A The Creation of Higher Courts of Appeal and Commercial Sections in Provincial Judicial Courts

The most recent constitutional revision in 2004, as with the preceding reforms in 1990, brought important changes to the justice area, bringing renewed hope of a qualitative leap in its operation. We believe one should highlight the recognition of legal pluralism as an undeniable sociological reality; the redefinition of the categories of courts existing in Mozambique, including community courts, which would now be formally endowed with constitutional dignity; the opening of a space for rethinking the hierarchy of the courts and jurisdictional specialisation; the introduction, finally, of new management and disciplinary bodies for the judiciary – the Superior Council of the Judiciary of the Public Prosecutor’s Office and the Superior Council of the Administrative Judiciary.

However, the new Judicial Organization Law (Law No. 24/2007, of 20 August)Footnote ⁸ fell very short of expectations. The slow and uncoordinated way in which its implementation happened shows, once again, some signs of lack of strategic sense in the management of the public policies of justice. It is enough to mention, for example, that, with the law having set a deadline of one year after publication for the higher courts of appeal to come into operation, these only began being set up in 2011, under extremely precarious conditions, and it was only in 2015 that they began operating at full capacity in three regions in the country.

The higher courts of appeal saw their response capacity constrained because they were suddenly being expected to deal with the overwhelming majority of the cases pending in the Supreme Court, thus becoming congested from the outset.Footnote ⁹ And as the changes to procedural law and the management and internal organisation of the courts were also unable to break down the existing barriers, it cannot be said that there were any substantial improvements, either in terms of speed or in the quality of the service provided.

If we look at Table 9.1, which compares the statistical data for the proceedings recorded in 2012 and 2013 (the first two years of operation of the higher courts of appeal) and the two most recent legal years (2018 and 2019), we see that, generally speaking, there is a constantly increasing trend in the number of cases handled. With regard to the higher courts of appeal, it was only in 2019 that a slight reduction happened. Even so, it remains significant that, after only seven years of operation, pending cases in these courts stand at around 5,000.

As to the commercial sections of provincial courts, they usually deal with enforcement procedures for consumer debts but, even so, they still face a progressive increase in pending cases. Around twenty years ago, the study undertaken by the partnership between the CEA-UEM, the CFJJ, and the CES had reached essentially identical conclusions (Santos et al. Reference Santos and Trindade2003, vol. I: 397). This is an indication that the more complex disputes could be settled by extrajudicial means (national and international arbitration, mediation, etc.) and that the confidence of investors in the quality of state justice remains very low.

A careful and attentive analysis of the information collected by the Doing Business programme by the World Bank (2019: 66) makes it possible to conclude, with no great surprise, that despite the extremely important role it plays in the actual volume of legal cases and the human and material resources available to deal with them (quantitative data), it is the good or bad management and organisation practices and the quality of the work done by its agents (qualitative data) that the performance of the justice system depends on, whether in the commercial jurisdiction or in other jurisdictions.

B The Introduction of New Alternative Means for the Resolution of Commercial and Labour Disputes

The transformations that took place in the country following the adoption of the market economy model and the intensification of international trade relationships in the late 1980s and early 1990s justified the approval of the first Law of Arbitration, Conciliation, and Mediation (Law No. 11/99, of 8 July), aimed at allowing legal subjects to use these different means and methods for conflict resolution, before, or as an alternative to, taking the case to court.

The law grants the freedom to set up and administer institutions for arbitration, conciliation, and mediation, as long as their articles of association provide for: (a) the representative nature of the institution responsible for the centre to be set up and (b) the reason for the constitution of the specialised centre of arbitration, conciliation, and mediation (Article 69).

Two centres of arbitration stand out in the national panorama, set up to intervene in two different areas of conflict: the Centre of Arbitration, Conciliation and Mediation (CACM) of the Confederation of Economic Associations of Mozambique (CTA), set up in 2002, and the Commission for Labour Mediation and Arbitration (COMAL), an institution under public law under the authority of the minister responsible for the labour area, in operation since 2011.Footnote ¹⁰

In addition, the bodies operating in the area of legal and judicial assistance, such as the Institute for Legal Representation and Assistance (IPAJ), the Institute for Access to Justice (IAJ) of the Mozambican Bar Association, and the Centre for Legal Practices (CPJ) of the law faculty at Eduardo Mondlane University, have been carrying out, in practice, dispute resolution work using mediation and conciliation techniques, but on a much smaller scale and without very significant results because the actual agents of these institutions recognise that they are not duly qualified or equipped for using such techniques (Fernando et al. Reference Fernando, José, Soares and Gomes2019: 72).

This is a factor that must not be neglected, as any initiatives for reducing judicial involvement that are not accompanied with the required assurances of quality and professional work run the risk of leading to the institutionalisation of justice of a lower quality for the economically and socially more vulnerable sectors and, what is worse, the ‘enshrining of factual situations of repressive conciliation’ (Fernando et al. Reference Fernando, José, Soares and Gomes2019: 73).

C The Fight against Corruption, the Public Prosecutor, and the Current SERNIC

The process of moving from a centrally planned to a free market economy, with the consequent process of privatisation of public companies and financial participation by the state, price liberalisation, monetary contraction, drastic cuts in social expenditure, and making labour relations more flexible, as well as other measures, paved the way to the progressive spread of the phenomenon of corruption in Mozambique.Footnote ¹¹

To deal with the problem, while at the same time promoting the transparency and integrity of the public sector, which is essential for achieving political, economic, and social stability and the reinforcement of legal security and certainty, the Anti-Corruption Unit was set up in 2002, under one of the specialised departments in the Office of the Attorney General. However, it was short-lived, as a result of not having foreseen an independent judicial-legal framework that would allow it to carry out its duties adequately. And so, following the restructuring measures from the Public Prosecutor’s Office, determined by the constitutional revision in 2004, the GCCC – Central Office for Fighting Corruption (Law No. 6/2004, of 17 June) was set up, under the auspices of the Attorney General and with specific powers under the scope of criminal investigation and preparatory investigation of the crimes of corruption and unlawful economic participation.Footnote ¹²

In its 2019 Corruption Perceptions Index,Footnote ¹³ the Transparency International organisation gave Mozambique 26 points, putting the country in 126th place (in 2018 it had been given 23 points and was in 158th place) on a list of 180 countries. According to the Public Integrity Centre (CIP) – an NGO set up in 2005 with the aim of contributing to the promotion of transparency and integrity in Mozambique – the fact that the GCCC had taken significant steps in the criminal proceedings related to ‘hidden debts’Footnote ¹⁴ and, consequently, was able to make various arrests of the people accused in the case, decisively contributed to this improvement in results. In addition, there was also a positive change in the political anti-corruption discourse, given the fact that the President of the Republic is apparently placing the problem of corruption at the top of his governance agenda (CIP 2020: 1).

But more must be done. The CIP has called attention to the fact that these arrests were neither accompanied by the recovery of the assets unlawfully diverted nor by the approval of a criminal policy to make the fight against this phenomenon more effective. This is recognised by the Attorney General herself as one of its weak points (Buchili Reference Buchili2020).

An essential instrument for supporting the investigation work and criminal prosecution by the Public Prosecutor’s Office is its excellent auxiliary body, the criminal police, which was known in Mozambique for many years as the Criminal Investigation Police (PIC). The main judicial players – courts, Public Prosecutor’s Office, Bar Association, IPAJ – and the civil society organisations interested in the prevention and repression of criminal groups – the CIP, human rights and women’s human rights organisations, etc. – have been calling for sweeping reforms of the PIC that would return the institution to the ‘dignity and grandeur of the Criminal Police’ (Correia Reference Correia2014: 86).

For a long time, one of the most hotly debated issues on this topic was the institutional inclusion and the internal organisation of the PIC. Some believed that:

In a text published in 2012, which analysed the implementation of the Strategic Policing Plan, Francisco Alar says that:

In 2017, with the approval of Law No. 2/2017, of 9 January, and in what seems to have been a political compromise solution, the PIC ended up being discontinued and gave way to a new structure, the SERNIC. Criminal investigation went from being a branch of the PRM to being a ‘public service of paramilitary nature, an auxiliary of the administration of justice, endowed with administrative, technical and tactical autonomy, without prejudice to the authority of the Minister responsible for the area of public order, security and tranquillity, in matters that do not affect its autonomy’ (Article 3 of Law No. 2/2017). It remained functionally subordinate to the Public Prosecutor’s Office (Point 4 of the same law), as had been the case, but did not advance towards organic integration.

The main constraints to the operation of SERNIC in its three years of existence, despite the removal of criminal investigation as a branch integrated into the General Command of the PRM, were, and all indications point to these continuing, the lack of financial autonomy, the shortage of staff with the necessary qualifications, and the insufficiency of resources and instruments for adequately carrying out the duties they are responsible for.

D The Widening of Access to Law and to Justice: Institutionalisation of Structures for the Administration of Justice and Legal and Judicial Assistance and Extension of the Network of Judicial Courts

If any doubts remained about the coexistence of different regulatory and conflict resolution systems in Mozambican society, they were dissipated by the constitutional recognition of legal pluralism. Therefore, any analysis of the administration of justice in Mozambique must take into account the two axes or dimensions it is divided into: state, including the courts, the Public Prosecutor’s Office, the Bar Association, the IPAJ and other institutions in the judiciary, and non-state, involving community courts and other local dispute resolution tribunals.Footnote ¹⁶

The development of state justice has had its ups and downs, on a winding road. In the year when the 45th anniversary of national independence (or, if preferred, the 42nd anniversary of the first Judicial Organization Law) was celebrated, it remained far from enjoying the confidence of society and achieving the level of performance that citizens and legal entities demand. Its coverage remains deficient, and the quality of the service provided is far from satisfactory for those who resort to it.

In the last opening session of the legal year, the President of the Supreme Court did not refrain from admitting that ‘we still have twenty-four districts in our country without courts operating locally, which means the citizens have to go to other nearby districts in order to resolve their disputes’ (Muchanga Reference Muchanga2020). For our part, we continue to argue that the problem is not the coverage of twenty-four districts that still do not have courts. More important is rethinking the legal map, providing more rational coverage of the country, taking into account the real needs of legal and judicial authority, the size of the population, the nature of the disputes and their degree of complexity, and not working from abstract criteria on the political and administrative organisation of the country. A careful study could lead to the conclusion that there are districts whose level of economic and social development, population density, infrastructures in place, etc., would justify the existence of more than one court with the powers due to the district courts in their geographic area, while others would only need a more organised and better distributed network of non-state or community tribunals.

The intense efforts that are being made by the managing bodies of other institutions in the judiciary in the task of concluding the slow process of physical establishment of the courts and support structures in the field are neither being ignored, nor are those of the entities charged with training the judges, court officials, and system managers. We know that there are now 157 courts, of different levels, operating all over the country and that the ratio of courts to 100,000 inhabitants has improved slightly, going from 1.1 in 2014 to 1.3 in 2019. The average time taken for dispute resolution fell from 17 months in 2014 to 12 months in 2019, and the resolution rate, which was 37.6 per cent in 2014, was always higher than 45 per cent in the following four years.Footnote ¹⁷ But these figures cannot hide the fact that there is still a lot to be done and consolidated so that the universal principles of the rule of law may be achieved.Footnote ¹⁸

As to the provision of legal consultancy and assistance services, this is the responsibility of two bodies: the Mozambican Bar Association (OAM), constituted by Law No. 7/94, of 14 September, as a legal person under public law, representing the people holding law degrees and practising law, independent of the state bodies, having administrative, financial, and patrimonial autonomy and the Institute for Legal Representation and Assistance (IPAJ), set up by Law No. 6/94, of 13 September, as a state institute aimed at ensuring the right to defence, providing lower income citizens with the legal representation, and assistance they need.

Since it was set up in 1994, the OAM has grown exponentially. Ten years later, more precisely on 20 May 2005, 246 lawyers were registered with the bar association, with 226 of them having offices in Maputo, 9 in Beira, 6 in Nampula, 2 in Tete, 1 in Chimoio, 1 in Matola and 1 in Quelimane (OAM 2005). In late February 2020, the database on the Bar Association’s webpage (www.oam.org.mz/advogados-inscritos/) had 1,856 lawyers, with around 73 per cent practising in Maputo. Despite the rapid growth in the list of lawyers practising in the provinces (Sofala, Nampula, and Tete have the highest figures), over recent years, one of the greatest challenges to the Bar Association has been to offer private legal services at district level, as well as in less populous urban centres.

The IPAJ in turn went through an initial period with enormous operating difficulties, whose main causes were the absence of political priority, poor management, and budget insufficiency (Santos et al. Reference Santos and Trindade2003, vol. II: 56). In 2007, when a survey was carried out on the IPAJ, this institute had 80 legal assistants and 400 other staff. It also had ten provincial offices and fifty-seven district offices (Bila Reference Bila2008). The following year, the approval and establishment of the Strategic Plan for Legal Defence for Disadvantaged Citizens (PEDLCC) was decisive for the institution to be able to grow and consolidate itself, promoting organisational and institutional development and improving the efficiency and effectiveness of legal assistance and representation (Lauris and Araújo Reference Lauris and Araújo2015: 94).

A new organic statute was adopted in 2013,Footnote ¹⁹ with the aim of making the operational structure adequate to the new conditions that had since been provided. However, the challenge of reaching the more disfavoured populations, mainly in the regions far from large urban centres, will require continued efforts towards institutional growth and consolidation.

But access to justice is not only through state mechanisms or institutions. In recent years, particularly since the early 1990s, some civil society organisations have assumed increasing importance in access to justice and the law, seeking to make up for the difficulties faced by the state. These are organisations that provide different kinds of support to citizens, in particular legal assistance and representation, legal information and advice, and conflict resolution. They have a wide field of intervention. Some are general in scope, while others specialise in certain rights or in providing support to more vulnerable citizens, or work in particularly problematic areas, such as cases of human rights, women’s human rights, access to land and other natural resources.

With regard to community courts, it is worth mentioning that within the many non-judicial mechanisms for dispute resolution that interact in Mozambican society, they are the ones that appear to be best placed to promote local justice and contribute to desirable links between state and non-state systems and for the administration of justice. They are different from all the others, fundamentally because they emanate from the actual state, through a formal regulatory act – Law No. 4/92, of 6 May – which was enacted to allow citizens to resolve minor disputes within the community, contribute to the harmonisation of different legal practices and to enriching the rules, habits, and customs that ‘lead to a creative synthesis of Mozambican law’ (see the Preamble to this act).

As it happens, although this law has been in force for thirty years, it has never been implemented through the necessary regulations. And there was no shortage of alerts from different sectors of society as to the risk of this lack of regulation and the unfeasibility of the application of the law without it. There is a set of related organisational issues, for example, with the procedure for electing the members of community courts (Article 9(2) and Article 13), with the establishment of these courts (Article 12) or the forwarding of the ‘appeals’ left unresolved to the district courts (Article 4). The incomprehensible legislative inertia of the government served, after all, as a pretext for the generalisation of the illegal practice of substituting elections for member (judge) co-option processes, with the involvement of agents of local authorities (heads of administrative posts, neighbourhood secretaries, village presidents, etc.), without the direct intervention of voters – the people.

We see this situation as highly problematic, with no explanation other than serving for the purpose of ensuring party political control of the community structures. This is controversial (and, from our point of view, unconstitutional), as is the current framework of the community courts under the authority of the Ministry of Justice, Constitutional, and Religious Affairs. This is so mainly because the Constitution of 2004 included them in the list of type of courts in the Republic of Mozambique (Article 223(2)), with all the guarantees of independence, impartiality, and objectivity these sovereign bodies should enjoy. It is unclear what legal basis the Civil Registry services use to organise and manage the establishment of the community courts when this responsibility is assigned to the district courts (Article 14 of Law No. 4/92).

These serious deviations from the spirit and the letter of the law, to which we could add disrespect for other regulations, such as articles 10 (on the mandate of the members of the community courts), 11 (on the payment of the members), and 12 (on the establishment of these bodies), contribute largely to their becoming discredited in the eyes of citizens and to the crisis of legitimacy that has taken over the system (Trindade and José Reference Trindade and José2017: 31).

A Shared Strategic Vision

In the first place, the effectiveness, speed, and accessibility of justice can only be sustainable if the different entities in the sector share a systemic, integrated vision that permanently links the formal, professional judiciary, and the different non-judicial mechanisms for conflict resolution recognised by the State, under Article 4 of the Constitution. For this to happen, it will be necessary to pursue ‘the committed quest for solutions so that justice in Mozambique will be predictable and accessible to all, administered within an economically and socially tolerable time and with standards that are more aligned with the collective conceptions of justice that are prominent in our society’ (Correia Reference Correia2014: 108).

As we have seen, there were successive attempts at judicial reform over the last thirty years. The worldwide reformist movement arrived in Mozambique through programmes and initiatives almost always focused on searching for solutions to solve the unfathomable problems of celerity and procedural simplification, providing the organisations with more human, material, and infrastructure resources and introducing alternative dispute resolution methods.

Nowadays, there seems to be some tacit recognition that the results did not live up to expectations. The complexity of litigation, the scarcity of resources, and the absence of this strategic vision superseded the greater or lesser desire for change, whether genuine or feigned.

Accordingly, it is necessary to definitively break this cycle; it is necessary to go beyond ‘more of the same’ measures (more courts, more judges, more resources …) and look at the judicial system from another perspective.

Structural reform will only introduce greater efficiency, effectiveness, and quality in the administration of justice if it is looked at as a complex, integral system. The focus will have to be aimed at a gradual, but persistent, change in work methods, better, more streamlined management of human and material resources and processes and better coordination between all the participants in the system. This can only be achieved if, with every change that has to be made, we look at the various constituent components, as the system is distributed among different state bodies and the community and requires the definition of common medium- and long-term objectives.

As stated by Gomes (Reference Gomes, Rodrigues, Garoupa, Magalhães, Gomes and Fonseca2018: 746), ‘it is fundamental to lend substance to the idea that legal proceedings take place in a very broad, polycentric framework, with both internal judicial players (judicial magistrates and magistrates from the Public Prosecutor’s Office, employees) and external players (police, social workers, experts, etc.) playing a part in them. Some of the time taken in court, indeed a significant amount in some proceedings, is the time of these latter professionals’.

B Consensus between Relevant Players

This shared vision assumes the agreement to a broad consensus between the different state powers, the police forces, the judiciary, and society in general so that justice is understood as a public good of primary importance, the discussion and formulation of which should be above all the differences and private or corporate interests of each one.

This is a fundamental agreement that, in some cases, has been called a Regime Pact (Santos Reference Santos2005: 77; Figueiredo Reference Figueiredo2017) and, in others, a State Pact (Representatives of the PP and PSOE-Spain 2007) and which, bearing in mind the scope and scale of the reform, will necessarily imply a specific revision of the constitution. This will have to be a constitutional revision broadly recognised as necessary, one that is patiently refined and not imposed by any de facto power for the benefit of private and conjunctural interests.

C Central Role of the Judiciary in the Different Stages of Reform

The success of reform can only be attained if the participants from all the bodies, entities, or institutions in the justice administration system play a central role as active agents of change, as they are the main vehicle for conveying knowledge between the judicial reality and the common citizen (Garoupa Reference Garoupa2008: 2). The commitment of these agents and the setting aside of a period of adaptation to the reform measures, accompanied by targeted training courses are of prime importance and should not be neglected (Gomes Reference Gomes, Rodrigues, Garoupa, Magalhães, Gomes and Fonseca2018: 747). One of the weaknesses pointed to in the case of the reform initiatives so far undertaken is, precisely, the lack of preparation of the conditions necessary for their later implementation, both in terms of training and in terms of technical and financial resources.

These weaknesses will make it difficult to break resistance, alter routines and change obsolete methods of work.

D The Independence of the Judiciary as a Fundamental Right

Contemporary legal systems are broadly grouped around two fundamental models of organisation of the judiciary: the legal profession model seen in countries with an Anglo-Saxon tradition (common law)Footnote ²³ and the judicial career seen in countries with a tradition of European continental law (Romano-Germanic family).Footnote ²⁴

Despite their differences, the conceptual framework regarding the independence of the judiciary, according to Carvalho (Reference Carvalho2016: 16), makes a distinction between substantial independence, personal independence, external independence, and internal independence. Substantial independence refers to the circumstance of judges, when acting in their judicial role, being subject only to the law and their conscience, free from any and all outside influence. Personal independence means the judges cannot be held accountable for their judgements and decisions, except in the cases where this is especially provided for by law, and they enjoy the assurance of their irremovability from office. External independence means the removal of executive control from the system management mechanisms and the preparation of their budgetary assumptions. Finally, internal independence assures judges of their freedom to directly or indirectly disregard pressure from other judges when making their judgements.

This conceptual framework helps to understand that only a judicial power with a high capacity for operation, free of excessive formalities, and endowed with functional autonomy from the other powers can meet the demands for greater efficiency, independence, impartiality, speed, and proximity that are required of them. Therefore, the right to have independent courts is also a fundamental human right, which should not be looked at as a privilege of judges, but rather as an assurance for society and a primary condition for citizens, organisations, and companies to be able to trust the judicial system, the law, and the state.

E Paradigm Shift in Legislative Production

Legislative production in Mozambique is also in need of substantial improvements. As is the case in other latitudes, whose model has served as an inspiration, and in the words of Garoupa (Reference Garoupa2008: 3), Mozambican legislators have shown themselves to be frenetic (legislating everything even when it is not necessary), schizophrenic (legislating erratically) and sloppy (legislating and repealing without regulating).

This impulse to legislate is followed without first assessing the existence of other legislation already in force and which might only need to be amended or have its application improved. Or without pondering another solution that does not include adding to the normative or regulatory burden.

Those who have the power to create regulations should, first of all, analyse the legislative framework in force and see if there are other solutions for achieving the desired aims, respecting the different phases of the legislative process. Charles-Albert Morand proposes that this process should be in seven stages: (i) identifying the problem; (ii) determining the aims; (iii) choosing the options; (iv) ex ante assessment; (v) adopting the legislation; (vi) implementation; and (vii) ex post assessment (Morand Reference Morand1999).

The quality of the laws made depends on various factors and it is very true that there are no perfect laws. However, it is possible to improve the legislative process, provided those procedures and methodologies, which will certainly contribute to making the laws more comprehensive, less difficult to interpret and apply, more effective and suitable to the reality they are intended to regulate. Of these methodologies, ex ante and ex post assessment studies of the legislative impact and the participation of citizens, legal persons, and companies at the law preparation stage and in access to the elements that are the grounds for the political decision take on special importance. As stated by Sónia Rodrigues, ‘if easy access to the law that regulates their daily lives is crucial for citizens, simplification and the reduction of context costs is vital for the economic competitiveness of companies’ (Rodrigues Reference Rodrigues2017: 1038).

A step that we deem to be indispensable for assuring this methodological development includes the creation of a Law Reform Commission, not like the old Inter-Ministerial Law Reform Commission (CIREL),Footnote ²⁵ but rather according to the model for the South African Law Reform Commission. It is presided over by a judge and is made up of law professors, magistrates, and lawyers with the power to carry out studies and research into all the branches of law, or have these carried out. These studies aim at presenting recommendations and projects for the improvement, modernisation, or reform of national and provincial legislation, including the repeal of obsolete or unnecessary provisions, the standardisation of laws all over the country, the consolidation or codification of any branch of the law and measures aimed at making the laws more readily available to the public. In short, the Law Reform Commission is an advisory body whose aim is the reform and the continued improvement of the legislation in South Africa.Footnote ²⁶

F The Judicial Government: Fundaments and Management

In an interesting publication that discusses what should be understood by judicial government, Alberto Binder, a law professor at the University of Buenos Aires, argues that it is necessary to clearly differentiate the judiciary from other state powers, as well as from the different duties and tasks existing within judicial organisations, which are more or less diverse according to the country (Binder Reference Binder2006: 12).

In his opinion, the true fundament that sustains the idea of judicial government is the need to preserve the independence of each one of the judges, taken individually. All the other reasons that might be invoked, such as assuring efficient management of the resources allocated, monitoring activity programmes, preparing budget proposals, planning campaigns, being answerable to society, etc., can only indirectly or tangentially justify the call for a judicial government. On the other hand, the implementation of the judicial government, like any other political institution, cannot be done in a vacuum, but rather under the scope of the historical setting of the specific judicial systems.

Therefore, Binder considers that any judicial government should be radically separated from the Supreme Courts, given that there is no reason for a judge from the higher courts to have the prerogative of acting and making decisions on behalf of the other members of the judiciary. In a judiciary with a democratic government, the president of the judiciary, apart from being completely separate from the President of the Supreme Court, should be an elected official. Each magistrate (irrespective of their seniority or the court they serve in, as these qualities do not give them special qualifications for administration or government) should have one vote and elect the president of the judiciary for a certain period of time. To those who raise the spectre of internal politicisation of the judiciary, he replies that this is not necessarily negative because, although politicisation is impossible to avoid, it is not harmful in itself,Footnote ²⁷ it does exist, and it is better for it to be transparent and accountable. A democratically elected president of the judiciary has more power, legitimacy, room for manoeuvre, and a greater ability to defend the independence of the judges than any other person taking up the position merely because it is part of the job.

In short, the author proposes the following configuration of the judiciary:

1. a) A president of the judiciary without a judicial role, elected by all the judges, with no qualified votes and without excluding any judge, for a mandate lasting from four to five years, not coinciding with general elections (presidential, parliamentary, or local authority elections);

2. b) A set of technical offices under the president, responsible for ordinary administration, planning, budget management, the internal disciplinary regime, the development of the information system, the management of human resources and infrastructures, etc., with sufficient scope to combine greater legitimacy with greater efficiency and feasibility;

3. c) A supervisory and monitoring body, also elected for the same mandate, of collegial composition, with the responsibility for approving accounts and managing and assessing complaints, in other words intervening in ex post situations. This monitoring board should consist of a certain number of judges (percentages can be established per areas, courts, etc., but never by categories), according to the characteristics of the judicial system. In this context, the President of the Supreme Court will continue to be first among equals in the highest court of the land, but will no longer be the representative of the judiciary, unless democratically elected as the President of the Superior Council of the Judiciary, on the same footing and with the same opportunities as any other judge.

In general, we agree with this proposal. From what we have found in the literature and in judicial practices around the world, there is, to our knowledge, no more democratic configuration model that has better assurances of safeguarding the independence of the judiciary. The absence of an important mechanism can be mentioned, which is external control of the judiciary, but there too, this issue can be circumvented, allowing for some members of the monitoring board to be individuals outside of the judiciary, with a certain number of requirements and elected separately, while always maintaining a majority of judges on the judicial government bodies.

We are aware that in a country where the idea of centralisation and a tight hold on political power is widely predominant, it will not be easy to put a project like this into practice. But the idea is there, as our aim is to find innovative ways to ensure effective and sustainable judicial independence.

G A Democratic Judicial Culture

The conceptual underpinning on which this chapter draws refers to the aim of scrutinising the roads that could lead to positive institutional change, in other words, the way the institutions could contribute to growth and an improvement in economic and social results.

We have attempted to show that changes in the Justice area will only be possible with structural reform based on a systemic vision, shared and coordinated by the entire judiciary. But it is important to be aware that reform – any reform – cannot resolve the problems found if it is not based on a judicial and organisation culture that is open and receptive to innovation. A system where the main players resist change is doomed to isolate itself and protect itself from opinions and criticisms aimed at it from outside.

Around twenty years ago, the Research Project on the Plurality of Justice in Mozambique concluded that Mozambican courts ‘are dominated by a regulatory, technical and bureaucratic culture, based on three main ideas: the autonomy of the law – an idea that the law is an autonomous phenomenon in relation to society; a restrictive view of what that law is or which proceedings the law applies to; and a bureaucratic or administrative view of the cases’ (Trindade and Pedroso Reference Trindade, Pedroso, Sousa Santos and Trindade2003: 64–65). Despite some developments since then, resulting from the initial and continuous training programmes set up by the Centre for Judicial and Legal Training, this kind of technical and bureaucratic culture still persists in many judges and others working in the system and it is seen in different and varied ways. One of these, perhaps the one with the most perverse effects, is confusing independence with self-sufficient individuality and, consequently, being extremely averse to teamwork, resisting the introduction of management by objectives in court, rejecting interdisciplinary cooperation and fuelling an idea of exclusivity that is not willing to learn and benefit from other abilities and areas of knowledge.

It is vital to oppose this idea through a democratic, political, and judicial culture that uses justice as a strategy. Justice must be at the service of social cohesion and democratic development. The complexity of the new duties will require a long learning process. The sociology of law has shown that, as new social relationships are given legal status – and this phenomenon is increasingly present in society – the gloss on the legal view of these relationships will get thinner and thinner and be released from dogmatic rigidity. Therefore, it is important to search in other areas – economics, psychology, anthropology, political science, etc. – for analytical tools that will help understand the reality, and this is part of the democratic culture.

H Reinforcement of Training for Judicial Agents: Judges, Court Officials and Other Employees

In the context of the new democratic judicial culture, training can neither continue to have the same general profile, nor can it remain shackled to old, obsolete teaching methods. It needs to be differentiated. There is an increasing need for people engaging in activities in the courts requiring specialized skills to have specific training, with specific access conditions and specific examinations – this is the case of the criminal and supervisory courts, as well as administrative, maritime, commercial, arbitration and tax courts. Specialisation must then be accompanied by closer monitoring of the quality of the training process throughout all its phases.

Universities, which are where jurists, future agents of justice, are trained and graduate, will have to include this reality and undergo more or less in-depth transformations. Transformations of a political nature, which will make them look at law as a social phenomenon and the broadening and defence of human rights, as well as the transparency of democratic life, as the main objectives. Transformations of a sociological nature, which will allow knowledge of society as a constituent part of the law (ubi societas ibi jus) to be broadened. Practical transformations that will lead to their modernisation, so that part of the course programme – normally the last year or the last two years of degree courses – may be devoted to practical work, in the form of ‘legal clinics’ or similar initiatives, where the students are given the opportunity to experience and learn about social problems first hand. Then, these are transformations to the actual course structure and teaching and learning methods, covering not only the graduation phase, but also the post-graduation phase.

At the Centre for Judicial and Legal Training, it is necessary, on the one hand, to pursue – or resume in those areas where it has been lost – a multidisciplinary approach to the programme content, capable of revealing the social contexts underlying legal regulations and relationships and, on the other, to experiment with new working methods that will encourage the trainees to participate actively in the teaching and learning process, through teamwork, seminars and research activities.

It would also be a good idea for the main objectives of the training to be aligned with the particular learning or skills development needs of the students, whether they intend to go into the judiciary or any other legal profession. To this end, it is important to be aware, insofar as possible, of their training experiences, their interests and future specialisation projects, in order to bring about a participatory reaction in them and ensure that the ‘results of the training were not acquired superficially or temporarily, but rather have become […] engrained in the habits and learning abilities of the actual studenť (Guadagni Reference Guadagni2000: 8).

And, for this teacher/student interaction to occur, it is also a good idea to develop an environment conducive to their relationship being one of ‘dialogue and cooperation, of equality where there is mutual respect, where opinions are consciously respected. Because they know more about and have more skills in certain areas, [teachers] have the role of supporting and facilitating the acquisition of new knowledge or perfecting the knowledge of others’ (Cabral and Soares Reference Cabral and do Carmo Soares2000: 4).

More than just absorbing knowledge about legislated law and becoming aware that they live in a reality that is plural in the sense that they come into contact and interact with the different regulatory systems within it, these future professionals must be prepared to take on the implementation of the ideal of justice, constantly updating this. To this end, training that values a structural understanding of the institutions of justice and legal institutes will serve to show them to be an integral part of a certain political project. Thus, each act, each procedure, each way of interpreting the rules, each decision, will not be limited to itself alone, it will not be neutral, rather it will be the practical implementation of an ideal of justice, in other words, the construction of a certain type of state.

I Management of Alternative Conflict Resolution Mechanisms and Community Justice

We have already expressed our opinion on the current inclusion of community courts in the Ministry of Justice, Constitutional and Religious Affairs and the role the Civil Registry services have been playing in their management. We believe that this authority is, at the very least, illegal, because it is contrary to the provisions of Article 5 of Law No. 24/2007, of 20 August,Footnote ²⁸ if not actually unconstitutional, as it violates the principle of separation of powers proclaimed in Article 134 of the Constitution.

Around fifteen years ago, the former Law Reform Technical Unit (UTREL)Footnote ²⁹ asked the CFJJ for a set of legislative projects which had as its objective, precisely, to embody a broad reform of the administration of Justice. Among these, we highlight the preliminary proposals of the Basic Law of Judicial Organization and the Organic Law of Community Courts, as these have a more direct bearing on the point being analysed.

The first of these preliminary proposals defined a structure for the judicial system, according to which, without prejudice to the powers of the Constitutional Council, common justice would be assured by the Supreme Court and other courts, by community courts and, under the terms of that law, by courts of arbitration.Footnote ³⁰ And it recommended the enshrining and materialisation of a principle of proximity and access to justice, through adequate coverage by legal institutions, in particular courts, community courts, agencies of the Public Prosecutor’s Office, of the Public Institute for Access to Justice and the Law (which was replaced by the current IPAJ) and the entities that would be associated with compliance with their duties.

Community courts would deal with conciliation, processing, judging and implementing: a) cases arising from family relationships resulting from unions constituted according to traditional rules and not registered according to the Family Act; b) cases of other natures whose debt value, compensation requested or damages claimed were not greater than three times the national minimum wage; c) offences against property where the damage caused was not greater than two times the minimum wage and bodily injury, except in cases involving: i) a risk to life; ii) permanent disability; iii) temporary inability of the victim to work or to carry out their normal activities for longer than 15 days. Nor would they be permitted to decide on issues attributed by law to other courts, or cases regarding people’s ability, the validity or interpretation of wills, the dissolution of civil marriages or adoption.

The management and administration of community courts and the disciplining of their judges would be in the hands of the bodies entitled Provincial Councils for the Coordination of Community Justice, to be set up in each province in the country. These councils would be run by the presidents of the provincial courts and would have the following composition: a) a provincial prosecutor, appointed by the Superior Council of the Judiciary of the Public Prosecutor’s Office; b) two district court judges, appointed by the Superior Council of the Judiciary; c) one representative of the legal assistance public service, appointed by the Director of the Public Institute for Access to Justice and the Law; d) eight representatives of the community courts, elected by their peers, with mandates of two years; and e) three representatives of the community authorities, elected by their peers, with mandates of two years.

The preliminary proposal for the Basic Law also enshrined the principle of non-prohibition of the remaining local conflict resolution mechanisms unless their actions or the type of penalties applied violated the principles, standards or values contained in the constitution.

Another important and innovative measure that this preliminary proposal included was a reform Monitoring Commission, which included representatives of the institutions with specific duties of monitoring the operation and quality of the system of administration of justice and the Centre for Judicial and Legal Training. The function of the commission – inspired by the British law commissions model – was to prepare the entry into force of the reform, and monitor and assess the degree of achievement of the aims and implementation of the measures established in the Basic Law.

Under the terms of the preliminary proposal for the Organic Law, the material powers of community courts would be defined bearing in mind the type of cases that these courts traditionally deal with, in conjunction with constitutional requirements and the need for jurisdictional effectiveness. Thus, these courts would deal with conciliation, processing, judging and implementing: a) cases arising from family relationships resulting from unions constituted according to traditional rules and not registered according to the Family Act; b) cases where the compensation requested or damages claimed were not greater than three times the national minimum wage; c) offences against property where the damage caused was not greater than two times the minimum wage and bodily injury not resulting in serious injuries.

Even though around a decade and a half has passed since these proposals were prepared and presented, it seems unquestionable that they are current and relevant. If they were to be adopted – irrespective of any improvements or updates to be introduced – we would have better justice as the basis for the judicial system, there, where the vast majority of Mozambicans live.