Pardons provide temporary relief for overcrowding in Mozambique

On 17 December, during the Informe Sobre o Estado Geral da Nação (Report on the State of the Nation), the Mozambican President Filipe Jacinto Nyusi announced his decision to grant pardons and commute sentences of about 1000 prisoners in terms of Article 159 (i) of the Mozambican Constitution. "Moved by the spirit of mercy, humanism and compassion and deep conviction of the results of the work of our institutions in the regeneration, rehabilitation and re-socialization of men in prison settings" the President Nyusi pardoned between 50 and 100 prisoners in each of the eleven Mozambican provinces of the country, to reduce overcrowding of the penitentiary system.In June 2015 the Mozambican prison population amounted to 15976, with one-third awaiting trial. Official capacity of the prison system is however only 8188 implying an occupation level of almost 200%, according to the National Penitentiary System (Serviço Nacional Penitenciário, SERNAP).In the ceremony held just before Christmas, at the Cadeia Central of Maputo, the Minister of Justice, Constitutional and Religious Affairs, Abdul Rename Lino de Almeida, released the names of those pardoned. Older persons; persons suffering from critical diseases, and those who have already served half of their sentences with good behaviour were prioritized.

While confirming that the President used a constitutional power, SERNAP Director, General Eduardo Sebastião Mussanhane said that he would have preferred the decision was taken as part of more comprehensive and embracing measures, such as the approval of the new Criminal Procedure Code (the existing code dates back to 1932), the Código de Execução de Penas e Medidas Alternativas à Prisão (Code for the Execution of Penalties and Measures Alternatives to Imprisonment) and its Regulations. In the last few years, the Mozambican criminal justice system has seen a great deal of reform. The new Penal Code, entered into force on 29 June 2015, introduced for the first time, provides for alternative penalties to imprisonment. Among these, is the use of prestação de trabalho socialmente útil (community service orders), as an alternative to sentences of imprisonment between two and eight years (Article 89 Penal Code).  In addition, reforms such as Law 3/2013 created SERNAP, replacing the National Prison Service (Serviço Nacional das Prisões, SNAPRI); Law Decree No. 63/2013 defines the organisational and functional structure of SERNAP. Law Decree No. 64/2013 provides for SERNAP staff while Ministerial Decree 159/2014 regulates the organisational structure, the operating system and the responsibilities of SERNAP central offices.

Although these legislative reforms have been enacted, there is a disagreement about implementation. Some agree that a more dynamic position is needed so that judges and lawyers may begin applying the new law around alternatives, creating good practices that go in line with the new Penal Code. Others are of the opinion that these new changes should not be put into practice until a new Criminal Procedure Code, an Alternatives Execution Code and associated regulations are in place, specifically to regulate the new provisions. Implementation would have far-reaching and long term impacts: currently 2563 people (24% of the sentenced population) qualify for community service, according to SERNAP (June 2015). However, despite the existence of such alternatives in law, implemenation is yet to occur in practice. The result is the need for pardons as carried out in December 2015. It seems likely that the alternatives will only be implemented with further legislative reform.