Reports & Articles

Report by Dr Jean Redpath. Delegations of the prosecutorial function to state entities: Expanding prosecution of neglected crimes.

Following from previous work, this report looks at seven areas of reform for the National Prosecuting Authority (NPA). By its own admission the NPA is facing a long list of challenges, internally and externally. This report proposes seven areas of reform that can over the short to medium term, if followed, make a substantial and constructive contribution to rebuilding trust in the NPA. The seven areas are: • the appointment of the NDPP and other senior officials • the dismissal of the NDPP • the prosecution policy directives • referrals from other agencies • informal mediation • structuring the clusters of the NPA • general oversight. An unavoidable conclusion is that law reform is needed since the current legal framework enabled the hollowing-out and misuse of the NPA.

Em Dezembro de 2020 entrarão em vigor em Moçambique o Código Penal revisto, o novo Código de Processo Penal e o Código de Execução das Penas. Embora serão introduzidas mudanças substanciais relacionadas com as alternativas à prisão e especificamente ao trabalho socialmente útil (TSU), este relatório avalia a implementação do TSU em Moçambique entre 2015 e 2019. Examina o seu uso pelos tribunais e a implementação pelo Serviço Nacional Penitenciário (SERNAP). As conclusões apontam para vários problemas de implementação, como o seu uso pouco frequente pelos tribunais, bem como desafios na monitoria dos infractores pelo Serviço de Penas Alternativas à Pena de Prisão (SPAPP). Vários problemas sistémicos foram encontrados, como falta de gestão, directrizes processuais e formações e falta de recursos materiais e financeiros necessários para a implementação efectiva do TSU. Independentemente de uma nova estrutura legal, é evidente que será necessário retirar lições valiosas do período em análise. Nas conclusões, o relatório aponta algumas recomendações para abordar as deficiências.

In December 2020 a revised Penal Code and new Criminal Procedure Code and Code on the Implementation of Penalties will enter into force in Mozambique. While substantial changes related to alternatives to imprisonment and specifically to community service will be introduced, this report assesses the implementation of community service orders (CSO) in Mozambique between 2015 and 2019. It examines its use by the courts and implementation by the Department for Corrections. The findings point to several implementation problems, such as its infrequent if not rare use by the courts as well as challenges in monitoring offenders by the Service for Alternatives to Imprisonment. A number of systemic problems were found, such as the lack of management, procedural guidelines, and training; understaffing, and a serious lack of material and financial resources necessary for the effective implementation of CSO. Regardless of a new legal framework, it is submitted that valuable lessons need to be taken from the period under review. Based on the findings, the report concludes with recommendations to address the shortcomings.

Following from previous work, this report looks at seven areas of reform for the National Prosecuting Authority (NPA). By its own admission the NPA is facing a long list of challenges, internally and externally. This report proposes seven areas of reform that can over the short to medium term, if followed, make a substantial and constructive contribution to rebuilding trust in the NPA. The seven areas are: • the appointment of the NDPP and other senior officials • the dismissal of the NDPP • the prosecution policy directives • referrals from other agencies • informal mediation • structuring the clusters of the NPA • general oversight. An unavoidable conclusion is that law reform is needed since the current legal framework enabled the hollowing-out and misuse of the NPA.

This report assesses the consequences of the 2013-decision of the Constitutional Council of Mozambique, which limits to judges the authority to order pre-trial detention for cases falling outside of flagrante delito (where the accused is caught in the act of committing the offence). Although the decision represents a progressive change in the jurisprudence of Mozambique’s highest court, judges, prosecutors and police encounter operational challenges in implementing the decision, in a country with a population of more than 28 million people. In 2017, there were 344 judges, 18 of which were Judges of Criminal Instruction, responsible for issuing warrants of arrest for cases outside of flagrante delito. Concerns were raised in relation to lack of financial and logistical resources for prosecutors, which are mandated to monitor the legality of police detention. As the criminal justice system is under-resourced, police officials have to wait for a judge to issue a warrant of arrest for cases falling outside of flagrante delito. Despite the decision, unlawful arrests continue to happen although there is anecdotal evidence that these have decreased. The 2013-decision has clarified who has the power to authorise arrest in these cases, but the situation is far from being resolved.

The evidence in this study suggests that the criminal procedural system metes out a disproportionate ‘punishment’ in the form of infringement of the socio-economic rights of the families of detainees, regardless of guilt or innocence.The study recommends a number of interventions to seek to ensure that remand detention is used only for short durations or when absolutely necessary, thereby minimising socio-economic harms.

This discussion document deals with three key concepts associated with the National Prosecuting Authority (NPA) and its relation to the public, namely accountability, public interest and trust. It is suggested that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.

Crianças em Conflito com a Lei em Moçambique

Although this first edition published in 2015, this became available in electronic form in January 2019.

Solitary Confinement - A review of the legal framework and practice in five African countries

This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention

In 2013 the Western Cape legislature passed the Western Cape Community Safety Act (WCCSA) to improve monitoring of and oversight over the police. One creation of the WCCSA is the Western Cape Police Ombudsman, which became operational in 2015. This article reviews its history and context, as well as results from its first year. The Police Ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. The Ombudsman must also be seen against the backdrop of poor police–community relations in Cape Town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. Results from the Ombudsman’s first 18 months in operation are modest, but there are promising signs. Nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements.

This article assesses developments in the prevention and eradication of torture in Mozambique. Despite several positive efforts and advances made, acts of torture and other cruel, inhuman and degrading treatment and punishment are still perpetrated by members of the security forces, especially police officials, often with impunity. The culture of impunity for such serious offences is a direct threat to human rights and the rule of law in the country and seriously compromises the country’s public integrity. Two issues are of deep concern and require more efforts by the state, namely: a) addressing impunity and ensuring prompt and impartial investigations of all allegations of torture and other ill-treatment, and b) protecting victims and providing the necessary restitution, rehabilitation and compensation. In conclusion we provide recommendations on how to improve the situation. These are: engaging in outreach and advocacy; improving and strengthening the national legislative framework; strengthening institutions; developing mechanisms for the reporting of torture: monitoring and evaluating existing reporting mechanisms; improving conditions of detention; establishing effective oversight over places of detention, and by maintaining records to improve transparency and availability of information.