Formal and Informal Legal Institutions in Mozambique

I’ve been reading the book “Law and Justice in a Multicultural Society: The Case of Mozambique. Interestingly I am only one degree of separation away from one of the authors of the book, former supreme court justice João Carlos Trinidade, through one of the student translators from our trip – Benedito.

I don’t know if it’s normal for 22-year-olds to enjoy reading this kind of book, probably not, but I am enjoying it. It’s helping to link some of the different topics in Mozambican development that we’ve covered in our class on Democracy in Mozambique.

Many systems of justice mix in this country to create a highly diverse legal scene. The first chapter of the book is, aptly, The Heterogeneous State and Legal Plurality.

Starting at the beginning of the revolution, Frelimo organizers wanted to stress the re-creating of justice in Mozambique. Participants of the Third Frelimo Congress on Justice expressed with “urgency…the ‘destruction of the existing judicial structure, as part of the destruction of the colonial-capitalist apparatus’” (Justiça Popular, 1980:3, as quoted in Law and Justice). This thinking was much embedded in the creation of Popular Courts, which were meant to create a new paradigm of justice in the country. Instead of exclusive, private Portuguese courts that only served Europeans and assimilados, Popular Courts would have local Frelimo party members serve as justices, and would draw on community participation to determine sentencing. At the time of independence Mozambique was grossly underprepared to meet the human resources requirements of staffing a new justice system. “Out of 75 existing positions, the number of magistrates appointed amounted to 25″ (Law and Justice, 34). This meant that the justices were by and large laymen – workers, party organizers, secretaries. Many were illiterate.

With the peace accords in 1992 and the transition to a market economy and multi-party state came about changes in the justice system. The executive, legislative and judicial systems, whereas before one in the same, became separate. A broad review of the courts decided to un-officialize Popular Courts and to create a clause for Community Courts, which, although unofficial, would still serve the needs of the community for minor disputes and act as a helpmate to the district courts. Unfortunately, the clause was never developed. Community Courts in Mozambique have nearly all same justices as their previous existence as Popular Courts. Community Courts are also still strongly affiliated with the Frelimo party, causing them to appear partial in many districts with Renamo supporters. This isn’t helped by the fact that many Community Courts meet in dynamizing group* space or party headquarters. (Law and Justice, 208)

Since the Community Courts aren’t official, they receive no funding from the Ministry of Justice. This is problematic given that District Courts are not present everywhere and are routinely inaccessible when available; Community Courts are the de facto body relied on by thousands of Mozambicans to resolve disputes. Especially in cases of domestic disputes, District Courts often refuse to hear complaints, and forward cases to Community Courts and Traditional Leaders (the other, largely unrecognized entities of the legal system). However, the Community Courts lack basic tools to conduct proceedings. There is no uniform provision of meeting places, no furniture, storage space for documents, no money for support staff (or even for judges), in some cases even paper and writing utensils are scarce. Judgments do not follow formal procedure, but rather take the form of community justice that typified the predecessor to Community Courts, the Popular Courts.

District and Provincial courts are accessible most often in developed, urban areas. This creates an obvious discrepancy in access to the Mozambican legal system, whereby rural citizens are precluded from taking their cases to official bodies. Yet, even if they did have access to the District Courts, and said courts didn’t send them running back to the unofficial courts, most rural patrons wouldn’t have representation by a lawyer.

Although all Mozambican citizens have legal representation de jure as enshrined in the constitution, lawyers are scarce in Mozambique, and mostly centered in the country’s capital, Maputo. Efforts have been made to increase legal consultation services through paralegals, but even paralegals are insufficient for the demand. Most legal services are contracted by urban middle-class elites. Apparently wealthy elites shy away from the legal system, preferring instead extra-legal negotiations. This is reportedly because of reservations concerning the legitimacy and consistency of the official courts.

Other topics of interest raised in the book were the judicial roles of traditional authorities vis-a-vis the state, and also data on NGO’s and other bodies working toward proportional legal representation in the country.

*grupos dinamizadores. These groups were used in the revolutionary period to provide technical and management expertise to new industries across the country.

Santos, Boaventura de Sousa, João Carlos Trindade, and Paula Maria G. Meneses. Law and Justice in a Multicultural Society : The Case of Mozambique. Dakar, Senegal, Matola, Mozambique, Coimbra, Portugal: Council for the Development of Social Science Research in Africa ;Centro de formação Jurídica e Judiciária; Centro de Estudos Sociais, Universidade de Coimbra, 2006.