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Recent Constitutional Developments in Mozambique

Published online by Cambridge University Press:  28 July 2009

M. Hall  and
T. Young
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Extract

Constitutions remain a puzzle. They are not conscious falsehoods, yet they are clearly not in any simple sense “true”. Nor are they a matter of self-deception on the part of their drafters, being as much intentionally aspirational or programmatic as regulatory. There is some virtue in Finer's characterization of them as “autobiographical” but even this becomes problematic when we speak of constitutions in the ex-colonial world which are often documents more easily made sense of in the context of other constitutional documents than the realities of the polities they supposedly regulate. All these issues are brought into very sharp focus by the experience of a country such as Mozambique, which in its short history since independence in 1975 has adopted two quite different societal projects in the form (amongst other things) of constitutional documents. The differences between these two projects are obvious and are commented on extensively in what follows. The categories utilized in both, it may be noted, are rooted entirely in European political and intellectual experience and, arguably, what is striking about the liberal and socialist options that they embody is not so much their (highly advertized) differences but what they have in common, including a profound intolerance and a determination to remake the world in their own image. Seen in this way the study of constitutions and constitution-making have interesting things to tell us about the processes of Westernization of our world.

Mozambique's new constitution came into force on 30 November, 1990, replacing the Independence Constitution of 25 June, 1975. It eliminated the leading role of the Frelimo party, introduced multi-party politics, and changed the official name of the country from the People's Republic of Mozambique to the Republic of Mozambique.

Type
Research Article
Information
Journal of African Law , Volume 35 , Issue 1-2: RECENT CONSTITUTIONAL DEVELOPMENTS IN AFRICA , Spring 1991 , pp. 102 - 115
Copyright
Copyright © School of Oriental and African Studies 1991

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References

1 Finer, S. (ed.), Five Constitutions, London, 1981, 21Google Scholar.

2 Perhaps even make a contribution to the theoretical questions hinted at by Dearlove, J., “Bringing the Constitution Back In: Political Science and the State”, (1989) XXXVII Political Studies 521–539CrossRefGoogle Scholar.

3 Queiroz, F., “Constituição e ordem economica: o estado promoção e o estado promotor da ordem economica”. Paper read at an international seminar on constitutional law, Maputo, 27 04, 1990Google Scholar. This pointed out the modest length of the Constitutions then in force in Lusophone Africa: Angola, 88 articles; Cape Verde, 96; Guinea-Bissau, 102; Mozambique, 80; and Sao Tome e Principe, 49. Many of the norms and principles which might be considered fundamental were incorporated into ordinary legislation, rather than in the Constitution itself.

4 The Frente para a libertação de Mozambique (Frelimo) became a self-declared Marxist-Leninist Party at its Third Congress (3–7 February, 1977), subsequently changing its name to the “Frelimo Party” though often in fact referred to simply as Frelimo as we have done throughout.

5 From an address to the Commission mandated to revise the Constitution in 1986, by the President of the People's Assembly, Marcelino dos Santos. In fact, the report in question (Noticias, 7 August, 1986) states that the amendment enshrined the “supremacy of the Assemblies of the People, at every level, relative to the other organs of state”, but the Article amended refers specifically to the Provincial Assembly.

6 “Poder Popular” in Cuba took the form of elected assemblies to work together with, and control, the activities of local government. Their creation was initiated in 1974 through the elaboration of a new constitution, which was subject to wide public debate: see Egero, Bertil, Mozambique: A Dream Undone: The Political Economy of Democracy 1975–84, Uppsala, 1987, 171–194 and 213–230, esp. 224Google Scholar. The term was also current amongst Portuguese Leftists after 04 1974Google Scholar. See Mailer, P., Portugal: The Impossible Revolution, London, 1977, 225Google Scholar.

7 For some discussion of this tension in Frelimo see Young, T., “The Politics of Development in Angola and Mozambique”, (1988) 87 African Affairs 165–184CrossRefGoogle Scholar. Frelimo sympathizers at the time argued that these elections were more democratic than elections as conventionally understood. See for example “Elections”(1977) (No. 10 People's Power 10–15)Google Scholar and Fauvet, P., “Mozambique at the polls-“‘no bourgeois electoral farce’” (New African, 10 1977)Google Scholar.

8 Tempo [Maputo], 27 07, 1986Google Scholar. Dr. Mario Machungo, Frelimo Politburo member and an economist by training, was appointed Prime Minister, and Marcelino dos Santos, number two in the Party, was given the role of President of the People's Assembly.

9 Noticias, 7 08, 1986Google Scholar.

10 Egero, , op. cit., 123Google Scholar.

11 Indian Ocean Newsletter, 2 07, 1986, 5Google Scholar.

12 Projecto de Revisao da Constituicao, INLD, No. 0688/INLD/88, Maputo.

13 Egero, , op. cit., 130Google Scholar.

14 As noted by Andre Thomashausen, known to be close to Renamo, in “People's Courts in Mozambique”, a paper read on 10 07, 1987 at UNISA Institute of Foreign and Comparative LawGoogle Scholar.

15 Noticias (24 September, 1987) reported the adoption of the text by the Assembly but added that the document was sent back for further consideration, “so that it will subsequently be the object of evaluation once again on the part of the fourth session of the People's Assembly which it is hoped will take place in the middle of next year”.

16 For accounts of Renamo see Hall, M., “The Mozambican National Resistance Movement: a study in the destruction of an African country”, (1990) 60 Africa 39–68CrossRefGoogle Scholar; Young, T., “The MNR/RENAMO: External and Internal Dynamics” (1990) 89 African Affairs 491–509CrossRefGoogle Scholar and the important study by Geffray, C., La Cause des Armes au Mozambique Anthropologie d'une Guerre Civile, Paris, 1990Google Scholar.

17 See for example the interview with President Chissano in Africa Report 05/06 1990Google Scholar.

18 Frelimo, Partido, Anteprojecto de Revisao da Constituicao. The main text also published in Tempo [Maputo] 21 01, 1990Google Scholar.

19 The seminar took place from 24–28 04, 1990 and was funded by the Freidrich Ebert FoundationGoogle Scholar.

20 Comment by Richard Carver, personal communication. In mid-1989, Renamo leader Afonso Dhlakama had promised that if the Maputo Government went “all the way and accept[ed] general elections for the people freely to choose their future … the war would be over” (Interview in O Seculo [Lisbon], 9 June, 1990).

21 Mozambique Information Office Special Report No. 1, 30 07, 1990Google Scholar.

22 We have consulted the Portuguese text. There is a French translation in 29 (1988)Polilique Africaine 115–130Google Scholar.

23 Expresso [Lisbon] 17/11/90. The debate on the nationality issues lasted more than a week. See Tempo [Maputo] 28 10, 1990Google Scholar.

24 For the text of law 7/91 see Noticias, 26 01, 1991Google Scholar.

25 For some discussion of the land law see Sachs, A. and Welch, G. Honwana, Liberating the Law: Creating Popular Justice in Mozambique, London, 1990, ch. 1Google Scholar.

26 Vieira, S. Tempo [Maputo] 10 03, 1991Google Scholar.

27 Paper by Trindade, Joao (Judge of the Supreme Court), Noticias, 1 03, 1991Google Scholar.

28 Carver, Richard, personal communication. An outline of some of the principal reforms is given in News from Africa Watch 11 02, 1991Google Scholar. For a discussion see Sachs, and Honwana, , Liberating the Law chs. 2 and 3Google Scholar. Thomashausen, , loc. cit., n. 14Google Scholar, deals with this topic, from a different angle.

29 Mozambique, Information Office Special Report No. 2, 5 11, 1990Google Scholar.

30 Replacing symbols is an unenviable task. During discussion as to whether the dove might not form part of the symbols of the new Mozambique Sr. Rebelo reported that he had been asked “why a dove and not a turkey?” Mozambique, Information Office Special Report No. 2, 5 11, 1990Google Scholar.

31 See the survey of the five Portuguese-speaking countries in Expresso [Lisbon] 5 05, 1990Google Scholar.

32 The emerging orthodoxy, even amongst academics, seems to be to express some minor irritation with the intellectual difficulties of rights and then get on to the business of writing end-of-term reports on various parts of the world. For a recent example see Payne, A., “Full Bellies in Freedom House: Universal Human Rights, Cultural Relativism and the Commonwealth Third World”, in Mayall, J. and Payne, A. (eds.), The Fallacies of Hope: The Post-Colonial Record of the Commonwealth Third World, Manchester, 1991Google Scholar.

33 Misgivings are occasionally voiced. See the interesting remarks in Canovan, M., “On Being Economical with the Truth: Some Liberal Reflections”, (1990) XXXVIII Political Studies 5–19CrossRefGoogle Scholar.

34 Sachs, A. and Welch, G. Honwana, op. cit., 24Google Scholar.