By Paul Fauvet
8 October 2009
Analysis
Mozambique's National Elections Commission (CNE), which is obliged to uphold the country's electoral legislation, appears to have violated it by allowing the previously unknown Party for Freedom and Development (PLD) to stand in ten of the 13 parliamentary constituencies.
The CNE clearly overlooked article 166 of the electoral law, which states that any political party may present candidates for parliament, as long it has been registered by the start of the period for presenting nomination papers.
The period for parties to present this paper work ran from 1 June to 29 July. But on 1 June the PLD had no legal existence at all. As the documents which the PLD itself has shown prove, it was only registered at the Ministry of Justice on 30 June.
It is true that the Electoral Law does not mention the Ministry of Justice - but it does not need to, since earlier legislation established that it is the Ministry which holds the register of recognised political parties.
When AIM mentioned this problem to a CNE source, he suggested that the registration referred to was really registration for standing in the elections, and that registration took place at the CNE.
It's an ingenious attempt to solve the problem, but it won't do. The CNE decided, reasonably enough, that registration and the deposit of nomination papers would run concurrently from 1 June to 29 July. So the PLD could not have registered with the CNE prior to 1 June, even if it had been in a position to do so - which it wasn't: registration at the Justice Ministry is a sine qua non for any party wishing to contest elections.
The first party to register with the CNE for the elections was not the PLD. It was the Ecology Party, in late June, followed by the main opposition party, Renamo, on 1 July. By then it is a fair bet that nobody on the CNE had even heard of the PLD. There is no doubt that by 1 June the PLD was not registered anywhere.
Other problems about the PLD have been mentioned, notably in articles published in the weekly paper "Magazine Independente" (MI). For instance, the party's statutes had not been published in the official gazette, the "Boletim da Republica" (BR), before the close of nominations.
The CNE, however, insists that this is not necessary. The law just states that the Party has to deliver its statutes to the CNE - not that these must first be published in the BR. So the version the CNE received was a transcript, neatly hand written by a functionary of the Justice Ministry. Other recently formed parties, including the Mozambique Democratic Movement (MDM), provided the same hand written version of their statutes.
MI also noted that the PLD received three notifications from the CNE to clean up irregularities in its list of candidates, and that the last one of these was received on 1 September, over a month after nominations had closed.
On that date the CNE told the PLD that three of its candidates had not yet delivered their criminal record certificates, and a fourth still required recognition by a notary of his signature on the letter accepting nomination.
The CNE insists that this late notification was not illegal. It concerned only what the law calls "procedural irregularities" which could be easily fixed. And since the PLD had five days to make the corrections, its lists of candidates would still be ready by the final date for publishing the definitive list, which was 5 September. However, when the lists were published they bore the date 28 August - four days before the final notification.
After MI claimed, rightly or wrongly, that the final notification was illegal, PLD leader Caetano Sabile told Mozambican Television (TVM) a week ago that he had never received such a notification. Yet MI says it was Sabile himself who had come to the paper's office and showed it the three notifications from the CNE!
The 1 September notification, signed by Sergio Zacarias, head of the office of CNE chairperson Joao Leopldo da Costa, certainly looked perfectly genuine. (And when AIM raised the matter, our CNE source not only did not deny the authenticity of the document, but claimed it was quite appropriate to issue it).
Even if we accept that there is no problem with handwritten statutes, and that the late notification is in order, that leaves the question of the date of the PLD's registration. This seems truly insuperable. The PLD should have been registered before 1 June, and it wasn't.
What can be done at this late stage, half way through the election campaign, when the PLD has already received a state subsidy based on its recognition by the CNE? The obvious body to intervene and end the illegality is the Constitutional Council, which is the body that rules on electoral disputes. But the Council is an appeals body - and nobody complained to the Council about the CNE's acceptance of the PLD.
However, there is a precedent for the Council acting on its own initiative, without waiting to receive an appeal or a complaint. On 12 April 2007, the Council declared that an instruction from the National Civil Service Authority (ANFP), ordering all state institutions to sign off their official correspondence with the slogan "Decision taken, decision complied with", was illegal.
Nobody had asked the Council for an opinion on this issue. It saw the instruction from the ANFP, realized that the ANFP had exceeded its powers, and declared that the order was illegal. If the Council could intervene, on its own initiative, on such a relatively trivial matter as the slogans on official letters, then there seems no reason why it should not intervene to restore legality in electoral matters, even if it has not received a formal complaint from any of the competing parties.
MI wants to call in the Attorney General's Office to prosecute the CNE for its violation of the law. But this may have been an innocent mistake - something which the CNE, under enormous pressure on the final day of registration and the delivery of nominations, simply overlooked.
In which case, the best course for the CNE would be to admit its mistake, and, even at this late stage, bar the PLD from taking any further part in the campaign.
If it takes no action, the CNE will appear to have favoured one party, while insisting that others obey the law to the letter. It rejected the MDM's lists for nine of the 13 constituencies on the grounds that the party's nomination papers were not in order. That was the correct course of action to take.
But it should be equally strict towards all other parties. And at least the MDM registered with the Ministry of Justice on 5 May, over three weeks before the cut-off date, and not a month after it.
Source: Allafrica
Analysis
Mozambique's National Elections Commission (CNE), which is obliged to uphold the country's electoral legislation, appears to have violated it by allowing the previously unknown Party for Freedom and Development (PLD) to stand in ten of the 13 parliamentary constituencies.
The CNE clearly overlooked article 166 of the electoral law, which states that any political party may present candidates for parliament, as long it has been registered by the start of the period for presenting nomination papers.
The period for parties to present this paper work ran from 1 June to 29 July. But on 1 June the PLD had no legal existence at all. As the documents which the PLD itself has shown prove, it was only registered at the Ministry of Justice on 30 June.
It is true that the Electoral Law does not mention the Ministry of Justice - but it does not need to, since earlier legislation established that it is the Ministry which holds the register of recognised political parties.
When AIM mentioned this problem to a CNE source, he suggested that the registration referred to was really registration for standing in the elections, and that registration took place at the CNE.
It's an ingenious attempt to solve the problem, but it won't do. The CNE decided, reasonably enough, that registration and the deposit of nomination papers would run concurrently from 1 June to 29 July. So the PLD could not have registered with the CNE prior to 1 June, even if it had been in a position to do so - which it wasn't: registration at the Justice Ministry is a sine qua non for any party wishing to contest elections.
The first party to register with the CNE for the elections was not the PLD. It was the Ecology Party, in late June, followed by the main opposition party, Renamo, on 1 July. By then it is a fair bet that nobody on the CNE had even heard of the PLD. There is no doubt that by 1 June the PLD was not registered anywhere.
Other problems about the PLD have been mentioned, notably in articles published in the weekly paper "Magazine Independente" (MI). For instance, the party's statutes had not been published in the official gazette, the "Boletim da Republica" (BR), before the close of nominations.
The CNE, however, insists that this is not necessary. The law just states that the Party has to deliver its statutes to the CNE - not that these must first be published in the BR. So the version the CNE received was a transcript, neatly hand written by a functionary of the Justice Ministry. Other recently formed parties, including the Mozambique Democratic Movement (MDM), provided the same hand written version of their statutes.
MI also noted that the PLD received three notifications from the CNE to clean up irregularities in its list of candidates, and that the last one of these was received on 1 September, over a month after nominations had closed.
On that date the CNE told the PLD that three of its candidates had not yet delivered their criminal record certificates, and a fourth still required recognition by a notary of his signature on the letter accepting nomination.
The CNE insists that this late notification was not illegal. It concerned only what the law calls "procedural irregularities" which could be easily fixed. And since the PLD had five days to make the corrections, its lists of candidates would still be ready by the final date for publishing the definitive list, which was 5 September. However, when the lists were published they bore the date 28 August - four days before the final notification.
After MI claimed, rightly or wrongly, that the final notification was illegal, PLD leader Caetano Sabile told Mozambican Television (TVM) a week ago that he had never received such a notification. Yet MI says it was Sabile himself who had come to the paper's office and showed it the three notifications from the CNE!
The 1 September notification, signed by Sergio Zacarias, head of the office of CNE chairperson Joao Leopldo da Costa, certainly looked perfectly genuine. (And when AIM raised the matter, our CNE source not only did not deny the authenticity of the document, but claimed it was quite appropriate to issue it).
Even if we accept that there is no problem with handwritten statutes, and that the late notification is in order, that leaves the question of the date of the PLD's registration. This seems truly insuperable. The PLD should have been registered before 1 June, and it wasn't.
What can be done at this late stage, half way through the election campaign, when the PLD has already received a state subsidy based on its recognition by the CNE? The obvious body to intervene and end the illegality is the Constitutional Council, which is the body that rules on electoral disputes. But the Council is an appeals body - and nobody complained to the Council about the CNE's acceptance of the PLD.
However, there is a precedent for the Council acting on its own initiative, without waiting to receive an appeal or a complaint. On 12 April 2007, the Council declared that an instruction from the National Civil Service Authority (ANFP), ordering all state institutions to sign off their official correspondence with the slogan "Decision taken, decision complied with", was illegal.
Nobody had asked the Council for an opinion on this issue. It saw the instruction from the ANFP, realized that the ANFP had exceeded its powers, and declared that the order was illegal. If the Council could intervene, on its own initiative, on such a relatively trivial matter as the slogans on official letters, then there seems no reason why it should not intervene to restore legality in electoral matters, even if it has not received a formal complaint from any of the competing parties.
MI wants to call in the Attorney General's Office to prosecute the CNE for its violation of the law. But this may have been an innocent mistake - something which the CNE, under enormous pressure on the final day of registration and the delivery of nominations, simply overlooked.
In which case, the best course for the CNE would be to admit its mistake, and, even at this late stage, bar the PLD from taking any further part in the campaign.
If it takes no action, the CNE will appear to have favoured one party, while insisting that others obey the law to the letter. It rejected the MDM's lists for nine of the 13 constituencies on the grounds that the party's nomination papers were not in order. That was the correct course of action to take.
But it should be equally strict towards all other parties. And at least the MDM registered with the Ministry of Justice on 5 May, over three weeks before the cut-off date, and not a month after it.
Source: Allafrica
Mensagens
4 comentários:
Simplesmente triste. Parece-me estarmos a viver num país onde se realizam pela primeira vez as eleições.
Caro Egídio Vaz
Tudo isto constitui mais uma prova do que escreveste em 2007. Acho ser necessário analisarmos do porquê não contrariaram? Podias ter razão naquela, mas que o tempo que passou e a conjuntura podiam ter criar um boa margem às tuas persepectivas. Contudo, isso não foi.
Sou da opinião que não se deve fechar os olhos. Pode-se desenhar uma estratégia para se evitar o pior neste momento, mas há que se agir de forma que não pareca que os agentes das Comissões Eleitorais, incluindo os do Secretáriado Técnico da Administracão Eleitoral espalhados por todo o país, estão autorizados a fazer e desfazer nos próximos dias.
Como sempre disse e continuo dizendo: em Moçambique existe uma lei, que deveria de ser aplicada e cumprida por TODOS de forma igual, mas na realidade, a lei aplica-se de forma diferente para diferentes pessoas ou entidades, muitas vezes dependendo dos contactos ou apadrinhamentos que tenhamos.
Por outra, o MDM não concorrerá em 9 dos 13 círculos eleitorais, por irregularidades cometidas pela CNE e pelos próprios, conforme se tem vindo a afirmar... e cada um que leia conforme bem entender.
No entanto, a CNE fecha os olhos às irregularidades sanáveis ou insanáveis - aqui cada um lê conforme bem entender - do PLD.
Que conclusão se pode tirar daqui? Porquê o uso de critérios diferentes pela CNE?
Que são padrinhos do PLD ou que eles não são uma ameaça à Frelimo (patrões do CNE), mas o MDM é uma verdadeira ameaça, um tubarão prestes a atacar e a derrubar a Frelimo, portanto, um inimigo a abater a qualquer custo...
Cara Maria Helena
A minha preocupacão foi de interpelar aos que sempre gritaram em Estado de Direito. Eu provoca-lhes para me dizerem um dos princípios do Estado de Direito que é: Num Estado de Direito ninguém está acima da lei. Esse princípio se aplicou alguma vez em Mocambique? aplicou-se para o caso CNE, partidos excluidos vs incluidos?
Bom fim de semana!
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