November 08, 2018

The Mozambican Public Probity Law: The First Episode of a New Season?

The mere flapping of a butterfly’s wings in China may trigger a sequence of meteorological events capable of causing a hurricane in America. The April 2010 eruption of the Eyjafjallajökull volcano in far-away Iceland is a most elucidating case study of the Butterfly Effect. If we had to choose another equally surprising phenomenon, be it for the “insignificance” of its cause or the magnitude of its effects, our choice would veer towards the corruption phenomenon and the cross-border fight against it.

The enactment of a Public Probity Law in Mozambique, a country located on the sprawling shores of the Indian Ocean, is most likely far from being at the forefront of the mind of an American or European reader. Yet, in a truly global world made up of increasingly interdependent nations, companies, and individuals, each step a given country takes (or refuses to take) has direct and indirect effects across borders. The Mozambican government’s promises of change have borne fruit with the Public Probity Law, which plays its own role in the international fight against corruption and has a ripple effect felt beyond Mozambique’s borders. The enactment of stricter laws in the United States and the U.K., such as the Dodd-Frank Act or the U.K. Bribery Act, and the continuous enforcement efforts of North American and European authorities, may also be seen as the seeds of this new law.

Behind the Scenes

Mozambique, a former Portuguese colony, became independent on June 25, 1975, following a war for independence that had been protracted for almost 10 years. Unfortunately, hot on the heels of independence came a civil war that lasted 16 years and led to the impoverishment and destruction of Mozambique’s main economic and social infrastructures. The country was nonetheless able to attract strong support from donors and large inflows of direct foreign investment in the aftermath of civil war. According to World Bank data, in the last five years, foreign aid represented over 50 percent of Mozambique’s state budget and 15 percent of its GDP. It is estimated that roughly 80 percent of aid received is provided by a group of 19 countries and international institutions known as the G-19. At the same time, oil and mining industries are coming forward as decisive driving forces for the country’s economy, spurred by significant new discoveries of coal and natural gas deposits.

However, “there is no handsome surface without a frightening depth.” International studies and reports have called attention to the corruption problem in Mozambique and its negative impact on the country’s economic and social development. Transparency International ranks Mozambique 120th in its 2011 Corruption Perception Index, with a score of 2.7. One of the reasons usually put forward as leading to corruption practices is the outdated anticorruption legislation.

As a result of this state of affairs, there has been a marked change of attitude by Mozambique’s donors and growing concern by investors considering operations in-country, particularly in the burgeoning oil and mining sectors. The update of Mozambique’s anticorruption legislation is both a way of responding to the G-19 and investors’ demands and of honoring obligations arising from the country’s status as a contracting state to the Protocol for the Southern African Development Community (SADC) against Corruption (2004), the African Union Convention against Corruption (2006), and the United Nations Convention against Corruption (2007). The anticorruption legislation package involves a partial overhaul of the Criminal Code and Criminal Procedure Code, as well as the enactment of a Witness Protection Law and the Public Probity Law, which was initially to be called the “Civil Servant Code of Ethics.”

Lights, Camera, Action!

A long, drawn-out, and heated process of analysis and discussion then followed, bringing together politicians, experts, journalists, and civil institutions and organizations. It was marked by a series of leaps forward and setbacks. This flurry of legislative activity continued until August 14, 2012, when the Parliament enacted Law No. 16/2012 of August 14, 2012—the Public Probity Law (LPP)—together with Law No. 15/2012 of August 14, 2012—the Witness Protection Law. The LPP came into force on November 12, 2012.

Although initially included in the “anticorruption legislation package,” the LPP was enacted separately as a sophisticated statute mainly targeted at establishing the grounds and legal regime for Mozambican civil servants to respect public morality and public property.

Moreover, by passing the Witness Protection Law, which protects victims, plaintiffs, regular witnesses, and expert witnesses, the Mozambican legislature has shown that it is attentive to the need to protect witnesses and whistleblowers who testify on, or flag, corrupt practices from physical, social, and economic retaliation. Under the Witness Protection Law, whenever witnesses are in circumstances where they fear for their life, liberty, or property, their identity may be concealed or, in extreme cases, the witness may enter a witness protection program and receive an entirely new identity.

What’s In the Script?

The LPP covers all persons vested with any kind of public powers. The definition of civil servant is therefore extremely broad, including anyone who works for a public entity, as well as managers, officers, and workers at private entities vested with public powers. In turn, holders of political office are subject to additional rules on conflicts of interest and impediments, which are currently the new law’s most controversial and hotly debated aspect. Controversy aside, the effect of the LPP is that it bars holders of political office from receiving any form of retribution from state agencies or state-owned companies. Civil servants are also subject to a number of restrictions aimed at preventing them from taking part in the decision-making process whenever their personal interests might impair their capacity to act in an independent and impartial manner. In defining the concept of “conflicts of interest,” the LPP specifies that they may fall under different headings, notably (a) family relationships, whether direct or by marriage; (b) financial relationships; (c) gifts and gratuities; (d) illegitimate uses of public office for self-benefit; and (e) being a former holder of public office.

Another mainstay of the new law is a requirement for civil servants and holders of political office to declare their assets. This step is all the more relevant, since what has been called a “culture of secrecy” was identified as one of the underlying causes for the untrammeled spread of corruption in the country. In a move towards greater transparency, these mandatory declarations must include personal information about the civil servants making them, along with all other details that would allow for a thorough assessment of property owned and income earned by them, their spouses or civil partners, and their underage children.

The LPP also draws a dividing line between gifts and gratuities that are and are not acceptable. As a rule, a civil servant may not directly or indirectly receive gifts or gratuities from natural or corporate persons of any nationality unless such gifts are intended to become state property. Moreover, if such gifts or gratuities worth more than 200 minimum wage (for reference, the highest minimum wage is the one currently set at roughly U.S.$200 for the financial sector), the gift or gratuity cannot be offered in the year preceding or following an act affecting the party offering it. The LPP does, however, allow gifts or gratuities that follow protocol or are offered on festive dates, provided that they meet the limits set forth in the law.

Further prohibitions apply to all civil servants in the performance of their duties, to their relationships with third parties, to their conduct during working hours, and to their use of property. By way of example, civil servants are barred from using official authority or influence resulting from their office to confer or obtain special services, appointments, or any other benefits. Similarly, they may not request the cooperation of companies or foreign governments to procure travel, scholarships, accommodation, cash gifts, or other “goodies,” either for themselves or for their direct relatives (i.e., spouses, siblings, ascendants, and descendants). When dealing with third parties, they are strictly forbidden to request or accept presents, donations, favors, tips, or benefits of any kind from persons offering those benefits with a view to guaranteeing some form of official action or inaction.

Also significant is the fact that the LPP provides for the creation of a Central Public Ethics Commission (CCEP), an official body responsible for the regulation, assessment, and monitoring of conflicts of interest. The CCEP will additionally be tasked with receiving reports of such conflicts of interest and taking appropriate legal steps either through a formal complaint or by pressing charges through the Public Prosecution Services.

Finally, the LPP contains provisions creating new types of offenses, such as prevarication, official misconduct, illicit enrichment, and abuse of authority. One specific problem here, though, is that the LPP states that some offenses, such as illicit enrichment, are punishable under the provisions of the Mozambican Criminal Code, which does not (yet) contain any provisions on how these offenses should be sanctioned. Depending on the specific circumstances, running afoul of the provisions of the LPP may have grievous consequences for the corrupt party—be they natural persons, companies, or civil servants —whether in the form of fines and prison terms resulting from a criminal action or as a result of ensuing civil or administrative action.

The Next Episode

Emerging from a crossfire of controversy and expectations, the new LPP has ended up containing innovative rules to prevent corrupt practices in Mozambique. However, it has also fallen short of the mark in some respects, not the least of which is its lack of rules specifically applicable to conflicts of interest and impediments of members of Parliament. Although initial reports on the LPP indicated that it would cover these areas in particular, a failure to reach consensus resulted in the enactment of such rules being set aside for another day.

Still to come are also more changes to the Criminal Code and the Criminal Procedure Code, which are being revised and updated so as to include rules on corruption in the private sector, influence peddling, and illicit enrichment, as well as rules on investigation procedures.

The LPP is a very timely piece of legislation from which great things are expected insofar as it can contribute to increasing the credibility of Mozambican institutions and preserving the integrity of Mozambique’s civil servants. Nevertheless, it is early yet to reach any solid conclusions on the impact the LPP will actually have. It is surely a key piece of the complex Mozambican anticorruption legislation puzzle, but it is only the first of many to come. Anyone hoping to see how this problem is to be resolved will have to stay tuned and wait for the next episode.