In 1975, with Independence, the country adopted a Westernised constitution,5 with a parliamentary system of government. It also provided for an independent judiciary with the power to review acts of both the legislature and the executive. However, as the Frelimo’s6 governmental goal was to achieve the level of development presented by the West, the recognition of ethno-cultural differences was seen as a wrong political move, as a path to the advance of internal regional fractions; at the same time, many of the local African traditions were regarded as backward, conflicting with the route towards development.




 In legal terms, the banning of traditional authorities (at least formally) right after independence can be seen as one of main measures undertaken to outlaw any form of divergence with the role to be played by the modern state in terms of justice administration. They were to be replaced by a collective structure – the Grupos Dinamizadors (GDs) – dynamising groups working throughout the country.7 Headed by a secretary, they came to take on a wide range of functions, which partially overtook those which had, up to that point in time, been carried out by the traditional authorities: addressing social issues, legal questions, policing, security, administration and regulation.


This was seen as a condition for the construction of the Mozambican nation, as article 4 of the first constitution of Mozambique (approved in 1975) expressed clearly the need to eliminate “colonial and traditional structures of oppression and exploitation and the accompanying mentality”. In a more general way, it was hoped that the GDs would introduce the political history and political priorities of the new government to Mozambican citizens.


legitimately autochthonous patterns of authority, but rather the co-optation of complex ruling mechanisms. In its essence, the indigenato regime symbolised the making of customary law from above, with the support of the colonial administration. Modern law – brought about by the colonial state – regulated relations between non-indigenous people, as well as relations between non-indigenous and indigenous people. It should therefore be evident that political inequality emerged side-by-side with civil inequality, as both were based on the instituted legal pluralism: the colonial/state law and customary rights. 


The analysis of this process has shown how a web of actors (including colonial authorities, missionaries and African notables/elders) cobbled together local customs, giving it the form of colonial law. While indigenous private law was more a legal claim than a legal code, contrary to the dominant pattern seen elsewhere in colonial Africa, in Mozambique the attempts to codify the customary were never given the force of law (Gonçalves Cota, 1944, 1946). A careful study of the customary clearly shows an attempt to preserve the social fabric, through the social construction of tradition, law and ethnicity, throughout the impositions of the colonial system. For Mamdani, this system of indirect rule – a characteristic of the British colonial administration in Africa – established a decentralised despotism as the British learned to marshal authoritarian possibilities in the native culture (Mamdani, 1996: 23). However, at the same time, in a game of mirrors, one has to pay attention to the role played by local actors, as people continually reinterpreted and reconstructed tradition in the context of broader socio-economic changes. As Spears notes, “far from being created by alien rulers, tradition was reinterpreted, reformed and reconstructed by subjects and rulers alike” (2003: 4).  

Thus, tradition emerged as a multi-dimensional landscape, as interactive historical process, the antithesis of the static colonial state. Specifically, in the Mozambican colonial context, and despite being punished by the colonial state, the chieftaincy and related institutions were an important factor in terms of cohesion and cultural identity, which legitimated authority and regulated relations among the population by administering the local situations of conflict that emerged. 


Far from conveying an unchanging past, tradition undergoes continual renewal as new concepts are brought in or old concepts readjusted according to changing realities. Tradition is then composed of fixed principles and fluid processes of adaptation that regulate societies. In colonial times, the régulos represented the consolidation of judicial, legislative and administrative authority at the centre of the state. In order to keep their position, these traditional chiefs depended on the support of colonial power; but, simultaneously, colonial authorities depended on traditional authorities to make their rule effective and legitimate. Under the Portuguese, the régulos12 were the repositories, administrators and judges of customary law, the rules that governed colonial social, political and economic relations. 


In sum, from a political resource for renegotiating the social status and access to resources, the customary was transformed into a set of enforceable rules that froze its status and restricted access to it. In a situation where traditional problems were, by law, to be resolved under the customary rules (but where no codification of these rules was ever officially accepted), both the Portuguese administrators and the régulos retained the ability to adjust traditions to answer different individual situations. In sum, the administrative and judicial power of the colonial state was quite limited, and it became subject to local discourses of power that this state neither fully understood, nor controlled.


 What gives tradition, custom and ethnicity their coherence and power is the fact that they lie deep in peoples’ popular consciousness, informing them of who they are and how they should act. Yet, as discourses, traditions, customs and ethnicities are continually reinterpreted and reconstructed as regulated improvisations, subject to their continued intelligibility and legitimacy. Thus, the postcolonial state, in order to be recognised as a legitimate authority, knew the new judicial structure had to be anchored, at least to some extent, in the everyday life of both rulers and subjects alike. A new legal framework, to be accepted as legitimate, has to bear a resemblance to the legal corpus upon which it has been built. This is the challenge that, since 1975, has been posed to the state. 


In the political-legal sphere, the dominant discourse, seen as a means of contributing to development, mirrors the genre of peripheral postcolonial states aspiring to modernisation. Both the natives and the civilised are given fixed ideological meanings, resulting in the impossibility, in terms of socio-legal theory, of connecting different legal systems from the perspective of interlegality. This became particularly problematic during the last stage of the colonial presence in Mozambique. The result of the attempt to apply indirect rule to a colonial process where the colonising power was – in terms of social, economic and political intervention – quite fragile, produced a hybrid system of traditional authorities.


 On the one hand, these chiefdoms – whether original or adapted – represented a guarantee of continuity for the functioning of the communities; on the other hand, they constituted the bases of colonial administration within the local setting. In this sense, the customary represented a safety cushion between the communities and the agents of the colonial administration, who were entrusted with resolving various administrative, economic and legal problems, and allowed for a more or less harmonious relationship between the two.


 Despite being modified under pressure from the colonial entity, in a certain sense the actions of the traditional authorities continued to be seen as local in origin, and as the result of a profound familiarity with the feelings, existing norms and language of the communities. These were the factors that permitted and legitimated their actions. However, the ideological campaign of Frelimo during the period of the nationalist struggle for independence, as well as throughout a large stretch of the post-independence setting, was aimed at reinforcing the dualist nature of the system: the citizens as oppressors and the indigenous as the true Mozambicans. Yet, the socio-political and legal fabric appears much more complex at the height of independence in Mozambique.