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The Budget Monitoring Forum, a coalition of Mozambican NGOs, has rejected the claim by the country’s parliament, the Assembly of the Republic, that the Constitutional Council is “not competent” to rule on whether the parliamentary resolution approving the 2014 General State Account (CGE) is constitutional or not.
That CGE included the illicit government guarantee for the 850 million dollar loan which the Mozambique Tuna Company (Ematum) had obtained from the European banks Credit Suisse and VTB of Russia.
The 2015 CGE included the guarantees for the “hidden loans” to the security related companies Proindicus (622 million dollars) and MAM, Mozambique Assets Management (535 million).
Since the resolution approving the 2015 CGE, passed by the Assembly in April of this year, had not yet appeared in the official gazette, the “Boletim da Republica”, the FMO request to the Constitutional Council only concerned the 2014 CGE.
The FMO gathered the requisite 2,000 signatures for its appeal to the Council, and the Council then asked for the Assembly’s opinion. On Tuesday, the Assembly’s governing board, its Standing Commission, reiterated the position taken by the plenary in April that there was nothing illegal or unconstitutional about mentioning the guarantees in the CGE.
This was expected: the majority Frelimo Party on the commission outvoted the two opposition parties, the rebel movement Renamo and the Mozambique Democratic Movement (MDM). What was unexpected was the claim that the matter should not go before the Constitutional Council at all.
Since the Council is the highest body in matters of constitutional law, it was surprising that parliamentarians should conclude that some of their decisions are beyond its reach. The Assembly’s Legal and Constitutional Affairs Commission, echoed by the Standing Commission, argued that the Council cannot appreciate matters prejudicial to international contracts signed by the Mozambican state. The Ematum loan contract fell within the sphere of International Private Law, and the Constitutional Council could not intervene there.
This was despite Frelimo deputies in the Assembly recognizing that the government guarantee for the Ematum loan violated the budget law by breaking the ceiling on guarantees, and also violated a clause in the Constitution which states that such debt can only be authorized by the Assembly.
The Legal and Constitutional Affairs Commission argued that the CGE could not be ruled null and void because the inclusion of the Ematum guarantee was a mere statement of fact. And if the CGE was not null and void, then neither was the resolution approving it.
The FMO regarded the talk about International Private Law as irrelevant. It had protested against a decision of the Assembly and, since resolutions of the Assembly are normative documents, the Constitutional Council has every right to determine whether they are constitutional.
A press release from the FMO cited Article 245 of the Constitution which states that it is the task of the Council to inspect normative acts. Since an Assembly resolution is, by definition, a normative act, the Council must be competent to rule on it.
The FMO argued that the mere fact that resolutions are not promulgated by the President does not deprive them of their normative and judicial nature. It also noted that the Council has already ruled on resolutions of other bodies, of lesser importance than parliament, and nobody said it was not competent to do so.
The FMO said it is now waiting calmly for the decision of the Constitutional Council, and reiterated its position that nobody should be obliged to pay illegal debts.
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