A/HRC/41/45/Add.2
urgently acknowledge and embrace its lesbian, bisexual, trans and gay populations in
order to build a just and inclusive society free from fear and violence where everyone
can enjoy prosperous and fulfilling lives.
VI. Recommendations
79.
With regard to cooperation with international and regional human rights
mechanisms, the Independent Expert recommends that the Mozambican authorities:
(a)
Ratify the International Covenant on Economic, Social and Cultural
Rights and the International Convention for the Protection of All Persons from
Enforced Disappearance, and take the necessary measures to accept individual
complaints procedures under all international human rights treaties;
(b)
Fully integrate recommendations related to sexual orientation and
gender identity made by international human rights mechanisms into its national plan
of action, and move towards their implementation;
(c)
Adopt legislative, administrative, judicial and other measures necessary
to curb violence against persons based on their real or imputed sexual orientation or
gender identity, as prescribed in resolution 275 of the African Commission on Human
and Peoples’ Rights and in line with the treaty obligations of Mozambique under the
African Charter on Human and Peoples’ Rights,27 which guarantees the principles of
equality and non-discrimination and other fundamental rights and freedoms, and the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa (Maputo Protocol),28 which requires States parties to take specific
measures to combat violence against women regardless of their sexual orientation or
gender identity.
80.
With regard to the legal framework, the Independent Expert recommends that
the Mozambican authorities:
(a)
Adopt anti-discriminations laws and other measures to integrate sexual
orientation and gender identity in the national legislation of Mozambique. Antidiscriminations laws should cover both the public and private spheres, and provide
protection in key contexts, such as education, health care, housing and provision of
good and services. To be effective, anti-discrimination frameworks should provide for
effective measures to investigate alleged violations, provide redress for victims and
accountability for alleged perpetrators (see A/72/172). Anti-discrimination legislation
can take different shapes and forms. Inclusion of the grounds of sexual orientation
and gender identity in the Constitution has proved to be best practice, and
Mozambique could amend article 35 of the Constitution to add these grounds as
prohibited grounds of discrimination;
(b)
Add the grounds of sexual orientation and gender identity to article 243
of the Penal Code with a view to criminalizing discrimination on those grounds, and
enact laws against hate crime and hate speech that establish homophobia, biphobia
and transphobia as aggravating factors for the purpose of sentencing;
(c)
Amend article 77 of the 2004 Civil Registry Code to enable transgender
persons to change their legal identity and gender marker. Alternatively, Mozambique
could adopt directives requesting the Civil Registrar to change the name and gender
marker of transgender person who wish to do so, as provided under article 85 (1) (m)
of the Code. As a matter of general principle, the process of gender identity
27
28
16
Mozambique ratified the African Charter on Human and Peoples’ Rights on 22 February 1989. The
African Commission recently issued a non-exhaustive list of grounds for discrimination, which
includes gender and gender identity, in its general comment No. 4 on the African Charter on Human
and Peoples’ Rights: the right to redress for victims of torture and other cruel, inhuman or degrading
punishment or treatment (article 5).
Ratified by Mozambique on 9 December 2005.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents