January 3, 2008

Anti-corruption forum abolished

Mozambique's fight against corruption has suffered a setback with the abolition of the Anti-Corruption Forum, on grounds that the presidential decree establishing the Forum in March 2007 was unconstitutional. The call to abolish the Forum came from Renamo, whose parliamentary deputies requested a ruling on the Forum from the Constitutional Council, the body that has the final word in matters of constitutional law. When the Council approached President Armando Guebuza to ask him to defend the decree creating the Forum, he reacted by revoking the decree.
In a letter dated 27 December, Prime Minister Luisa Diogo, who chaired the Forum, told its other members that the body had been abolished. She explained that Guebuza had revoked the decree in light of a previous Constitutional Council ruling of 6 November, which declared the creation of the Legality and Justice Coordinating Council (CCLJ) unconstitutional.
Since the Forum was set up in exactly the same way as the CCLJ, Guebuza had good reason to fear that the council would declare that it too was unconstitutional. He therefore prevented such a declaration by revoking the March decree. With this pre-emptive move, there is nothing for the Council to consider.
In both decrees, Guebuza was using his power under 146 of the Constitution to "strive for the correct functioning of state bodies". However, in its ruling on the CCLJ, the Constitutional Council argued that the power of the President expressed in this article is too general to cover the creation of an entirely new body, consisting of senior figures drawn from the executive and the judiciary. Elsewhere in the Constitution, the President is given a series of powers, which the Council believed provided the detailed fleshing out of Article 146 - and it could not see any way to fit the CCLJ into those powers. It was not enough to argue that the President has "implicit powers" to set up such bodies - for such implicit powers, the Council argued, must flow from explicit powers. And, although the Constitution grants a large number of explicit powers to the President, none of them covered the decree on the CCLJ.
A second, related argument was that the CCLJ violated the constitutionally enshrined separation of powers. Figures from the executive and the judiciary were yoked together, and the council objected to "institutionalising a relationship between bodies which, by constitutional imperative, are independent and autonomous". This was particularly evident in a clause in the decree which made the President of the Supreme Court chairperson of the CCLJ and the Minister of Justice the deputy chairperson. In this case, the executive, far from being separate from the judiciary, was made subordinate to it. Exactly the same formal arguments could be raised against the Anti-Corruption Forum - namely that Guebuza's powers under Article 146 of the constitution do not cover the creation of an entirely new body, and that its composition, with the Prime Minister as chairperson, and the Attorney-General as deputy chair, violates the separation of powers.
Nonetheless, when one looks at the tasks of the Anti-Corruption Forum it becomes clear that the abolition is also a serious blow against transparent governance. The Forum was a consultative body of 78 members (including parliamentarians, religious leaders, representatives of business, trade unions, NGOs and the 11 provincial anti-corruption forums) intended to promote debate on matters of good governance and the fight against corruption. It was also charged with monitoring implementation of the government's anti-corruption strategy, and giving opinions on the successes achieved and the obstacles faced. It was also entitled to draft proposals aimed at making the anti-corruption fight more effective. The Forum was - unlike most state bodies - completely open to the press. (Agencia de Informacao de Mocambique, Maputo)

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