7. What reforms for the judicial system? Mozambique has a plurality of systems of customary law and of the informal resolution of conflicts which govern a significant part of the population and which are presented as alternatives to the official judicial system.19 However, there is still no policy as to how this plurality may contribute to improving access to justice. Until the new Constitution of the Republic took effect20 the customary justice systems were treated as something marginal.
The bodies in charge of the Mozambican legal system have identified six main factors that limit the degree of access to justice and the control of legality21:
The defective functioning of the public legal aid system;
The lack of legislation that favours speedy and effective judicial procedures;
Laws that are not in line with Mozambican national reality;
The lack of a policy on judicial pluralism and alternative means of conflict resolution;
Ignorance or defective knowledge of the laws by citizens and even by institutions;
Deficit of a culture of law, and generalised corruption.
But for Mário Mangaze22, the most serious problem in the sector is the shortage of staff, in terms of both quality and quantity, to ensure the operation of the system of the administration of justice in Mozambique. According to Mangaze, in 1989, when the Supreme Court was set up (which since that date has been in charge of the judicial apparatus) the law courts throughout the entire country had less than 20 magistrates with law degrees. This shows that from then until now, on average only five magistrates with degrees have joined the bench per year – which is a very small number.
Because of the shortage of staff, up to 2003, judges recruited with law degrees were sent immediately to the provincial law courts – that is, a stage above the level of entering the profession, which should be the district courts23.
But, things are beginning to change, Mangaze adds, with the recent approval of a new, more attractive salary scale for magistrates. This year the number of candidates for the magistrature increased significantly, “which may help speed up the solutions needed, and invert the current picture”24
As regards the implementation of reforms, things are also beginning to change, and probably 2006 will see crucial changes in the functioning of the legal sector, since new criminal and civil procedural codes will take effect, changing dramatically the current slow and inquisitorial procedures of Mozambican justice, inherited from the days of fascism in Portugal.
According to Abdul Carimo25, Chairman of the Technical Legal Reform Unit (UTREL), “the current criminal procedural code is inquisitorial and accusatory at the same time. We shall eliminate its inquisitorial aspect, leaving only the accusatory, which will speed up cases enormously, since it will, for example, no longer be permitted to arrest someone in order to investigate. The procedure now should be that a person is charged immediately after he is arrested”.
In Abdul Carimo’s words, this reform will increase respect for human rights. It will end the secret phase of the proceedings, which is where the greatest abuses of human rights take place, and will reduce the number of prisoners in the jails.
Important bills are also being concluded on unifying the prison system, on public procurement, and on judicial pluralism, which will allow the regulation of alternative forms of justice, embracing, in addition to state law, customary law, and the right to arbitration and other forms of conflict resolution. This will establish a legal framework for the functioning of such bodies as community courts and arbitration tribunals.
The executive process will be simplified. “We shall do away with the time-wasting artifices in the current legislation, artifices which even cause difficulties for foreign investment”26.
However, in the opinion of some interviewees, it is not enough for new legislation to take effect for things to change in the sector. “The leadership of the judicial sector has not been renewed for 20 years. It’s a long time”, said one well-known jurist, for whom it is important that the reform of the legal sector should also lead to the reform and strengthening of the leadership of the sector.
But the question of the sector’s leadership only becomes a problem in the current public perception that the judicial system does not enjoy enough independence from the executive.
At several moments, the judicial system has been seen as very close to the executive and worse still, at times the judiciary acts as a mouthpiece for the executive, as happened during the speech by the President of the Supreme Court on 3 March 2003. He devoted more than half that speech to threats to withdraw and/or reduce the freedoms of the press since, in his view, the press was violating the rights of third parties and was thus “disturbing” public order and the social peace of citizens.
This speech came at a time when the press was insistently investigating the links between the son of the President of the Republic and the murder of the journalist Carlos Cardoso. In these investigations the press frequently asked why the Attorney-General’s Office did not order the detention of Nyimpine Chissano for a more persistent investigation, since the same body had detained others believed to have ordered the crime, also for investigation.
After this speech, some of the media, as it happens those most involved in investigating acts of corruption and the murder of Carlos Cardoso, became vulnerable to summonses from the Attorney-General’s Office to answer for sometimes insignificant matters of their normal work.
Furthermore, the fact that none of the various corruption cases involving ministers, and denounced by the media, have come to court is publicly perceived as a serious symptom of the judiciary’s lack of independence to try members of the executive.
During the 2004 election campaign, several opposition parties, particularly Renamo, submitted to the Attorney-General’s office argued complaints of acts of electoral violence of which they had been victims, and which were carried out by motorcades of the ruling party. All of these complaints were ignored.
During the same election campaign, several opposition members were illegally detained by the police when campaigning in Gaza province. The leaderships of the parties affected lodged complains with the attorney’s offices (locally and centrally) but nothing substantial was done to release them in time to continue their electoral activities.
More recently, on 4-5 September 2005, in the Mocímboa da Praia municipality, in Cabo Delgado, there was a peaceful demonstration by Renamo in protest against the results of the mayoral by-election of 21 May, won by the Frelimo candidate, Amadeu Pedro.
At the end of this demonstration, according to the local police, the Renamo demonstrators were ambushed by a group of Frelimo members armed with arrows and similar weapons. The ambush and the fight between the two groups resulted in eight deaths and several injuries. At the end of all this, the judicial authorities ordered the detention only of members of Renamo and none of the group of “ambushers” was detained. Currently, according to data from the civic organisations who have visited the municipality, about 20 Renamo members are detained in Mocímboa da Praia and Pemba, while several others have gone into hiding in the bush, fearing arrest.
In short, the Mozambican judiciary’s lack of independence from the executive, and particularly from the party of the executive, Frelimo, is still strong and visible. Besides, the majority of judges and prosecutors, with more than 15 years in the career, come from the time when, to join the magistrature, a person had to prove, through their red card, their membership of the Frelimo Party. Despite new people entering, this is still not fully resolved, particularly at the level of the system’s leadership.
8. Governance and the fight against corruption In Mozambique, corruption has been a priority theme for debate, both informally, and among decision-making institutions. It is an uncomfortable theme for some, but an interesting area of work for others.
About ten years ago, the Mozambican parliament threw out a government proposal to set up a High Authority Against Corruption. Parliament’s argument was that, instead of creating new bodies, it would be important to empower the existing ones, particularly the Attorney-General’s Office, the mandate of which already included the struggle against corruption and other illicit practices.
From then until now, a great deal of debate took place until, in mid-2002, the Anti-Corruption Unit was set up within the Attorney-General’s Office. The director of this unit, Isabel Rupia, proved to be a determined woman who took the fight against corruption seriously, opening several investigation files against people suspected of involvement in acts of corruption, above all in the public administration. It should be mentioned that, in three years of work, Isabel Rupia did not manage to bring a single corrupt person to trial, despite receiving in her institution over 200 well-argued denunciations, and despite sending several dozen of these cases to the courts, after investigation.
In 2004, through Law no. 6/2004, of 17 June, Parliament approved complementary mechanisms in the fight against corruption. Under this law, it set up the Central Anti-Corruption Office (GCCC), subordinate to the Attorney-General, who was given powers to appoint the director of the GCCC.
The anti-corruption law came into effect effectively in 2005, with the approval of Decree no. 22/2005, of 22 June, which regulates the scope of application of the law. One of the first measures of the Attorney-General was to remove Isabel Rupia from her post as head of the corruption portfolio, replacing her by Rafael Sebastião, up to then the Maputo City Chief Attorney, a man against whom weigh public accusations of obstructing the autonomous case opened in the Maputo attorney’s office against Nyimpine Chissano, in 2003.
Isabel Rupia leaves a difficult inheritance for Rafael Sebastião: dozens of burning cases that have begun but are not concluded, including the cases against the former Education Minister, Alcido Nguenha, accused of diverting Ministry scholarships for his relatives and friends; and of former Interior Minister, Almerino Manhenje, accused of diverting money and property from his ministry for personal purposes.
Some analysts say that the replacement of Isabel Rupia seeks precisely to halt investigations of this sort, and bring greater “tranquillity” to the Attorney-General’s Office where Rupia was creating a climate of “terror” for the corrupt and others interested in enriching themselves at the cost of the common good.
However, in public, the government is trying to show some commitment, albeit formal, in dealing with the phenomenon of corruption. Recently, it published a study on the matter, a study that was undertaken in 2004 and which was apparently not released to the public that year for fear that its conclusions might be damaging for the re-election of the Frelimo government.
One of the conclusions of this study indicates that corruption is a reality in almost all public institutions, constituting a real threat to socio-economic progress, and affecting the well-being of citizens. The study covered 2,447 households, 486 companies and 992 civil servants, in all the provinces.
Of the civil servants questioned, a large number - 61% - saw corruption in the government as “very serious” and 35% say that paying bribes is “common”. On the other hand, among the public at large, 34% see corruption as “very serious” in Government. Corruption in the private sector is also a problem, with 20% of the public, and 46% of the civil servants, regarding it as “very serious”.
As for institutions, the general public classified the police and the traffic police as the least honest public institutions in the country, and the media and religious organisation as the most honest. Half of the general public say they pay bribes and half say they don’t. In the companies, more than 60% admit that they sometimes pay bribes, particularly to customs officials and to the traffic police. The bribes can be large, with a significant proportion of them concerning contracts, reaching more than 25% of the value of the contract.
Also according to the government’s study, the dominant feeling among companies is that in reality there is no fight against corruption. Out of a series of statements about corruption and fighting against it, the one which secured overwhelming agreement (62%) was “a lot is said, but nothing is done”.
A further finding of the study is that those questioned regarded the institutions with the greatest responsibility for fighting corruption as the least efficient and effective27, and that some groups in society exert excessive influence over the State.
The deep question, however, remains the same: on what scale is the government’s political will to fight effectively against corruption?
The government replies that it has a great deal of political will, and that the study it has just published is now being transformed into a national strategy for the fight against corruption. This strategy will have several components, namely in increase in the wages of civil servants, improved training and a greater demand for professionalism, as well as clear and graduated sanctions against those who violate the norms of the public service.
But for most of the public, the political will of the Government must be seen in its courage to take legal action against senior members of the executive itself caught in the web of corruption. This is what has never happened, and this fact discredits the committed discourse of the executive about the struggle against corruption.
On the other hand there is the question about legislation and practice on conflicts of interest in Mozambique.
In 1990, for example, Law 4/9028, of 26 September, was passed, introducing new norms of conduct, duties and rights of high ranking state leaders. Later, in 1998 another law with the same objective covered the holders of government office. The two laws contained some fundamental rules for the exercise of transparency in a democratic society: the declaration of assets, and updating it annually (Mosse, 2004).
These laws deal with conflicts of interests at the highest levels of governance. The law forbids the involvement of high-ranking state officials in paid activities within their areas of responsibility; it also establishes the declaration of assets and sources of income.
However, since the law was passed, no Mozambican citizen has been able to know the nature and value of the assets of any member of the Mozambican government. According to a study by Hamilton (2002), cited by Mosse, the declarations are not public: the records are locked in a court strongbox, and not even journalists have access. The same study says the laws have bizarre aspects such as the following: the Prime Minister has to declare his/her assets only to the President of the Republic; other high-ranking officials declare to the Prime Minster. The conclusion of the study is that the law is ineffective in terms of providing clues and documenting corrupt activities. This also makes searches for evidence of corruption, and accountability difficult.
Also according to Mosse (2004), the preliminary perception to be drawn is that the legislators never had any intention of making this law more effective, by giving it greater transparency.
Furthermore, there are no rules of conflicts of interest that deal with any opportunism on the part of deputies of the Assembly of the Republic (AR).
A study by Ethics-Mozambique (2001) shows that deputies may, at the same time, own holdings in companies and vote for laws that benefit them. That is, the law does not regulate conflict of interests of parliamentarians in relation to the private sector: deputies can serve interests without restriction: there are no obstacles, no conditions on them occupying positions of confidence in private companies, including as directors.
The same study mentions that “this permissive attitude involves a considerable risk. A deputy can chair or be a member of a commission studying and drafting a law that may have an impact upon a company for which he is responsible: this will be even more serious if the deputy in question represents a company that, although Mozambican , is dominated by foreign capital”. Furthermore, the law possesses no mechanism to prevent deputies from lobbying to delay or prevent the approval of the law, or to ensure that it is drafted in such a way as not to harm the interests of their company. If the company for which the deputy is responsible is dominated by foreign capital, he may be serving foreign interests (Ética Moçambique, 2003).
The same study drew the conclusion that the regulation of conflicts of interests involving members of the Government is limited; it has no effect on the period after they leave the executive. This allows a member of the government to turn his period in office into a period where he is seeking a job or to firm up business for his time after leaving office. In fact, as the Ethics-Mozambique study notes, “the law does not stop a minister, after he has left ministerial office, from being employed in a project that he himself created. Or of becoming a shareholder or official in a company that he himself licensed or privatised.”
But it is thought that many of the anomalies currently pointed out in the operations of the State’s administrative machinery can only be correctly tackled through a more wide-ranging reform of the public sector.
In fact, about three years ago Mozambique began to implement a public sector reform which seeks to improve the functioning of the public administration, to provide better services to citizens, to combat red tape through simplifying administrative procedures, to improve the level of training of civil servants, and to introduce more transparent administrative practices based on accountability to the public.
Three years after the public sector reform began implementation, people continue to complain that the Mozambican public administration is as inefficient as ever; there is still a great deal of red tape; staff hostility towards the public is still the same, the technical and professional training of the staff remains low and defective; the fight against nepotism and corruption remains a promise to be carried out; transparency and accountability among the various hierarchies of the public administration are still practices that are absent from the normal operations of the Mozambican state.
So after three years of reform of the public sector, there are still no encouraging visible signs that this reform will change the face of the public administration in the country. In short, the country is still served by a bureaucratic public administration when it had hope, through the public sector reform, to be served by a managerial one, that is a public administration oriented towards the efficient, timely and rational satisfaction of the citizen’s needs.
It seems that what is missing is to pass from the phase of diagnosing the situation, which has been widely done through numerous studies and consultancies, to the phase of the effective cure of the ills detected in the studies. This implies a certain dose of political courage, since in some cases the reform must mean sacking several hundred staff who are useless, but are happily accommodated within the system.
9. HIV/AIDS: a serious threat to the country’s future The spread of HIV/AIDS in Mozambique is becoming a serious threat to the country’s future, with infection rates rapidly rising, year after year, despite all the work, over about 20 years, to disseminate information about the problem.
The last HIV epidemiological surveillance round, held in 2004 at 36 sentinel sites throughout the country, showed an HIV prevalence rate of 16.2% among Mozambicans aged between 15 and 49 years. Mozambique has a population of 18.96 million inhabitants (Census of 2003). In absolute numbers, it is estimated that in 2004 the country had about 1.4 million people infected with HIV/AIDS.
The province most affected is Sofala, with an HIV prevalence of 26.5% and the least affected is Cabo Delgado, with 8.6%.
According to the statistics, in 2004, without the impact of HIV/AIDS, average life expectancy would have been 46.4 years, but, because of AIDS, it fell to 38 years. That same year, about 100,000 Mozambicans, including 20,000 children, died of AIDS. It is estimated that by 2010 about 10,000 teachers, 9,000 policemen and 6,000 health workers will die of this disease. The high mortality resulting from HIV/AIDS has so far orphaned about 270,000 children under the age of 17.
In Mozambique, anti-retroviral treatment began in 2002, on a small scale due to the high cost of the drugs. There are currently 31 day-hospitals (health units where anti-retroviral treatment is undertaken).
Quite apart from its meagre hospital infra-structures, Mozambique does not have sufficient economic capacity to confront the problem of HIV/AIDS, and nor has it succeeded in designing a wide-ranging strategy to prevent the spread of the pandemic.
Over several years, various messages used in education on HIV/AIDS prevention have proved ineffective, and have been unable to avoid the rapid spread of the problem.
Several international cooperation partners are supporting the National Council for the Fight Against AIDS (CNCS) in designing and implementing a more wide-ranging strategy that may contribute to reducing the degree of transmission of HIV infection.
10. Mozambique as a donor success story 13 years ago, Mozambique was a chaotic country; there were military attacks on all sides, there was political instability, inflation was out of control, the economy was stagnant, the population was displaced, fleeing from military actions. About 3 million Mozambicans were refugees in neighbouring countries, there were more than 200,000 children directly or indirectly affected by the war. In short, the country’s situation offered no hope to anyone.
But 13 years later the situation is totally different: the war is over, the refugees have returned to the country, the socio-economic reintegration of the former soldiers was a success, and the country successfully held three general parliamentary and presidential elections, and two municipal elections.
A democratic parliament was created and institutionalised, space was created for exercising the freedoms of expression, of the press, of religion, of association and of movement.
The country adhered to the general principles of economic, social and political pluralism, opened up to foreign investment, and is taking measures to improve the general economic environment.
The Mozambican government claims that, when the donors compare Mozambique to other African countries, it always comes out better as regards:
1. Economic governance
Financial discipline reflected in applying a careful monetary policy;
Compliance with international recipes on macro-economic management.
2. Political governance
Maintenance of peace;
Regular holding of democratic elections;
Reforms of the public sector and decentralization of administrative procedures;
Respect for human rights;
Freedom of expression, of the press and of association;
Commitment to the struggle against corruption;
Permanent openness of the Government for dialogue with other stakeholders;
Reforms of the judicial sector to implement the rule of law.
These are indeed the main “banners” that the country shows to the donors from whom it receives the necessary support to carry on implementing domestic programmes. But there are many citizens who think that the government works more to please the donors than to solve real internal problems.
For example, each “banner” above has economic and social consequences, which are sometimes very tough on Mozambican citizens. It is asked, for example, whether keeping inflation below ten per cent is realistic in an economy vulnerable to price volatility due to the cyclical increase of oil prices internationally. That is, since the prices of the main consumer goods in Mozambique are changing almost constantly, how can one explain that the central bank continues to present single digit inflation? Does this not result from repressing some indicator in order to continue to please the donors?
This question was recently raised at an economic conference in Maputo and obtained an obvious response: no economic indicator is being repressed, there is good macro-economic management, good management of all the economic ingredients that contribute to stable inflation
As for political governance, there is some criticism of the role of the donor community in “tolerating” anomalous electoral behaviour, that is, in agreeing to continue financing elections, even if these do not meet recommended standards of transparency and democracy.
There are also some regular public criticisms, according to which the donors also tolerate corruption – that is, that part of the corruption comes with the donors.
At the time of the specific interview, there was no confirmation of these allegations. It was said that they appear because people expect more visible donor involvement in the fight against corruption. For example, when it is proved that donor money was diverted, no more money should be channelled until those responsible for the sector in question are punished by the relevant national bodies.
In an economy that is basically sustained by the donors, one can understand the flexible attitude of the Mozambican government in adapting to the demands and recommendations of the international community, which in the opinion of some government members brings the added value of training Mozambican staff to international levels of managing public affairs.
The challenge, as one member of the executive said, is for us to appropriate good practices of managing public affairs in such a way that this stops looking like something donors want, and becomes something normal that all good Mozambicans want for their country.
But the question that remains is: what is the true weight of the donors in Mozambique? Does the country need more foreign funding? Are the coordination mechanisms between the Mozambican government and the donors the most appropriate ones?
As one member of parliament said, if we want it in percentage terms, the weight of the donors is about 55%, that is, the donors still have strong influence on “public economic and financial health” in Mozambique, since the internal capacity for producing and generating resources makes it unadvisable to dispense with the donors over the next ten/fifteen years. Indeed, Mozambique greatly needs external funding to modernise its economy and to build basic infrastructures that are indispensable for national development.
The country does not yet have enough bridges, the countryside has still to be electrified, 40% of the 128 districts do not have electricity from the national grid (they are supplied with power from obsolete diesel-fired generators), 40% of the district capitals in Mozambique do not have buildings where the local courts can operate, the country does not have a rail system linking the South to the North, or to the Centre and vice-versa. National Highway Number 1 itself is not yet fully a national highway: huge stretches are still missing to connect the country from south to north, under conditions that make it viable to move produce and for people and goods to circulate.
The national health network covers slightly more than 35% of the population. The overwhelming majority has no regular access to modern health care, and resorts to traditional medicine, which is often practiced under doubtful hygiene conditions which may create more health problems than they solve.
The agriculture practiced in Mozambique still needs heavy external investment to transform it into commercially profitable agriculture.
It is thus evident that the donors will still play a very important role in Mozambique’ development in the coming period (10-15 years). This period will be decisive for the definitive take-off of this Indian Ocean country towards real development.
For many years, what was most criticised was the apparent lack of coordination between the government’s agenda and the agenda of the donors. This increased public perception that the donors imposed their agenda on the government.
But as from the establishment, in 2004, of the PAP (Partnership Aid Programme), which brings together 17 donors29 (G-17), both the government and the donors say they have found an ideal platform for dialogue and coordination of ideas and actions in the process of the development of Mozambique, and specifically in the context of the strategy for reducing absolute poverty. Through this platform, the donors listen to and discuss the priorities and needs of the Government and agree with the Government the forms of joint work to tackle these priorities and needs.
Although the main purpose of the G-17 is direct support to the budget and the balance of payments, its scale has a great impact on generally building up the country’s capacity for the struggle against absolute poverty and for the general reorganisation of the state via sector reforms in state financial administration, in public administration and in the transformation of the judiciary.
The PAP, with a volume of aid in excess of 240 million dollars in 2004, is one of the largest joint programmes in Africa, both in terms of the amount, and the number of donor agencies involved. It is regarded by both sides as a model to be replicated of dialogue, coordination and joint work between partners striving for common goals.