The full bulletin in pdf is on https://bit.ly/Moz-El-293
Chaotic electoral law changes may actually reduce fraud
Changes to the electoral law Friday (13 September) and 23 August, and to criminal court procedures also on 23 August, seem confusing and technical. But they will improve access for journalists and observers, and make it more likely that major violations of electoral laws will be prosecuted. Together they may reduce the more common frauds.
The changes give more access to journalists and observers, and a totally improper secret change to the law has been reversed. But all have occurred at the last minute, in the last three weeks. And the manual for polling station staff contains an entirely illegal instruction. Furthermore, there are two laws governing the elections, one covering the election of President and parliament (15/2024), and the other covering provincial elections (14/2024). But all three elections take place at the same time in the same place. and the changes to the two laws were different, creating confusion.
Polling station staff start at 6am and continue until the count in finished, often in the early morning. It was broadly agreed that there should be a break at 18h after the voting and before the counting. But the 7 August manual for polling station staff (MMVs) allows the polling station president (presiding officer) to create a break of at least an hour, and with no limit, creating space for manipulation and fraud. (p 35, https://bit.ly/Moz-El-MMV. 21Mb) The 23 August amended laws are almost the opposite, with a break of no more than an hour. The unlimited break had never been discussed, and there is no explanation of how it appeared in the manual.
The change to allow a one hour interval also states that there can be no further break until the entire process is finished. This includes posting a results sheet (edital) on the polling station door and giving official copies of the editais to party delegates, observers, and journalists.
In municipal elections last year polling station returning officers (presidents), in places where Frelimo was losing, delayed and suspended the completion of the count, so that they could change the results when no one was there to watch. In some places editais were never posted or distributed. The law change should prevent this, but the MMV manual would encourage it.
An entirely secret change was to restrict observers and journalists at the district count. The 23 August publication of the revised laws contain lists of changes, followed by the complete amended law. In the full revised law for president and parliament (15/2024), observers and journalists lost their right to obtain an official copy of the edital, but this was not included in the list of changes. However, the provincial assembly law (14/2024) was not changed, meaning observers had to the right to a copy of one of the three editais, but not the other two. This was noticed, and on Friday (13 September) in Boletim de República a “correction” (recificação) was published withdrawing this secret change to law (15/2024).
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Short time, confusion and dubious actions
But the whole chaos raises questions. How was it possible for someone to alter law 15/2024 in secret in ways the restrict observers and make it harder to spot fraud. And how was it possible to put something in the MMV manual that had never been discussed and opened the way for fraud?
The tale of the chaos starts with parliament in April approving a set of changes to the electoral laws including some to limit fraud. On the last possible day, 30 May, President Filipe Nyusi vetoed the bill. Even though the constitution requires an explanation for the veto, none was given. But it appears due to the battle between the Constitutional Council (CC) and the Supreme Court (TS) over who could order recounts; the approved law allowed the district court to order a recount, which the CC opposed. Yet a recount is sensible because it is local and, of itself, it does not change the result.
The parliament session was nearly over, so government and parliament in secret negotiated a set of changes, published 23 August, nearly three months after the veto and only 6 weeks before the election. But they turned out to include changes parliament apparently did not agree.
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Positive changes
The set of last minute changes to the law may have been chaotic, but taken together they may help to reduce fraud.
In the district count many irregularities have taken place, including secret sessions for the tabulations and changing results. The revised laws force the district election commission to post the location and time to the district count, so that observers, party delegates, and opposition members of the district election commission are not excluded. The law says the entire district tabulation process is open, which prevents discussions and decisions by STAE and the CDE in secret. Finally, the attempt to stop giving copies of editais to observers was thwarted. Together, this will make district fraud much harder.
At the polling station, allowing an hour break for staff after sealing the ballot boxes is good, and will make the staff more alert during the long count. And the change calling for the break says explicitly that the count cannot stop until it is finished and the edital is posted, and observers and journalists have their copy, allowing them to challenge later changes.
The attempt by the MMV manual writers to create an indefinite pause has surely been counteracted by the new law. But conflicts can be expected in polling stations were presidents cite their manual, and party delegates and observers cite the law.
There remain many chances of fraud during the count, which will only be caught if observers and party delegates remain alert and watch. As they fall asleep after midnight, frauds will still occur.
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Servant of two masters, but more chance of prosecutions
District tribunals have two bosses and are under divided control. On election matters, the Constitutional Court (CC) set the rules and decides appeals, and on criminal matters the Supreme Court (TS) sets the rules and decides appeals. Clarifications were issued by Adelimo Manuel Muchange, president of the Supreme Court (Tribunal Supremo), also on 23 August, which set new guidelines. If an electoral misconduct is also a crime, the district court must both judge its electoral implications under the CC and it must also immediately report it to the attorney general for investigation. Changes to electoral court procedures should lead to more prosecutions of electoral crimes and more trials in criminal courts. It appears to give more space for challenges. This may make electoral staff less likely to participate in frauds.
Again, it requires a follow up by observers and party delegates. At district court, the party delegates and others who submit complaints must check, after a day, to ask if reports of possible crimes really have been sent to the Ministério Público.
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The electoral court system
To speed up electoral challenges an electoral court system was established two decades ago, and changed several times.
Issues are first decided by district courts, with the Constitutional Council (CC) serving also as the highest electoral court. District courts resolve irregularities and matters of interpretation (contencioso eleitoral), such as if a polling station head’s decision was correct in law. Appeals go directly to the CC. But the district courts are also the first stop for claims of electoral crimes (ilícitos) and many irregularities may be crimes. District courts must rule within 48 hours.
Thus the district court serves two masters on electoral issues. This worked until earlier this year when the CC and TS began a fierce fight for control. Presidents of both the CC and TS were recently reappointed for another term by President Filipe Nyusi.
In the process, many crimes were not charged as the stress is on what impacts the the electoral outcome. So Muchange has ruled that every complaint made to the district court must immediately have a summary sent to the Public Prosecutors Office (Ministério Público, MP), who must rule if the complaints meets the requirements to be accepted. If there is a possible crime involved, it is then given a special electoral crime number. Both must be done in haste to allow a district court decision within 48 hours.
Muchanga’s intervention is useful and should lead to more electoral crimes being prosecuted and also ensure more consistency in actions by district courts that are not well trained.
The Ministério Público (MP), which is not a ministry, despite its name, is an independent public prosecutor and attorney general. It has been largely marginalised with respect to electoral crimes, and Muchanga’s ruling brings it back in. For example, in municipal elections last year, a Maputo City district court found it proven that a district STAE had forged editais, but there was no prosecution. The new procedure should mean such evidence of crime is followed up.
Muchanga’s statement also includes a clarification which may help those making protests by giving them more time. Muchanga states that “the deadline for lodging an appeal is 48 hours from
from the posting of the notice publishing the election results”, which is much more than two days after the event being protested.
