Outdated offences, the criminalisation of poverty and legal reform in Mozambique

A PPJA seminar on outdated offences in Mozambique investigated the impact and possibilities for reform of outdated offences contained in the colonial Penal Code. Public hearings to be held in six provinces durng 2012 offer an opportunity for submissions on this issue. Mozambique has a mixed legal system of Portuguese civil law, Islamic law, and customary law. Article 71 of the Penal Code, which dates from 1886, criminalises certain acts which may be considered to be "outdated", such as being a rogue and vagabond, mendicancy (begging), prostitution and touting. As PPJA has argued elsewhere, many of these offences amount to no more than the penalisation of poverty. The Mozambican prison population amounted to over 16 000 people in June 2012, of which 38 per cent of inmates were held in preventive (pre-trial) detention; however it is not clear how many were detained in relation to outdated offences. Tina Lorizzo, of the Civil Society Prison Reform Initiative (CSPRI) of which PPJA is a project, pointed out in her presentation that the poor are disproportionately affected by the enforcement of such offences. The desirability of the decriminalisation of such offences has been recognised by the African Commission on Human and People’s Rights in 2003 in the Ouagadougou Declaration and the Plan of Action for the Reform of Prisons. In 2011 the UN Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepulveda Carmona, underlined in her report presented at the 66th Session of the UN General Assembly, the severe consequences that ‘measures of penalization’ used by governments cause to vulnerable populations worldwide. Carmona pointed out that states are increasingly implementing laws, policies and regulations that punish, segregate and control the freedom of persons living in poverty and the arbitrary use of detention and incarceration is targeting persons living in poverty with disproportionate frequency. Ana Rita Sithole, Member of Parliament and of the Committee on Constitutional Affairs, Human Rights and Legality, in her presentation at the PPJA seminar focused on the role of Parliament in the abolition of outdated offences and in the promotion of a human rights culture in Mozambique. The review and amendment of an existing law is the responsibility of Parliament and is conducted in the form of projects that need to be presented to the President of Parliament and to a competent Committee. The project must contain the justification and analysis of its terms of reference, the legal framework in which it is inserted and its possible implications (financial and other). Once the Committee has discussed and approved the project, this is sent to the plenary for a final vote by Parliament. At present with regard to possible reform of outdated offences, citizens are invited to present proposals regarding the review of Mozambique's 1886 Penal Code (1886). The review process started in 2010 and has been approved by the Committee on Constitutional Affairs, Human Rights and Legality. The public hearings will be held in six provinces and will provide an opportunity to address outdated offences and have certain acts decriminalised. Tina Lorizzo

Progress on human rights monitoring of places of detention in Mozambique

In recent years Mozambique has experienced a range of improvements in monitoring the observance of human rights in places of detention. At a PPJA seminar hosted by Liga dos Direitos Humanos (LDH) (Human Rights League) in Maputo on 4 July 2012, there was some reflection on human rights monitoring achievements, as well as the challenges which remain. The achievements include the signing of a memorandum of understanding ensuring the monitoring by civil society of human rights conditions in prisons, the appointment of independent statutory human rights commissioners, and the appointment of an Ombud. Mozambique became independent from Portugal in 1975 after ten years of a war of independence, lead by the Front for the Liberation of Mozambique (Frelimo). Civil war followed between Frelimo and the Mozambique National Resistance (Renamo). After Frelimo abandoned marxism in 1989, a peace agreement was reached in 1992. President Joaquim Chissano of Frelimo stepped down in 2004 after 18 years in office. Among the improvements in the monitoring of observance of human rights in places of detention since 2004 has been the signing of a memorandum of understanding between government and LDH to have full access to prisons to monitor the human rights situation in prisons. With the prison occupancy level at 253 per cent (June 2012), overcrowding remains one of the biggest challenges in prisons, exacerbating the generally poor conditions of detention. Access to food, clean water and sanitation represent ongoing challenges together with the lack of prisoner rehabilitation projects. The President of LDH, Mrs Alice Mabote (pictured left), raised concern about the difficulty encountered in establishing a similar memorandum of understanding with the Ministry of the Interior so that LDH can access places of detention in police stations and monitor places of detention. A further important milestone in Mozambique has been the appointment of a statutory independent Human Rights Commission. The adoption of Law 33/2009 on 22 December 2009, created the Comissão Nacional dos Direitos Humanos (CNDH) with a mandate to: Promote and protect human rights in Mozambique Be the leading agency in conducting human rights awareness campaigns Cooperate with competent authorities to promote respect of human rights Interact with citizens by collecting their complaints and investigating them. The CNDH will be an autonomous institution reporting on an annual basis to the President of the Republic and the National Assembly on the situation of human rights in Mozambique. The law entered into force in April 2010 and the Ministry of Justice was mandated to work on establishing the CNDH. All 11 CNDH commissioners have been selected through public consultation. Three members are from the Government, three from Parliament, four form civil society and one member from the bar association. Only three members appear to have a human rights education; one member is from Renamo, and one from the Muslim community. The challenge the CNDH commissioners will face from the outset is the lack of a clear statute and lack of a clear mandate for the CNDH. The nascent human rights culture in Mozambique may tend to interpret its role in a limited way, as an institution with neither judicial nor legislative powers. The commissioners are expected to take the oath in late July 2012. With the Commissioners in place the new Institution should be able, in theory, to start implementing its mandate from September-October 2012. It remains to be seen how broadly the commissioners interpret their mandate. Also at the PPJA seminar Dr Luis Bitone, of the Centre for Human Rights at the University Eduardo Mondlane, made a detailed presentation on arbitrary detention in Mozambique in which he noted that while the law was clear on the various institutions and provisions regulating detention, these laws were frequently not followed. Non-compliance by law enforcement officials with legal prescripts pointed to the urgent need for their training and for oversight to be exercised by institutions such as the CNDH to ensure compliance with law. The appointment by Parliament of an Ombud, Dr. José Abudo, the former Minister of Justice, in May 2012, may also be seen as an important milestone for human rights. The post of Ombud was envisaged in the constitution of 2004, and a law on the office of the Ombud was passed in 2006, but no Ombud was elected because a two-thirds majority was required and the ruling party did not then hold a large enough majority. At the time, Renamo insisted that the law be amended to provide for two assistant ombudsmen – one chosen by Frelimo and one by Renamo. This politicisation of the office was unacceptable to Frelimo, and no ombud was elected. The Renamo vote in the 2009 general elections collapsed, and Frelimo now holds a majority, of over 75 per cent in the Assembly. The Law on the Office of Ombud states that the Ombud should “make recommendations to the relevant bodies with a view to correcting illegal or unjust acts or omissions of the public powers or to improve their respective services”. The ombudsman may also note defects in the law and suggest amending or revoking legislation. Thus the Ombud may be a potential route toward the repeal of outdated offences in Mozambique, the subject of the seminar. Tina Lorizzo