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    20 April, 2009
Human Rights Bill ruled unconstitutional

The Constitutional Council, Mozambique's highest body on constitutional matters, has struck down as unconstitutional the bill passed in December by the Assembly of the Republic establishing a national human rights commission.

President Armando Guebuza declined to promulgate the bill into law, and sought the opinion of the Constitutional Council. This followed raucous scenes in the Assembly on 18 December, when deputies from Renamo claimed that the proposed commission would not be independent of the executive.

President Guebuza was not empowered to choose any of the commission members. But the bill did say he would appoint the chairperson and deputy chairperson of the commission after they had been elected by the other members. Renamo claimed this meant they would not be independent, and some deputies said this was unconstitutional.

The Council did indeed find the bill unconstitutional, but not on the grounds argued by Renamo. The key problem was that the bill had been clumsily drafted. It stated that the Chairperson and Deputy Chairperson of the commission "are elected by their peers and appointed by the President of the Republic".

But in law "election" and "appointment" are two different ways of choosing people for positions, and cannot be run together in this way. Doubtless what the drafters of the bill meant was merely that the Chairperson and Deputy Chairperson would be sworn into office by the President - but that is not what they wrote.

"It is not possible to appoint an office holder who, by law, was elected, and it is not possible to elect an office holder who, by law, was appointed", the Council ruling pointed out. "What is possible is for an office holder elected by one body to be sworn into office by another".

Furthermore, this was an "extra-constitutional power" that was being granted to the President. For while the Assembly can set up whatever new bodies it likes, the President's powers are more tightly limited by the Constitution. The Constitution lists which offices the President can appoint - such as ministers, deputy ministers, provincial governors, the governor of the Bank of Mozambique, and vice-chancellors of public universities. This list cannot be added to by means of an ordinary law, but only by a constitutional amendment, the Council argued. Thus the power to "appoint" the chairperson and deputy chairperson of the Human Rights Commission was unconstitutional.

But the question of the Commission's independence was not a constitutional matter at all, the Council argued. Since the Commission is not a body the existence of which is mandated by the Constitution, "the independence of the commission is that which is determined or attributed by the law. Greater or lesser, this is the independence that the legislators wanted. This means that the parameter is the law itself, and not the constitution".

From this, the Council concluded "we are not facing a problem of constitutionality, but mere of legislative policy, within the powers of the Assembly of the Republic".

So the Renamo argument falls - but the bill is still unconstitutional because of the clumsy use of the term "appoint".

The Assembly can deal with this by a slight re-write of the bill, making it clear that President's powers in this area are restricted to swearing the members of the Commission into office. But it is unlikely that there will be time to introduce this amended bill in this sitting of parliament, which is due to end in May, and will be the last sitting before this year's general elections.

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