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Preliminary conclusions and observations to the Visit to Mozambique by the Special Rapporteur on the independence of Judges and Lawyers

Maputo, 10 December 2010

I visited Mozambique in my capacity as the United Nations Special Rapporteur on the Independence of Judges and Lawyers from 6 December to 10 December 2010, at the invitation of the Government. This visit was the continuation of a prior visit carried out from 26 August to 4 September 2010, which was interrupted on September 1st.  
December 10 is the international day of human rights. For me, it is very emblematic to conclude my visit to Mozambique on this day, as my mandate is at the core of the effective protection of human rights for all. Let's remind that an effective system of administration of justice that ensures independence, impartiality, integrity, equality and transparency, is a pre-requisite for guaranteeing the enjoyment of human rights for all.

My visit was facilitated by the Office of the United Nations Resident Coordinator, the United Nations Development Programme (UNDP) and the World Food Programme (WFP).  I would like to use this opportunity to express gratitude to the United Nations for the support provided before and during my mission.
The purpose of my visit was to assess the situation of the independence of judges, prosecutors and lawyers, the organization and functioning of the legal profession, the effectiveness and independence of the body in charge of the management of the judiciary and discipline of judges and the level of access of the population to the justice system. I also aimed to examine the respect of fair trial guarantees in the country and the policy and legal framework regulating issues related to my mandate.

I met a wide variety of actors including Governmental officials from the ministries of justice, finance, interior and foreign affairs as well as those in charge of legal training, legal aid and assistance, the correctional system, accounting and fiscalization and the administration of justice. I also met representatives of  United Nations agencies, the donor community, the Mozambican Bar Association, professional and elected judges, lawyers, prosecutors, magistrates, legal technicians, parliamentarians, civil society representatives, researchers and academics so as to obtain the most complete and balanced vision of the situation of the judiciary in the country. Moreover, I visited the High Security Prison (Cadeia de Maxima Seguranca) and the Institute for Legal Assistance and Representation (Instituto do Patrocinio e Asistencia Juridica-IPAJ)

I would like to express my deep appreciation and gratitude to the Government of Mozambique for having offered me the opportunity to examine the situation of the judiciary. I would also like to express my deep appreciation to all stakeholders and interlocutors for their availability and the information and insights provided. I hope that we can continue engaging in a proactive dialogue and cooperation on issues related to my mandate and would like now to share with you some of my preliminary conclusions and recommendations.

Let me begin by highlighting the importance of the continuation of the mission that was suspended in September, which proved to be crucial for me to have a complete picture of the functioning of the justice system in Mozambique. This will allow me to offer conclusions and recommendations to the Government and other stakeholders in my forthcoming report to assist Mozambique in the consolidation of the rule of law and the strengthening of the independence, impartiality and effectiveness of the judiciary.

The independence of the judiciary

I welcome the prominent place that the Constitution of Mozambique gives to the independence of the judiciary, which is recognized as a cornerstone principle to be respected in constitutional amendments (article 292 (1) (i)).  I also welcome the recognition of the principles of the separation of powers (article 134) and supremacy of the rule of law (article 212 et ss), both of which are pre-requisites for an administration of justice which ensures independence, impartiality, integrity, equality, transparency, and the protection of human rights (article 3).

The independence and strengthening of the judiciary have been further included in the comprehensive policy framework for the justice sector, which includes key documents for the country such as Agenda 2025, the 5-year Plan of Government, the Plan for the reduction of extreme poverty and the Economic and Social Plan.

Despite the encouraging legal and policy framework, efforts to create conditions enabling the country’s judiciary to function in a strong and independent manner should be redoubled. In this context, I wish to recall the Basic Principles on the Independence of the Judiciary and insist on the need for impartiality and transparency in judicial decisions, which should always be based on facts, and be made in accordance with the law, without undue influences, inducements, pressures, threats or interferences, whether direct or indirect.  

During my visit, I observed that while the independence of the judiciary is enshrined in the Constitution, many obstacles remain in practice for a truly impartial judiciary. For example, there are indications that membership of the ruling party, in power since 1975, is a de facto prerequisite for access to the public administration, including the judicial career, as well as for career advancement and job security.  The above-mentioned situation and the lack of an effective system of checks and balances with which to mitigate this situation, impedes the development of an independent judiciary.

Moreover, according to the Mozambican Constitution, the High Council of the Judiciary (Conselho Superior da Magistratura Judicial - CSMJ) has the competence to administrate and carry out judicial oversight and inspections; however, it has proven difficult for it to conduct these tasks in an effective and independent manner, given the absence of internal statutes governing its functioning since 1992, thus leaving effective control in the hands of its President, who is also the President of the Supreme Tribunal.

I therefore encourage the Government of Mozambique to redouble efforts to ensure justice for all through an independent judiciary and the international community, including the United Nations and other major donors, to increase its efforts to accompany Mozambique in this important process. I also encourage the international community to assist the Government of Mozambique in strengthening good governance and justice.

Access to justice, legal professionals and other legal officials

I welcome the constitutional recognition of the right of all persons under the jurisdiction of Mozambique to have access to the courts. This recognition reinforces guarantees related to the due process of law, namely the presumption of innocence, the right to defense and to be assisted by counsel, the right to prior and detailed notice of charges, the right to appeal a judgment before a higher court and the prohibition of double jeopardy. This also helps to reinforce the protection of the right to liberty and personal safety (article 59), the right to an effective remedy (articles 59 and 70) and the right to equality before the courts (article 70).

I especially commend the important work undertaken by the Institute for Legal Assistance and Representation (IPAJ), as the State agency entrusted to ensure legal aid and services for those who cannot access justice for economic reasons.  I encourage the IPAJ to reflect on possible instances of ethics, discipline and accountability for its technicians and legal assistants to be abided.

I wish to insist on the essential role of the IPAJ in the provision of legal aid and services in Mozambique and encourage the Government with the assistance of the international community, to provide all required support so that it can achieve effective representation in the totality of the territory and obtain the administrative and financial autonomy necessary for carrying out its functions with more efficiency. 

This is of particular importance as Mozambique is currently facing an important deficit of lawyers in private practice, whose number seems to be inferior to 70 in the totality of the territory.  This illustrates that the legal profession needs to be strengthened. In this regard, I invite the international and regional community to explore ways of cooperation with the Mozambican Bar Association so that it can implement its strategic plan (2009-2014) and continue performing its critical functions.

Administration of justice

The establishment of "justice palaces" illustrates steps taken to ensure a better coordination between different justice actors, namely tribunals, prosecutors, IPAJ, and the Criminal Investigative Police (PIC), and to bring celerity to judicial proceedings and facilitate access to justice for all. I recommend the expansion of these justice centers throughout the country with qualified officials, adequately equipped to carry out their functions effectively. 

I also commend the establishment and operationalization of the Commissions of Legality and Justice, which constitute an important effort of coordination among the several institutions involved in the administration of justice. I meet with officials integrating such commissions in Nampula and Beira, where I was informed about its positive impact in terms of coordination and cooperation among justice sector institutions. 

Despite these positive steps, many institutional challenges remain for the effective administration of justice. The Supreme Tribunal, described by several constituencies as the "cemetery of processes", has been partially operating for several years without the minimum number of judges required by law. I urge the Government to take all necessary steps to nominate judges for the Supreme Tribunal so that it can start to address its backlog. I also wish to urge the Government of Mozambique to create  conditions to enable the Superior Tribunals of Appeals and its judges (desembargadores) to begin to perform their duties with efficiency and impartiality, as measures to address the severe congestion of appeals in the judicial system.

The correctional system and fair trial guarantees

During my visit, I listened to concerns expressed by various interlocutors over cases involving a lack of respect for the presumption of innocence, the need to ensure legal assistance and the right to a lawyer, prolonged and de facto indefinite detention, lengthy trials, the excessive use of preventive detention and the inadequate implementation of the principle of equality before the law.

The Government is aware of this and other pitfalls in the correctional system and has adopted a new integrated approach to improve conditions in detention facilities, including granting inmates access to justice. This would require the permanent presence of a minimum of one IPAJ staff per facility. The authorities should work to ensure that all consultations between lawyers or IPAJ officials and detainees are confidential. In light of this, and to guarantee the application of this constitutional right (Article 63.4), detention facilities should identify venues where such consultations could take place. After my visit to Maputo’s Maximum Security Prison and my consultations with a wide variety of actors, it became clearer that in order to expedite processes and to avoid situations of unlawful detention, resources should be allocated to facilitate the transportation of detainees to and from courts. 

Capacity-building of judges, lawyers and prosecutors

I praise the work carried out by the Maputo-based Centre for Legal and Judicial Training, which offers both general and specialized courses for legal professionals. I encourage the Centre and its partners to study the possibility of further expanding its efforts at the provincial.  I was concerned to learn of current limitations to the functioning of the Center, including the apparent shortage of qualified applicants to participate in the courses it offers.  

Gender and justice

I welcome the establishment of Cabinets on Violence against Women and Children and encourage the Government to continue expanding coverage in the districts and equipping such cabinets with technical and human resources including, psychological and social support for the victims. 
The role of the judicial system in ensuring the protection of the rights of women should be strengthened. A number of stakeholders drew my attention on the need to disseminate laws aimed at, and mechanisms available for, the protection of women, such as those related to specialized courts and measures against domestic and other types of gender-based violence.          

I learned there is a dearth of data on women's current representation in the legal profession and their participation in training and capacity-building efforts in the justice sector. This includes law schools and other institutions, which are yet to mainstream a gender approach.    

I also received information indicating that national legislation establishing gender quotas or, the undertaking of parity reforms within the judiciary, are not envisaged in the near future. However,  I received information according to which, gender parity is effectively applied as a general rule for the selection and appointment of judges. I also welcome that gender parity is a factor taken into consideration in the appointment of community judges in the community tribunals in the district of Meconta.

International Cooperation
I am encouraged by several initiatives that illustrate that Mozambique has the potential to move towards a strengthened justice sector and encourage the international community, including the United Nations and other major donors, to increase its efforts to accompany Mozambique in this important process.  I invite the donor community to undertake a joint thorough assessment of information management needs, including a possible automation and modernization plan for the justice sector.
 I also invite the international community to assist the Government of Mozambique in strengthening good governance and justice.
The role of the media
Before concluding my preliminary observations and recommendations, I would like to underscore the importance of the media in strengthening the rule of law and the justice sector of Mozambique. I would like to stress that impartial and critical information on the justice sector contributes to raise awareness on the importance that an independent and effective judiciary has for the enjoyment of human rights by all in Mozambique.  In line of the foregoing, I invite the media to contribute to raising-awareness efforts on the importance of the justice sector and the right of everyone to have access to justice without discrimination on the grounds of social status, political affiliation, gender, language, nationality or territorial location in Mozambique.
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I  reiterate my willingness to continue to engage in a constructive dialogue with the Government of Mozambique, including, if requested, the provision of advisory services and technical assistance.
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ENDS
Ms. Knaul took functions as Special Rapporteur on the independence of judges and lawyers on 1 August 2009. In that capacity, she acts independently from any government or organization. Ms. Knaul has a long-standing experience as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems.

Learn more about the mandate and work of the Special Rapporteur on the independence of judges and lawyers: http://www2.ohchr.org/english/issues/judiciary/index.htm

OHCHR Country page – Mozambique: http://www.ohchr.org/EN/countries/AfricaRegion/Pages/MZIndex.aspx

For more information and media requests, please contact Gustavo Mahoque, UNDP office in Mozambique (Tel: + 258 21 481 435, email   gustavo.mahoque@one.un.org and/or Geneva, e-mail: mpena@ohchr.org)