The Republic of Mozambique1 achieved independence from Portugal in 1975. The Mozambican National Liberation Front (Frente da Libertação de Moçambique, FRELIMO) created a one-party state led by its first President Samora Machel. A civil war between FRELIMO and the Mozambican National Resistance (Resistência Nacional Moçambicana, RENAMO) destabilised the country until 1992, the year in which the Rome General Peace Accords were signed. Under the second President Joaquim Chissano, with the promulgated Amnesty Laws no. 14/87 and 15/87, the country determined that nobody would be prosecuted for the atrocities committed during the conflict.2
Mozambique is a constitutional democracy based on Portuguese civil law and customary law. The 1990 Constitution established an independent judiciary, with judges nominated by other jurists, with the exception of judges of the Supreme Court who are appointed by the President. In 1992, the Organic Law of the Judicial Courts (Lei Orgânica dos Tribunais Judiciais) recognised three main layers of judicial courts (tribunais judiciais): district courts, provincial courts, and a Supreme Court in Maputo; during the same year, the Community Courts Law provided the legal framework for community courts (Lei dos Tribunais Comunitários) with jurisdiction over minor civil and criminal disputes. These have no formal links with the judicial courts, and have in practice not received any financial or material assistance from the government or judicial courts.3
With 184 centres of detention and 200 police stations,4 Mozambique held around sixteen thousand people in detention in June 2011, with a pre-trial population of between 26.95 and 36 per cent.6 Whilst the Prison Organisation Act (Law no. 26 643 of 28 May 1936) is the only law on prisons, the Prison Policy no. 65/2002 contains provisions relating to the safeguards for persons deprived of their liberty, the separation of different categories of detainees and principles of rehabilitation for prisoners. The prisons, unified under the responsibility of the Ministry of Justice by Law Decree 7/2006, are administered by the National Prisons Service (Serviço Nacional das Prisões, SNAPRI). The Ministry of the Interior is responsible for all internal security forces, including the Police of the Republic of Mozambique (Polícia da República da Moçambique, PRM), the Criminal Investigative Police (Polícia da Investigação Criminal, PIC), and the para- military Rapid Reaction Police (Polícia de Intervenção Rapida, PIR). Regulated by constitutional provisions and sectorial legislation, the police forces are guided by the Strategic Plan of the Police of the Republic of Mozambique, 2003–2012 (Plano Estratégico da PRM 2003–2012, PEPRM).7
Mozambique has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights on the abolition of the death penalty and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but not its Optional Protocol.
In 2004, a third post-independence Constitution8 (amending the 1975 and 1990 Constitutions) further strengthened individual rights, and some progressive changes were made to recognise Mozambique’s legal pluralism (pluralismo jurídico), under which different normative and dispute resolution systems coexist (Art. 4). The Constitution has recognised the right to liberty and security of the person (Art. 59) and detainees’ right to promptly be brought before a judicial authority and to be informed promptly of the reasons for their imprisonment (Art. 64). The right to challenge the lawfulness of detention (Art. 66) has been restricted with a time limit of eight days, within which courts must respond to writs of habeas corpus. The right of accused persons to legal assistance and aid is recognised (Art. 100), as is the right to choose a defence counsel (Art. 62). The Institute for Legal Assistance and Representation (Instituto de Assistência e Patrocínio Jurídico, IPAJ), created in 1994 and under the supervision of the Ministry of Justice, satisfies these constitutional requirements. The death penalty has been abolished (Art. 40) and the minimum age for criminal responsibility established under the Mozambican Penal Code is 16 years of age.
There is no specific legislation prohibiting torture, cruel, inhuman and degrading treatment. Neither is there legislation tackling other violations of the right to life that might occur in the health and prison systems or in the environmental sector. Neither the Constitution nor any other legislation contains any norms relating to the rehabilitation of torture survivors.
Difficulties have been encountered in the implementation of the abovementioned legal provisions, as reports of international and national organisations have illustrated. At the national level, the Mozambican Human Rights League (Liga dos Direitos Humanos de Moçambique, LDH) has shown that conditions of detention in the country remain problematic, the legal terms of pre-trial detention are not respected, cases of torture and ill treatment have occurred in police custody as well as in prisons, and killings and arbitrary detentions have been perpetrated by the police.9 International sources such as Amnesty International,10 the Working Group on the Universal Periodic Review,11 the Special Rapporteur on Prisons and Conditions of Detention in Africa12 and the human rights reports of the US State Department13 confirm that, although the country has undergone important legal reforms, their implementation has yet to be accomplished.
The lack of effective oversight mechanisms at the national level represents a challenge for Mozambique at the investigation and monitoring level. Although the 2002 prison policy defined two types of monitoring – internal and external – there is little information available on how the internal complaints mechanism operates. External monitoring is meant to be conducted by the Justice Ombudsman, which was established in 2006, and the National Human Rights Commission, of which the founding legislation was adopted by Parliament in 2009. Neither, however, is operational. In 2004, an innovative measure was taken, in that commissions that operate at the provincial level were appointed. These commissions include representatives from the Ministry of Justice, provincial police command, the Public Prosecution Service, the judiciary and the director of the prison under review.14 National and international NGOs need special permission to visit prisons. The two visits of the African Commission on Human and Peoples’ Rights’ Special Rapporteur on Prisons and Conditions of Detention in 1997 and 2001, and the visits of the LDH have played an important role in highlighting poor detention conditions as well as cases of torture in Mozambique. Other civil society institutions and professional associations are not active in torture prevention.
In conclusion, recent legal reforms in Mozambique can be considered a small step towards greater respect for individual human rights. However, the practices reported by national and international bodies have shown not only the lack of implementation of legal norms, but also weaknesses and challenges that the country faces in the development of a human rights culture. There is, furthermore, a need to strengthen civil society in order to improve respect for human rights.
- Note on research limitations: Due to the desktop nature of this research, it has been difficult to establish the practical situation in the country. Many important documents (including up to date legislation) are not available online, or in South African libraries. Certain information that is relevant to this project, such as the exact number of places of detention both under civil and military control, the number of detainees currently held in detention facilities other than state prisons, practices of recording and monitoring interrogations, and what means of restraint are used in Mozambican prisons, is not available. Also, given the fact that local civil society engagement in this field is limited, not many independent reports have been produced.
- Igreja V et al. 2008 ‘Gamba spirits, gender relations, and healing in post-civil war Gorongosa, Mozambique’ Journal of the Royal Anthropological Institute (N.S.) vol. 14, pp. 353-371.
- Moçambique. O Sector da Justiça e o Estado de Direito 2006 Open Society Initiative Southern Africa, Johannesburg.
- Baker B. 2003 ‘Policing and the Rule of Law in Mozambique’ Policing and Society vol. 13(2) pp. 139-158.
- Walmsley R. 2011 World Prison Brief on Mozambique International Centre for Prison Studies, London. Accessed 8 October 2011 http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=35
- José AC. 2010 Alguns Desafios para a Aplicaçâo de Penas Alternativas à Prisâo em Mocambique. Departemento de Estudos e Investigaçâo. Centro de Formaçâo Juridica e Judiciaria, Maputo
- Moçambique. O Sector da Justiça e o Estado de Direito. 2006 Open Society Initiative Southern Africa, Johannesburg.
- Constituçâo da República de Moçambique 2004 Government Gazzette No. 51.
- Liga Dos Direitos Humanos 2007 Relatório Sobre a Prática dos Direitos Humanos em Moçambique. Accessed 10 October 2011 http://portuguese.maputo.usembassy.gov/uploads/images/I2Kjl9RF856VL2SzEp7-iQ/mdireitosh2007.pdf
- Amnesty International 2009 Já Nâo Acredito Na Justiça. Obstáculos à Justiça em casos de Homicidios pela Polícia em Moçambique Amnesty International Publications, London.
- Human Rights Council. Working Group on the Universal Periodic Review UN. Doc. A/HRC/17/16, 28 March 2011.
- African Commission Human Peoples’ Rights. 2001 Prisons in Mozambique. Report on a visit 4-14 April 2001 Special Rapporteur on Prisons and Conditions of Detention in Africa (on file with Vera Mlangazuwa Chirwa).
- Departamento de Estado dos E.U.A. 2007. Relatório Sobre a Prática dos Direitos Humanos Moçambique. Accessed 2 October 2011 http://portuguese.maputo.usembassy.gov/uploads/images/I2Kjl9RF856VL2SzEp7-iQ/mdireitosh2007.pdf
- Moçambique. O Sector da Justiça e o Estado de Direito. 2006 Open Society Initiative Southern Africa, Johannesburg.
The 2nd Mozambican A5I workshop was held in November 2012, covered by Expresso Digital. See the full story on page 4: ‘Urge medidas severas contra torturadores’
Torture persists in Mozambican Prisons – Jornal Gratuito, November 2012. See the full story here:.
Communication on the development of the Art5I. Mozambican Human Rights Leaque, September 2012. See the full story here:.
Mozambique, February 2013
The Optional Protocol to the Convention against Torture (OPCAT) came into force in 2006. The Protocol underlies that visits to places of detention by independent and impartial authorities is the most effective method to prevent and eradicate torture and other ill treatment of detained persons. In Africa, twelve (12) countries have ratified both the Convention against Torture (CAT) and the Protocol, while eight (8) have ratified CAT and signed OPCAT.
On the 5 February 2013, Mozambique has ratified OPCAT as a means to effectively implement human rights standards in the management of prisons and other places of detention.
The Deputy Minister of Justice, Alberto Nkutumula, said to the journalists that with the ratification of this international instrument, mechanisms for regular visits to detention centers are going to be created. Visits of national and international organizations working to eradicate torture are going to be allowed to improve the conditions of detention of prisoners in Mozambique.
Communication on the development of the Art5I. Mozambican Human Rights Leaque, September 2012. See the full story here.
- 2004 Constitution
- 2005 Constitution
- OSF’s Mozambique: Justice Sector and the Rule of Law
- Prisons in Mozambique. Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, 2001
- Universal Periodic Review documents