US advocates reforms in Mozambique business environment
The Constitutional Council, Mozambique’s highest body in matters of constitutional and electoral law, has ruled unconstitutional a norm which gave the Minister of Labour the power to annul the contracts of foreign workers (and thus effectively throw them out of the country).
The decision of the judges on the Council was unanimous, and is contained in a ruling issued on 9 May.
The case appears to have arisen from a highly publicized incident in 2013, when the then Labour minister, Helena Taipo, gave a Portuguese citizen, Diamantino Miranda, who was then the coach of the Costa do Sol football team, two days to leave the country. Miranda had called Mozambicans “thieves”.
It was the Ombudsman, Jose Abudo, who, in 2016, formally approached the Constitutional Council with a request to declare this norm in the labour legislation unconstitutional. The norm is contained in a decree of 2008 regulating the hiring of foreign workers.
It states “in the event of violation of the principles expressed in the Constitution of the Republic and of other laws and norms in force in the country, the exercise of the right to work of the foreigner in question may be forbidden by a dispatch of the Labour Minister”.
Abudo believed that this norm infringed the fundamental rights of foreign workers, and violated both the Constitution and the Labour Law.
When the Constitutional Council asked the government to respond to Abudo, it replied that it could see no reason to declare the norm unconstitutional. However, it accepted there might be some ambiguity in interpreting the word “forbid”, and so the government promised “to reformulate the norm and make it clearer and more operational”.
It did so by issuing new regulations on the hiring of foreign workers on 31 August 2016. But although this revoked the original decree that Abudo had protested against, it retained the right of the Labour Minister to annul the contracts of foreign workers.
The new norm lists the cases in which the Minister could cancel contracts – including physical assaults by the foreigner against other workers, either Mozambican or foreign, racism or other forms of discrimination against fellow workers, violation of the rights of women workers, and the sentencing of the foreign worker to a prison term for other matters.
But the Constitutional Council regarded the new norm as essentially the same as the old one. It was unconstitutional because it denies the foreign worker affected the right “to defend himself in a due legal procedure”. The adversarial nature of the Mozambican legal system always allows accused persons to defend themselves, but this norm did not.
A dispatch from the Minister revoking a private contract “without offering, in good time, the opportunity for defence against the content of the accusations, whatever their nature, is an unequivocal and flagrant violation of the principle of contradiction which is essential under the rule of law”.
It also infringed the right which any citizen has to challenge administrative acts which damage his or her interests, and was thus “a real affront to the constitutional principle of effective protection”, the Council declared.
The Council also noted that the Labour Law lists the ways that labour contracts can end – and unilateral annulment by the Labour Minister is not one of them. The Council ruled that the government had exceeded its regulatory powers by establishing a new form of ending the work contact, which is not envisaged in the Labour Law.Source: AIM