Constitutional Council Rejects MDM Maputo Appeal

The Constitutional Council, Mozambique's highest body in matters of constitutional and electoral law, has unanimously rejected an appeal from the Mozambique Democratic Movement (MDM) calling for the 20 November municipal elections in the Maputo urban district of Kamabukwana to be annulled.

The MDM appeal mentioned in particular the detention of its polling station monitors in several polling stations, violating the immunity of the monitors guaranteed under the electoral law.

However, the densely argued ruling from the Council, dated 14 January, but only posted to the Council website over the weekend, did not deal with the substance of the MDM complaints, but threw the appeal out on the grounds that that there was no prior appeal against the Maputo result to the National Elections Commission (CNE).

The Constitutional Council works as a final court of appeal.

All protests against election irregularities must rise through the system, and only after they have been rejected by the CNE, is an appeal to the Council feasible.

The initial protests from the MDM Maputo City election agent, Ernesto Sitefane, were addressed to the Maputo City Elections Commission and were dated 23 November - they were thus within the deadline for protests at this level.

The allegation contained in Sitefane's protest was extremely serious. He said that, on 22 November, he went to the offices of the Electoral Administration Technical Secretariat (STAE) in the urban municipal district of Katembe, where he surprised the local STAE director forging new polling station minutes.

Sitefane said he found the director meeting in her office with the chairpersons of the polling stations and drawing up new minutes.

This clearly violates a basic provision in the Mozambican electoral law that all polling station minutes and results sheets should be written at the polling stations. There are severe penalties for tampering with election documents.

The second protest from Sitefane is much vaguer, and simply claims that the city election bodies ordered the detention of MDM monitors “in almost all the polling stations”, which meant that the MDM was unable to inspect the count at the polling stations. But this brief document gives no details, not even the number of MDM monitors arrested.

The City Elections Commission rejected Sitefane's protests as improper - and the MDM then failed to make an immediate appeal to a higher body. The next document, dated 5 December, lists a number of irregularities that supposedly took place during the elections, but by then it was far too late.

This document, also addressed to the City Commission, states that a polling station monitor named Joao Custodio was detained in Katembe “on groundless allegations that he was creating instability, simply because he asked the polling station staff not to allow the entry of people without credentials (members of the Katembe municipal administration)”.

If this happened, Custodio was quite right to protest, since the law clearly states who is entitled to stay in the polling stations, and that list does not include members of the district administration. Custodio's protest earned him three days in a police cell, the MDM says, after which he was released without charge.

The MDM lists three other named polling station monitors accused of using false credentials. The MDM denies this, saying that the credentials were all issued by STAE.

In a polling site in the KaMavota urban district, the local administrator, Estrelinha Ndove, allegedly threw MDM monitors out because they had not registered as voters at the same polling stations. This displayed a woeful ignorance of the law, which states clearly that parties can appoint monitors to work at polling stations oter than the ones where they registered.

The MDM claims that the detention and expulsion of its monitors paved the way for ballot box stuffing in favour of the ruling Frelimo Party. As evidence of this it included a video.

This is presumably the same video which circulated widely on the Internet, in late November, in which an alleged member of the polling station staff claims that he falsified results sheets in favour of Frelimo. He claimed that the MDM had won at his polling station, but the staff wrote phoney numbers on the results sheet, giving victory to Frelimo.

The video does not give the man's name, or the number of the polling station, and the man's face is obscured, which makes it difficult to check whether the claim is real or a hoax.

Serious though the claims in the 5 December document are, the fact that they were submitted days past the deadline made it easy for the elections commissions to ignore them.

All protests to election bodies must be made first at the place where the alleged irregularity occurred - the principle knows as “prior challenge”. The Council noted that the CNE invoked this principle to argue that the MDM's appeal should be thrown out.

Mounting a “prior challenge”, however, is impossible if the polling station monitors have been detained. But if they were merely thrown out of the stations, as the MDM says occurred in some cases, then a protest should immediately have been made to the district or city elections commission.

When the MDM appealed to the Constitutional Council, it chose to call for annulment of the elections in Kamabukwana district - and did not mention the more substantial claims about Katembe and Kamavota districts made in the earlier protests to the City Commission.

But what really condemned the MDM's appeal to failure was the simple fact that the Council can only consider appeals against decisions by the CNE. And the only CNE decision mentioned in the MDM appeal (no. 70/CNE/2013) does not reject any MDM appeal regarding the Maputo City election.

It lists MDM protests about several other municipalities, which the CNE decided upon (rejecting all of them), but does not so much as mention Maputo. From this the Constitutional Council deduced that the MDM did not appeal from the Maputo City Elections Commission up to the CNE. And if there was no appeal to the CNE, then there can be no appeal to the Council.

In other words, the MDM failed to defend its own interests, with the result that a string of serious allegations have not been investigated.

Fonte: Allafrica - 21.01.2014