Review of the Mozambique Constitution (1991), by Sean Gabb

The Constitution of the Republic of Mozambique
by Sean Gabb
(Ghosted and published in October 1991)

Note: This is one of the many pieces that I write under false names for money. I really did think this constitution was a stinker. I hope it has sunk without trace. Since I cannot be bothered to read them, I may or may not agree – or have agreed at the time – with any incidental comments.

INTRODUCTION

The purpose of a constitution can be expressed very briefly:  it is to regulate the use of power by the State.  This should be done in three ways.

First, rather than left in a single pair of hands, power should be divided among a number of co‑ordinate bodies, each capable of monitoring and where necessary restraining the acts of the others.  These bodies might be a president, a legislature, and a supreme court.  If so, a constitution must lay down the means by which persons are appointed to them, what each may and may not do without the consent of the others, and how such disputes between them as arise may be resolved.

Second, a mere division of power not always being sufficient to prevent its abuse, a constitution must also contain a declaration of fundamental rights, together with some means for a person to obtain legal redress against the State or its agents in the event of their being violated.  These fundamental rights are to life, liberty and property, and to just treatment before the courts.

Third, once settled and adopted, a constitution should be preserved from further alteration save by explicit general consent.  A president ought not to be able by his own  decree to extend his term of office; nor a legislature to abolish some fundamental right by simple majority vote.  Nor indeed should accidental amendments be possible ‑ as, for example, by letting the courts regard a contradictory law passed subsequently as a repeal of some constitutional provision.  Therefore, a constitution must be entrenched.  The courts must be required to strike down any ordinary legislation that conflicts with it.  Amendments must be ratified by a special majority of the legislature, or by referendum, or by some other means of ensuring that changes shall not be made for light or transient reasons or to suit the advantage of a dominant minority.

These principles being stated, I now proceed to an examination of the document before me.  The Constitution of the Republic of Mozambique was drafted for the Government of that country, and came into force on the 30th November 1990.  It has some virtues, I freely acknowledge, and these I will mention where appropriate.  But its virtues are far outweighed by its faults, and are even nullified by them.  It is too long for me here to consider it article by article.  It runs to 206 articles and 20 pages of double column print.  What I will instead do is consider it as a whole, taking its various faults in order of severity.  These faults are:  of vagueness and other infelicities of drafting, of over‑inclusion, of omission, of calculated fraud.

ONE:  VAGUE AND INFELICITOUS DRAFTING

According to Article 9(1) of the Constitution,

The Republic of Mozambique shall be a lay state.

I have no objection to this clause in itself.  Whether it is better for a state to be secular or to establish one or more faiths depends on too many specific circumstances for a definite rule to be laid down.  As a foreigner, I cannot hope to know all the circumstances specific to Mozambique and so have nothing to say regarding the religious policy of its present or any future government.  I mention the clause only because Article 84(1) asserts a “sacred duty and honour” to do something.  Is the Republic of Mozambique to stand above religion?  Or does it claim the allegiance of the Mozambican people subjects on some grounds of religious obligation?  The Constitution does not make this entirely clear.

Now, this might seem a pedantic criticism in any other document.  But what we have here is a constitution ‑ a document which must be as clear and consistent as the human mind can make it.  It purports to guarantee the lives and property of millions.  It cannot afford the slightest inconsistency.  If its drafters could make even a single slip when treating so important a subject as the religious settlement, their general competence must come at once into question.

Nor is this the only inconsistency of drafting.  For the most serious that I can find, Take Article 79(1):

All citizens shall have the right to freedom of  scientific, technical, literary and artistic creativity.

These are valuable rights, and ought certainly to be protected in any constitution.  But they are subsumed within the rights to freedom of speech and of the press.  These are already protected, if with various exceptions, by Article 74:

1. All citizens shall have the right to freedom of expression and to freedom of the press, as well as the right of information….

4. The exercise of the rights and freedoms referred to in this article shall be based on the necessary respect for the Constitution, for the dignity of the human person, and for the mandates of foreign policy and national defence.

Now, Article 79 confers absolute rights while Article 74 confers limited rights.  Assuming one is not somehow to be construed as ousting the other, I can see endless confusion when any question regarding these Articles is brought before the courts.  When A publishes his dirty book or his satire on the President, is he exercising his absolute right to “artistic creativity” or his limited right to “freedom of expression”?  Is there to be censorship in Mozambique or is there not?

Again, take Article 200:

The Constitution shall take precedence over all other law.

This is a fine entrenching article.  Indeed, it could hardly be improved.  Such a pity it repeats, if in better form, Article 162:

Under no circumstances may the courts apply laws or  principles which are contrary to the Constitution.

These two Articles may not contradict each other.  But every repetition in a legal document, if the words are varied, tends to weaken the substance of what is being repeated.  It gives the courts too easy an opportunity to pick and choose between articles to enforce.  It also teaches people to despise their constitution as the product of incompetent drafting.

In general, the Constitution is swollen to an extraordinary extent with useless or dangerous phraseology.  Its drafters seem to have fallen into the mistake of believing that a constitution needs to recommend itself with little exhortations and platitudes.  Perhaps as a sample of Portuguese prose, what they have produced is a very gem gleaming in the clear African sunlight.  But ‑ it cannot be too strongly emphasised ‑ schoolboy orations and legal documents are different types of composition, and language suitable to one is not always suitable to the other.  The chief value of the latter type lies not in the beauty of its words but in their economy and precision.  The whole object is to express a single desired meaning, reducing to the smallest minimum possible all opportunity for judicial or other misconstruction.  The work before me fails miserably in this object.

Take Article 1:

The Republic of Mozambique is an independent, sovereign,  unitary and democratic state of social justice.

This informative mode of expression I will consider below.  For the moment, I ask ‑ what is meant by “social justice”?  I know the meaning of justice.  This is the protection of life and property and the enforcement of promises according to a known and impartial process.  What it means when the adjective is added is far less clear.

In England, those who call for social justice usually mean that earnings should be set according not to the laws of supply and demand but to some other criterion of merit.  I presume this to be the meaning intended in the Constitution, since Article 89(1) confers the right to “just payment” of employees.  If so, we must know what this criterion is to be.  We can talk all we please about what is fair and unfair.  We can even agree that a single person or group is unfairly rewarded.  But when it comes to deciding a hierarchy of merit according to fairness, all agreement must inevitably break down:  given the least chance of getting my way, I will never accept the fairness of my earning less than you or of my being less well‑regarded.  We are left then with two possible criteria.

First, we can take the structure of relative earnings from some past age and call that socially just.  This is what many people do in practice.  Thus, when school teachers employed by British local authorities denounce their present salaries as unjust, what they mean is that today they earn less on the whole than the parents of their pupils, whereas their predecessors of 30 years ago earned more.

Second, we can leave it to those in power, perhaps doing the work of some influential pressure group, to decide what structure of relative earnings and other rewards is fair.

The first of these criteria is too silly to be worth discussing.  The second is plainly dangerous.  It gives such unlimited power to the government that no person of good will can defend it.  Therefore, I deny the value of including the phrase “social justice” in any part of the Constitution.  Either it has no meaning and is redundant, or it has a meaning which is undesirable.  Much the same reasons can be brought against the use of other phrases such as “the higher interests of the nation” (Art. 22(b), “the consolidation of the Mozambican nation” (Art. 32(2c)), “social harmony” (Art. 69), and so forth.

I pass now to instances of whole clauses and articles that mean nothing.  Take Article 34:

1. Social organisations, as organisations of citizens having joint interests and affinities, play an important role in promoting democracy, and in the participation of citizens in political life.

2. Social organisations contribute to achieving the rights and freedoms of citizens, as well as towards raising individual and collective consciousness in the fulfilment of civic duties.

As a statement of fact, this may be true or false.  Its wording may be exquisitely lovely in the original Portuguese.  But what is it doing in a constitution?  What acts does it prohibit or enjoin?  To what class of legal action can it give rise?  At the least, in conjunction with which other articles of the Constitution is to to be read, and how is to to govern their interpretation?  What is a court to make of it?  The Article is nothing, so far as I can tell, but a mass of needless words.  It contributes nothing towards the restraint of power.  Insofar as it gives a corrupt or incompetent judge words to twist to a meaning of his choice, it tends to frustrate the very purpose of having a constitution.

Again, take Article 7(1):

The Republic of Mozambique shall uphold the values of  the heroic struggle and centuries of resistance by the  Mozambican people against foreign rule.

I am not at all doubting the heroism of the Mozambican people or the justice of their cause if I ask what this means.  What are these “values”?  How are they to be upheld?  By what means are disputes over their upholding to come before the courts?

Yet again, take Article 58:

1. Young people, bravely upholding the patriotic traditions of the Mozambican people, played a decisive role in the national liberation struggle, and constitute a force for the renewal of Mozambican society.

2. State policy shall be directed particularly towards ensuring the harmonious development of the character of young people, to helping them acquire a taste for free and creative work, to developing their sense of serving the community, and to providing appropriate conditions for their entering into active life.

Clause (2) of this Article does come close to having a meaning discoverable by the courts.  It confers certain rights.  But that is all.  What on earth are these rights?  How is a court to decide whether a young plaintiff is not being helped to acquire a “taste for free and creative work”?  Indeed, what is “free and creative work”?  Having answered these two questions, what remedy is the court to grant, and against whom?  Despite its improved form, this Article is as redundant as the two considered above.

We are moving now, though, from simple verbosity to a central fault of understanding on the part of the drafters.  In Article 93(1), they declare the “right to physical education and to sport”.  By itself, this is meaningless.  A right cannot stand alone, but is always the reciprocal of an obligation.  Thus, under English law, I have the right not to be detained by the authorities more than 96 hours without charge.  This is expressed and given meaning by the obligation of the High Court of Justice to grant a writ of Habeas Corpus for my release, and the further obligation of the Police to obey the Order of the Court.  My right is their obligation.

To give a simpler example, when I make a contract with a shopkeeper, both rights and obligations are created.  I have the right to my goods and the obligation to pay for them.  The shopkeeper has the right to my money and the obligation to provide me with the goods.

To assert a right without also stating against whom and by what means it may be exercised is to say nothing at all.  Rather than to physical education and sport, the Constitution might as well give every Mozambican citizen the right to swing on a star every birthday.  It would have had just as much practical meaning.

TWO:  FAULTS OF OVER‑INCLUSION

There is one right in the Constitution that would have best remained meaningless.  This is conferred by Article 94:

All citizens shall have the right to medical and health  care….

But a meaning has here been attached.  By Article 54(1),

Medical and health care for citizens shall be organised  through a national health service which shall benefit  all Mozambicans.

National health services may or may not be a good idea.  They are undoubtedly controversial, and the controversy is carried on now surpisingly close to the centre of the political spectrum.  There are many who regard collectivised health provision as immoral, so far as it compels people to pay towards the support of others, and erodes the notions of self‑help and personal responsibility.  There are many who doubt whether it really is the most caring and efficient means of ensuring the good health of a people.

Certainly, it may be a luxury far beyond the present reach of the Mozambican people.  During the past 12 years, the two main British political parties have argued repeatedly over how much to spend on the National Health Service.  One claims it to be chronically under‑funded, the other that without radical reform its costs will rise until the cripple the economy.  Whichever party is right, their argument is taking place in a country of 56 million people, with a gross national product approaching US$1 trillion, over an institution that is the biggest employer in Europe and costs the equivalent of the gross national product of Egypt.  If the British NHS is generally considered unsatisfactory, there are obvious reasons why it may not be an appropriate model for imitation by Mozambique.

All these objections, I allow, may be groundless.  But they will be made, and by large numbers of people with the very best intentions.  Therefore, Articles 94 and 54(1) have no legitimate place in the Constitution.  That should be a fundamental charter ‑ a document above everyday controversy.  It should be regarded as the ring within which all debate takes place, not as one of the contenders.

It may, I further allow, be argued by those who believe in its feasibility that the right to health is one of those matters which are properly constitutional, irrespective of whether some political group objects.  After all, is the prohibition of judicial torture to be omitted from a constitution because some people want to keep it?

But to ask this hypothetical question is to show a poor grasp of politics.  Its answer regrettably is yes ‑ if enough people support its use, there should be no constitutional prohibition of it.  It should instead be regarded as a matter for ordinary legislation, to be argued over as part of the ordinary democratic process.  To be sure, there are some very basic rights which must be protected if a constitution is to be worth having at all.  Thus, if protections of any personal freedom and the right to own any property are excluded, there is possibly no point in drawing up and adopting a constitution.  But if, the others being accepted, a single right is objected to by a strong enough lobby ‑ no matter how valuable in itself that right ‑ it may be necessary to settle for imperfection rather than for nothing.

By all means, if the people want one, let a national health service be tried.  But let it be set up by ordinary legislation, that may later be amended or repealed as required.  To entrench it at the outset is to invite unnecesary trouble.  In the first place, later alterations will be made far more difficult than they ought to be.  In the second, the moral force of the Constitution will be diminished with each alteration.  No constitution can survive any length of time without some amendment.  But none will survive if amendment is allowed to degenerate into merely a cumbersome form of legislation.

The same criticism applies to Articles 62‑65 inclusive, regarding foreign policy.  It may be a good thing for Mozambique to be a “non‑aligned country…. in solidarity with the struggle for the unity of the peoples and states of Africa”.  On the other hand, this kind of policy might well be calculated to fill Maputo with foreign terrorists and turn Mozambique into a pariah state.  Certainly, with the disintegration of the Soviet Union, non‑alignment is no longer the crafty stand that it may once have been.  Today, a nation enjoys good relations with the United States or it does not, and it takes whatever consequences may be attendant on which course it chooses.  But, regardless of the merits of the one prescribed, foreign policy is not a matter for entrenchment.  Mozambique, like every other country, has certain permanent interests in the outside world.  The means of furthering these will inevitably change over time, and should be chosen according to the convenience of the times.

The same criticism applies again to Articles 46‑48 inclusive, regarding the nationalisation of land.  This is rightly a controversial matter, involving as it does considerations of economic efficiency and public morality.  It seems to be that economic progress can occur only when the great balance of property is in private hands.  The ownership of land is the oldest and still the most highly prized species of property right, and is widely regarded as a fundamental right.  Its denial will be so fiercely resisted as even perhaps to make the Constitution unworkable.

In reply to those who would would have the right to own land included in the Constitution, it might be said that many of the people want land nationalisation, and would just as fiercely oppose the entrenchment of its privatisation.  This may be so.  I have seen no opinion polls on the matter.  But if it were so, applying the principle stated above in connection with health provision, it would only justify the leaving out from the Constitution of any mention at all of land.

THREE:  FAULTS OF OMISSION 

I turn now to those things which have been left out or put in only imperfectly.  I do not expect a full entrenchment of liberal individualism.  As I have admitted, there may be some rights that it is not politically possible to entrench.  I find, for example, no explicit guarantee of rights irrespective of sexual preference.  Perhaps Article 66, beginning “All citizens are equal before the law”, might be construed as preventing legal discrimination against homosexuals.  Perhaps it might not.  It may be that homosexuality is so abhorred in Mozambican society that no constitution allowing its free expression would be accepted.  If so, this is regrettable, but must be accepted.  It is better, I repeat, that some rights be guaranteed than that none be.

What I do mean is the apparent carelessness with which many rights are conferred.  Take the following Articles:

75 All citizens shall have the right to freedom of assembly  within the terms of the law.

87 The State shall recognise and guarantee, within the  terms of the law, the right of inheritance.

96 In the Republic of Mozambique, no‑one may be arrested and put on trial except within the terms of the law.

There are many more Articles just like these.  Rights are given in general terms, their specifics being left to later elaboration.  There was a time when the word “law” had a clear and certain meaning.  In 1215, King John of England promised not to proceed against his subjects nisi per legale iudicium parium suorum uel per legem terrae ‑ save by legal judgment of their peers or by the law of the land.  To the men of that age, law was an objective force, revealed to or discovered by those bound by it.  They had no need to worry about giving a meaning to lex and its adjective.  Today, law is more commonly defined as the will of a sovereign expressed in due form and with a sanction attached for its breach.  There is no guide in its definition as to what its specific content ought to be.  This criticism applies even in settled countries like England and the United States.  In a country like Mozambique, which has been unsettled for at least the past generation, it applies with redoubled force.  When stating that something shall be done according to law, it is natural to expect that a constitution should also state what is or ought to be meant by law.

To guarantee that laws shall not be synonymous with the will of an arbitrary despot expressed in due form, they must be required to conform to certain standards.  They must:

*so far as is politically possible apply to all persons, regardless of their rank, sex, sexual orientation, religious persuasion or national or ethnic origin;

*be clear in meaning and have been made and published in advance of their enforcement;

*be enforceable by independent courts of law in which the accused shall have the right

 ‑to a speedy and public trial,

 ‑to have been previously informed of the nature  and cause of the accusation,

 ‑to be presumed innocent until proven guilty,

 ‑to be confronted by the witnesses for the  prosecution,

 ‑to have compulsory process for obtaining  witnesses for the defence,

‑  not to be subjected to any cruel or unusual  punishment.

The Constitution does, as said, contain a declaration of equality before the law (Art. 66).  It does prohibit retrospective legislation (Art. 99).  It presumes the innocence of an accused person (Art. 98(2)).  But it lacks any comprehensive statement of the criteria to which laws must conform.  This would always be a fault in a modern constitution.  In one that refers so often as the present one to subsequent legislation, it is a most serious fault.

Of course, all disputes as to interpretation will come before the courts.  Perhaps the judges can be trusted to supply any formal deficiencies in the Constitution.  Looking, however, at those Articles providing for the administration of justice, and at the current situation in Mozambique, I doubt whether these formal deficiencies will be ‑ or are desired to be ‑ supplied.  Over and above the faults that I have already discussed is the strongest internal evidence that the Constitution is not intended to restrain a single abuse of power.  It is a facade behind which a tyrannical oligarchy hopes to continue its old course of misgovernment.

FOUR:  CALCULATED FRAUD

Even if I knew nothing else of Mozambique but what was said in the Constitution, the Preamble would put me on my guard.  On the 25th June 1975, it says, the Central Committee of the Mozambique Liberation Front (FRELIMO) imposed its own internal constitution on the whole country ‑ attributing “a determinant role to FRELIMO as the legitimate representative of the Mozambican people”.  In other words, Mozambique became a one‑party state.  Worse than this, as anyone knows who keeps an eye on the newspapers, it became a one‑party Marxist‑Leninist state.  The Mozambican people had passed under a government that was to rob them and starve them and use them as slaves, and to murder or otherwise punish them if they showed the least sign of resentment.  Between 75,000 and 100,000 people are estimated to have been punished ‑ usually without so much as a show trial ‑ as enemies of FRELIMO.  All the same kinds of atrocity that are now universally acknowledged to have been committed by other Communist regimes were committed in Mozambique.

By the late 1980s, it had become clear to the FRELIMO leadership that naked Communism had no future.  Changes in the Soviet Union were causing the flow of aid and moral support to dwindle.  Economic policies that had turned even Central Europe into a polluted rustbelt had brought Mozambique to a state of catastrophic poverty.  A civil war was in progress in which the anti‑Communist resistance was gaining both territory and popular support.  If the regime were not to collapse, it needed western aid and other assistance.  It is attempting to gain this by hiding its true nature behind a veil of liberalism.  “Look at our new constitution” it is saying to the world. “Mozambique is now a multi‑party democracy.  All the usual guarantees are in place.  No one has any grounds of complaint.  Give us money.  Help us defeat the resistance.  Allow our country to settle down at last in peace and democracy.”

It is conceivable that the FRELIMO leadership has genuinely changed its mind ‑ that, having tried Communism and watched it fail, it is now willing to try liberal democracy.  In doubting this, however, I need only appeal to its own Constitution.  Look at Articles 170(1) and 171(1):

The Supreme Court shall be composed of professional  judges and of elected judges, the number to be  established by law.

In court hearings, matters of law shall always be  decided by the professional judges.

Who are these professional judges to be?  Following the Portuguese and other European practice, I suppose they will lawyers employed and trained by the State.  As an Englishman, I find it hard to imagine how people who have looked exclusively to the State for every increase in their status and income can be impartial between it and its citizens.  Perhaps in Western Europe, despite my abstract reservations, the system works well enough.  In Mozambique, I fail to see how such judges can at the moment be other than the most utterly servile creatures of those in power.  Even if they were not all its enthusiastic supporters, they will have spent the past 16 years bowing and scraping to an absolute and arbitrary dictatorship.  Many of them seem to know less about what constitutes due process of law than the cleaners who empty their bins.  Any dispute as to the meaning of the Constitution they will surely resolve in favour of the Government.

It might here be objected, that the old judges can be cleared out and new ones appointed.  This is possible, but extremely unlikely.  By Article 170(1), professional judges are to be appointed by the President after consulting with some Supreme Council of the Judiciary ‑  the composition and powers of which, by the way, are nowhere described in the Constitution.  By Article 204(1),

Until general elections are held, the President of the  Republic of Mozambique shall be the President of the  Frelimo Party.

The head of the Mozambique Communist Party is therefore to be the man who appoints the first set of judges who are then to interpret the Constitution.  It is intended that FRELIMO shall enjoy the same advantage in all subsequent politics as a man who plays bridge with marked cards.

Nor is control of the judiciary, though perhaps sufficient, to be its only constitutional advantage.  Let us look more closely as the provisions relating to land nationalisation.  By Article 48,

In granting titles for the use of land, the State shall  recognise and protect rights acquired through  inheritance or occupation, unless there is a legal  reservation, or the land has been legally granted to  another person or entity.

Since all land owners were expropriated in 1975, the only titles for the use of land are those granted by FRELIMO ‑ to its leaders, to its most loyal followers, to foreign businesses on the payment of financial or other bribes.  Its status as effectively the greatest landlord in the country has been written into the Constitution as plainly as if all the fine words of Article 46, about “social well‑being” and the “right of all the Mozambican people”, had been confessed as the sham that they are.

Again, look at Articles 11 to 29 inclusive, regarding Mozambican nationality.  By Article 20,

Persons to whom the President has already granted  nationality by origin for relevant services to the cause  of national liberation are Mozambicans.

By this Article, it is to be expected that the 20,000 or more Zimbabwean mercenaries now maintaining the FRELIMO regime will have electoral power added to their armed might in the new Republic.

Assuming that FRELIMO maintains its hold on power under this constitution ‑ not unlikely considering all its initial advantages ‑ it will not be constrained by any provisions guaranteeing the rights of the people at large or of its opponents.  Whatever I have said above concerning the value of these guarantees, they have already been repealed.  By Article 69,

All acts intended to undermine national unity, to disturb social harmony, or to create divisions or situations of privilege or discrimination based on  colour, race, sex, ethnic origin, place of birth, religion, educational level, social position, physical or mental ability, the legal status of one’s parents or  profession, shall be punished according to law.

This Article, given only its natural meaning, appears to allow the forbidding of any attempt at self‑improvement or assertion of individuality.  As such, it flatly contradicts at least a dozen other articles, in which individual rights are set out and regulated.  In any conflict, though, it is easy to predict which the courts will hold to prevail.

Finally, I mention the intended symbols of the Republic.  By Article 193,

The national flag shall have five colours:  red, green,  black, gold and white.

The significance of the colours shall be as follows:

Red ‑ the centuries of resistance to colonialism, the  armed national liberation struggle, and the defence of  sovereignty;

Green ‑ the riches of the soil;

Black ‑ the African continent;

Gold ‑ the rishes of the subsoil;

White ‑ the justice of the struggle of the Mozambican  people, and peace.

From top to bottom, there shall be green, black and gold  horizontal stripes, separated by strips of white.  On the left side, there shall be a red triangle, in the centre of which there shall be a gold star.  Above this there shall be a crossed hoe and gun, superimposed upon a book.

The star shall symbolise the spirit of international  solidarity of the Mozambican people.

The book, hoe and gun shall symbolise study, production  and defence.

This pattern may be a stamp‑collector’s dream.  To at least a large minority of the Mozambican people, it represents an outrage as great as if the British union flag were to be replaced by the logo of the Labour or Conservative Party.

CONCLUSION

The Constitution of the Republic of Mozambique is wholly unacceptable.  It is incompetently drafted even where not a charter for continued FRELIMO domination.  It is too bad to constitute so much as a basis for further discussion.  It must be set aside and forgotten.  Anyone who genuinely wants peace and democracy in Mozambique must instead accept the following principles:

  • that there should be a general ceasefire in the civil war;
  • that all foreign military forces should be repatriated;
  • that all political prisoners held by the FRELIMO regime should be released, and adequate guarantees made of basic freedoms;
  • that elections should be held under international supervision for a Constituent Assembly which shall then draft a new constitution and bill of rights;
  • that this constitution and bill of rights should be submitted to a referendum of the whole Mozambican people, again voting under international supervision.

Only in this way, most assuredly, can there be hope for Mozambique.

© 1991 – 2017, seangabb.

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