Dhlakama-Nyusi deal to appoint mayors faces Constitutional hurdle

Mozambique elections - 13 - Constitutional problems to end elected mayors - role for small parties

Questions are being raised about the decentralization deal announced 7 February by President Filipe Nyusi, because it would end direct election of mayors. Nyusi and Renamo head Afonso Dhlakama agreed that provinces, districts and municipalities would all have the same structure, with a directly elected assembly. The party or coalition which received a majority of votes in the provincial election would then select the senior figure - governor, district administrator, and mayor - who would be formally named by central government. This person must be an elected member of the assembly.

The choice would be made by the political parties, not by the assembly itself, which means that governors, district administrators and mayors would be selected nationally, not locally.

These senior figures would have authority over devolved matters, as the municipal mayor does now. Central government would also name a second senior figure - a secretary of state at provincial level - who would be responsible for matters which remain the responsibility of central government. Thus at provincial level there would be two people of equal status - a governor for devolved matters and a secretary of state for matters under the control of central government.

Thus provinces and districts would follow the model already in operation in the 53 municipalities, with the important difference that currently the mayor is directly elected, and would in future be appointed. This change would be made this year, so only municipal assemblies and not the mayor would be elected in November.

Nyusi in his statement said that this requires a constitutional amendment which can be approved by parliament. Lawyers, however, contest this. They point out that the constitution says that "the executive body of the municipality shall be headed by a President [mayor] elected by universal, direct, equal, secret, personal and periodic suffrage by registered voters residing in the respective territorial constituency." (art 275) It also says that any amendments which affect "universal, direct, secret, personal, equal and periodic suffrage in the designation of the elective holders of the organs of sovereignty, of the provinces and of local government" must be subject to a referendum. (art 292)

Thus it would seem that taking away the popular vote for the mayor cannot be changed by parliament, but must go to a referendum. Mozambique has never had such a national referendum, which would require new legislation. In practice the referendum would have to take place at the same time as the October 2018 national election - after the scheduled election of mayors in October this year.

A further problem is that the constitution (art 136) states that a referendum is valid only if more than half of voters actually vote. But the turnouts in the 2014, 2019, and 2014 national elections were all below 50%.

In a statement published in O Pais (on line) Friday, Dhlakama said that a referendum was not required because his agreement with Nyusi overrides the constitution. He said: "I do not see the force majeure for a referendum. It was a negotiation between the government and the opposition, in this case Renamo. The lawyers are right as jurists, but they have no reason to talk about a referendum, it has nothing to do with this."

In 2018 Local Elections – 13 Mozambique Political Process Bulletin 11 February 2018