Anti-Corruption & Bribery Comparative Guide

• Published date: 02 August 2022
• Subject Matter: Criminal Law, White Collar Crime, Anti-Corruption & Fraud, Crime
• Law Firm: MDR Advogados
• Author: Mr Duarte Santana Lopes and Mara Rupia Lopes

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern anti-corruption in your jurisdiction, from a regulatory (preventive) and enforcement (criminal) perspective?

The legislative and regulatory provisions that governs anti-corruption in Mozambique are the following:

• Law on Antieconomic Crimes (Law no. 9/87, of September 19th);
• Law against corruption and illegal economic participation crimes (Law no. 6/2004, of June 17th);
• Law on the Protection of Victims, Witnesses, Whistle-blowers and Experts in Criminal Proceedings (Law no. 15/2012, of August 14th);
• Public Probity Law (Law no. 16/2012, of August 14th);
• Special Legal Regime for Extended Loss of Assets and Recovery of Assets (approved by Law no. 13/2020, of December 23rd);
• Criminal Code (approved by Law no. 24/2019, of December 18th);
• Criminal Procedure Code (approved by Law no. 25/2019, of December 20th).

1.2 Which bilateral and multilateral instruments on anti-corruption have effect in your jurisdiction?

Mozambique has ratified the following instruments on anti-corruption:

• African Union Convention on Preventing and Combating Corruption – ratified by Resolution no. 30/2006 of August 2nd;
• United Nations Convention against Corruption – ratified by Resolution no. 31/2006 of December 29th ;
• Southern African Development Community (SADC) Protocol against corruption – ratified by Resolution no. 33/2004 of July 09th .

1.3 Are there accessible directives or other guidance from enforcement authorities in your jurisdiction?

Other than the legislation in force, there are no accessible directives or other guidance from enforcement authorities in our jurisdiction.

1.4 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The authority responsible for enforcing the applicable laws and regulations and to investigate corruption crimes is the Central Anti-Corruption Office (Gabinete Central de Combate à Corrupção – GCCC), an agency that is subject to the Public Prosecutor's Office (Procuradoria-Geral da República), pursuant to the Public Prosecutor's Office organic law, Law no. 4/2017 of January 18th.

GCCC's task is to prevent and fight corruption crimes, embezzlement, unlawful economic participation, influence peddling, unlawful enrichment and related crimes. At the same time, the Criminal Investigation Police, in a stage that is prior to the proceedings, is responsible for leading the investigation into the corruption offence under the Public Prosecutor's supervision (pursuant to article 2 of Decree-Law no. 106/2014, of December 31st)

1.5 What are the statistics regarding past and ongoing anti-corruption procedures in your jurisdiction?

Due to recent events relating to hidden public debt, it has become very common for the governmental authority to investigate allegations of bribery. However, the procedures do not usually result in any actual convictions.

According to the annual information of the Public Prosecutor's Office for 2020, referring to January to December 2020, there was a substantial increase in the number of corruption cases: in the period concerned, 1,280 cases were registered, comparing to 911 registered in 2019, which represents an increase of 369 cases, corresponding to 40.5%.

1.6 What are the shortcomings identified in your jurisdiction's anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?

We believe that Mozambique's legislation on anti-corruption does not fall short when compared with the best international standards. As mentioned above, in the recent years the Mozambican authorities have been putting effort into applying said legislation and the means at their disposal to combat corruption in the country, which is somewhat established in the Mozambican culture, as it is shown, namely, by the place that Mozambique occupies in the Corruption Perception Index for 2020 (149 out of 180).

One aspect that we believe could contribute to combating money laundering would be for the law to expressly set out the exclusion or the mitigation of the criminal liability of corporations that would demonstrate to have solid and adequate compliance policies to prevent corruption acts.

2 Definitions and scope of application,

2.1 How is 'public corruption' or 'bribery of a public official' defined in the anti-corruption legislation?

According to the Criminal Code, the crime of corruption is included in the group of crimes against the State and there are definitions for active corruption crime, passive corruption crime for an unlawful act and passive corruption crime for a lawful act.

From the combined provisions of articles 425 and 426 of the Criminal Code, passive corruption can be defined as the act in which a public official who, by himself or through a third party, with his consent or ratification, requests or accepts, for himself or for a third party, a patrimonial or non-patrimonial advantage, or the promise thereof, without it being due, for any act or omission, even if prior to that request or acceptance.

According to said definitions, passive corruption can be divided between (article 426 of the Criminal Code):

1. Passive corruption for unlawful acts, when the corruption of the public servant is aimed to an action or an omission of action contrary to the public servant's duties;
2. Passive corruption for lawful acts, when the corruption of the public servant is aimed to an action or an omission of action that is not contrary to the public servant's duties.

In turn, the crime of active corruption is prescribed in article 427 of the Criminal Code and it consists of an offer or promise to offer made to a public servant, or to a third party with the former's acknowledgement, by the perpetrator or by a third party with the former's consent or ratification, of an undue pecuniary or non-pecuniary advantage, for the carrying out of a lawful or unlawful act.

2.2 How is a 'public official' defined in the anti-corruption legislation? How is a 'foreign public official' defined?

The expression used in the Criminal Code where corruption crimes are set out is "public servant", pursuant to which a public servant is a person who exercises a mandate, an office, employment or...