Mozambique is an African state lying in the southern hemisphere. It is a large country, with a population of approximately 19 million, almost all native Africans, belonging to several ethnic or linguistic groups. Until the onset of Portuguese colonisation, toward the end of the 19th century, the various peoples that made up Mozambique did not live under a single political authority. They existed as independent entities, with various forms of political and social organisation: some were kingdoms with centralised governments; others existed mainly as headless units, the largest political units being the tribes or chieftaincies.



 The transition to the 20th century became synonymous with the implantation of colonial rule, symbolising a critical period of radical changes that brought about the Mozambican political reality. The different economic and political strategies applied by the colonial state in Mozambique resulted in important changes to the organisation of power (and where and for whom this power operated). The colonial system imposed on Mozambique was profoundly racialised. Perhaps its most notorious trace was its composite nature, espousing both assimilation and the principles of indirect rule. The indigenato regime – imposed formally in the 1920s1 – was the political system that subordinated Mozambicans to leaders of communities described as tribes or clans. 


The construction of traditional/common law therefore arose as an integral part of this process of subordination and domination, out of which the colonial state emerged (Young, 1994; Gentili, 1999). Political control under the colonial state was highly concentrated, while the administrative control was much more selective and decentralised. Thus, in rural settings, the colonial state agreed that administration would be carried out by local, traditional authorities, applying a private, customary law for the resolution of problems in local societies, whereas in urban areas, civilians (mostly Portuguese colonists) operated predominantly under the rule of law. 


Simultaneously, the division between indigenous and non-indigenous was reinforced with the introduction of the concept of assimilation. As second-class citizens, the assimilated (Blacks, Asians, and people of mixed origin) had identification cards, which differentiated them from the mass of workers who possessed an indigenous identification card (caderneta indígena). 


In ideological terms, the colonial system was a dualistic structure that attempted to oppose the different forms of governance, legal systems, land possession, and labour regulations (Mamdani, 1996). The colonial state guaranteed the existence of an official, modern legal system for citizens (i.e., for the colonisers and the assimilated). The state would issue birth certificates and identity cards to citizens. Citizens could use these documents to register goods (e.g., land) under their names, and could appeal to state courts to resolve legal conflicts. Civil identity was, therefore, the identity of the civilised citizen; the only one who retained political and civil rights. 


On the other hand, indigenous rights were defended by traditional authorities through traditional law.2 Because indigenous identity was outlined along regional ancestral lines, it was defined mainly on the basis of ethnic criteria. By attributing a political identity to Africans through local (indigenous) authorities, Portuguese colonialism sowed the seeds of the ethnic, racial and identity-based wide-graded opposition that characterised Mozambique in the post-independence period. After independence, political-legal cultures as diverse as the Eurocentric socialist revolutionary culture, or the Eurocentric capitalist democratic culture, were added to the extant mix of legal orders (Santos, 2003: 65). These new cultures added new elements to the resources available locally.


 These previous resources were remnant structures from earlier periods in the life of the state, some of which, although legally suspended for a while, had continued to survive sociologically (such being the case of the so-called traditional authorities). As Santos points out (Santos, 2003: 55), if, during colonial times, it was relatively easier to distinguish, in terms of legal pluralism, between the main legal orders concerned – colonial law on one hand, and native or indigenous common law.

On the other – this distinction became increasingly blurred in a postcolonial context. Indeed, the contemporary landscape of Mozambique constitutes what Santos calls a heterogeneous state (Santos, 2003), composed of a mosaic of legal hybrids, reflecting a mixture of elements of different legal orders (official/state law, common law, various religious laws, etc.). At the same time, in the field of conflict resolution, innovative legal entities are created out of such mixtures.


 In sum, and as we shall further address, this landscape of legal hybrids is a condition present not only at the structural level of the relationship between the different legal orders, but also at the level of the legal behaviour, experiences and representations of citizens and social groups, a phenomenon Santos describes as interlegality (Santos 1995: 473). However, the system of analysis developed internationally, with regard to the subject of legitimisation of authority, assumes a net division between the traditional and the modern sphere of legal power. 


In this sense, it is important to evaluate the implications of the modern/traditional dichotomy of the concept of authority. A modern conception of the meaning of authority4 considers traditional authorities to be pre-modern, due to their steadfast belief in the sanctity of tradition since time immemorial. The legitimacy of this authority is guaranteed by those who govern according to such traditions. On the contrary, rational authority – a modern type of authority – is defined as that which acts through socially sanctioned structures.


 This matter requests a careful evaluation of the qualifiers traditional and modern regarding the extreme heterogeneous landscape of judicial orders existing in Mozambique (Santos, 2003: 62). In terms of contemporary conflict resolution, the notion of traditional is used to make reference to practices and knowledge with a long historical presence, as opposed to the modern judiciary; the former does not have an equal footing with the new legal structure that began to be introduced into Mozambique less than two centuries ago.