Comment: Fairness, equality and reading the law – By Joseph Hanlon

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Comment: Fairness, equality and reading the law – By Joseph Hanlon

5:43 CAT | 04 Sep 2018

File photo: Twitter

The official two-week election campaign starts on 25 September. But campaigning for the 10 October municipal elections has already started – as is allowed under freedom of speech guarantees in the constitution. The “official” campaign only gives parties extra rights, for example to use meeting halls.

These elections will be much harder fought than previous municipal elections. The governing party Frelimo is under more pressure because of lack of rural development and the $2 billion secret loans, so it will make maximum use of the advantages of being in government.

This raises questions about what makes an election “free and fair”. Most important is that there is no requirement that all the parties be equal – some are large and some are small, some are competent and some are not. In any country, opposition parties are at a disadvantage and there is never a requirement that opposition parties be given special advantages. Fairness is about equal treatment under the law.

However, Mozambique is unusual in several ways. First, Frelimo has been in power for 44 years and the civil service is quite politicised, while the biggest opposition party Renamo has members of parliament but also maintains a military force. Ongoing peace negotiations have a direct impact. For example, earlier this year Frelimo threatened to delay the elections to force Renamo to move on disarmament.

Second, in many countries (including South Africa) the electoral commission is seen as independent and neutral, but in Mozambique, Renamo has insisted that the elections commission and administrative machinery (CNE and STAE) be increasingly politicised. Renamo has always argued that politicisation is essential to allow it to keep a closer watch on Frelimo. But that sharply increases the responsibility and tasks of the opposition.

In this pre-campaign period Frelimo has taken advantage of having better lawyers and knowing the law. For example, Renamo complains of having its campaign marches stopped. But the law is clear – in normal times demonstrations must be agreed with the police in advance, but in the two week electoral period no advance notice is needed. Renamo demands that this be applied now, even though the law is clear and its marches were planned and could have been announced in advance.

Looking at the excluded parties and candidates, again it was clear that there were legal problems with candidates for mayor changing parties and also moving up from municipal assembly to national parliament, and it appears the candidates and Renamo had not read the law. The error here was two-fold. First, the new municipal election law was discussed in parliamentary commissions and then agreed by parliament – Renamo could have made the required changes then, without difficulty, but it was not paying attention. Second, the affected candidates, Manuel de Araujo and Venâncio Mondlane, should have been aware that they would face legal challenges, but appeared not to notice.

With respect to Samito and AJUDEM, it was obvious from the start that Frelimo would apply all weapons at its disposal to crush a dissident force. By submitting a candidates list with so few alternates, the door was left open for Frelimo to pressure just four people to withdraw. Lists can have unlimited numbers of alternates, and surely AJUDEM could have found more people.

Opposition parties cannot complain about unfairness if only the governing party bothers to read the law – especially when the electoral structure has been constructed to give such a huge oversight role to opposition parties.

Nonetheless, Frelimo’s long years in government has created a huge imbalance in power, and Mozambican elections this year and next will not have “level playing fields”. Renamo has never wanted to reduce the arbitrary powers of government, but has always wanted to gain access to those powers – for example, wanting elected governors but assuming that elected Renamo governors would have the same ability to appoint officials and spend money.

In the coming month, both sides will use their special advantages – Frelimo controlling the government and civil service and Renamo maintaining a small army – and the struggle for a more level playing field will continue.

This newsletter will never take sides in an election. But for these elections in the 53 municipalities, we will have more than 100 correspondents, and we will report as accurately as possible the events on the ground.

By Joseph Hanlon

Source: Mozambique Political Process Bulletin