Constitutional Council rejects Renamo appeal; decision unanimous among 5 judges present

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Constitutional Council rejects Renamo appeal; decision unanimous among 5 judges present

5:26 CAT | 18 Sep 2018

File photo: Savana

For the second time, Mozambique’s Constitutional Council, the country’s highest body in matters of constitutional and electoral law, has rejected an attempt by the country’s main opposition party, the former rebel movement Renamo, to reinstate Venancio Mondlane as the head of its list of candidates for the Maputo Municipal Assembly in the local elections scheduled for 10 October.

Mondlane had been a prominent member of the second opposition party, the Mozambique Democratic Movement (MDM). In the 2013 municipal elections, he was the MDM’s mayoral candidate in Maputo, and slashed the majority of the ruling Frelimo Party from 85 to 58 per cent of the vote.

Twice (in October 2017 and May this year) MDM members in Maputo voted unanimously for Mondlane to be the MDM mayoral candidate again. Instead, he defected to Renamo and Renamo immediately made him head of its Maputo list of candidates (under the new system for municipal elections, the head of the list of the winning party automatically becomes mayor).

Infuriated at Mondlane’s betrayal, the MDM petitioned 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.

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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.

The Constitutional Council supported the CNE’s decision, and rejected Renamo’s claim that the relevant clause in the 1997 law was unconstitutional. 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 might have added that in July the Renamo group in the country’s parliament, the Assembly of the Republic, had voted for a new municipal election law which maintains the ban on people who have resigned from municipal office standing in the next municipal elections.

In its second appeal, Renamo changed its argument. It was no longer calling on the Council to declare the 1997 law unconstitutional. Instead it denied that the MDM had any right to petition the CNE over Mondlane, and also took on board the argument originally made by a former Constitutional Court judge, Teodato Hunguana, that Mondlane’s resignation was not really a resignation at all, since the law makes it clear that nobody can be a member of a municipal assembly and of parliament at the same time. So Mondlane’s departure from the municipal assembly was not something over which he had any control, but was imposed by his election to parliament.

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It might have made a difference if Renamo had made these arguments in its first appeal. But now it was far too late. The electoral train had left the station and Mondlane was not on board.

The Constitutional Council did not even consider Renamo’s new arguments. It pointed out that the object of Renamo’s second appeal was Article 6 of a CNE resolution of 23 August (the article which disqualified Mondlane). This was exactly the same article in the same resolution which Renamo had contested in its first appeal.

The Council said there can be no second bite of the cherry. The Council had already ruled on Article 6 of the 23 August CNE resolution, and so that article cannot be contested again.

Effectively, Renamo was asking the Council to change its mind and revoke a decision that it had taken only a fortnight earlier. But, under Mozambican law, Constitutional Council decisions cannot be appealed against, and so cannot be revoked.

The Council’s decision was unanimous among the five judges present, including the judge appointed by the Renamo parliamentary group, Manuel Franque.

Conselho Constitucional dá K.O FINAL para @venamondlane nas #Autarquicas2018 #Maputo #Mozambique pic.twitter.com/Kq1zXm3nTR

— Dércio TSANDZANA (@derciotsandzana) September 18, 2018

Mondlane is continuing to insist that he is the legitimate head of the Renamo Maputo list. Interviewed by the independent daily “O Pais”, he said that, regardless of decisions by the CNE and the Constitutional Council “I am and always will be head of the Renamo list”.

No-one would prevent him from running for election, he claimed, since that was “the will of the citizens of the municipality”.

But Renamo has now reached the end of the road, and has little choice but to replace Mondlane by the number two on the list, Herminio Morais, who was once a Renamo general, and currently sits on the board of the state fuel company, Petromoc.