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Mozambique: New Penal Code Removes Colonial Era Dispositions Against Homosexuality

(July 6, 2015) On June 29, 2015, a new Penal Code came into effect in Mozambique, 180 days after it was approved and published in the Official Gazette on December 31, 2014. Among other changes, the harsh provisions on homosexuality found in the earlier Code have been removed. (Lei n.º 35/2014, de 31 de Dezembro, BOLETIM DA REPÚBLICA, I Serie, No. 105 (Dec.31, 2014).)

The preamble of the Code reproduced below, is indicative of the legislature’s intentions in adopting the new law:

The Penal Code currently in force was approved by the Decree of 16 September 1886.

With the proclamation of the national independence and the Constitution on June 25, 1975, new structuring principles have led to amendments to the Penal Code.

The constitutional amendments of 1990 and 2004 denounced the obsolescence and the mismatch of the Penal Code with the political, social, cultural and economic reality of the country.

Accordingly, there is a need to reform the Penal Code of 1886 to ensure the enjoyment of rights and freedoms to citizens and their conformity with today’s conceptions of criminal dogmatism. (Id.)

Former Criminal Provisions on Homosexuality

The Penal Code of 1886 was approved during the Portuguese colonial era and provided for the application of “security measures” against those who were “usually engaging in acts against nature.” (Governo de Moçambique, Código Penal [Government of Mozambique, Penal Code] (Official text) (Aug. 31, 2006), art. 71(4).)

Article 70 of the Penal Code of 1886 listed these “security measures” which included confinement in an insane asylum, confinement in a workhouse or agricultural colony, probation, taking of a pledge of good conduct, and/or disqualification from the practice of a profession. (Id.) No such provisions are found in the new Penal Code.

Some news channels have reported that although the removed articles could have been used to persecute homosexuals, they had not been applied since the country’s independence in 1975 and that acts of violence against homosexuals are rare in Mozambique. (Le Mozambique dépénalise l’homosexualité, JEUNE AFRIQUE (June 29, 2015); Milton Nkosi, Mozambique Decriminalises Gay and Lesbian Relationships, BBC NEWS (July 1, 2015).)

However, homosexuals are still fighting for social inclusion in Mozambique. Same-sex marriage is still not recognized in the country; pursuant to the Mozambican Family Law, “marriage” is defined as the voluntary and singular union between a man and a woman for the purpose of creating family life. (Lei da Família, Lei No. 10/2004, de 25 de Agosto, BOLETIM DA REPÚBLICA, I Serie, No. 34 (Aug. 25, 2004), art. 7, Mozambique Government Portal website.)

Prepared by Geneviève Claveau, Law Library Intern, under the supervision of Eduardo Soares, Senior Foreign Law Specialist.