The 1992 Rome Peace Accords put an end to a 16-year long civil war in the country between the ruling party, Front for the Liberation of Mozambique (FRELIMO), and Mozambican National Resistance (RENAMO). In 1994, the country’s first democratic elections were held, supervised by the UN Security Council. In 2004, the country enacted a new Constitution, later amended in 2007, which establishes fundamental rights.
Mozambique has a civil law system. Its sovereign public offices are: the President, the Assembly of the Republic, the Government, the courts and the Constitutional Council. The Constitutional Council, established by Title XI of the Constitution, is the country’s highest body in matters related to constitutional and electoral law. It consists of seven judges.
Powers of Arrest Art. 59(1) of the Constitution states that “everyone has the right to security and nobody shall be detained . . . except in accordance with the law.”
In 2013, the Constitutional Council restricted the power to order pre-trial detention for cases falling outside flagrante delito as belonging only to judges. Flagrante delito translates literally to a “flagrant or obvious offence” and is defined by the Criminal Procedure Code as “ . . . [a] punishable act that is being committed or has just been committed.” Arresting someone in flagrante delito occurs when the suspect is caught in the act of committing an offense, or having just committed it. Article 288 of the Criminal Procedure Code states that it is also a flagrant offense when following the crime, the offender is pursued by any person or was found with objects or other evidence clearly showing that he committed or participated in the crime.
Prior to the 2013 decision, pre-trial detention could be ordered by judges; prosecutors; officers of the Criminal Investigative Police; police officers; district administrators; chiefs of administrative areas; and even chairpersons of Local Executive Councils where there were no police officers. Now, when a case falling outside the scope of flagrante delito is reported, police must inform a Judge of Criminal Instruction in order to obtain a warrant for arrest of the suspect. Such judges have the exclusive power to issue a warrant of arrest. The warrant of arrest must: 1. Identify the person by mentioning the name, possible location, residential address, and other characteristics that could aid the correct identification and arrest of the suspect; 2. Describe the facts and any other circumstances justifying the arrest.
Pre-Trial Detention and Rights of the Accused
Art. 64 of the Constitution states: Pre-trial detention shall be permitted only in cases provided for by the law, which shall determine the duration of such imprisonment. Citizens held in pre-trial detention shall, within the period fixed by law, be brought before the judicial authorities who alone shall have the power to decide on the lawfulness and continuation of the imprisonment. Everyone deprived of their liberty shall be informed promptly and in a way that they understand of the reasons for their imprisonment or detention and of their rights. The judicial decision by which an imprisonment or detention is ordered or maintained shall be communicated at once to a relative or trusted acquaintance of the detainee, as indicated by the detainee.
Pre-trial detention can automatically occur (without a warrant of arrest) in the following circumstances:
1. In flagrante delito;
2. For more serious crimes (crimes dolosos) punishable with a jail term of more than one-year;
3. For not complying with bail conditions.
Indefinite pre-trial detention is unconstitutional under Art. 61 of the Constitution. Under Art. 66 of the Constitution, in the event of unlawful imprisonment or detention, the citizen shall have the right to interpose a writ of habeas corpus.
Fair Trial Rights Under the Constitution
1. Public Trials. Art. 65(2) states that criminal trials shall be public, except as necessary to exclude or restrict publicity to safeguard personal, family, social or moral privacy, or for material reasons of trial security or public order. The right to defense and trial is inviolable for all accused criminal defendants.
2. Presumption of Innocence. Art. 59(2) establishes a presumption of innocence for all accused persons.
3. Double Jeopardy. Art. 59(3) protects a citizen from being tried more than once for the same crime, and no citizen shall be subject to a penalty that was not provided for, or is heavier than the one that was applicable, at the time when the offence was committed.
4. Prohibition on Retroactivity. Arts. 57 and 60 provide that no one shall be punished for an act that was not a criminal offense at the time it was committed. Criminal law may only be applied retroactively if in the accused’s favour.
5. Right to counsel. Art. 62 states that the State shall guarantee that citizens have access to the courts and that defendants have the right to defense and legal assistance and aid. Defendants have the right to freely choose counsel to assist in all acts of the proceedings and the State shall ensure that adequate legal assistance is given to defendants who are financially unable to engage their own attorney. Under Art. 63, attorneys must be given the immunity and protection necessary to adequately represent their client.
Title III of the Constitution sets out the fundamental rights, duties and freedoms of citizens. Art. 72 states that these rights may be suspended or restricted only in the event of a declaration of a state of war, of a state of siege, or of a state of emergency, in accordance with the Constitution. Whenever there is such a suspension of restriction, it shall be general and abstract, with the duration and legal grounds on which it is founded specified.
- Constitution of the Republic of Mozambique (2004, with amendments through 2007), https://www.constituteproject.org/constitution/Mozambique_2007.pdf?lang=en (via Constitute, Comparative Constitutions Project, University of Texas at Austin, USA).
- Mozambique Const., Art. 133
- See website available at: http://www.cconstitucional.org.mz/.
- Mozambique Const., Art. 242.
- For more on the legal framework of arrest, see generally Africa Criminal Justice Reform, Arrest without a warrant in Mozambique (Oct. 2019), https://acjr.org.za/acjr-publications/factsheet-23-arrest-without-a-warrant-mozambique.pdf.
- Decision No. 4/CC/2013 (Sept. 17, 2013).
- Criminal Procedure Code, Art. 288.
- Criminal Procedure Code, Art. 293. See also Africa Criminal Justice Reform, Powers of arrest curtailed by Constitutional Council of Mozambique – impact of the Decision 4/CC/2013, https://acjr.org.za/resource-centre/impact-of-2013-decsion.pdf
- Criminal Procedure Code, Art. 295.
- Criminal Procedure Code, Art. 286
- Mozambique Const., Art. 65(1).
- See Mozambique Const., Arts. 161, 166, and 269.
- Mozambique Const., Art. 72(2).