One of the greatest challenges for post-independence African nations has been the colonial legacy of law. Many states were left with multiple legal systems, and navigating this plurality has posed serious problems. The main tension exists between the European statutory law system imposed by colonizing powers and traditional systems that have been passed down through oral traditions. This dynamic is apparent in Mozambique, which must try to balance preserving the cultural heritage reflected in unwritten customary laws with functioning as contemporary constitutional regime.
Mozambique’s legal system is a combination of eclectic influences. It is a product of traditional laws and Portuguese colonialism, as well as the post-independence Marxist-Leninist regime and the subsequent capitalist democracy. Mozambique has acknowledged this history by introducing traditional law into its constitutional and legal framework. The country affirmed Mozambican traditions and cultural values in the 1990 constitution, and declared that “the state shall recognize and esteem traditional authority […] and customary law.”
There are many reasons for Mozambique’s acceptance of traditional law. While some relate to legal theory, most are practical in nature. One primary reason is to ensure the rule of law, as access to justice remains inconsistent in Mozambique much like many other post-independence African nations. The reality is that rural populations in these countries often have no means of getting to urban centers where the statutory courts are located. A 2006 Open Society Initiative report on the rule of law in Mozambique observed that “on balance, despite its reform efforts, the state is unable to guarantee access to justice for its citizens, particularly those living in remote areas. The judicial courts are inaccessible, blocked by a range of obstacles including financial constraints and their physical location.”
Customary law helps fill these gaps in the state’s reach. In rural areas, appearing before a council of community elders is often the only way to resolve disputes, and so they play a vital role in preserving stability. These structures are both necessary and popular. They even continued to exist despite a 1975 constitutional provision for the elimination of traditional authority, implemented by the post-independence Marxist government. The state’s limited coffers also benefit from traditional courts. Even if the government opposed them, they could not afford to replace them with statutory courts.
Customary law has also been adopted in Mozambique to respect the cultural tradition of indigenous peoples. Under Portuguese rule, the traditional culture of Mozambique was disparaged and foreign models of governance were imposed. In an article in the Yale Human Rights and Development Journal, David Pimental writes that “since the demise of colonialism, and probably in reaction to it, sensibilities are now far more respectful of indigenous culture and the institutions that reflect it.”
However, the question of how far to extend this respect is not a simple one, and brings forward the tension between customary law and the needs of the constitutional democracy. Many constitutions in post-colonial Africa go so far as to exempt applications of customary law from their constitutions’ antidiscrimination provisions. Some of these traditional rulings violate human rights by limiting women’s access to land ownership and enforcing traditional marriage norms. Without legislation preventing these practices, women and other minorities are left vulnerable.
In the case of Mozambique, customary law is accorded a lesser status than the constitution and cannot contradict the constitution in spirit or in letter. Article Twelve establishes that traditional courts may rule “according to those customary rules and practices that do not contradict the constitution.” This means that traditional courts must ensure that “men and women shall be equal before the law in all spheres of political, economic, social and cultural life,” in accordance with Article Thirty-Six of the constitution.
Though it is preferable to accepting the violation of citizens’ rights, this approach is still problematic. The Mozambican approach can be accused of replicating the relationship between statutory and customary law present during colonization, when ‘indirect rule’ was used to control native populations. A World Bank document notes that most colonial powers limited customary law by introducing ‘repugnancy clauses’, which effectively invalidated laws that conflicted with European morality. Similarly, “most African constitutions now recognize customary courts only in so far as they do not violate any of the fundamental rights enshrined in state constitutions.” The authors worry that placing another system of morality above those of indigenous traditions will perpetuate the inferior status of African culture which existed under colonialism.
Another issue present in this system is the lack of oversight mechanisms to ensure that traditional leaders do not violate human rights standards in their decisions. It is left up to local communities to ensure that their decisions do not contradict the values of the constitution. There have been no efforts by the Ministry of Justice to ensure that traditional authorities respect human rights, and only limited efforts to educate traditional leaders about changes in state law.
For this reason, integrating gender equality into the framework of customary law is not as simple as passing progressive laws. While in 1997 a law was passed entitling women to secure access to land, implementation proved much harder. Traditional courts still considered the man the head of the household and therefore the rightful authority over land. Within individual communities, the law does not create structures to ensure that a woman’s land rights are enforced. To appeal a decision she must leave her community and file an action in court, which is often financially or logistically impossible. In this respect, Mozambique’s approach to customary law relies too heavily on the supposed goodwill of traditional leaders.
Ultimately, what must be resolved for the smooth functioning of Mozambique’s legal system is the development a clearer understanding of the relationship between the various courts and legal institutions. More attention must be focused on how these systems can coexist. The 2004 constitution states that “the law may establish institutional and procedural mechanisms for links between courts and other forums whose purpose is the settlement of interests and the resolution of disputes,” As of now, the specifics of these links are nowhere articulated.