The Mozambican Bar Association (OAM) claims that the Constitutional Council (CC) acted outside its powers in deciding to exclude the Democratic Alliance Coalition (CAD) from the electoral race next October.

In a statement released yesterday, Wednesday (07), the order considers that the CC should have refrained from assessing and annulling the registration of the CAD for the legislative and provincial elections, because it does not fall within its competence or jurisdiction, reiterating that the registration of the coalition 15 days after that provided for in the law cannot justify its exclusion.

"The organs of sovereignty must provide themselves with competence in order to consolidate the democratic rule of law in the country," the group argues, stressing that the Constitutional Council's ruling to exclude CAD's candidacy for general elections contains several inconsistencies, starting with the rejection of closed multi-member lists.

"This specific situation (not meeting the legal requirements for submitting candidacies) does not constitute any of the situations listed in articles 179 (Definitive rejection of the list) and 180 (Verification of candidacies and publication of accepted and rejected lists) of the aforementioned law, and the CNE and the Constitutional Council (CC) themselves were wrong to speak of the rejection of candidacies as inapplicable, having therefore used terminology that is totally incongruous with the legal provision," reads the document.

Further on, the Mozambican lawyers state in the same note that the Constitutional Council has neither primary nor exclusive competence to declare the legality or otherwise of political parties and/or coalitions. In this sense, "since there is no legal rule that gives the CC the primary (exclusive) competence to hear appeals regarding the legality of the constitution of political parties and their coalitions, by the principle of typicality, as stated in articles 8(1) and 193(1), both of Law no. 2/2019, of 31 January 2019, the Constitutional Council does not have the primary (exclusive) competence to hear appeals regarding the legality of the constitution of political parties and their coalitions".º 2/2019, of May 31 and also by the residual criterion, in the sense that it is up to the judicial courts, as a rule, to judge all cases that are not assigned to another jurisdiction, the CC should not have declared null and void Deliberation no. 59/CNE/2024, of May 9, which accepts the registration of the CAD for electoral purposes. In other words, it should have refrained from ruling on the defects of that Decision (no. 59/CNE/2024, of May 9), for lack of jurisdiction on the grounds of hierarchy, the consequences of which are similar to the absolute incompetence of the court."

Nevertheless, the OAM believes that the Constitutional Council was exaggerating when it considered the failure to register the CAD within the 15-day period provided for in the law as an Absolute Invalidity Irregularity, because, in its opinion: "This period (15 days) is not preclusive and can always be made at any time. Once the coalition has been registered after the fifteen-day deadline, the issue of judicial personality is consolidated with the acquisition of legal personality, under the terms of article 5 (Concept and measure of judicial personality) of the Code of Civil Procedure (CPC)".

"The point here was to apply the rule of the material timeliness of the decision, under the terms of Article 663 (Attendance of supervening legal facts), paragraph 1, of the CPC.This means that decisions must take into account all the constitutive, modifying or extinguishing facts of the right that occur after the course of the proceedings, so as to correspond to the situation existing at the time of the decision, in the case of Resolution no. 82/CNE/2024, of July 17, since on that date the registration had already been made on June 18, 2024. Once the coalition's supervening registration has been proven, there is retroactive assumption of the acts carried out by the coalition, as the irregularity has been remedied. The invalidating irregularity in question was a relative one, which would only arise if the irregularity had not been sanctioned on the date of Deliberation no. 82/CNE/2024, of July 17, which is not the case, nor was it the case," he adds, warning that the democratic rule of law is not only consolidated with the independence of the sovereign powers, but also with competence.

(Photo DW)