Mozambique: New constitution to reduce presidential powers

Published: 20/Oct/1998
Source: Agência de Informação de Moçambique (AIM)

Draft constitutional amendments, produced by an ad-hoc committee of Mozambique’s parliament, the Assembly of the Republic, envisage substantial changes in the country’s political system, with a reduction in presidential powers and an increase in those of the prime minister, and parliament.

Up until now, the President of the Republic has been head of state and government, and has chaired cabinet meetings. The amendments change this and make the Prime Minister the head of government.

The President would still appoint and dismiss the Prime Minister – but only after consulting the political parties represented in parliament. No such limitation is placed on presidential power in the current constitution. In practice, this means that the President will appoint the person suggested by the majority party in parliament.

The President cannot override a parliamentary majority, as the draft amendments also give parliament the right to sack the government through passing a motion of censure. Thus any attempt to impose a prime minister who was not acceptable to the parliamentary majority would run the risk of incurring a censure motion, and the automatic fall of the government.

The amendments also take away the president’s power to appoint whomever he likes as a minister or deputy minister. The president will still appoint or sack the other members of the government – but only on the proposal of the Prime Minister.

The importance of such amendments is that they open the path for a President and a government drawn from different parties, and set the ground rules for cohabitation between them, drawing parameters to avoid conflicts.

Assembly to get greater powers

The amendments also strengthen the Assembly’s powers over the government. Under the current constitution, the Assembly can only get rid of a government by rejecting its programme twice.

The constitutional amendments dramatically increase the Assembly’s powers. If the Assembly rejects the government’s programme, the government will not be granted a second chance: it falls automatically.

Furthermore the amendments introduce the concepts of votes of confidence and censure motions. The government may request a vote of confidence from the parliamentarians “on a declaration of general policy, or on any matter of public interest”. However, if the government loses such a vote, it falls.

Censure motions have the same result. A censure motion, which can deal with any matter “of public interest”, must be signed by at least a third of the members of the Assembly. If the vote is passed by an absolute majority of members of the Assembly, then the government falls.

As for the dissolution of the Assembly, the amendments propose that this can only happen “in the event of an institutional crisis that does not allow the formation of a government, or the approval of the state budget, for a period of 90 days”.

Even in the midst of such a crisis, the Assembly cannot be dissolved if it was elected less than a year earlier, or in the year prior to presidential elections, or during a state of siege or state of emergency.

Council of State to be formed

The amendments introduce an entirely new body, a Council of State, which is a consultative body to advise the President. It must be consulted on such matters as sacking the government, dissolving the Assembly, and declaring war or a state of emergency.

In addition to the President, the Prime Minister, the Ombudsman, and the speaker of parliament, the Council of State also includes any former presidents or speakers, the runner-up in the presidential elections, four persons “of recognised merit” appointed by the President, and seven persons elected by the Assembly on the basis of parliamentary representation. This mechanism guarantees that the political opposition will hold seats on the Council of State.

A further novelty in the amendments is the possibility of impeaching the President. Under the current constitution, the President enjoys immunity from any civil or criminal proceedings connected to activities linked to the discharge of his duties.

This immunity is swept away by the amendments, which would make it possible for the Assembly to have the President tried on criminal charges before the Supreme Court. It would take at least a third of the Assembly’s deputies to start impeachment proceedings, and the motion demanding a trial of the President would need to be carried by a two-thirds majority. Should the Supreme Court find the President guilty, he would be removed from office and could not stand for any elected position.

Dual nationality on cards

Draft constitutional amendments propose to allow Mozambican citizens to hold dual nationality.

In the parliamentary debate around the nationality clauses in the 1990 constitution, it was made clear that there could be no dual nationality, and anyone wishing to acquire Mozambican nationality must renounce their previous nationality.

The amendments remove this condition. Those wishing to become naturalised will no longer have to abandon any other nationality they possess. However, the Mozambican domestic legal order will not recognise any other nationality held by Mozambican citizens.

This means that Mozambicans may not invoke dual nationality to evade military service, or any other obligation imposed by Mozambican law.

Under the amendments, Mozambicans who have lost their nationality will be able to re-acquire it without renouncing whatever other nationality they may have acquired in the meantime. One restriction is that holders of dual nationality cannot stand in presidential elections.

To be naturalised as a Mozambican citizen a foreigner must be over 18 and have lived in Mozambique for at least 10 years. He or she must be able to guarantee their own subsistence, and must have a sufficient knowledge of Portuguese or of a Mozambican language. Naturalised citizens will be forbidden access to careers in the diplomatic service or in the military.

Rights and freedoms enshrined

The draft constitutional amendments strengthen guarantees of press freedom.

The amendments lift key concepts from the 1991 press law, concerning the independence of the publicly owned media, and elevate them to the level of constitutional principles.

Thus, if these amendments are passed, the state will be constitutionally obliged “to guarantee the impartiality of the public sector media, as well as the independence of journalists from the government, the administration and other political powers”.

The amendments also state that in the public sector media “the expression and confrontation of ideas of various currents of opinion shall be guaranteed”.

The exercise of press freedom shall be regulated by law “on the basis of respect for the constitution and for the dignity of the human person”. The current constitutional need for the press respect “the mandates of foreign policy and national defence” will disappear.

The amendments also deprive the government of the unfettered power to appoint the directors of the public sector media. Instead it must now pay attention to the views of the Supreme Mass Media Council (CSCS), a constitutionally enshrined watchdog on press freedom.

The CSCS consists of two appointees of the President, five members elected by the Assembly, three members elected by journalists, and one representative of media companies or institutions.

A complete innovation in the amendments concerns computerised data held on citizens. These clauses strengthen the right to privacy, and prohibit “the use of computers to register and process data on political, philosophical or ideological convictions, religion, party or trade union membership, or private life, where the individuals concerned can be identified”.

Personal data held in computerised form shall be protected, and there shall be legal guarantees concerning access to data bases, and the use of such data by public or private bodies.

The amendments not only maintain the ban on capital punishment, but extend it to outlaw life imprisonment. Punishments and security measures that restrict freedom in perpetuity, or for an unlimited or undefined period are prohibited, states the relevant amendment.

As a corollary, no-one can be extradited to a country where he may face the death penalty, life imprisonment, torture, or other forms of cruel or degrading treatment.

As for imprisonment, a new requirement is that “persons deprived of liberty must be immediately informed, and in a manner that they understand, of the reasons for their arrest, and of their rights”.

The amendments also specify that any evidence obtained through torture, coercion, “abusive intrusion into private or family life”, or illicit phone tapping, shall not be admissible.

The right to defence is strengthened, so that suspects “have the right to choose freely their defence counsel, and those who for economic reasons are unable to hire a lawyer shall be guaranteed adequate legal aid”.

All criminal trials must be held in public, which should make it impossible for judges to impose arbitrary restrictions on reporting as has occasionally happened in the past. The only exceptions are where matters of “personal intimacy” or morality make it advisable to restrict publicity – a clear reference to rape cases.

The amendments also enshrine the right to conscientious objection, thus making it possible for Mozambicans to refuse to undertake military service on moral or religious grounds.

Public debate

Politicians, religious leaders, lawyers, representatives of social organisations and various other personalities are to meet in Maputo for a workshop to launch a public debate on draft amendments to the Constitution.

50,000 copies of the text are to be distributed to as large a number of people as possible before the debate. After the public debate, donors will be invited to a workshop on 12 December. The debates will first take place in the provincial capitals, expanding later to the various districts.

Read on AIM website.

Themes: Dual Nationality
Regions: Southern Africa, Mozambique
Year: 1998