Following a campaign by the Human Rights League (Liga), the Constitutional Council in Mozambique has declared that four aspects of the criminal procedural code relating to pre-trial detention were unconstitutional.
Mozambique's Constitution has provisions protecting persons in the criminal justice process. These include the right to liberty and security, which encompasses the presumption of innocence (article 59), rights of arrested persons (article 64), principles of criminal proceedings (article 65), and the right to habeas corpus (article 66).
The Human Rights League brought to the attention of the Attorney-General's office that some provisions of Mozambique' Criminal Procedure Code (CPC) may violate Constitutional protections relating to pre-trial detention.
Although the Attorney-General's office has the power to bring an action for unconstitutionality under article 245 of the Constitution, no action was taken by the Attorney-General's office on the matters of per-trial detention raised by the Human Rights League.
Instead, the Attorney-General's office brought before the Constitutional Council an action of unconstitutionality in relation to an entirely different matter, which relates to provisions around the investigation of misconduct allegedly committed by judges and prosecutors.
So the Human Rights League initiated a process to collect two thousand signatures across Mozambique, to meet the requirements for their filing of an action of unconstitutionality before the Constitutional Council. The League collected the necessary signatures and filed an action on 5 March 2013.
The first challenge related to who has the power to order pre-trial detention. In Mozambican criminal procedure, which follows the civil tradition, there are different processes depending on whether or not the accused person was "caught in the act" (in flagrante delicto). Flagrant cases usually begin with arrest and the person must be brought to court as soon as possible. In cases where the person is not caught in flagrante, there is an inquiry by the prosecutor after the report of a crime, which may lead to an indictment of a person and preventive detention.
The Constitution in Article 64(2) provides that it is the judiciary which has the power to deprive a person of their freedom, yet paragraphs 1 , 2 and 3 of Article 293 of the CPC, amended by Law No. 2/93 and Article 43 of the Organic Law of Prosecutors, provided that administrative authorities and prosecutors could order a person to be held in pre-trial detention. These were declared unconstitutional, because the Constitution provides that only the judiciary may order pre-trial detention.
This is very significant for Mozambique, as the police's control of the criminal justice process has led to abuses.
Police detained citizens without complying with the procedural prerequisites required, sometimes in order to investigate, but on other occasions to pursue illegal purposes. Several citizens, including advocates of social and civic causes, have been held in pre-trial detention under police authority. Police Inspectors, sometimes at the behest of "political power" have ordered the arrest of people who lead social and civic movements, such as George Rice from the Medical Association, and Herminio dos Santos and Jossias Matsena from the Forum of War Veterans among others, who were held through police powers, although they had not committed any crime.
The Constitutional Council also found that preventive detention cannot simply be applied because the accused is facing a charge on an offence punishable by a sentence of imprisonment, as provided in Article 291 of the Code, but that it is necessary to assess whether the prosecution has concrete evidential foundation and whether there is a risk the accused will flee, interfere with the investigation or commit further crimes. This finding was based on paragraph 2 of Article 59 of the Constitution, which provides for the presumption of innocence.
This is considered to be a major change in approach of the criminal procedural law, as it confirms preventive detention has procedural purposes only and does not constitute anticipation of punishment, as many police, prosecutors and judges tend to understand it.
Article 311 of the CPC, which provides for incommunicado detention of an accused person before their first interrogation, was also found to be unconstitutional, as it contradicts paragraph 4 of Article 63 of the Constitution, which provides that the lawyer of an accused person may communicate with the accused at any time.
Finally the Constitution prohibits penalties and security measures of indefinite or unlimited duration, in paragraph 1 of Article 61. Paragraph 3 of Article 308 and paragraph 1 of Article 311 of the CPC, which permit indefinite remand detention, were consequently also found unconstitutional by the Constitutional Council. The problem of prolonged detention periods had become an increasing cause for concern, and the CPC provision, now revoked, which permitted detainees to be held in custody for indeterminate periods, was one of the causes of prolonged detention. The 7-month remand detention rule should now be the maximum in all cases.
These four changes in Mozambican criminal procedural law represent a revolution in the pre-trial detention legislative framework. The obligation now rests on the Ministry of Interior and the General Command of Police and Attorney General's Office to make known to its agents these decisions of the Constitutional Council.
The students of St. Thomas University of Mozambique, the Centre for Human Rights and Legal Practice and the Paralegals League, worked together with the Human Rights League, which is a grantee of the Open Society Initiative for Southern Africa (OSISA), to collect the 2000 required signatures across Mozambique to bring this action.
This article was written by Jean Redpath and Tina Lorizzo and comes from the CSPRI newsletter (go to the website to subscribe)