A/HRC/41/45/Add.2
indispensable to dispel such misconceptions and further the human rights of lesbian, gay,
bisexual and trans people.
15.
The Mozambican equation has been singularly successful at protecting lesbian, gay,
bisexual and trans people from the levels of violence that they face in other corners of the
world. Yet this social pact comes at a price: inequality and emotional captivity. The tacit
social agreement is not to attack lesbian, gay, bisexual or trans people as long as their true
nature remains invisible. However, in accordance with their human rights, every lesbian,
gay, bisexual and trans person is entitled to be able to live free and equal, openly and
proudly.
III. Legal, institutional and public policy framework
A.
Legal framework
16.
Mozambique has ratified most core international and regional human rights
treaties, 11 without reservations, has accepted the individual complaints procedures under
two optional protocols and the inquiry procedure under three treaties. 12 It has not yet
ratified the International Covenant on Economic, Social and Cultural Rights or the
International Convention for the Protection of All Persons from Enforced Disappearance.
The scourge of criminalization
17.
Under the 1886 Penal Code imposed by the colonial power, Portugal, persons who
were “usually engaging in vices against nature” could be sentenced to “security measures”
that could include hard labour, internment in an asylum and debarment from professional
activities.13 The absence of a definition of such “vices” carried the risk that these provisions
be used to criminalize same-sex relations.
18.
In July 2014, the parliament of Mozambique approved Law No. 35/2014 removing
articles 70 and 71.4 of the colonial-era Penal Code. This legal development was largely
symbolic as there had been no documented reports of any prosecutions under these articles
since Mozambique gained independence in 1975. The revised Penal Code came into force
in June 2015.
19.
The process of decriminalization took place in the context of some regressive laws
being adopted by other African countries. In 2014, the former President of Mozambique,
Joaquim Chissano, in his capacity as joint chairperson of the High-Level Task Force for the
International Conference on Population and Development, sent an open letter to African
leaders in 2014 calling for an end to all forms of discrimination, including on the basis of
sexual orientation and gender identity, in which he stated that: “We can no longer afford to
discriminate against people on the basis of age, sex, ethnicity, migrant status, sexual
orientation and gender identity, or any other basis – we need to unleash the full potential of
everyone.”
20.
The Independent Expert welcomes all steps to end the criminalization of same-sex
adult consensual relations. Even when legislation is not used actively to prosecute
individuals, its removal goes beyond the symbolic: criminalization invariably contributes to
stigma and discrimination, promotes social ostracism and often promotes corruption and
violence against persons with diverse sexual orientations and gender identities. Removal of
these provisions is a welcome action and the Independent Expert therefore unequivocally
praises Mozambique for having accomplished that.
11
12
13
See www.achpr.org/instruments/.
See https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx.
See arts. 70 and 71.4 of the Penal Code. The “security measures” listed in art. 70 include confinement
in an insane asylum, confinement in a workhouse or agricultural colony, probation, taking a pledge of
good conduct and/or disqualification from the practice of a profession.
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