Chapter 8

MOZAMBICAN LEGISLATION ON ORGANISED CRIME

Background

Mozambique is located on the eastern coast of Africa and borders the Republic of South Africa to the south, Swaziland, South Africa, Zimbabwe, Zambia and Malawi to the west and Tanzania to the north. It is bathed by the Indian Ocean for about 2 000 kilometres to the east.

On 25 June 1975, Mozambique gained its independence from Portugal, but it inherited the administrative structures and territorial divisions, as well as the judicial, legal and legislative systems of the colonial power. As the greatest indication of its sovereignty, Mozambique promulgated the Constitution of the Republic shortly after independence. This Constitution did not indiscriminately repeal the laws passed during the colonial era. It only repealed those that were directly or indirectly against the Constitution itself. Hence, most of the Mozambican laws are those that prevailed during the colonial period. Many of them are outdated.

The legal system that predominates in Mozambique (inherited from Portugal) is Continental Law, of which one of the main features is the use of codes, for example, the Civil Code, the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, the Administrative Procedure Code and the Labour Procedure Code. Apart from codes, the Mozambican legal system also contains various laws, some of which have been introduced since independence.

Generally, there are few laws dealing specifically with organised crime. There are, however, provisions to be found in various items of legislation such as the Constitution, the Penal Code, the Criminal Procedure Code, the Civil Procedure Code and other legislation which deal with this subject in an indirect manner. The legal instruments of conventional nature (treaties) deserve particular mention, in so far as they represent the growing efforts of the Mozambican government to harmonise the fight against this evil in society.

The purpose of this chapter is to examine Mozambican legislation that, in one way or another, is related to crimes presumed to have been committed by organised criminal groups. The following sets of norms are analysed:

legislation against money-laundering;



extradition laws and agreements;



laws relating to the trafficking in drugs;



laws relating to the trafficking in firearms and ammunition;



mutual assistance legislation;



laws against crossborder motor vehicle theft;



anti-corruption legal mechanisms;



laws to augment investigative capacity (for example, surveillance laws);



witness protection laws;



laws relating to forfeiture of the proceeds of crime, and any other laws that assist the state to combat any type or aspect of organised crime; and



other legislative initiatives.

The following legal instruments are considered:

the Constitution of the Republic of Mozambique;



the Criminal Code;



the Criminal Procedure Code;



the Civil Code;



the Civil Procedure Code;



other domestic instruments:



Law no 3/97 of 13 March 19977, on the legal regime applicable to drug-trafficking and consumption, and the establishment of the Central Cabinet for Drug Prevention,



Law no 5/98, 15 June 1998, on the Treasury, and



Law no 7/98, 15 of June 1998, on conduct applicable to public officials;



international legal instruments to which Mozambique is party:



the 1997 Harare Convention on Mutual Assistance Cooperation in the field of crime prevention (Resolution of the National Assembly no 31/99),



the 1958 New York Convention on the recognition and enforcement of foreign judgements (Resolution of the National Assembly no 22/98),



the 1996 Maseru Protocol on Unlawful Drug Trafficking Prevention in the SADC Region (Resolution of the National Assembly no 23/98),



the 1997 Ottawa Convention on the prevention of use, storage, production and transfer of land mines (Resolution of the National Assembly no 21/98),



the 1990 Lisbon Judiciary Cooperation Agreement (Resolution of the National Assembly no 10/91),



the 1961 UN Convention on Drugs (Resolution of the National Assembly no 7/90), and



the 1971 UN Convention on Psycho-tropical Substances (Resolution of the National Assembly no 8/90);



other legislative initiatives on similar matters.

The Constitution

This is the fundamental legislation of the Republic of Mozambique currently in force. It was passed by parliament in 1990. It makes no special provisions for the fight against organised crime. Of particular importance are the freedoms of assembly and association which are guaranteed in terms of articles 75 and 76, although such freedoms are strictly limited to legal purposes. Article 75 establishes that "[a]ll citizens have the right to assemble in terms of the law." Article 76 states that:

"1 All citizens have the right to assemble.



2 Social organizations and associations shall be entitled to pursue their aims, create institutions directed at reaching their specific objectives and hold assets with which to conduct their activities in terms of the law."

The law which guarantees these rights excludes the possibility of holding meetings or establishing organisations for the purpose of committing crimes or for unlawful purposes.

Article 103 refers to extradition, a measure that is often associated with organised crime, involving people of other nationalities: "Extradition shall only occur upon the decision of the court." It further states that "No Mozambican citizen shall be expelled or extradited from the national territory." It should be noted that, before a person can be extradited from Mozambique, an extradition agreement must exist between the country requesting such extradition and Mozambique, and then only upon the decision of the court.

Penal legislation

Substantive law

Penal law contains most of the rules governing the prevention of and fight against organised crime. In fact, chapter IX of the Mozambican Penal Code deals specifically with associations of malefactors, secret organisations, vagrancy, begging, and associations of people for purposes of committing crimes. Chapter X of the same Code deals with illegal lotteries, monopolies and others.

The following sections of the Penal Code deal with organised crime:

Article 34 (Aggravating Circumstance)

Clauses 7, 8, 9 and 10 of this article specify those conditions which may be aggravating circumstances with reference to crimes perpetrated by two or more people; crimes committed with the help of people who could facilitate or ensure impunity; and crimes agreed to by organised criminal groups.

Article 38 (Accumulation of Offences)

An accumulation of offences occurs when a person commits more than one crime on the same occasion, or commits a crime before having been sentenced by a court of law for a crime which may have been committed previously. Article 102 of the same Code, which sets out punishment, is also applied to organised crime given that this type of crime is always accompanied by one or more offences.

Article 53 (Application of Penal Law in Mozambican territory)

Should no treaty to the contrary exist, Penal Law shall be applicable to:

"1 All offences committed in Mozambican territory regardless of the nationality of the offender …

3 Crimes committed by Mozambicans in a foreign country against the internal or external security of the state, the falsification of public seals, the falsification of Mozambican coins, negotiable instruments or bank notes issued by the national bank or by companies or establishments legally authorised to issue such notes, should the criminals not have been judged in a court of law in the country where the crimes were committed.

4 Foreigners who commit any of the above crimes should they enter Mozambican territory or when it is possible to arrange for them to be handed over.

5 Any other crime or offence committed by Mozambicans in a foreign country, provided that:

The criminal or offender is found in Mozambique;

The fact is considered a crime by the laws of the country in which it was committed;

The criminal or offender has not been judged in a court of law in the country where the crimes were committed."

Article 71 (Application of Security Measures)

Clause 9 of this article establishes that security measures are applicable to all persons found guilty of the crime of association with malefactors, a gang or organised group.

Article 75 (Non-Penal Effects of a Sentence)

With concern to the non-penal effects of a sentence, in the case of organised crimes in which various instruments are normally used, clause 1 of the above article states that a person found guilty of a crime, regardless of the sentence, shall forfeit the instruments used in the crime to the state and that the victim, or a third party, shall not be entitled to their restitution. Hence, all arms or other instruments used must be returned to the owner or to the state.

Article 177 (Illegal Gathering)

An illegal gathering is a crime against public peace and order and occurs when people gather or meet in contravention of the legal provisions underlying such gathering. The people who organised or called such a gathering shall be deemed to have infringed the law.

Article 178 (Armed Gathering)

This crime is also related to organised crime and refers to situations where two or more people in a specific gathering are openly carrying arms.

Article 187 (Coercion against a Public Servant)

Any act of violence aimed at hindering any public official from performing any of his or her duties, should it have had the desired effect, shall be punished in terms of the rules dealing with the crime of resistance.

Article 215 (Falsification of Negotiable Instruments)

The falsification of cheques or the use of fraudulent cheques, punishable by a prison term of between two and eight years, is a crime generally committed by professional groups.

Article 253 (Prohibited Arms)

A person who manufactures, imports, purchases, transfers, sells or in any manner disposes of, transports, keeps or uses firearms or other instruments which may endanger lives, or put at risk the physical integrity or freedom of others, or which may be used in the destruction of buildings and goods, for purposes of committing a crime or knowing that they were to be used in the perpetration of any crime, shall be sentenced to 12 years imprisonment unless a more severe sentence is applicable.

Great emphasis is placed on the issue of arms because organised crime generally, if not always, involves firearms or it is presupposed that criminal organisations have access to firearms.

Article 263 (Association to Commit Crimes)

This article refers to persons who form part of a group, organisation or association whose objectives or activities are directed to the commission of crimes. Members of such groups, organisations or associations may be sentenced to a prison term of two to eight years and the leaders may be sentenced to a prison term of eight to 12 years.

Taking into account the amendments brought about by Law 10/87 which makes provision for more severe sentences, the establishment of groups or organisations with the objective to practice crimes, is defined in the law as a criminal offence. This offence can take the form of crimes against the safety of individuals, financial crimes, crimes against the sovereignty of the state, and crimes against public order and safety.

It is a crime suis generis, considering that the legal definition is based on the general provisions of the Penal Code, particularly article 14 of the Penal Code, which defines as preparatory actions all external actions conducive to the preparation or facilitation of the execution of a crime, not constituting the start of the perpetration of the crime.

Furthermore, according to the law, those actions conducted even before the start of the perpetration of the crime, are deemed to constitute an offence. All persons involved in actions that led to the perpetration of the crime are held criminally liable provided that these actions are foreseen in the law.

The fundamental objective is to extend criminal liability in order to be able to deal with organised crime. Thus, preparatory actions may be seen as aggravating circumstances, or as facts expressly foreseen in the law, and may be connected to theft, robbery, fraud, abuse of trust and to other types of crimes. For instance, it may be extended to the illegal traffic in narcotics and psychotropical substances, as set out in section 4, article 42 of Law 3/97 of 13 March 1997. It may also be extended to the receipt of or traffic in arms and explosives.

Article 270 (Illegal Lotteries)

Businesspeople, agents of any national lottery or any operation considered to be a lottery who, through an unauthorised lottery, stimulate the hope of making gains among the public through a game of chance shall be considered to be running unauthorised lotteries in terms of the law.

Article 279 (Smuggling)

The illegal import or export of goods that are expressly prohibited from entering or leaving the country is often carried out by highly organised groups.

Article 280 (Embezzlement)

People may form organised groups to commit this offence. In other words, they come together to practice fraudulent actions aimed at avoiding, in all or in part, the payment of duties and taxes payable on entry, exit or consumption of goods.

Article 282 (Unauthorised Organizations)

All organisations consisting of more than 10 people who, without having obtained the necessary permission from the government under the conditions which it may deem applicable, meet to deal with matters of a political, religious, literary or any other nature, shall be dissolved. The leaders shall be punished with a prison sentence of between one and six months. Other members shall be punished with a prison sentence of up to one month.

Article 283 (Secret Organisations)

This consists of members undertaking, whether by oath or not, to hide the purpose of their meetings or their internal organisation from the public authorities. Persons occupying administrative or managerial positions in such organisations shall be punished by a prison sentence of between two months and two years, and ordinary members shall be punished with a prison sentence of half this duration.

Article 318 (Bribery and Corruption by Public Servants)

All public officials who commit the crime of bribery and corruption by accepting a donation or gift, for themselves or for a third party with their authorisation and approval, to perform a task which forms part of their duties, should such a task have been executed and its performance have been unjust, shall be punished with a prison sentence of two to eight years and a fine corresponding to one year. However, should such a task not have been executed, such persons shall be suspended for three months and liable for the payment of the same fine.

Article 319 (Corruption of Judges and Members of the Jury)

Judges or members of a jury who accept a bribe to pass a judgement either for or against a specific person in a criminal case, before or after the indictment, shall be sentenced to a prison term of eight to 12 years.

Article 321 (Active Corruption)

Any persons who corrupt a public official through gifts, presents or promises in order to obtain a favour, buy a vote or to ensure a specific result shall be punished with the same sentence as that which apply to the public official who accepted this form of corruption, except that the requirements of dismissal or suspension shall be replaced by suspension.

Article 322 (Acceptance of Offer or Promise by Public Servants)

The provisions of article 318 shall be applicable to public officials who, on their own behalf or on behalf of others, accept an offer or promise to receive a gift or present from a person requesting a decision or order, or whose business or objectives depend on the exercise of the respective public functions.

Article 323 (Forfeit, in Favour of the State of Proceeds Received)

All proceeds received as a result of corruption shall always be forfeited to the state.

Article 363 (Use of and Threats with Firearms or Knives)

This article states that "the firing of a firearm, the use of a knife against a person, given that any of these facts are not classified as attempted homicides and provided that they do not cause injury or lesion, as well as threats with such arms with an intention to offend, or done by three or more people gathered with the intention of causing immediate harm shall be deemed to be bodily crimes and shall be punished by a prison sentence of between 2 and 8 years."

Article 406 (Corruption of Minors)

These are situations where minors are used to satisfy the unlawful wishes of a person. This is the case, for example, in the sex trade of which children are the victims.

Article 451 (Deceit to Defraud)

Deceit to defraud occurs when a false identity or false attribute, among others, is used to convince another person to hand over money or movable assets, or any funds or deeds.

Criminal procedure law

Very few provisions in the Criminal Procedure Code deal with organised crime. These provisions in the Code are examined below.

Article 45 (Territorial Competence to Judge a Crime)

The court in the area where the offence is committed is considered to be the competent court to try the suspected offender. Due to the fact that sometimes, not all of a series of offences are necessarily committed in the same territory, this principle has had to be modified.

Article 46 (Crimes Partially Committed in Local Territory)

The Mozambican court in the area where the last offence that is punishable by Mozambican law was perpetrated, executed or aided, is considered to be the competent court to judge such an offence. Hence, this article also deals with the application of the law in Mozambican territory and should be read together with article 53 of the Penal Code.

Article 55 (Accumulation of Offences)

Should several criminal offences have occurred, the competent court is the court in the area where the most serious crime was committed. Should two equally serious crimes have been committed, the competent court shall be the court in the area where the offender has been detained. Should the offender not be detained, the court in the area where the most recent crime was committed would be the competent court. Should two crimes have been committed on the same date, the competent court is the court in the area where the warrant of an arrest or equivalent was issued.

Article 202 (Seizure of Arms and other Instruments used in Criminal Acts)

This article makes provision for the seizure of the instruments used in the crime.

Article 203 (Searches)

Should it be suspected or should there be an indication that a person is in possession of instruments used in perpetrating a crime, the judge may order a search and seizure or detention.

Civil procedure law

Article 8 (Legal Personality of Illegal Collective Persons and Organisations)

This article stipulates that illegal or unregistered collective persons cannot object when sued and, as a result, may be held civilly liable for any offences which may have been committed.

Article 49 (Enforceability of Sentences and Decisions handed down in Foreign Countries)

Generally, people involved in organised crime are known to have committed crimes in other countries. Thus, clause 1 of this article states that "the sentences handed down by the courts and arbitrators of foreign countries may only be executed once they have been reviewed and confirmed by the competent Mozambican court."

Article 87 (Plurality of Defendants)

This article stipulates that, "[s]hould there be more than one defendant in the same case, they shall all be called to appear in the court in the domicile of the majority of them. Should an equal number of them be domiciled in different areas, they may choose any of them."

Furthermore, "should pleadings be applicable to various defendants with a relationship of dependency between them, the competent court shall be the court in the domicile of the defendant on whose pleading all the others are dependent."

Article112 (System Applicable in the Case of the Plurality of Defendants)

Should there be more than one defendant, the sentence shall produce effects in relation to all. However, should an exception be made for one, the others may contest and shall be notified in the same terms as the plaintiff.

Article 139 (Language to be Used in Case Documents)

Case documents shall be drafted in Portuguese, but foreigners who do not understand Portuguese may be heard in court in another language, in which case an interpreter shall be appointed to facilitate communication.

Article 960 (Incapacity Due to Wastefulness or the Abuse of Alcohol or Narcotics)

This article refers to the possibility of a person’s incapacity due to alcohol or narcotics abuse.

International legislation

Mozambique has signed and ratified a substantial number of international treaties dealing with organised crime, which places the country in a relatively good position in terms of its legal machinery to combat this social evil.

However, it should be mentioned that Mozambique is a poor country and, as such, suffers from a serious lack of mechanisms and resources to implement these treaties. The following are some of the international treaties in effect in the Republic of Mozambique:

Resolution 31/99 of 1 November 1999 (which ratifies the Convention on Mutual Assistance Cooperation in the Field of Crime Prevention);



Resolution 23/98 of 2 June 1998 (which ratifies the Protocol on Unlawful Drug Trafficking Prevention in the SADC Region);



Resolution 21/98 of 26 May 1998 (which ratifies the Convention on the prevention of, storage, production, transfer and destruction of land mines);



Resolution 10/91 of 20 December 1991 (which ratifies the Legal and Judicial Cooperation Agreement signed in Lisbon on 12 April 1990 between the Republic of Mozambique and Portugal);



Resolution 7/90 of 18 September 1990 (which ratifies the 1961 Convention on Narcotics);



Resolution 8/90 of 12 September 1990 (which ratifies the Convention on Psycho-tropical Substances); and the



Declaration on a Plan of Action for the Control of Drug Abuse and Illegal Trafficking in Africa, Yaoundé, 8 to 10 July 1996 (AHG/Decl. 2 XXXII).

Final considerations

It is not easy to discuss legislation on organised crime in Mozambique. There are no specific laws in the country dealing with the issue, although there are various items of legislation that make direct or indirect reference to the matter.

It could therefore be said that there is a gap in the law with regard to the issue of organised crime. However, it should be mentioned that one of the issues concerning organised crime, narcotics and psychotropic substances has received special attention. Other important issues, such as illegal arms-trafficking, money-laundering, armed robbery and vehicle theft, among others, are not covered by specific laws.

It is of great importance for the Mozambican government to take the necessary steps to review, update and harmonise its legislation on organised crime.