Objective 4: Uphold the separation of powers, including the independence of judiciary
and effective Parliament
Recommendation of the APR Panel was depoliticise the appointment of judges in order to
protect the integrity of the judiciary(i); train the Judiciary in ethics, accountability and
transparency (ii); make membership of the Parliament a full-time job and increase the number
of days for oversight the executive (iii); continuous increase of the budget of the Parliament
to improve its performance (iv); enhance the capacity of the Parliament through training MPs
in policy analysis and oversight functions (v).
45. In relation to the recommendation of the APR Panel on non politicising of the
appointment of judges, the Supreme Court indicated that separation of powers is clearly
defined in the Constitution and the entry into the judicial profession, on top of other
requirements defined in the Statute of Judicial Magistrates and in the General Statute of
Civil Servants and Agents, it is conditioned to the passing on specific test recognised by
the High Council of Judicial Magistrate (Source: TS – Letter sent to the APRM National
Forum).
46. The letter also added for the appointment of the President and Vice President of the TS,
the Supreme Council of Judicial Magistrate (which includes representatives of several
classes of judges and judicial officers) is consulted in relation to those nominated to such
posts before the final decision is taken by the President of the Republic. The TS noted
that the previous experience shows that in the cases that there was negative opinion by
the Council the President of the Republic did not appoint such personality. On the other
hand, the appointment is subject to ratification by the Parliament which procedures
includes hearing with the nominee by the Commission for Legal and Constitutional
Affairs and followed by a secret voting by the members of the Parliament.
47. On the other hand and according to the TS, the Constitution and the ordinary legislation
guarantees the independence and impartiality of the President and Vice President as
well as other magistrates. For example, after the President of the Republic appoints the
President and Vice President of the TS and taking office, he has no power whatsoever to
determine the cessation of office over their mandates.
48. Notwithstanding the above mentioned, there are perceptions in some sectors of society –
including part of some of those consulted for the drafting of this report – which indicate
that the present mechanism for appointment and promotion of senior magistrates have
some kind of political “confidence” and apparently do not respect the principle of
separation of power. However, it important to observe that such procedures are clearly
defined by the Constitution and they can only be changed after constitutional review.
49. In a meeting organized by the Association of Magistrates of the Prosecuting Council in
Maputo on 22/03/2013, in the amphitheatre of the Faculty of Medicine at Eduardo
Mondlane University under the theme “Protection of Human Rights and Strengthening of
Constitutional Powers of the Prosecuting Council”, judicial magistrates and those of the
Prosecuting Council, for example, complained about the political interferences in their
activities showing some kind of concern regarding the situation. In the same meeting
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