16 December 2013

Mozambique: Assembly Discusses New Penal Code

Photo: Guy Oliver/IRIN
Civil society saw the proposed new article as a “flagrant violations of the rights of women, children and other groups” (file photo).

Maputo — The Mozambican parliament, the Assembly of the Republic, on Monday began debating a new Penal Code, which replaces the completely obsolescent Portuguese Penal Code of 1886.

Perhaps the most controversial clause in the new code is the partial decriminalization of abortion. Previously, under the influence of the Catholic Church, all abortions, under all circumstances were illegal (although humane doctors would often quietly ignore the law).

Introducing the new code, the chairperson of the Assembly's Constitutional and Legal Affairs Commission, Teodoro Waty, noted that the international trend has been towards decriminalization of abortion, and that a majority of the world's population now live in countries where abortion is not criminalized.

He pointed out that across the globe an estimated 71,000 women die every year due to back street abortions, performed because they have no access to safe abortion under medical care. According to the Ministry of Health, unsafe abortions are the third largest cause of maternal mortality in Mozambique.

The new code therefore decriminalizes abortion under limited circumstances - when the mother's life is at risk, when continuation of the pregnancy would cause irreversible damage to the mother's physical or mental health, when the pregnancy results from rape or incest, or when there are sound reasons to believe that the foetus is seriously malformed, or would suffer from a serious, incurable illness. In these cases, abortion is permitted, if performed by qualified medical personnel in a health unit.

The new code greatly extends the definition of corruption, so that it covers offences committed in the private as well as the public sector. It criminalises “illicit enrichment”, so that, if anyone cannot provide a reasonable explanation for how he obtained his wealth, it will be confiscated and will revert to the state.

Trafficking in influence is also made a crime, punishable with a jail sentence of up to two years.

Among other crimes that did not exist in the 1886 are trafficking in human beings, and sexual harassment.

Nineteenth century Portuguese lawmakers could also never have imagined the “crime of discrimination”. In line with the Mozambican constitution, the new code makes it illegal to discriminate on the basis of race, skin colour, sex, political party affiliation, marital status, religion, age, ethnicity, nationality or family situation.

Anyone who discriminates when admitting clients to a shop, a hotel, a sports club or the like could face a prison sentence of up to five years. Discrimination when admitting people to employment, provided they are properly qualified, could lead to a prison term of up to eight years.

In general, the new code seeks to avoid throwing people in jail for minor offences, preferring to give courts the option of non-custodial sentences.

But for offences that are defined as “heinous crimes” the penalties are greatly increased.

For such crimes the maximum penalty used to be 24 years (with the possibility of an increase to 30 years in the case of “habitual delinquents”). But under the new code the maximum penalty will be 40 years, without the right to parole, amnesty or pardon.

A “heinous crime” is one committed with great violence or cruelty, in which the criminal shows no sense of compassion or mercy, and which causes repugnance in society.

Examples would be genocide, terrorism, torture, and murders committed “with the characteristics of death squads”.

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