Outdated offences, the criminalisation of poverty and legal reform in Mozambique

A PPJA seminar on outdated offences in Mozambique investigated the impact and possibilities for reform of outdated offences contained in the colonial Penal Code.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 Article 71 of the Penal Code, which dates from 1886, criminalises certain acts which may be considered to be "outdated", such as being a rogue and vagabond, mendicancy (begging), prostitution and touting.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of inmates were held in preventive (pre-trial) detention; however it is not clear how many were detained in relation to outdated offences.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Rights and Legality, in her presentation at the PPJA seminar focused on the role of Parliament in the abolition of outdated offences and in the promotion of a human rights culture in Mozambique.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