CONSTITUTIONAL COUNCIL UPHOLDS EXCLUSION OF

C O N F I D E N T I A L SECTION 01 OF 02 MAPUTO 001066 SIPDIS E.O. 12958: DECL: 09/29/2019 TAGS: PREL PGOV MZ SUBJECT: CONSTITUTIONAL COUNCIL UPHOLDS EXCLUSION OF OPPOSITION PARTIES REF: A. MAPUTO 1058 ¶B. MAPUTO 1033 Classified By: Charge d'Affaires Matthew Roth for reasons 1.4 (b+d) ¶1. (C) SUMMARY: In a unanimous decision released late on September 28, Mozambique's Constitutional Council (CC) upheld a National Electoral Commission (CNE) determination to exclude many opposition legislative candidates from the October 28 elections. The CC decision came despite evidence of CNE missteps and efforts by centrist FRELIMO members arguing for a more inclusive approach. Now, only ruling party FRELIMO and traditional opposition party RENAMO will participate fully in the legislative elections. Representatives of other parties, including the Democratic Movement of Mozambique (MDM),have expressed strong disappointment with what they view as partisan politics by FRELIMO hardliners trumping transparency and diminishing participation in the upcoming elections. With the decision, FRELIMO can now garner a two-thirds "super-majority" in the National Assembly, allowing the ruling party to change the country's constitution at will. END SUMMARY. -------------- A LATE-NIGHT, SEMI-PUBLIC ANNOUNCEMENT -------------- ¶2. (C) At 10:30pm local time on September 28 (too late to be covered by evening television news and past the normal print media deadline--resulting in little in-depth coverage of the issue on the morning of September 29),a spokesperson for the Constitutional Council (CC) announced that the CC had upheld the National Electoral Commission's (CNE) September 7 decision to disqualify a large number of opposition legislative candidates. In a brief statement, the spokesperson told members of the press that the CC's unanimous decision would be presented to each party involved in sealed envelopes, and would not be made public. -------------- CC DECIDES AGAINST MDM ON PROCEDURAL GROUNDS -------------- ¶3. (C) On September 29, poloffs reviewed a copy of the 40-page CC decision against MDM legislative candidates. The CC decision denies the appeal of the September 7 CNE decision and declares null and void all/all MDM lists presented to the CNE for 9 of 13 constituencies (including the most populous Nampula and Zambezia provinces). The document states that the submissions made on July 29 by MDM for these constituencies 'did not follow procedure,' without giving any additional clarification. The opinion continues that the CC believes that CNE should have disqualified MDM from additional constituencies. The CC finding also validates the CNE decision to completely reject 7 parties, partially reject an additional 20 parties, and fully approve only two parties--FRELIMO and RENAMO--in the legislative elections. -------------- - LEGAL EXPERTS SAY COUNCIL IGNORED ELECTION LAW -------------- -- ¶4. (C) Local electoral law experts told poloffs on September 29 that the CC legal opinion appears to ignore requirements that the CNE failed to follow, specifically laws establishing a procedure in which the CNE must notify parties of documentary errors in their individual applications for candidacy and allow them to resolve the errors put forward a substitute candidate over a five-day timeline. According to these experts, if the letter of the law were followed, fewer legitimate candidates would have been rejected by the CNE, leading to a more inclusive electoral field. These perspectives track with straightforward legal arguments for inclusion developed by a leading FRELIMO legal scholar (ref A). -------------- PARTIES AND CIVIL SOCIETY REACT NEGATIVELY -------------- ¶5. (C) Immediately following the CC press conference, Venancio Mondlane, a board member of respected independent domestic observer group Elections Observatory (OE),pulled a banana from his jacket pocket, and told the press that Mozambique was beginning to resemble it--an allusion to banana republics. On September 29, poloffs spoke with MDM electoral official Barnabe Nkomo and MDM Spokesman Jose de Souza. Both officials said that the CC decision was MAPUTO 00001066 002 OF 002 "depressing" and "a shame," leading them to question Mozambique's democratic principles. De Souza described the unanimous CC decision as a deviation of the electoral process. In a conversation with poloffs the same day, RENAMO Director of External Affairs Ivone Soares raised concerns for democracy in Mozambique, questioning the right of the ruling party, and specifically President Guebuza, to make electoral decisions prior to the elections rather than the voters on election day. MDM leader Daviz Simango is expected to give a press conference early on September 30 to provide an official party reaction to the CC decision. -------------- -------------- COMMENT: OPPOSITION NEUTRALIZED, FRELIMO IN CONTROL -------------- -------------- ¶6. (C) Given the fairly clear legal arguments in support of opposition parties and strong statements of concern by the international community and civil society (ref B),it is notable that the CC decision was unanimous-- even the independent judge who has no public affiliation with either FRELIMO or RENAMO sided with the rest of the court--and so vehemently against the appeals to go as far as to declare that MDM should have been excluded from even more constituencies. Long-time observers of Mozambican politics have already publicly accused the CC of being completely controlled by FRELIMO hardliners and have criticized the non-transparent manner in which the decision was divulged. With MDM and other opposition parties now off the ballot in most parts of the country for the October 28 election and an increasingly disorganized RENAMO campaign, FRELIMO looks set to consolidate power with a two-thirds "super-majority" in the National Assembly, allowing the ruling party to change the country's constitution at will, and further limiting opposition participation in the country's democratic process. ROTH