Maputo — The Mozambican Association for the Defence of Sexual Minorities (LAMBDA), the only organisation in the country working for gay, lesbian and transsexual citizens, on Tuesday praised Justice Minister Benvinda Levi for her categorical statement that homosexuality is not illegal in Mozambique.
Levi was speaking in Geneva on 1 February at the review of Mozambique's human rights record under the Universal Periodic Mechanism of the UN Human Rights Council.
At the meeting, delegates from France, Holland and Spain all called for the repeal of laws that supposedly criminalise gay sex. They had clearly been misled by a UN claim that the Mozambican Penal Code outlaws same-sex relations.
In reality there is no specific mention of homosexuality in the Penal Code, or in any other Mozambican legislation, and so Levi could declare that gay sexual relations do not constitute a crime in Mozambique.
While LAMBDA welcomed this forthright declaration, in a Tuesday press release it said it would have been "much more satisfied if this statement had come from the Attorney General or had been contained in a ruling from the Supreme Court or from the Constitutional Council".
For there is a problem with Article 71, paragraph 4, of the Penal Code, which orders "security measures" against those who habitually commit vices against nature". We know what the term "security measures" means, since it is defined elsewhere in the Code. Such measures can include hard labour, internment in an asylum, and debarment from professional activities.
But nowhere is the term "vices against nature" defined. There is, however, no doubt that the Portuguese jurists who put this clause into the Penal Code in 1954 intended it to cover homosexuality - they were just too prudish to mention homosexuality by name.
This should make it impossible to prosecute anyone under this clause, since the defence can always argue that there is no legal definition of "vices against nature". But LAMBDA is not so sure, and is concerned that at some stage in the future a prosecutor or judge might pluck this clause out of obscurity and use it against gay citizens.
The best solution, LAMBDA argues, would be to eliminate this one paragraph of the Penal Code, or reformulate it so as to make it perfectly clear that it does not criminalize gay sexual relations between consenting adults.
LAMBDA also suggests that the Constitution should be amended to outlaw discrimination based on sexual orientation. The Labour Law makes it illegal to discriminate against workers on the grounds of their sexual orientation, but this provision is not found in any other legislation.
The rights of gay people are implicitly, but not explicitly, protected by the Constitution. The Constitution states that all citizens have equal rights, and are equal before the law. Furthermore, it states that the fundamental rights covered by the Constitution should by interpreted in harmony with the Universal Declaration of Human Rights.
Article 2 of the Declaration states that all human beings are entitled to the same rights and freedoms, regardless of race, colour, sex, language, religion, national or social origin "or other status". The phrase "or other status" certainly seems adequate to cover sexual orientation.
Nonetheless, when the Mozambican Constitution deals with "the principle of universality and equality", it does not specifically mention sexual orientation. It states that all "enjoy the same rights and are subject to the same duties, regardless of colour, race, sex, ethnic origin, place of birth, religion, level of education, social position, marital status of their parents, profession or political option". LAMBDA suggests that, to make matters absolutely clear, the words "sexual orientation" should be added to this list.
LAMBDA has faced obstacles in its attempts to register as a legally recognised association. It submitted a request to the registry office on 30 January 2008. The lawyers for the office saw nothing wrong with the request, but the registrar claimed the purpose of the association "wounds existing morality", and so sent it to the Ministry of Justice for a final decision.
Three years later there has still been no response. At one stage, in March 2009, Levi suggested an alteration to one of the articles in the LAMBDA statutes, and her proposal was accepted.
Yet the Minister has still not signed any dispatch recognizing the right of the LAMBDA members to form an association. LAMBDA regards this as a violation of the constitutionally enshrined right to freedom of association.
The LAMDA release ends by summarizing the LAMBA requests as: one signature from Levi, accepting the association's registration, the removal of one paragraph from one article of the Penal Code, and the inclusion of an additional two words in one article of the Constitution.