The law on trial

Severino Ngoenha"

Our justice is fair.̧the? A Republic Bulletin hit the streets. By Resolution No. 1/CE/PR/2026, of June 10, the Council of State suspends the immunity of Venâncio António Bila Mondlane, a member of that body, so that the Supreme Court may judge the demonstrations that followed the elections of October 9, 2024. Let no one be mistaken: this is not about defending the accused, nor about condoning violence, nor about calling for impunity. What is being questioned here is not the fate of a man: it is the law. Dura lex, sed lex. Without procedure there is no order; but the strictness of the law does not dispense with questioning the law. Positivism, from Kelsen (Pure Theory of Law) to Hart (The Concept of Law), distinguished between the validity of a norm, its effectiveness, and its justice—and this distinction became a trap: formal validity is not enough. Radbruch was right: when the contradiction between law and justice reaches an intolerable level, unjust law ceases to be law (Legal Injustice). And tradition has already stated: lex iniusta non est lex — an unjust law is not law, it is a corruption of the law (Thomas Aquinas, Summa Theologica). The law is required to answer the question "are you just?": a law that cannot answer it no longer recognizes itself. The foundations of Mozambican law are historical: the first Constitution founded the State on the legitimacy of the liberation struggle (libertarian foundation); the 1990 Constitution, on the need for freedom to cease being the monopoly of one party (democratic foundation). The libertarian legitimacy had the grandeur of a charismatic act — heroic, foundational, unrepeatable: the memory of an epic that liberated the country. But Weber left us with a warning that we must not forget: a power that legitimizes itself through heroism may be tempted to perpetuate itself. The founding charisma tends to become routine; it can go from being a task to being owned, from a dated event to an indefinite sentence. It's not inevitable — but it is the danger of all power founded on heroism. Whenever a problem arises, people resort to this epic tale, which has become a founding myth, and this recourse, from the outset, delegitimizes all other options, all other ways of thinking. The historical event can become an unalterable foundation: the ballot box confirms, but never decides. Are the norms that legitimize procedures today themselves legitimate? Do they still correspond to the aspirations of the people—or have they been captured? A right without memory of its foundations is a right without criteria: it imposes itself as just when it only expresses the will of one party. The most unsettling question: who is judging? Justice presupposes a third party—someone who is not a party to the conflict. When courts and those who occupy them are instruments of established power, subjects of that power, they defend one of the parties; they cannot be the instigators of justice. Weber described the State as the community that claims the monopoly of legitimate physical violence (Politics as a Vocation). What legitimacy remains in this violence when the monopoly is in the hands of one of the parties that should be arbitrating? Montesquieu saw the remedy (The Spirit of the Laws): in order to prevent the abuse of power, it is necessary that power check power. The separation of powers is the condition of the third: where there is no real separation, the court does not judge—it confirms. Sophocles' Antigone is the architecture of this conflict: Creon holds the law, Antigone the justice—and the play ends with Creon's downfall. Legitimacy is a recognition that is received, not an attribute that is self-proclaimed. Habermas showed that law is only legitimate if it can be accepted by all those affected as free and equal participants in the formation of the will (Facticity and Validity). The declarations of rights from the American and French revolutions in the 18th century, and the Universal Declaration of Human Rights of 1948, centered rights on the individual—but all affirmed that sovereignty resides in the people. The African Charter on Human and Peoples' Rights, to which Mozambique has been a party since 1989, granted rights to the people themselves—emphasizing that same sovereignty: there is no legitimacy without the people, and no historical hierarchy can replace them. The population of Mozambique today numbers thirty-five million; we were not eight million when we became independent. When those who proceed are not recognized as legitimate by the part of the people whose recognition is decisive—the youth, the peripheries, those who were left out—the issue is not resolved by decree, nor by saying "I won the elections," because it was the validity of that act that remained in suspense in the public consciousness. The most important political act is to regain legitimacy, and this can only be done through governance: through distributive justice, transparency, and demonstrating that power is exercised in the name of all. It is either won back every day, or lost every day. Is it legitimate for the heirs of a process that the ballot box never fully legitimized in the eyes of a decisive part of the nation to become judges of those who fought against that process? If the channels — Parliament, the media, the electoral courts — were not sufficient to create unanimity around the result, regardless of what it was; if, in thirty years of multi-party elections (1994–2024), there has never been an election that ended without fundamental contestation; then the question is not about the defendant: it is about the position of those who judge. There is an anachronism that needs to be pointed out: a party acknowledges, in a meeting of its own members, the corruption that is corroding its structures—and, in the same gesture, invokes the punitive force of the law against anyone who dares to name those responsible. The disease is recognized, and those who name it are punished. If the law serves to protect those who manipulate it and punish those who invoke it, it is not surprising that those who started by using normal channels ended up resorting to unorthodox methods. Understanding is not excusing; explaining is not justifying; naming the causes is not absolving the actions. But the question of causes is a requirement of law: if the only path left is the unorthodox one, which can degenerate into terror, the law must question what made it the condition for that degeneration. Rawls gave civil disobedience a place in the theory of justice—a public, nonviolent act when normal channels have failed (A Theory of Justice). Not to canonize her, but to acknowledge that she is the last resort for those who have no other option. There is a definition of law that philosophy has never allowed to die: that of Thrasymachus — justice is the advantage of the stronger (Plato, Republic). In contrast, the great tradition from Socrates to Ulpian, from Cicero to the Roman jurists, asserted that law is the art of the good and the equitable (ius est ars boni et aequi, Celsus). When law is presented as an instrument of those who hold the power of institutions, weapons, and the military, it ceases to strive for justice and begins to express the advantage of the strongest. It loses its status as a right: law that is merely the legal form of domination is not law, it is violence disguised as law. The less law there is, the more violence it generates, because the weak learn that the language of power only responds to force. Law is not an eternal given; it is a response to a given situation. Montesquieu intuited this in The Spirit of the Laws: laws must adapt to the history of each people. And the function of law is that which Cicero formulated: «Est igitur res publica res populi; populus autem non omnis coetus multitudinis quoquo modo congregatus, sed coetus multitudinis iuris consensu et utilitatis communione sociatus» — «The republic is, therefore, a thing of the people; and the people are not any multitude gathered in any way, but the multitude associated by the consensus of law and the communion of utility» (Cicero, On the Republic, I, 39). The reason for the existence of law is not punishment; it is coexistence: that a society resolves its problems through words, through dialogue, and not through violence. This is where the philosophy of law finds its task in Mozambique. The history of Mozambique, both pre-colonial and post-colonial, is a constant search for unity. But, more than moving towards this unity, the country has experienced constant fractures, wars, disputes, cycles of violence — which distance it from it. The true foundation of Mozambican law must be the pursuit of that stitching together that stitches the social fabric back together. Here's the criterion: in Mozambique, justice either mends the social fabric, or it's not justice—it's power. African philosophy has been teaching this for a long time. Kwasi Wiredu showed that politics, in the traditions of the continent, was not a competition to see who wins: it was deliberation seeking consensus — the elders sit under the big trees and talk until they agree (Democracy and Consensus in Traditional African Politics). And Jean-Godefroy Bidima recalled that the word, in African traditions, is not just an instrument of communication: it is what makes the community exist (La Palabre). Law is not the victory of one party; it is the word that binds. The Inclusive National Dialogue could open the door to this other kind of politics: the national pursuit of consensus, where there are no enemies, only adversaries with differing views—and where, as in Cicero and Wiredu, what matters is not winning, but living together. Mozambique has already experienced the logic of sewing. In 1992, with the General Peace Agreement, the enemy ceased to be an enemy and became an adversary: a new status was recognized for them, that of a legitimate political adversary within the framework of the nation. The laws that sealed this agreement, such as those that followed in 2014 and 2019, were the legal corollary of this recognition, not its cause. What binds them together is not forgiveness, but the act of recognizing the other. Sewing is not a guarantee of impunity: there are times when the nation can only be saved by sewing. Let's return to the Bulletin: let's assume the procedure was followed. The question is: does this decision mend or tear? This decision comes at the precise moment when the country opened the Inclusive National Dialogue — a listening space created to discuss, without exclusion, the most fundamental issues of collective life: legality, justice, and legitimacy. When the nation is about to question its own foundations, a document emerges without interrupting or honoring it—as if the most uncomfortable question had already been decided. The paradox is complete: the power that legitimately opened the dialogue is the same one that is now deliberating. What kind of justice is this, without a third party, when the court itself is a party to the case? A legally flawless procedure can be, in terms of its foundations and legitimacy, profoundly damaging. It threatens to tear the country apart between the center and the peripheries, between the elderly and a youth that refuses to be governed by those who use the State for their own benefit instead of serving it. Not because it's illegal, but because justice that isn't recognized as just doesn't mend: it tears. Let it be clear: this text does not defend the defendant, nor violence, nor impunity. He defends the question — based on its foundations, its legitimacy, the third party, the function of law, and the remaining options for those who have exhausted all other avenues. And he defends a thesis that I have supported in many texts, articles and books: the justice that this country needs is a justice that works by mending. Not a constituent assembly, the constituent assembly imposes a new form, founds, molds; the seamstress sews, ties, joins what history has torn apart. The seamstress doesn't create fabric out of nothing: she works with the existing fabric, brings the edges together, and reconnects the threads. There is an etymology that the language has preserved for us: text and fabric come from the same Latin root, texere — to weave. Law is, above all, the realm of the text; the Constitution is the woven text of the nation; and justice, as a seamstress, is the art of stitching the text to the fabric, of making the law correspond to the life of the community. A right that does not question itself ceases to be a right: it becomes the advantage of the strongest. As Socrates taught at his own trial, history will judge the judges: the sentence was legal, and it is the judges of Athens who have been condemned in the memory of men. A right that binds together is the condition of a people living together; a right that tears apart is the promise of more war. And we Mozambicans know the price of war.

2025/12/3