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The Constitution of the Republic establishes that the Tribunal Administrativo is competent to control the legality of administrative acts and inspect the legality of public expenditure.
It also makes a general statement as to its attributions, namely to judge the actions concerning litigation arising from legal administrative relations, to judge appeals contesting decisions made by State institutions, their heads and agents, and to examine the State accounts.
Mechanisms were thus established for the just control of the legality of the widest and most varied range of Public Administration activities, as must be the case in a State which is ruled by law, as a constitutional guarantee defending the rights and interests of citizens and the prestige of the State itself.
It is therefore necessary to approve the Basic Law of the Tribunal Administrativo.
In these terms, under no.1 of Article 135 of the Constitution, the Assembly of the Republic determines:
Administrative jurisdiction and inspection of the legality of public expenditure are exercised by the Tribunal Administrativo.
The Tribunal Administrativo also exercises fiscal and customs jurisdiction, both as a single level and as a second level court.
The Tribunal Administrativo exercises its jurisdiction throughout the territory of the Republic.
The Tribunal Administrativo comprises:
The plenary, in the terms of Article 23, as the court of the highest level, except in the cases when it acts as the only level;
The sections and subsections referred to in Article 15, as the first level courts.
Arbitration courts may be formed in the framework of administrative contracts with contractual or extra-contractual civil liability, or in disputes regarding acts with a predominantly economic content, so long as a Judge of the Tribunal Administrativo presides and they are integrated into it.
It is incumbent on the administrative, tax, custom and accounts jurisdictions to guarantee the defence of legally protected rights and interests, to punish the violation of legality, to settle conflicts of public and private interests within the framework of administrative, tax and customs legal relations and, further, to inspect the legality of public expenditures and examine the accounts of tax collectors and treasurers of the public administration.
Excluded from the administrative, tax, customs and accounts jurisdictions are the appeals and actions which have as object:
Actions when exercising the political function and liability for damage resulting from them;
Legislative norms and liabilities for damage resulting from the legislative function;
Acts related to criminal prosecutions and penal decisions;
Classifying goods as belonging to the public domain, and acts delimiting them as goods of a different nature;
Questions of private law, even when one of the parties is a public body;
Acts the examination of which is defined by law to be the competence of other courts.
When knowledge of the object of an appeal or action depends on deciding a question that falls within the competence of other courts, the judge may refrain from decision until the competent court pronounces on it. Procedural law defines the effects of the inertia of interested parties with regard to the initiation and progress of cases with regard to the prejudicial issue.
The Tribunal Administrativo must refuse to apply unconstitutional norms or those that are contrary to other norms of higher hierarchy.
Appeals are merely legal, with the object of declaring the appealed acts null, void and legally non-existent, with the exception of provisions to the contrary.
The competence to take cognizance of appeals is determined by the category of the authority which committed the contested act, including those acts committed through the delegation of powers.
Competence is determined at the moment of presentation of the suit, and de facto modifications that take place later are irrelevant.
Modifications of the law are likewise irrelevant, unless the court in which the suit was being examined is abolished or loses its competence due to the subject-matter and hierarchy, or receives the competence that it initially lacked to take cognizance of the suit.
For the purposes of competence regarding disputes, the administrative contract is considered to be the voluntary agreement that constitutes, modifies or extinguishes a legal relationship in administrative law.
Administrative contracts are, fundamentally, work contracts of public works, the contracts for public building works, the concession of public works, the concession of public services, the concession of public property for private use, the operation of games of luck or chance, and contracts signed by the government for permanent supplies and the provision of services for the immediate benefit of the public.
Appeals against separate administrative acts relating to the formulation and fulfilment of administrative contracts are permitted.
The Tribunal Administrativo can judge case regardless of amount evolved.
Procedural laws define the cases and forms of intervention for technicians to be able to assist judges, representatives of the Public Ministry and representatives of the Ministry of Finance.
The intervention of technicians to assist the representatives of the Public Ministry and the Ministry of Finance is mandatory within the fiscal jurisdiction, in the terms of procedural law.
The provisions related to the judicial courts are applicable to the Tribunal Administrativo, with the necessary adjustments, for anything that is not specifically covered.
The Tribunal Administrativo works in the capital of the country.
1. The Tribunal Administrativo has the following sections:
The First Section - administrative litigation section;
The Second Section - tax and customs litigation section;
The Third Section - public expenditure inspection and approvals section.
2. The Third Section comprises:
The First Sub-section - public expenditure inspection;
The Second Sub-Section - approvals section.
Judges are appointed to a section and distributed among the sub-sections, though they can be attached to other sections or sub-sections in order to assist specific work situations.
The attachment can be determined with or without leave of absence from the section or sub-section to which the judge belongs.
The attachment can be for the full exercise of functions or for only those of rapporteur or deputy rapporteur; in the case foreseen in the previous clause, of concentration of functions, the attachment can be decided with a reduction of work in the section or sub-section to which the judge belongs, specifically by limiting his or her functions to those of rapporteur or deputy rapporteur.
If the rapporteur moves from a section or sub-section, he retains his powers for cases that have been registered for judgement.
When the deputies move from a section or sub-section, they retain their powers for the cases, which they authorised for judgement.
The President of the Tribunal Administrativo is appointed by the President of the Republic, and the Assembly of the Republic ratifies this appointment.
The mandate of the President of the Tribunal Administrativo is for five years, renewable.
The President of the Tribunal Administrativo can only be dismissed or suspended from his functions because of proven physical or psychological incapacity or for serious reasons of a moral nature.
The President of the Tribunal Administrativo is sworn in in the presence of the President of the Republic, and enjoys the treatment appropriate to his status as head of a central and sovereign body.
The President is replaced by the longest serving judge.
If the all the judges have the same seniority, the replacement will be the oldest judge who is licenciado in law.
The judges of the sections are appointed from among licenciados in law or senior civil servants, by the management and disciplinary body of the administrative jurisdictional magistracy, on the proposal of the President of the Tribunal Administrativo, and they are sworn in before him.
1. The President has the following powers:
To represent the Tribunal and to guarantee its relations with the other sovereign bodies and public authorities;
To lead the Tribunal and supervise its services;
To fix the schedule of the weekly plenary sessions and to convene extraordinary sessions;
To chair the plenary sessions of the Plenary, to report and decide on judgements and to announce the loser;
To guarantee the normal progress of cases, and decide on the temporary replacement of the rapporteur in the case of prolonged unavailability, both in trials and in the sessions;
To intervene in the trials whenever the official number of judges in the sections is not complete, and this lack makes it impossible to form the bench for a trial;
To take disciplinary action against Tribunal staff and apply the respective punishments;
To distribute work among the judges;
To fix holiday shifts and others laid down by law;
To appoint arbitrators in the terms of procedural law;
To swear in officials;
To make the appointments, dismissals and proposals permitted him by law;
To perform the other functions established by the law.
2. The President can delegate powers to carry out certain duties not related to the jurisdictional function to any of the judges or the secretary general of the Tribunal.
The Tribunal Administrativo functions in plenary, sections and sub-sections.
The Tribunal can only function in plenary when half plus one actively working judges are present.
The Tribunal Administrativo takes cognizance of matters de facto and de jure in all its groupings.
The plenary has the power to examine:
Appeals against administrative acts or administrative matters decided by sovereign bodies or their heads;
Appeals against acts of the Council of Ministers or its members concerning tax and customs issues;
The requests for suspension of the acts referred to in the previous paragraphs;
Appeals against judgements made by the sections which, on the basis of the same law and in the absence of substantial changes to legal regulations, provide opposite solutions to those of judgements from the same sections;
Jurisdictional conflicts between sections of the Tribunal and other administrative, tax or customs authorities;
Appeals against the judgements of the sections;
Appeals against the acts of the President of the Tribunal, and the suspension of these acts;
Requests concerning the prior presentation of evidence.
The Plenary is constituted by the President of the Tribunal and all the judges on active duty, with the President having the casting vote;
Cases are distributed to all the judges exercising jurisdictional functions, including the President, but not the rapporteur of the contested judgement.
The Administrative Litigation Section has powers to take cognizance of:
Appeals against the administrative acts committed by any authority not mentioned in paragraph a) of ARTICLE 23;
Appeals against the administrative acts of public service bodies with legal personality and administrative autonomy;
Appeals against the administrative acts of public utility companies;
Appeals against the administrative acts of concession holders;
Appeals against the administrative acts of public associations;
Actions aimed at obtaining recognition of a right or interest protected by law;
Actions related to administrative contracts and also those related to the parties’ responsibilities for non fulfilment of them;
Actions regarding the civil responsibility of the State, all other public institutions and their heads and agents for harm caused by acts of public management, including appeals;
Requests to suspend the implementation of the acts referred to in the previous paragraphs;
Requests to implement the Tribunal decisions, and also the judgements made by the Plenary, where applicable;
Requests for the prior presentation of evidence;
Requests to notify the administrative authority, to facilitate the consultation of documents or files and emit certificates, in order to enable petitioners to use administrative and litigious resources;
Requests to notify a private person or a concession holder to adopt or abstain from certain conduct, with the aim of ensuring observance of the norms of administrative law;
Other appeals and petitions in accordance with the law.
To examine the issues referred to in ARTICLE 25, the Administrative Litigation Section comprises three judges, one of whom is the head of the Section.
The Tax and Customs Litigation Section has powers to take cognizance of:
Appeals against the acts of any authorities related to tax or customs issues not included in paragraph b) of ARTICLE 23;
Petitions related to the implementation of its judgements;
Requests for the prior presentation of evidence;
Suspension of implementation of the acts referred to in paragraph a), so long as securities are given;
Appeals against decisions of first level tax and customs courts;
Other issues conferred by law.
The Tax and Customs Litigation Section comprises three judges, one of whom is its head.
The Tax and Customs Litigation Section can only take cognizance of strictly tax and customs infractions, not involving other infractions of a criminal nature.
The Public Expenditure Inspection and Approvals Section has the following powers:
In the framework of inspecting public expenditure:
To examine the State accounts;
To make a judgement on the accounts of institutions, services and entities subject to the Tribunal’s jurisdiction.
In the framework of inspection through giving approvals, to check that the following conform with legislation in force:
Contracts of any nature, when signed by entities subject to the Tribunal’s jurisdiction;
Drafts of contracts to a value equal to or higher than an amount to be fixed by the Council of Ministers;
Drafts of contracts for any amount that are signed in a public legal document, and for which payment has to be made at the moment of signing;
Decrees and decisions relating to admission of staff who are not members of the civil service establishment, and all admissions at entry levels in the central public administration;
Decrees and decisions relating to promotions, advances, reclassifications, transfers and others, which give rise to salary changes;
Decrees and decisions relating to retirements and pensions.
This section has the power to examine other issues that may be attributed by law.
The following are excluded from the provisions in clause 2 of the previous Article:
Decrees making appointments emanating from the President of the Republic;
Decrees relating to elected offices;
Any other decrees, decisions or contracts which have special provisions in law.
Notwithstanding the previous clause, registration will be made whenever the law so determines.
The following entities are subject to judgements on their public expenditures:
Central State organs and State services, personified or not, endowed with administrative and financial autonomy, including the autonomous funds;
Tax collectors of the public treasury;
Funds of whatever nature of all public bodies and services, whatever may be the origin and destination of the revenue;
Mozambican public services abroad;
Local bodies that represent the State;
Municipal councils;
Administrative councils or administrative commissions and administrators or managers or those responsible for money or other State assets;
Entities that are allocated State funds, in whatever form;
Other entities or organs to be defined by law.
When judging accounts, the Section comprises three judges, one of whom is the head.
One of the Section judges will intervene in the examination of the processes submitted for approval.
When the Section acts in accordance with the previous clause and verifies the existence of doubts on the matter to be approved, the single judge shall present the respective casefile to the session of the Section, which will take a decision with the composition defined in clause 1 of this Article.
The Public Ministry represents the State in actions to which it is a party, and in terms of administrative procedural law.
The Public Ministry further represents or defends the interests of other people defined by law.
In litigation regarding administration, accounts and approvals, the Public Ministry is represented in the plenary by the Attorney General of the Republic, and in the sections by Deputy Attorney Generals to be designated by the Attorney General.
In fiscal litigation, the Public Ministry is represented by the National Director of Tax and Audit.
In customs litigation the National Director of Customs represents the Public Ministry.
The representative of the Public Ministry, in terms of the previous ARTICLE, acts officially and has the powers and capacities conferred by procedural law.
The Tribunal Administrativo has secretariats and support services as established in supplementary decrees.
The Judicial Magistrates Statute is applicable to the judges of the Tribunal Administrativo, with the appropriate adaptations.
Specific legislation shall regulate the functioning and powers of the management and discipline organ of the administrative jurisdictional magistracy.
So long as the management and discipline organ is not operational, its attributions will be performed, with the necessary adaptations, by the Supreme Council of Magistrates.
With regard to the previous clause, the President of the Tribunal Administrativo is an automatic member of the Supreme Council of Magistrates, and the head of the 1st Section of the Tribunal Administrativo will be a member.
No decision can be taken on administrative jurisdiction issues in the absence of the President of the Tribunal Administrativo or his representative.
So long as the management and discipline organ of the administrative magistracy is not operational, the President of the Republic has powers to appoint the judges of Sections, and in this case, they will be sworn in before the President of the Tribunal Administrativo.
Administrative and normative powers related to the jurisdictional organs covered in this law are exercised by the Council of Ministers, including the power to create or abolish sections if necessary, when proposed by Minister of Justice.
In the absence of new legislation on tax and customs litigation, current provisions regarding these issues shall be maintained in force, including the functioning of first level tribunals.
Ministerial Decree 22/82, of 24 March is annulled.
The provisions in this law relating to tax and customs issues will be invalid as soon as the structures on which powers to deal with these matters is conferred come into operation.
The Tribunal Administrativo, Fiscal e de Contas de Moçambique is abolished.
All the services, casefiles and documents of the previously existing Tribunal Administrativo, Fiscal e de Contas are transferred, with no formalities, to the Tribunal Administrativo.
All the staff employed by the previously existing Tribunal Administrativo, Fiscal e de Contas are transferred, with no formalities and the same jobs, to the Tribunal Administrativo.
All the goods belonging to the services of the Tribunal Administrativo, Fiscal e de Contas, are transferred to the Tribunal Adminstrativo.
This law shall be complemented, within two years, by the procedural legislation of the Tribunal Administrativo, the Judges Statute, the decree dealing with costs and the decree concerning the functioning of the Secretariat and Services of the Tribunal Administrativo.
All legislation contrary to the norms of this law is revoked.
Approved by the Assembly of the Republic.
The President of the Assembly of the Republic, Marcelino dos Santos.
Promulgated on 6 May, 1992.
It may be published.
The President of the Republic, Joaquim Alberto Chissano.
With a view to establishing the legal regime for the prior inspection of public expenditure, taking into account the powers attributed to the Tribunal Administrativo as set out in clause 2 of Article 30 and Article 31 of Law 5/92 of 6 May, the respective legal formalisation must be done.
To this end, and in accordance with clause 1 of Article 135 of the Constitution, the Assembly of the Republic determines the following:
The powers of the Tribunal Administrativo as regards the prior inspection of the lawfulness of public expenditures are exercised through issuing or refusing to issue an approval of the acts, contracts and all other instruments emanating from the State and other public entities, which translates into the scrutiny of their lawfulness and funding, and in the case of contracts, of their conformity with the conditions that are most favourable to the state.
The following are subject to the prior inspection of the Tribunal Administrativo:
the State and other public entities, namely the services and institutions integrated into the Central, Provincial and Local Public Administration, including those which have administrative and/or financial and legal autonomy;
local governments;
other entities determined by law.
Prior inspection is compulsory for the following acts, contracts and other legal instruments generating public expenditure, done or signed by the entities mentioned in the previous Article:
administrative acts nominating civilian or military staff, namely acts related to the permanent employment of staff who are not members of the civil service establishment or to admissions at entry level, progression, transfers, retirement and others which give rise to the payment of remuneration of any nature, as well as pensions;
the act of appointing tax collectors, treasurers and others in charge of public funds;
contracts of any nature or amount, namely those related to staff, public works, loans, concessions and the supply and provision of services;
draft contracts to a value equal to or higher than that fixed by the Council of Ministers;
drafts of contracts for any amount, that are signed in a public legal document, and for which payment has to be made at the moment of signing;
other acts as determined by law, namely treasury and public debt operations in accordance with the respective regime.
Notaries and entities with notarial functions may not draw up any public documents without verifying and confirming that the contract conforms with the pre-approved draft.
In the cases referred to in the previous clause, transcripts or certificates are submitted to the Tribunal Administrativo no later than 30 days after signature of the document, accompanied by the respective draft.
The Tribunal Administrativo may, annually, determine that certain acts and contracts be subject only to subsequent inspection, or only subject to it for amounts above a certain value, without prejudice to the provisions in clause 1 of Article 4 of this diploma.
Contracts or drafts which are merely addenda or additions, or which translate into extra, accessory or complementary work, are included in the scope of paragraphs c), d) and e) of clause 1 of this Article.
In addition to the formal contracts, separate documents which when combined constitute an agreement of will and a contract, though an informal one, are likewise subject to prior inspection.
The following are not subject to prior inspection, without prejudice to possible subsequent inspection:
decrees making appointments emanating from the President of the Republic;
decrees relating to elected offices;
co-operation contracts;
administrative acts concerning the concession of fixed or occasional salaries which are the explicit legal consequence of and inherent to occupying a post, with the exception of those granting gratuities;
definitive contracts the drafts of which have been approved;
tenancy agreements signed abroad for diplomatic or consultancy offices or other international missions, when the urgency of their signing prevents them receiving prior approval from the Tribunal Administrativo;
any other decrees, decisions or contracts which have special provisions in law.
Within thirty days of signing the contracts referred to in paragraphs c) to f) of the previous clause, the services must submit copies to the Tribunal Administrativo.
Approval is a jurisdictional act that conditions the overall force of the acts and other instruments legally subject to prior inspection.
The grounds for refusing approval are:
lack of conformity of the act or contract, translated into absolute lack of form, impossibility of the object or defects determining non-existence or absolute nullity;
lack of financial basis;
untimeliness of submission to prior inspection, resulting from illegal pre-implementation;
simple annulment, legitimately invoked by the interested party;
offence against the judgement.
The acts, contracts and other instruments that escape prior inspection or for which approval is refused are not implementable, and have no financial effect.
The refusal of approval determines the cessation of any remuneration, as from the date on which the respective decision is made known to the services.
The implementation of a deed or contract for which approval is refused is an offence against the judgement, determining the nullity of the act.
The regime laid down in the previous clauses is applicable to annulments of approvals.
Only acts or contracts implemented on the grounds of urgent work needs, and insurance contracts, may take effect before prior inspection.
In the case of refusal of approval the Administration, through a member of Government or competent authority, may appeal within the time limit established by law.
Those who may be affected by the refusal may intervene in the case in the terms of the Proceedings Law.
Exceptionally, the validity of the acts and contracts subject to prior inspection by the Tribunal may start on a date prior to the approval, provided that a member of the Government or competent entity declares in writing that there is an urgent work need, and that they are in respect of:
the appointment of legal and Public Ministry magistrates, civil authorities, basic, middle and higher level technical health staff, teachers, tax collectors, treasurers, court registrars, assistant court registrars, justice officials and military personnel;
contracts extending previous contracts permitted by law, provided that the conditions are the same;
non personnel-related contracts in relation to which a guarantee of not less than 50 percent of their global amount has been provided;
contracts of any nature resulting from unforeseen or force majeure situations.
The civil servants referred to in the previous clause can be sworn in, and start their duties and receive wages, before the approval and publication of the diploma.
The cases for which the urgent work need has been declared must be sent to the Tribunal Administrativo within 30 days of the date of authorisation, or risk cessation of its effects, unless there are powerful reasons that the Tribunal will evaluate.
The refusal of approval produces the effects referred to in Article 7 above.
After a period of ninety days from the date of entry of the case for prior inspection in the Tribunal Administrativo, or from the response to a request by the Tribunal for complementary components or information, granting of the approval is presumed.
Calculation of the period referred to in clause 1 can be interrupted in the terms of the Process Law.
Acts defined by the law as not subject to approval are subject to annotation.
Other acts that modify the legal work relation but do not result in a wage increase, namely dismissal, resignation, expulsion and other contracts the drafts of which have been previously approved, are likewise subject to annotation.
The annotation does not imply any judgement on the lawfulness of the act, and is made whenever approval is not legally required, with a view to updating the records of civil servants and agents of whatever nature who are on active service.
The following financial infractions are punishable by fines and determine the permanent annulment of the approval granted for an act or contract, as well as the suspension of all and any future payments:
the presentation of false documents or statements;
the implementation of an act or contract, without submitting it to prior approval, or after knowing that approval has been refused, even when not in writing;
significant lack of conformity between the draft and the legal contract document signed.
Without prejudice to eventual disciplinary, criminal or civil responsibility, disrespect of the norms established in this diploma implies the financial responsibility of the entities or staff whose deeds are harmful to the patrimony or financial interests of the State.
The repeated defective preparation by the services of acts subject to preventive inspection can be subject to a fine, to be determined by the Tribunal Administrativo.
The fine, to be determined in the light of circumstances to be considered by the Tribunal, should not be less than one third of the monthly salary of the de facto agent or the person in charge of the service, to be identified in the respective casefile.
The Tribunal Administrativo can requisition any documents or actions from the services, and ask for the explanations it considers essential.
The services, the staff, and any public or private entities are obliged to provide the information and casefiles requested for the purpose of an approval, with maximum urgency, and with priority over any other work.
The entities mentioned in the previous clause are obliged, on pain of disobedience, to implement the judgements, resolutions, instructions and orders produced by the Tribunal Administrativo within the framework of its attributions and powers, on matters subject to its consideration and judgement.
The Tribunal Administrativo will issue instructions, for obligatory implementation, on how to prepare casefiles for the purpose of prior inspection.
The services may on occasion be excused from presenting the documents that should accompany the casefiles to submit to the prior inspection.
Appointment to civil service establishment posts is done through individual appointment diplomas and contracts.
The casefiles for approval or contracts in the framework of the first appointment or of admission should be prepared and sent to the Tribunal Administrativo with the following documents, in duplicate:
completed and correctly filled in appointment diplomas, namely indicating the general legality and special legislation which are the basis for the appointment and the decision, when appropriate;
statement from the highest authority of the service, declaring that the formalities legally required for the appointment have been observed, and that the candidate meets all the legal requirements;
birth certificate;
educational certificate and the professional certificates required by law;
police record certificate;
health certificate showing physical and mental fitness to do the job;
military document proving that military service has been done, when legally required;
statement that there is no impediment to exercising public duties, such as those resulting from eventual concentrations of functions or incompatibilities and other legal restrictions;
biographical note, showing all previous posts or functions in the civil service;
information of availability of funds from the competent departments or services;
notice of the launch of a tender and proof of competence for the purpose, where applicable.
The appointments of staff who are already established civil servants should only be prepared with the documents specially demanded for the purpose, in view of the nature of the act.
Contracts not related to staff shall be accompanied by the following documents, in duplicate, duly authenticated with the embossed seal in use in the respective service:
notice of the opening of a public tender or authorisation for exemption;
tender documents, when applicable;
minutes of the opening of the proposals;
proof of the fulfilment of fiscal obligations, namely the payment of stamp duty;
orders of adjudication and others, duly authenticated by the services remitting them.
The definitive contracts are further accompanied by a document showing the following:
identification of the ministry or other institution to which the service or body is attached;
the date when it was signed;
the identity of the signatories;
validity;
the object and value of the contract;
information on availability of funds.
The information on funding availability is registered in the documents subject to approval, and consists of a statement that the expenses resulting from the act or contract are covered by legally applicable budget funds, retained for this purpose.
On pain of being considered outside the time limit, the documents proving fulfilment of the requirements for any competition must be delivered by the last day for the presentation of candidatures.
To be valid before the Tribunal Administrativo, documents written in foreign languages must be translated into the official language of the country and authenticated by a competent national authority.
The documents subject to approval from the Tribunal Administrativo must be authenticated with the embossed seal or stamp of the respective service.
The casefiles are always prepared in duplicate, and must be kept in the Tribunal archives.
In the case of false documents or statements, the Tribunal Administrativo annuls the approval of the diploma by means of a judgement, the notification of which implies immediate suspension of the payment of any remunerations and vacation of the post, without prejudice to the disciplinary or criminal responsibility that may be verified in the case.
Based on a previous decision of the Tribunal and the issue of appropriate instructions, the prior inspection may also take the form of a statement of conformity, to be done in the limited sphere of the technical and administrative support services with regard to acts, contracts and other instruments subject to approval that do not raise doubts about their juridical or financial legality.
All legislation contrary to this Law is revoked .
This Law enters into force six months after its publication.
Approved by the Assembly of the Republic, 30 April 1997.
The President of the Assembly of the Republic, Eduardo Joaquim Mulembwe.
Promulgated on 10 July 1997.
It may be published.
The President of the Republic, Joaquim Alberto Chissano.
With a view to establishing the legal regime for the subsequent inspection of public expenditure, with regard to the State General Accounts and the management accounts of the services and bodies subject to the financial jurisdiction and control of the Tribunal Administrativo, complementing Law 5/92 of 6 May on this issue, the respective legal formalisation must be done.
To this end, and in accordance with clause 1 of Article 135 of the Constitution, the Assembly of the Republic determines the following:
The tax collectors, treasurers and others responsible for the collection, safekeeping or administration of public funds, and those legally or de facto responsible for the management of the entities subject to the financial jurisdiction and inspection of the Tribunal Administrativo, whatever their degree of autonomy, even if their expenditures are partially or totally covered by their own revenues or they have some expenditure not included in the State Budget, are subject to accounting for expenditure.
Failing legal provisions to the contrary, the accounts are presented by economic year or at the end of each management regime, in the case when all those in charge are replaced.
The Government shall send the State General Accounts to the Assembly of the Republic and to the Tribunal Administrativo by 31 December of the following year.
The report and opinion of the Tribunal Administrativo on the State General Accounts shall be sent to the Assembly of the Republic by 31 August of the year following the year they were presented.
The report and opinion referred to in the previous clause should certify the accuracy, rectitude, legality and economic and financial correctness of the accounts and the respective annual financial management, and are published in the Government Gazette.
The report and opinion of the Tribunal Administrativo are accompanied by the responses of the services and organisations to the questions the Tribunal has asked.
The accounts of entities subject to the financial jurisdiction and inspection of the Tribunal Administrativo shall be presented within six months from the date of the end of the management regime.
If the interested parties so request, invoking justified reasons, the Tribunal Administrativo may fix a different time limit.
The Tribunal Administrativo can, exceptionally, excuse lack of compliance with the time limits referred to in the previous clauses.
The time limit for judging the accounts is one year.
The time limit is suspended for the period required to obtain information or documents or to carry out complementary investigations.
The Tribunal Administrativo will issue instructions, for obligatory implementation, on how the accounts should be presented and the documents that should accompany them.
The Tribunal may excuse the services from presenting all or some of the expenditure documents.
The presentation of accounts in the required form does not affect the right of the Tribunal Administrativo to demand from any entity the documents and information it still regards as necessary, and to requisition from the competent internal control services the examinations and resources it considers appropriate.
On pain of disobedience, punished in the terms of Penal Law, the services, civil servants in general and all public or private entities are obliged to implement the judgements, resolutions and orders produced by the Tribunal Administrativo within the sphere of its specific attributions and powers, on matters subject to its consideration or judgement.
The accounts are subject to examination according to increasingly complex methodologies and forms, as follows:
internal verification of the first degree, or preliminary;
internal verification of the second degree;
audit;
judgement.
Pending accounts which are not strongly suspected of fraud or embezzlement of public funds, inappropriate payments and other serious irregularities, can be returned to the respective services, after preliminary verification, without prejudice to a later judgement within the next five years.
This form of control translates into verifying whether the accounts are accompanied by the documents required by the respective instructions, and whether they are correctly prepared, together with a summary examination of the legality and financial and accounting rectitude of the operations and records that constitute those accounts.
In these circumstances, a later judgement can be promoted not only by the Tribunal Administrativo but also by the Public Ministry, or any interested party that can demonstrate legitimacy for the purpose.
Internal verification of the second degree translates into analysis of the expenditure documents and of the way the accounts are organised, not only in the perspective of their formal and substantive conformity with the applicable instructions, but also verifying the consistency of the documents, the accounting accuracy and the legality and rectitude of the operations and records they show, together with the settlement of the accounts, the fixing of emoluments and the quality of the respective report.
Audits, whether of accounts or of projects, whether general or sectoral, whether financial as such or of mere legality or rectitude, constitute important instruments of financial control, and have the aim of equipping the Tribunal Administrativo to issue opinions about the substantive legality of the acts undertaken, based on criteria of economy, effectiveness and efficiency.
Judgement of accounts translates into examining the legality of the activities of the entities subject to presenting accounts, as well as the respective financial, economic and asset management, and determining and eventually imputing inherent financial responsibilities.
The concept of serious irregularity covers financial infractions such as fraud or embezzlement of public funds and other moneys, and inappropriate payments of significant amounts, perpetrated with the intention to defraud and cause material loss to the State.
The accounts procedures involve administrative and jurisdictional phases, according to whether the formalities are being dealt with under the direction of the support services or, once the technical report has been prepared and the respective casefile has been organised, it has been delivered to the secretariat for procedural work, where it is allocated to the judge-rapporteur, for jurisdictional examination.
The accounts are subject to a final discharge, when the people responsible for presenting them are judged to be free of any financial responsibility, and the accounts are accepted as regularised, or, on the contrary, when financial responsibilities are imputed, translated in the duty of replacing funds or paying a fine, or alternatively receiving a simple opinion and censure or recommendations.
Financial responsibility can only be pardoned or reduced in accordance with the degree of guilt and the effective loss to the State.
Management accounts in which continual financial infractions are detected, imputable to the same agents, or in which the members of the management are the same people, may be joined together.
The management accounts that suffer from financial irregularities which simultaneously constitute punishable crimes in Penal Law, and whose authors are clearly identified by a penal sentence already passed, should receive final discharge if those responsible for management are not involved in the acts and if the accounts do not suffer from any other irregularities which would prevent discharge.
Equally, the accounts with regard to which the penal court decides to file the case, due to the impossibility of imputing criminal acts or identifying their material authors, and when there is also no blame attached to the management, may be filed.
In the circumstances laid down in clauses 1 and 2, those responsible for the account should stand surety for the missing moneys and other valuables, and the accounts should be adjusted to reflect this reality.
Financial responsibility is effectuated by the competent fiscal tribunal, and can be guaranteed through the seizure from the person responsible of moneys and other public valuables.
Accounts from before 31 December 1995, whatever the phase they are currently in, shall be returned to the respective services so long as they are not suspected of serious irregularities, without prejudice to a possible later judgement, on the initiative of the Tribunal or promoted by the Public Ministry or any interested party that can demonstrate its legitimacy for the purpose, within a period of five years.
All the legislation that is contrary to the provisions of this Law is hereby revoked.
This Law enters into force six months after its publication.
Approved by the Assembly of the Republic, 30 April 1997.
The President of the Assembly of the Republic, Eduardo Joaquim Mulembwe,
Promulgated on 10 July 1997.
It may be published.
The President of the Republic, Joaquim Alberto Chissano.
To define and legally formalise the organisation, functioning and procedures of the 3rd Section of the Tribunal Administrativo, which is an independent and external body providing financial control over public revenue and expenditure, has become necessary in order to ensure the full realisation of its powers and authorities in the areas of financial jurisdiction and control of public property and money.
In these terms, considering article 46 of Law 5/92 of 6 May, and paragraph 1 of article 135 of the Constitution, the Assembly of the Republic determines:
Article 1
The Bylaws governing the organisation, functioning and procedure of the 3rd Section of the Tribunal Administrativo, which are attached hereto and constitute an integral part of this Law, are hereby approved.
Article 2
The following are also applicable to matters of financial jurisdiction and control:
Law 5/92 of 6 May;
The laws approving the specific rules applicable to prior and subsequent scrutiny of public expenditure;
Any other legislation subsisting on these matters.
On a supplementary level, the Civil Procedure Code and other legislation in respect of judicial courts are also applicable.
The Tribunal Administrativo is a part of the Judiciary and is the only court in its category.
All legislation contrary to this Law is repealed.
This Law shall enter into force six months after its publication.
Approved by the Assembly of the Republic on 30 April 1997.
The Chairman of the Assembly of the Republic, Eduardo Joaquim Mulembwe.
Promulgated on 10 July 1997.
It may be published.
Bylaws governing the organisation, functioning and procedure
of
the 3rd Section of the Tribunal Administrativo
The Tribunal Administrativo of Mozambique has financial jurisdiction and control, within the entire legal order of the Republic of Mozambique, both within the country and abroad, including Mozambican services, entities and representation offices operating abroad.
The Tribunal Administrativo is the supreme, independent body responsible for external control over the legality of public revenue and expenditure, the judgement of accounts submitted to it by law and the enforcement of financial liability for financial infractions.
The examination of financial legality, whether as part of judgement of accounts proceedings or otherwise, includes examining compliance with the law, regularity and correctness or management in accordance with criteria of economy, efficacy and efficiency.
Without prejudice to other legal provisions, the following are subject to the financial jurisdiction and control of the 3rd Section of the Tribunal Administrativo:
the State and all of its services;
autonomous services and organisations;
local representative State bodies;
local authorities (municipalities), under the terms of the law;
public enterprises and companies whose capital is exclusively or mostly publicly owned;
collectors, treasurers, receivers, payers and other persons responsible for the safekeeping or administration of public funds;
those responsible for accounts in respect of material or equipment and any persons who manage or receive revenue or funding originating from international organisations or the entities referred to in the preceding paragraphs, or obtained with the intervention thereof, consisting of subsidies, loans or guarantees;
administrative councils or administrative commissions;
administrators, managers or persons responsible for public money or other State assets, whatever their designation, as well as funds originating from abroad, in the form of loans, subsidies, donations or others;
entities to whom State funds are awarded, in whatever form;
other entities or organisations that the law may determine.
All public or private entities are under a duty to provide the information and files that are requested of them, with the utmost urgency and with priority over any other service.
The 3rd Section of the Tribunal Administrativo may order the provision of inspection and auditing services from internal financial control bodies, and may also engage specialised firms for the same purpose.
Public entities shall notify the 3rd Section of the Tribunal Administrativo of any irregularities that come to their notice during the performance of their duties, whenever the examination of such irregularities falls within the scope of the 3rd Section’s powers and authorities.
The 3rd Section of the Tribunal Administrativo gives those responsible for accounts or those that may be suspected of financial infractions the right to a prior hearing and a defence.
The report and opinion on the General State Account and decisions having general mandatory force shall be published in the Boletim da República.
Instructions may also be published, as may decisions that the 3rd Section of the Court has determined should be published.
The 3rd Section of the Tribunal Administrativo consists of the Sub-section for Public Expenditure Inspection or Accounts and the Sub-section for Approvals or Prior Inspection.
The examination of the processes submitted for approval shall be carried out daily by one of the judges of the Section.
For the purposes of judgement of accounts, as well as processes that raise doubts, the 3rd Section shall function as a conference composed of three judges.
The last instance of the 3rd Section is the full bench of the Tribunal Administrativo, the composition and powers of which are set out in articles 23 and 24 of Law 5/92 of 6 May.
The 3rd Section of the Tribunal Administrativo sits together in conference at least once each week, in ordinary session.
It shall meet for extraordinary sessions whenever such a session is called.
With respect to matters that should be examined by a conference of judges, the 3rd Section functions with three judges.
Decisions are taken by a majority of votes.
Judges are entitled to declare their votes.
The Public Ministry is represented in the Tribunal Administrativo under the terms of article 35 of Law 5/92 of 6 May.
The Public Ministry intervenes in all sessions, and may speak and promote that which it deems appropriate.
Within the framework of the 3rd Section, the Tribunal Administrativo has power to:
issue its opinion on the General State Account;
successively and concomitantly scrutinise the entities mentioned in lines a) to i) of article 32 of Law 5/92, 6 May, and appraise their respective accounts;
carry out prior scrutiny, in a systematic and punctual manner, of the legality and budget cover for acts and contracts resulting in revenue or expenditure in respect of any of the entities referred to in article 2 of these Bylaws;
scrutinise the application of financial resources obtained from abroad, particularly through loans, subsidies, guarantees and donations.
When giving its opinion on the General State Account, the Tribunal Administrativo shall examine:
the financial activity of the State during the year to which the account refers, in the areas of property, revenue and expenditure;
compliance with the Budget Law and complementary legislation;
the State property register;
grants, subsidies, fiscal benefits, credits and other forms of aid, given directly or indirectly.
For the purposes of paragraph 2, the General State Account shall be lodged with the Tribunal Administrativo by the 31st of December in the year following the year to which the Account refers.
The report and opinion in respect of the Account shall be completed and remitted to the Assembly of the Republic by the 30th of August in the year following the year in which it was submitted to the Court.
For the proper performance of its activities, the 3rd Section of the Tribunal Administrativo shall, in addition, have the power to:
approve such internal regulations as are necessary for its functioning;
issue and publish instructions, of an imperative nature, that are indispensable to the exercising of its powers, with particular reference to the manner in which accounts and proceedings should be submitted for examination;
propose such legislative and administrative measures as it deems necessary, in this specific area, and intervene in legislative processes in respect thereof;
order the restitution of money, apply fines to those responsible for money that is missing, within specified limits;
enforce, reduce or discharge financial liability arising from financial, accounting and administrative infractions.
The defalcation or embezzlement of public money and improper payments constitute typical financial infractions.
The following, in particular, also constitute financial infractions:
failure to settle, collect or pay over to the State, revenue that is due;
violation of the rules governing the preparation and execution of budgets, as well as the assumption, authorisation or payment of public expenditure;
the failure to execute or the improper retention of mandatory discounts applicable in respect of personnel;
failure to present accounts within legally or judicially established time limits;
the diversion of proceedings files or documents and the withholding or incomplete rendering of information or documents required by the Court or by Law;
the unjustified failure to appear to give statements or provide due collaboration;
the introduction of elements into proceedings files, that are intended to mislead the Court, or that substantially hinder or completely obstruct the judgement of accounts;
the publication in the Boletim da República of acts or contracts that are subject to endorsement but have not been endorsed;
the execution of acts or contracts subject to prior scrutiny independently of endorsement.
Disobedience, scrutiny and any other facts that indicate unlawful criminal acts shall also be punishable under the Criminal Law.
The defalcation or embezzlement of public funds or money means the disappearance of property, money or other public funds, arising from any shortfall in the coffers or undocumented outgoing, which is attributable to disloyalty, wilful intent or fraudulent intent.
Improper payments are constituted by acts of spending public money with disregard for applicable rules, particularly in respect of planned procedure, or, where contracts are concerned, those that fail to secure the most favourable conditions for the State.
Financial liability may be of a type that requires restitution or merely punishment.
Financial liability presupposes the existence of fault and is independent of the damage actually caused.
Fault is graded according to the circumstances and by taking into consideration the amount of public money or funds moved and the human and material resources available.
Financial liability is personal and attaches to the actual agent.
Financial liability may fall on managers, members of the board of directors or similar, and any other persons responsible for services or organisations, where:
pursuant to their instructions, the safekeeping or collection of the money or funds was handed over to the person that defalcated or embezzled them, when those who are legally responsible for such functions were neither absent nor otherwise unable to perform them;
pursuant to their instruction or appointment, a person lacking moral suitability and recognised as such was appointed to the office in which he committed the offence;
in the performance of the scrutiny duties ascribed to them, they have acted with gross fault, namely, when they have failed to observe the Court’s instructions in respect of the existence of internal controls, the rules of proper management of public money or technical opinions.
The sentence shall expressly set forth the degree of liability imputable, if any, and may also contain a judgement of censure or a recommendation to the institution, as well as other measures to be adopted in respect of the persons responsible, including their dismissal. Such measures may be taken for the purpose of improving management and ensuring legality in the future.
The liability includes payment of penalty interest on the amounts in debt, counted from the end of the period to which the accounts refer.
Financial liability arising from financial infractions perpetrated with mere fault may be subject to reduction or relief, in accordance with the degree of fault discerned.
A person who unequivocally manifests his opposition to the acts giving rise to the financial liability shall be exempt from such liability.
Financial liability for restitution, namely, the duty to replace, is not transmissible to the successors of the offender.
The unjust enrichment of the estate of the offender, brought about by the defalcation or embezzlement of public money, may be recovered by the State only through the common courts.
Financial liability is subject to the penalty of restitution or fines, which penalties may be applied either individually or cumulatively.
The financial infractions specified in paragraph 1 of article 12 and in articles 13 and 14 of these Bylaws are subject to the penalty of restitution.
All other financial infractions and mere accounting or administrative irregularities having financial effects, specified in paragraph 2 of article 12, or arising under other applicable financial legislation, shall be punishable by fines to be defined in the proceedings themselves or in specific proceedings, as the case may be.
Fines are graduated according to the seriousness of the offence, the hierarchical position and the economic situation of the persons responsible.
The fine to be applied, based on the circumstances to be weighed up by the Court, shall not be of an amount less than one third of the annual salary or remuneration of the offender.
The offenders referred to in paragraph 3 of article 16 hereof are personally liable for paying the fines that are applied.
Financial liability is enforced by the court with jurisdiction over tax foreclosure, and may be guaranteed by means of an attachment executed against the persons responsible for public money and other funds.
Financial liability terminates:
on payment of the amount owing;
on the death of the person responsible;
on the prescription of the debt or the proceedings;
with the granting of amnesty.
The provisions of this Diploma and, on a suppletory basis and with the necessary adaptations, the Civil Procedure Law, govern procedure in the 3rd Section of the Tribunal Administrativo.
For the purposes of distribution, there are the following types of proceedings:
General State Account;
Judgement of accounts;
Approval;
Fines;
Appeals;
Other proceedings.
Distribution is the method used to designate rapporteurs for the proceedings.
For the purposes of distributing and substituting rapporteurs, the order of judges is drawn during the first annual session.
Endorsement proceedings to be examined during the daily endorsement sessions shall be distributed in accordance with the provisions of article 43 of these Bylaws.
The judge rapporteur is responsible for directing the investigation of proceedings and the preparation thereof for adjudication.
Decisions taken within this framework are always subject to appeal, without suspensive effect.
The Court shall always give a hearing to the responsible persons, except in the case of proceedings to prepare the report and opinion on the General State Account.
Summons and notice are served according to the Civil Procedure Law, and the judge rapporteur may decide that they be served by an officer of the administrative authorities or the police.
In the event of an unjustified failure to provide information that is relevant to the decision, the Court is free to take such conduct into account for evidentiary purposes, without prejudice to the institution of fine proceedings and notification to the competent authorities for the purposes of investigating liability.
The fine attached to the failure referred to above, shall be set according to circumstances to be considered by the Court and shall not be less than one third of the salary of the person liable for the fine, which shall be determined during the respective proceedings.
Judgements shall be enforced, where applicable, within thirty days after notice is given, and shall proceed through the courts having jurisdiction over tax foreclosure.
With regard to the proceedings referred to in article 24 hereof, only evidence obtained by inspection, documentary evidence and, when the Court deems necessary, partial evidence, shall be admitted.
Where proceedings involve matters requiring specialised knowledge for their resolution, the Court may determine that an expert ought to intervene, which expert may be heard in argument.
Under the conditions set forth in the preceding paragraph, the representative of the Public Ministry may also be assisted by an expert, who shall be heard in argument when the Court deems it appropriate.
The Court may, likewise, order that the services of the internal financial control offices be requested, namely, the General Inspection of Finance, or it may obtain specialised services under contract, for the account of the party who benefits.
An attorney may be appointed, except, in the first instance, for endorsement and accounts proceedings.
Judgements become res judicata after a period of ten days.
Time limits are continuous and may be interrupted before they are met whenever a request is made for additional or missing elements that are considered indispensable, or for the purpose of correcting discrepancies.
When the law does not specify otherwise, the time limit for any diligence is presumed to be five days.
The processes for approval are distributed to the weekly judge, after the contadoria has duly noted them, by the first working day of the week following the week in which the filing of the proceeding was recorded.
Cases are examined in the order in which their filing is recorded, except in cases of urgency.
Judges may, on their initiative or at the request of any other entity, make a declaration on the urgency of any case, by means of a reasoned decision.
The granting of an endorsement shall be carried out within a time limit of thirty days, unless additional elements or information are requested.
Requests for such elements or information shall be made within the same time limit.
Whenever the weekly judge decides that the approval ought to be withheld or if there are doubts as to the decision to be taken, then the proceedings are taken to session, accompanied by a proposal for the decision, for examination in conference.
Decisions to withhold an approval in respect of acts or contracts regarding personnel shall be sent, together with the respective file of the proceedings, to the offices that remitted them to the Court.
In cases referred to in the preceding paragraph, decisions are likewise notified to the respective interested parties.
Notice of decisions to withhold an endorsement shall be given to the representative of the Public Ministry, for the purposes of an appeal, within twenty-four hours.
Whenever an investigation leads to facts involving financial liability or a judgement of censure, the rapporteur shall order a summons to be served on the persons responsible, so that they may, within thirty days, enter a plea and present such documents as they consider necessary.
In the event of infractions punishable only by fines, the respective proceedings shall be instituted.
Unfavourable decisions, even though they may consist only of a judgement of censure, shall make express reference to the position taken by the adjudged parties in relation to the acts or omissions attributed to them.
The rules contained in this Section are applicable to the adjudication of all infractions punishable by fines, the investigation of which is within the jurisdiction of the Tribunal Administrativo.
Fines proceedings are instituted on the basis of a decision given in any proceeding, information from the office or denunciation.
Denunciation is compulsory for employees and officers of the entities subject to the control of the Court, as regards facts that come to their attention during the performance or as a result of their functions.
Once the proceedings have been distributed and a record written up, they are officiously endorsed over to the Public Ministry, which may make whatever requests it deems appropriate within a period of eight days.
As soon as there is sufficient detail to establish the existence of an offence, the person who committed it and in what capacity, the rapporteur shall summon the offender to contest the facts attributed to him, prepare documents and request whatever he deems appropriate, within a period of thirty days.
Once a plea has been entered or the time limit for entering a plea has expired, the proceedings are endorsed over to the Public Ministry for its opinion.
When investigation of the proceedings reveals that other persons may have committed the offence, such persons shall also be summoned and the provisions of the preceding articles shall be followed.
The person responsible may terminate the proceedings by voluntarily paying the minimum amount of the legally set fine within the time limit given for entering his plea.
The judge shall hold the proceedings to be terminated as soon as the evidence of payment has been added to the records.
Payment of the fine by the offender does not release him from his obligation to correct the discrepancy that gave rise to the offence, where possible.
For the purposes of the preceding paragraph, the sentence shall establish a reasonable time limit.
The judicial proceedings shall prescribe after ten years counted from the end of the term of administration in which the events occurred.
The outstanding fines and emoluments shall prescribe five years after the sentence becomes res judicata.
The prescription period referred to in the preceding paragraph is applicable to the restitution of money received in excess or unduly.
The prescription referred to in paragraph 3 is applicable only in respect of the person who benefited from the payment.
A judgement against an offender in fines proceedings does not release the offender from financial liability that may arise out of the same facts.
The provisions in respect of accounts or fines proceedings are applicable, with the necessary adaptations, to the following other proceedings:
inquests, inquiries and audits;
statements of impossibility to adjudicate;
establishing the debt of responsible persons who have not presented accounts;
judgement ordering restitution;
reversal of proceedings;
impediments to the enforcement of a decision;
extinction of guarantees, bonds and other securities that may be demanded from persons responsible for public money.
Judgements issued by the 3rd Section of the Tribunal Administrativo that establish liability, the duty to replace money and other public funds, order the payment of a fine, or withhold an endorsement or set costs, are subject to appeal.
Appeals are judged by the Full Bench of the Tribunal Administrativo.
The decisions of the Tribunal Administrativo may be subject to an ordinary appeal, except where the decisions were issued on appeal or in a routine administrative matter.
The decisions referred to in the preceding article may also be subject to review on the grounds provided for in the Civil Procedure Law.
The appointment of an attorney is not mandatory in appeals.
The time limit for lodging an appeal from final decisions is thirty days, counted from the date of effective notice, with the extensions provided for in the Civil Procedure Law.
Appeals from other decisions shall be lodged within a period of five days, with the same extensions.
The following have standing to appeal:
the Public Ministry;
members of Government or entities on which the officer or service is dependent;
the interested institution, through its representative;
the responsible director against whom a sentence or a judgement of censure has been passed;
persons against whom judgement has been passed in fines proceedings;
entities with the power to carry out the act or award the contract that is the object of an endorsement.
The officer, interested agent or alleged beneficiary of the act in respect of which endorsement has been withheld may request the entity with the power to carry out the act to lodge an appeal within ten days.
The officer, interested agent or alleged beneficiary of the act in respect of which endorsement has been withheld may lodge the appeal directly if the entity referred to in the preceding paragraph fails to do so within ten days after the date on which the request was lodged.
The appeals are lodged by means of a letter of request containing the pleas.
Appeals are subject to prepayment of costs and fees to be established under the provisions that govern Administrative Litigation.
In appeals where the Court considers that there has been bad faith, the costs may be doubled.
Ordinary appeals from final decisions always have suspensive effects, except in the case of endorsements.
Appeals from other decisions may be heard upon the final decision.
Once the case has been distributed and a record written up, the judge shall send the application to the competent support services for investigation, if deemed necessary, and shall issue a preliminary decision to admit the appeal.
If, after examining the application and attached documentation, the judge finds that the appeal is unfounded, inept or manifestly illegal or that the Court lacks jurisdiction, the appeal shall be refused preliminarily.
An appeal against the refusal may be made within a period of five days to the Full Bench, which shall issue a decision, in the following session, either to admit the appeal or uphold the refusal.
Where the appeal is admitted, the interested parties or the Public Ministry are summoned to enter such pleas as they deem appropriate and to prepare documents, within a period of not more than thirty days.
Once the pleas have been entered or the time limit has expired, the record is endorsed over to the judges, after which the judge rapporteur shall draft a proposed sentence.
When drafting a proposed sentence, the judge shall instruct that the same be handed down to the competent support services, attached to the respective proceedings file, and that copies be remitted to the other judges and the Public Ministry at least three days prior to the session in which it is to be examined, with a statement that the file is ready for judgement.
Notice of the final decision shall be given to the appellant and to every person to whom notice was given for the conducting of the proceedings.
Decisions that have become res judicata may be subject to review on the grounds provided for in the Civil Procedure Law, and also when there is a subsequent discovery of facts capable of giving rise to financial liability, which were not examined for this purpose.
An application for review of a decision to grant an endorsement is possible only during the period in which the act or contract may be challenged in the administrative judiciary.
The 3rd Section of the Tribunal Administrativo, within the scope of its powers and authority, receives technical and administrative support from services whose organisational structure, powers, staff structure and functioning are subject to a specific legal diploma.
The services that support the 3rd Section are responsible for providing all technical and administrative support and, in particular, officiously investigating the acts, contracts and other instruments subject to scrutiny by the Court, and organising the respective proceedings files.
For the purposes of the preceding paragraph, the support services may request indispensable information.
The Secretary of the 3rd Section shall act as secretary in the sessions, without prejudice to the other functions that he is responsible for performing by law.
The secretary may intervene in the Court sessions, to provide any information requested of him by the judges or by the Public Ministry.
Judgements carried out in session begin with a reading of the draft decision, followed by discussion and approval thereof.
The representative of the Public Ministry and the judges participate in the discussion.
The secretary of the 3rd Section draws up minutes recording everything that takes place at the sessions, which minutes are submitted for approval at the following sitting, unless they are approved at the same sitting to which they refer.
1It shall be the function of the courts to guarantee and strengthen the rule of law as an instrument of legal stability, to guarantee respect for the laws, to safeguard the rights and freedoms of citizens, as well as the juridical interests of other legal entities.
The courts shall educate citizens in the voluntary and conscious observance of laws, thus establishing a just and harmonious social community.
The courts shall punish violations of the legal order and shall adjudicate disputes in accordance with the law.
Under no circumstances may the courts apply laws or principles, which are contrary to the Constitution.
It shall be obligatory for all citizens and other legal entities to obey court decisions. The decisions of the courts take precedence over the decisions of other authorities.
In the exercise of their functions, judges shall be independent, and shall owe obedience only to the law.
Judges shall likewise be impartial and disinterested.
Judges may be held responsible in civil,
criminal and disciplinary proceeding for acts committed in the discharge of
their duties only in cases specified by law.
The removal of a professional judge from the bench may only take place under
legally established terms.
Professional judges may not undertake any other public or private activity, except teaching or research.
In the Republic of Mozambique there shall be the following courts:
the Supreme Court and other courts of justice;
the Administrative Court;
courts-martial;
customs courts;
fiscal courts;
maritime courts;
labour courts.
Other than the courts specified in the Constitution, no other court may be established with jurisdiction over specific categories of crimes.
In the Republic of Mozambique judicial powers shall be exercised through the Supreme Court and other courts as established by law.
The Supreme Court is the highest judicial organ, and shall have jurisdiction throughout the national territory.
The Supreme Court shall ensure the uniform application of the law for the benefit of the Mozambican people.
The Supreme Court shall act:
in section, as trial court of original and appellate jurisdiction;
in plenary session, as a court of final appeal in cases expressly provided for by law.
The Supreme Court shall be composed of professional judges and of elected judges, the number to be established by law.
The professional judges shall be appointed by the President of the Republic, after consultation with the supreme Council of the Judiciary.
The code of conduct and the term of office for the President, deputy President and professional judges on the Supreme Court shall be established by law.
The Assembly of the Republic shall elect the other judges to the Supreme Court. The term and other requirements of office shall be fixed by law.
In court hearings, matters of law shall always be decided by professional judges.
The elected judges shall only take part in primary trial court hearing.
The law shall regulate the powers, composition, organisation and functioning of the Supreme Council of the Judiciary.
The Administrative Court shall control the legality of administrative acts and shall supervise the legality of public expenditure.
In particular, Administrative Court shall:
adjudicate acts dealing with legal controversies arising from administrative acts and procedures;
adjudicate appeals against decisions of organs of State, their office holders, agents and employees;
examine the accounts and records of the State;
exercise other powers that may be attributed by law.
The law shall determine the powers, jurisdiction, organisation, composition and operation of the Administrative Court.
The powers, organisation, composition and functioning of courts-martial, and customs, fiscal, maritime and labour courts shall be fixed by law.
The Office of the Attorney General shall supervise and defend the established legal order and shall promote compliance with the law.
The Office of the Attorney General shall be headed by the Attorney General of the Republic. In case of absence or disability, the Deputy Attorney General of the Republic shall substitute.
The Attorney General shall be accountable to the President of the Republic, and shall provide annual reports to the Assembly of the Republic.
Assistant Attorney General shall be appointed, exonerated and dismissed by the President of the Republic, after consultation with the Supreme Council of the Public Prosecutor.
The law shall determine the structure, composition and operation of the Office of the Attorney General and of the Supreme Council of the Public Prosecutor.
The Public Prosecutor’s Office shall constitute a hierarchically organised magistracy, which is subordinated to the Attorney General of the Republic.
In exercising their functions, the officers and agents of the Public Prosecutor’s Office shall be subject to the principles of legality, objectivity, impartiality, and those directives and orders which are within the terms of the law.
The Public Prosecutor’s Office shall represent the State before the courts, shall control the legality and the duration of detentions, shall initiate criminal prosecution, shall enforce criminal sentences, and shall ensure the legal defence of minors and of absent or incapacitated persons.
