Mozambique Bar Association questions Constitutional Council’s authority in nullifying CAD

According to the OAM, the CC's ruling, similar to the National Election Commission's (CNE) Resolution 82/CNE/2024, dated July 17, which rejects CAD's closed plurinominal candidate lists for allegedly not meeting the legal requirements, is riddled with various flaws, including several inadmissible inconsistencies.

The OAM further questions the CC's authority to declare null the CNE Resolution No. 59/CNE/2024, dated May 9, which accepted CAD's registration for electoral purposes and was published in the Official Gazette. The OAM argues that the CC should have refrained from judging the flaws in Resolution No. 59/CNE/2024 and should have focused solely on the appeal lodged by CAD. According to the association, matters related to registration should be settled by the courts.

"Moreover, we must also question the CC's primary competence to declare null Resolution No. 59/CNE/2024, dated May 9, which accepted CAD's registration for electoral purposes. There is no legal norm granting the CC primary (exclusive) competence to assess appeals related to the legality of the constitution of political parties and their coalitions," the OAM states in its position on the ruling.

The OAM also vehemently challenges the alleged lack of annotation of the coalition upon its registration with the CNE, arguing that the Political Parties Law enshrines a semi-automatic system for acquiring the legal personality of coalitions (through the signing of the agreement), recognizing the mandatory legal formality of annotating the coalition with the Ministry of Justice, Constitutional and Religious Affairs. It notes that the deadline for this formality is not preclusive and can be done at any time.

"Decisions must consider all constitutive, modifying, or extinguishing facts of the right that arise after the process, to reflect the situation at the time of the decision's closure. In the case of Resolution No. 82/CNE/2024, dated July 17, the annotation had already been made on June 18, 2024," it reads.

"Once the subsequent annotation of the coalition is proven, there is a retroactive assumption of the acts practiced by it, as the irregularity was rectified," it adds.

The OAM argues that coalitions emerge from the agreement of the wills of the political parties that sign the respective agreements. "So, once the CAD agreement is proven, what would be the consequence of the lack of annotation of the coalition with the Ministry of Justice, Constitutional and Religious Affairs? Is this irregularity, if it exists, remediable or not?" the OAM questions.

The association also contends that the electoral process begins with the submission of candidacies, and their admission or rejection primarily depends on the registration of political parties or party coalitions. This implies that once CAD was registered and published in the Official Gazette, its participation in the electoral process was already established, and subsequent steps would be to analyze the lists.

"In this aspect, we also do not follow the highlighted ruling, as it deviates from the nature of the deliberation in question and the best interpretation of the law. It is not applicable to discuss the principle of the progressive acquisition of electoral acts," it reads.

In recent times, the CC's decisions have been questioned by various segments of Mozambican society due to the lack of legal support and reasoning.

Last year, the CC's rulings on the validation and proclamation of election results were publicly scrutinized for going against the will of society and legal precepts.