LEGAL ANALYSES OF DECISIONS LEADING TO OPPOSITION

C O N F I D E N T I A L SECTION 01 OF 02 MAPUTO 001170 SIPDIS E.O. 12958: DECL: 10/28/2019 TAGS: PGOV PREL KDEM MZ SUBJECT: LEGAL ANALYSES OF DECISIONS LEADING TO OPPOSITION EXCLUSION FROM ELECTIONS REF: A. MAPUTO 1089 ¶B. MAPUTO 1026 ¶C. MAPUTO 970 Classified By: A/DCM Matthew Roth, Reasons 1.4(b+d) ¶1. (C) SUMMARY: Both the Electoral Observatory (OE--a coalition of religious and civil organizations in Mozambique) and the Swiss Embassy in Maputo have produced carefully reasoned, in-depth, and sharply critical analyses of the National Electoral Commission (CNE) decision to exclude new opposition party Democratic Movement of Mozambique (MDM) from the October 28 national legislative elections. These two independent and thoughtful reports demonstrate how the CNE improperly excluded MDM and the other parties from taking part in the legislative election and strongly suggest the exclusion of the opposition parties was a deliberate maneuver by FRELIMO to deny opposition parties like MDM a foothold in national politics. END SUMMARY. -------------- ELECTORAL OBSERVATORY'S ANALYSIS -------------- ¶2. (C) The Electoral Observatory (OE),a civil society coalition which includes the Christian Council of Mozambique, the Muslim Council of Mozambique, the Catholic Church and others, delivered an amicus brief to the Constitutional Council after MDM appealed its exclusion from legislative elections to the CC. The brief, entitled "Legal Opinion About The Exclusion of Political Parties" which analyzed the CNE decision to exclude many of the opposition parties from the upcoming national elections in Mozambique (reftels A, B and C). The OE made several findings. First, it found that the CNE had "committed several irregularities and procedural defects", including failure to: comply with mandated deadlines for making public candidates' names, publish its own decisions, and notify the political parties' agents. It further found that the CNE had acted improperly by excluding parties' slates of legislative candidates. According to the OE analysis, the CNE is not constitutionally empowered to exclude entire political parties-- only individual candidates. Lastly, the OE concluded that CNE's rejection of candidates based on lack of residency certificates and criminal records was "constitutionally controversial". Although the OE was careful not to issue a formal pronouncement that CNE had violated the Constitution, its opinion set forth a legal framework and compelling arguments allowing for the CC to make such a finding. Instead, the CC unanimously affirmed the CNE decision. -------------- SWISS EMBASSY'S ANALYSIS -------------- ¶3. (C) The Swiss Embassy in Mozambique, with the help of its long-time Belgian employee who is widely-regarded as the most knowledgeable expatriate on electoral issues in Mozambique, also produced a report analyzing the CNE decision to exclude opposition parties from many legislative electoral districts. Its analysis, however, started with a review of the political maneuvering which preceded the decision and its subsequent affirmation by the CC. The Swiss report found that FRELIMO, as the majority party in the National Assembly (AR), managed to pass new election laws in 2009 that "severely increase(d) the bureaucratic requirements to submit candidates for national and provincial assemblies." In fact, FRELIMO passed three such new laws just prior to setting the date for the elections, thus making it more difficult for opposition parties to submit the complicated application forms in a timely manner. Next, the Swiss pointed out that CNE failed to verify, as required, whether the paperwork submitted for each candidate was complete at the time of submission. Lastly, the Swiss report, much like the OE's analysis, chronicled the many examples of deadlines and regulations the CNE failed to meet, especially as to making public its decisions. ¶4. (C) The Swiss report described fundamental flaws in the selection of the candidates, principally a lack of transparency and respect for the rule of law. First, the report found that there was "no transparent and predictable calendar" explaining what occurred between July 29 (the due date for parties to submit application packets) and September ¶5. The report further found a "lack of constitutionalism: administrative rules prevail over principles" in CNE's actions. In conclusion, the Swiss report blamed political bias and poor skills and staffing within the CNE for this MAPUTO 00001170 002 OF 002 result. It found that the CNE and CC decisions "affect(ed) negatively the freedom, fairness and transparency of the electoral process". It further determined that the CNE and CC decisions reflect a culture of one-party political dominance; Mozambique's decision-making bodies are highly politicized. FRELIMO political control over the judiciary and AR, as well as the ostensibly independent CNE, will "have immediate as well as lasting effects on the plurality and democratic character of the Mozambican politics and society". -------------- COMMENT: FRELIMO'S HANDIWORK -------------- ¶5. (C) The reports produced by the OE and the Swiss Embassy demonstrate how the CNE and CC improperly excluded MDM and the other parties from taking part in the October 28 national legislative election. The recent changes to Mozambique's election laws, the composition of the CC, and the prejudicial actions taken by the CNE all strongly suggest a deliberate strategy by FRELIMO to deny opposition parties like MDM a foothold in national politics, thereby assuring its continued dominance and rendering Mozambique effectively a one-party state. CHAPMAN