at a lower level. But that is not how the CC understands the matter.
Only last year after local elections did the CC say it did not accept the 2019 law. In response, the law approved by the AR in April extended the possibility and gave the district election commissions the right to order recounts. An angry battle between the Supreme Court (responsible for courts) and the CC (responsible for elections) commenced. So Nyusi vetoed the law.
The Centre for Public Integrity (CIP) has found that the AR Commission on Amending the Electoral Package believes that the President of the Republic has not duly explained the meaning of his veto of 30 May 2024. The Commission wrote requests this explanation, but has so far not yet received any response.
Under Article 162, paragraph 3, of the Constitution of the Republic, in the event of a veto, it is obligatory that the President of the Republic inform parliament in writing of the reasons for this decision.
Some members of the Commission say the veto notice submitted by the President to parliament presents an explanation that is ambiguous, and is not clarifying. They also question the merit of the President’s decision since the proposal to amend the law was passed by consensus and acclamation by the three parliamentary groups in the AR.
The notice from the President of the Republic gave as the reasons for his veto the fact that there are doubts about the procedural mechanism for applying Article 8, paragraph 4A, of Article 196A, paragraph 1, of the amendments of the law on the election of the President of the Republic and of the deputies of the Assembly of the Republic and of Article 161, paragraph 4A and Article 167, paragraph 1, of the law on the election of the provincial governor and of the members of the Provincial Assemblies. Fundamentally, these are provisions which give the district and city law courts the power to decide on recounting the votes in the event of electoral irregularities
What is certain is that the 10th ordinary sitting of the Assembly of the Republic should discuss, among other matters, the re-examination of the electoral package which will cover elections for the President of the Republic, the deputies of the Assembly of the Republic, the provincial governors and the members of the Provincial Assemblies, on 9 October. This sitting is due to close on 8 August. Hence there is every possibility that parliament will close its sitting without concluding the discussion and approval of the electoral law amendments, thus frustrating the wishes of the three parliamentary groups.
With the lack of submitting an explanation in time, as requested by the Commission on Amending the Electoral Package, in the event that the President does submit it in the coming days, there is a risk that parliament will find that it is short of time to hold a prudent discussion of the arguments that will be presented in the document. A further, perhaps still greater risk, is that parliament will run out of any time at all to discuss the document, which would mean holding the 9 October elections under the unamended electoral legislation.
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In the first hypothesis, as already mentioned by CIP, if the electoral law is passed on the eve of the election campaign and the subsequent phases of the electoral process, there is the risk of promulgating a law which does not guarantee the assimilation and adequate interpretation and application of the solutions it offers by the stakeholders in the elections – the electoral management bodies, the political parties, the observers, and the voters themselves.
And if the current electoral legislation remains in force, which is the second hypothesis, there are risks that, during the coming general elections, we shall witness the same problems that occurred during the October 2023 municipal elections, with the district and city law courts and the Constitutional Council (CC) disputing who has powers over election disputes. In terms of the electoral laws in force, there are doubts as to whether the District and City Courts have the power to annul elections and order the recounting of votes. The CC claims that it, and it alone, has this power.
Both the CC and the CNE are bodies with an essentially political party structure. This means that often these bodies are accused of deciding in favour of the Frelimo Party – for example, when they receive requests to annul an election or to recount votes in electoral process with results damaging to the other competing parties.
Thus, it is relevant to consider that the delay in the President’s reply to the request to explain the meaning of his veto could impose constraints on the organisation and normal course of the elections, in contradiction to the prospects that had been projected by the stakeholders in the elections. Since the proposal was approved by consensus and acclamation, the veto may increase the level of distrust among those involved in amending the legislation.
CIP believes this shows how problematic it is to amend the electoral legislation during election years, always on the eve of elections, and depending on the interests of those proposing it. This is a phenomenon that has occurred in all electoral cycles, and raises questions about the transparency, freedom and fairness of the elections, in a year when Mozambique is celebrating 30 years of multi-party democracy, since the first elections, held in 1994.
