Building vibrant and tolerant democracies
Recently, the Mozambican Parliament established a standing committee to review the country’s Constitution – initiating a process that represents a real opportunity to strengthen the democratic gains obtained in previous constitutional review processes, which led to the adoption of the 1990 Constitution and the 2004 Constitution.
We should be reminded that in 1975, when the first Constitution of Mozambique was enacted, there was no provision for a multiparty system. Multiparty politics is a product of the 1990 Constitution, which was negotiated among the political parties that were competing for power.
In 2004, the current Constitution was adopted and included provisions that substantively expanded the political debate around democracy and elections, as well as adding greater protection for citizens by incorporating detailed provisions covering their fundamental rights.
However, the 2004 Constitution still left huge gaps in relation to the protection of fundamental rights. For example, there are many restrictions on citizens’ access to the Constitutional Council, which is the judicial body responsible for dealing with matters involving constitutionally-protected rights. Only a limited number of people holding high public office – such as the President, the Attorney General, and the President of the Assembly of the Republic (Parliament) – have legal standing before the Council.
This current situation severely limits the extent to which the fundamental rights of citizens, particularly those rights protected under the Constitution, can be given practical effect. The situation is exacerbated by the fact that the people who have direct access to the Constitutional Council play critical and influential roles in both law-making and law-implementing processes.
Indeed, it is high time that the Constitutional provisions relating to the Constitutional Council were amended.
The Council is governed by Article 241 of the 2004 Constitution, which defines it as a sovereign public office with special jurisdiction to administer justice in legal matters of constitutional nature.
To begin with – it is unconceivable that the Constitutional Council was not included in the definition of bodies mandated to exercise a jurisdictional function under Article 223 of the Constitution since in practice it does exercise that function. And since the Constitution mandates it to ‘administer justice in matters of a constitutional nature’ – similar to the mandate given to other bodies that are established under Article 223 and that exercise jurisdictional functions.
Clearly there is no need to separate the Constitutional Council from other bodies exercising jurisdictional functions.
But much more importantly, the Constitutional Council should be elevated to a Constitutional Court as in other jurisdictions, such as South Africa, where a Constitutional Court is entrusted with powers to deal with constitutional matters. Current developments – and the complex nature of constitutional matters – in the country justify the presence of such a critical judicial body.
Finally, the review process should seek to extend standing to all citizens, particularly in matters concerning constitutionally-protected rights. This will enable the citizens to approach the court to test the constitutionality of actions by public and private entities, which affect the enjoyment of their legally protected rights.
So along with a new Constitution that contains even more safeguards to promote and protect fundamental rights, there needs to be a new Constitutional Court to ensure that they are guaranteed in practice.ShareThis