When there is rule of law in any given country, the parliament enacts the laws, the government and the president implement them, and the judiciary monitors that everyone acts according to the rules. The judiciary also ensures that citizens' rights are fulfilled and that no one abuses their power.
There are penalties for violations, and if people go to court, they must be able to trust the impartiality of the judge.
This seems obvious, but in practice defending the rule of law requires communication, training and sometimes concrete actions to shape individual laws. It's not always easy.
This year, the judges in Mozambique found themselves in a fight they would not have wanted.
"Just like in many other countries, we too are experiencing a crisis of the democratic rule of law," says Elisa Samuel Boerekamp. She is the director-general of CFJJ, the Center for Judicial and Legal Training of Mozambique, and at the same time the general secretary of the Mozambican Judges Association (AMJ). The mandate of the Association is to defend the rule of law on several different levels, including the independence of the Judges.
Attacking independence under the guise of a salary reform
Mozambique is a democratic state governed by the rule of law, at least according to the letter of the Constitution.
This year, the country's government wanted to harmonize public sector salaries, because salaries in different sectors varied greatly, and for example the Ministry of Finance attracted people from other administrative sectors with their better salaries.
However, the new wage law contained a dangerous pitfall. One of its articles redefined which state actors are sovereign. The list was short: the President of the Republic, the prime minister, Members of the parliament, the Ministers and the President and the Judges of the Supreme Court.
"All the other judges down from them were left without an independent position," says Boerekamp.
"We said wait a minute, that's not what the Constitution says."
The government wanted to reposition the judges of the lower courts into some kind of technical experts of the Administration of Justice without an independent status.
"If I wasn't independent, then I could do what I want - even to negotiate the decisions I make as a judge," exemplified Boerekamp.
Some people might be tempted to do so, because in the salary reform the judges' salaries would also decrease. In order to safeguard independence, judges' other work and businesses have been limited, but perhaps less independent judges might be tempted do business with their decisions.
"Or even more dangerous, the decisions of lower courts may not be respected, since they are said not to be members of the sovereign body."
Unconstitutional law
The Mozambican Judges Association, represented by Judge Carlos Pedro Mondlane, fought against the formulation of the law. A statement was made, they met members of the Constitution Committee within the Parliament, opposition parties and representatives of the government. Mondlane went on television to speak for the principles of the rule of law.
The organization wrote a proposal on how the law should be drafted in such a way that the Constitution would be respected, and the independence of the judiciary as a whole would be preserved.
"But we were ignored."
The law entered into force in 2022, although according to the judges, it is unconstitutional.
"Now we continue negotiations with the government and the parliament," says Boerekamp.
If the government bends to the constitutional line as a result of the negotiations, the judges will be satisfied. If, on the other hand, the government keeps its head, the judges' association is ready to take the matter to the other levels, including the supranational level.
"To the African Commission, for example, and we can also write to the UN Special Rapporteur on the independence of judges and lawyers”, this international and regional bodies do have a mandate to protect the independence of the judges.
A typical way to undermine the rule of law
"The rule of law is typically eroded by such individual laws, which are below the Constitution," says Boerekamp.
Governments take cues from each other, and one example for Mozambique, according to Boerekamp, was Angola, which tried to weaken the independence of the judiciary last year in connection with the constitutional reform.
In Angola, the government wanted to remove the sovereignity of lower court judges as a side note in articles that talked about state protocol. The judges' association fought against the reform, and the Mozambican judges Association supported them in that. The judges won when the Constitutional Court accepted the new constitution otherwise but preserved the independence of the judges at all levels.
Communication, training and individual battles are needed
According to Boerekamp, there are many factors behind the weakening of the judiciary in Mozambique.
A large part of the population has little understanding of how a democratic rule of law actually works. The tripartite division of power is a foreign concept, and not everyone trusts the impartiality and incorruptibility of justice even today.
"There are also lawyers who take advantage of citizens' ignorance," she says. “Some lawyers, technically and legally capable, through lobbying, attempt to underestimate or minimize the independence of judges, using bombastic television appearances to contradict the provisions of the Constitution. This is very serious when we know that lawyers are pillars of the administration of justice and should therefore also defend the Rule of Law and the independence of judges for the sake of access to justice.”
The judiciary itself does not have sufficient resources to act as a full-fledged watchdog of power or to fully fulfill its own role. Since the foundation of the rule of law is fragile, according to Boerekamp, it needs to be defended in many different ways: citizens need to be educated, legal system personnel must be trained - and weakening legislation must be fought against.
The erosion of the rule of law is a familiar phenomenon from other parts of the world as well: especially politicians inclined to authoritarianism are happy to reduce the independence of the judiciary.
In Poland, the independence of the judiciary has been undermined by passing laws restraining judges; in Tunisia, autocratic president Kais Saied personally fired 57 judges this year, and in the United States, former president Donald Trump has repeatedly accused both courts and judges of witch-hunts and bias in trials concerning him.
The judiciary is a peace builder
Basically, according to Boerekamp, defending the judges in Mozambique is defending the social contract.
"Citizens' trust must be saved, and that will only succeed if the rights of vulnerable people are guaranteed."
The judiciary has an important role in that, Boerekamp reminds.
"Selfishness is natural to humans."
The people give power to the parliament and ultimately to the government, and the people should have the right to enjoy the wealth of the nation like the decision-makers do. If this does not happen and corruption is rampant, there must be an independent judiciary that draws the lines and punishes those who violate the social contract.
People must be able to trust that this will also happen, and corruption will be punished.
"The judiciary is a pacifier in society," says Boerekamp.
She is angered by the attitude that it is enough for the state to enact laws without having no one to enforce them.
"The best model is that the three legs of state stand independently. If that's not the case, it's no longer a rule of law. Then you can tear up the constitution and do something else."
Judges also need to be trained
The Rule of Law Centre at the University of Helsinki supports CFJJ, the judicial training center of Mozambique together with the UNODC (United Nations Office for Drugs and Crime). The goal is to strengthen the rule of law in Mozambique by for example training future judges.
"Even for all judges, the principles of the rule of law are not completely clear," says Boerekamp.
According to her, the minimization of the judicial system has been so great in Mozambique that even the judge may start to doubt whether he or she has the power to judge or not, if they are facing, for example, a high-ranking person.
"Inner independence is at risk," says Boerekamp.
"As an educational institution, we have a task to train future judges even better, so that they are aware of their role as agents of change in society."