Due to the COVID–19 pandemic, many countries around the world are declaring a state of emergency (or similar) and suspending normal constitutional procedures. The state of emergency was also declared in Mozambique for a period of 30 days, effective from 1 April 2020.
A declaration of state of emergency impacts both the economic and social aspects of life. It is therefore useful to share some information regarding the legal definition of the state of emergency, as well as its implications under the Constitution of the Republic of Mozambique (CRM) and Law No. 35/2014, of 31 December, which approves the Penal Code.
1. Who can declare a state of emergency?
The President of the Republic has the powers to declare a state of war and its termination, a state of siege, or a state of emergency in matters of national defense and of public order [CRM Article 160(a)]. In order to declare a state of siege or a state of emergency, the President must first seek the position of the State Council as well as from the National Council of Defense and Security [CRM Article 165(b) read together with Article 265(1)(b)].
The suspension of constitutional guarantees and the declaration of a state of siege or a state of emergency must be endorsed by Parliament [CRM Article 178(2)(g)] or, if Parliament is not in session, authorized or confirmed by the Standing Commission of Parliament, subject to ratification [CRM Article 194(d)].
2. When can a state of emergency be declared?
A state emergency may be declared only in cases of actual or imminent aggression, disruption of or serious threat to the constitutional order, or in the event of a public disaster, in all or part of the national territory which, based on their severity, do not warrant the declaration of a state of siege, [CRM Article 290(1) read together with Article 291], provided that:
- it is reasoned and specifies which freedoms and guarantees have been suspended or restricted [CRM Article 290 (2)];
- the principle of proportionality is respected [CRM Article 291]; and
- the duration and extent of the measures used are limited to what is strictly necessary for the prompt restoration of constitutional normality [CRM Article 291].
3. What are the limits for its declaration?
The declaration of state of emergency shall not:
- exceed 30 days, which may be extended for the same period up to three times (thus, up to a maximum of four months), if the reasons for the declaration persist [CRM Article 292]; and
- restrict or suspend the right to life, the right to personal integrity, the right to civil capacity and to citizenship, the non-retroactivity of criminal law, the right of accused persons to a defense, and freedom of religion [CRM Article 294].
4. What are the consequences of a state of emergency?
The consequences are in first place, the restrictions and measures which may be taken related to personal freedoms, such as:
a) the obligation to remain in a certain place;
c) detention in buildings not intended for persons accused or convicted of common crimes;
d) restrictions relating to the inviolability of correspondence, the confidentiality of communication, the provision of information and the freedom of the press and of radio and television broadcasting;
e) home search and apprehension;
f) suspension of the freedom of assembly and demonstration; and
g) requisition of goods and services [CRM Article 295].
5. What are the implications for companies and employees?
Should a lockdown be declared as part of the declaration of a state of emergency, at some point in time, and depending on the conditions established in the declaration, employers will have to attempt to find ways to continue to perform their activities, where possible. Some alternatives might be:
i) work from home arrangements depending on the nature of the work;
ii) reduction of working hours for those activities that may be allowed to continue to be performed;
iii) suspension of employment contracts, where permitted;
iv) annual leave acceleration or, in the worst case scenario;
v) the rescission of employments contracts on the initiative of the employer, with prior notice.
We recommend you consult counsel with respect to the measures listed from ii) to v) before any move to implement them.
6. What are the consequences for violations of the measures imposed under a state of emergency?
The offenders may be subject to imprisonment of up to three months (unless another more serious sanction is provided for) under the terms of the Penal Code in force, Article 412(1).
7. How does the state of emergency cease?
At the end of a state of emergency, the President of the Republic addresses a message to the Parliament giving detailed information about the measures taken under it and a list of the names of all citizens affected [CRM Article 298].