PLURALISMO JURÍDICO EM MOÇAMBIQUE: ANÁLISE DA EFECTIVAÇÃO DA LEI No 4/92, DE 6 DE MAIO, COMO MANIFESTAÇÃO DO PLURALISMO JURÍDICO, CONSAGRADO NOS TERMOS DO ARTIGO 4o DA CRM

Abstract

The theme of this thesis is legal pluralism in Mozambique with the aim of analyzing of the effectiveness of Law No. 4/92 of 6 May, as a manifestation of legal pluralism enshrined in the Constitution of the Republic of Mozambique (CRM, art. 4.). The thesis focuses on the need to seek practices for the legal implementation of the materialization of the constitutional guarantee to the extent that Mozambican society employs, alongside the courts, other dispute resolution bodies. A qualitative research paradigm was applied in this study. The research methods applied were legal, hermeneutic and documentary. A literature review as well as documentary analysis of relevant legislation was conducted as the theoretical framework of the research. Empirical data collection was carried out via interview. The selection of the participants was made by convenience sample. Data analysis was done using content analysis and triangulation were the techniques used in the process of interpretation and discussion of results. From the analysis of the problem of the effectiveness of Law No. 4/92 of 6 May, as a manifestation of Mozambican legal pluralism in accordance with art. 4. of the CRM, results show that community courts arise as an alternative practice, resulting from the ineffectiveness of state legislation inherited from colonialism which is insufficient to ensure the application of community justice in the Mozambican social context. This situation creates a trend towards a return to the colonial legal system, due to the lack of an effective framework of legal orders within the judiciary that aims to enhance legal monism. As a result, there are no instruments establishing the mechanisms that provides a legal link of these legal systems within the constitutional provisions relating to legal pluralism. An example of this is the lack of regulation of the functioning of community courts. Failure to act according to the constitutional provisions aggravates the distancing between the two systems of the administration of justice for citizens, calling into question their effectiveness. Furthermore, the absence of regulation creates an obstacle to the implementation of any alternatives in the mechanisms for access to community justice. Moreover, the role of traditional authority in the conflict resolution process becomes less prominent, causing this authority and its customs to lose legitimacy. There is a passive conflict between members of the community courts and other members of the local authority (traditional leaders and government-nominated officials) who share the same role in the process of resolving community conflicts. Therefore, we reinforce the idea of consecrating strong or material legal pluralism in order to operationalize the constitutional option of the principle of legal pluralism, to avoid the consecration of merely formal legal pluralism. In general, it is essential to implement the constitutional principle of access to justice with a view to the principle of material equality, access to alternative conflict resolution mechanisms and the use of the judiciary for conflict resolution as the last resort as well as debureaucratization and democratization of access to the courts.