Penalties in Mozambique’s Wildlife Legislation

Introduction

The Constitution of Mozambique provides that no penalty shall deprive persons of any of their civil, professional or political rights, nor shall any penalty deprive a convicted person of his or her fundamental rights, except in so far as the restrictions are inherent to the conviction and are specifically necessary for the execution of the sentence. According to the Penal Code, the purpose of criminal penalties is to ensure the protection of legal rights and the repair of damages as well as to reintegrate the defendant into society and to deter other potential offenders.

Wildlife laws in Mozambique provide for various criminal sanctions including pecuniary penalties, custodial penalties and administrative penalties. Pecuniary penalties include fines and forfeiture, custodial penalties include imprisonment and administrative penalties include withdrawal of licenses and permits as well as compensation. Administrative penalties include confiscation, cancellation and withdrawal of licenses, compensation and prohibition from being issued permits.

Administrative Penalties

The Forests and Wildlife Law provides for confiscation and cancellation of licences issued to the defendant as an additional penalty. The Conservation Areas Law provides for revocation of licenses and cancellation of permits and the Forestry and Wildlife Regulations provide for withdrawal of licenses. Apart from withdrawal of permits one can also be denied permit. The Forests and Wildlife Law, provides for interdiction from being issued with new permits and the Conservation Areas Law provides for prohibition from being issued with new permits for a period of one year.

The Conservation Areas Law provides for further administrative penalties. This include restoration of damage caused, suspension of activities causing the offence, banning of the works that are causing damage, demolition of any works illegally in place that are causing damage and compensation for the damage caused. The compensation is in addition to any fine that may be required to be paid.

The Forests and Wildlife Law also provides for compensation for damages caused. The Penal Code is instructive on the nature and process of compensation in criminal cases. It provides that compensation consists of the payment in cash or in kind to the victim. When issuing an order for compensation, the presiding judge is required to set the deadline for the payment of the pecuniary amount or kind, including through the provision of security, collateral or voluntary surrender of goods or valuables.

Fines
The Forests and Wildlife Law, the Conservation Areas Law and the Forestry and Wildlife Regulations all provide for fining as a means of punishment for wildlife offences.

The Forests and Wildlife Law provides that the offences therein shall be punishable without prejudice to other sanctions that may be required. The Ministerial Council is given the powers to revise fines periodically. The offender is required to pay the fine voluntarily and his failure to do so subjects him to the consequences provided for in the Penal Code.  The Penal Code provides that the penalty of a fine may be replaced with imprisonment.

Under the Forests and Wildlife Law the fines recovered may be used as incentives to stakeholders, forest and wildlife guards, local community member and any citizen who participated in reporting the offence. The highest fine under the Forests and Wildlife Law is not less than 2,000,000 MT and not more than 100,000,000 MT  and the lowest fine is not less than 1,000,000 MT and not more than 20,000,000 MT.

The Conservation Areas Law has similar provisions to the Forests and Wildlife Law in regards to fines. It provides that offenses under the Conservation Areas Law shall be punished by fines and accompanied by recovery measures. If the offender does no pay the fine voluntarily, he will be subjected to the consequences provided for under criminal. Part of the fines recovered shall go towards incentives and rewards to inspectors, local communities and citizens who participated in detecting and reporting the offence.

The Conservation Areas Law also gives the Council of Ministers powers to regularly update the values of the fines therein. The lowest fine under the Conservation Areas Law is not less than 1 and not more than 10 minimum wage points and the highest fine is a minimum of 50 and a maximum of 1,000 minimum wage point. Further, under the Conservation Areas Law, repeat offenders are subject to double the fines provided for.

Under the Forestry and Wildlife Regulations, 50% of the amount recovered as fines should go towards incentives and rewards for communities and other persons who reported the offence or participated in detecting the offence. The lowest fine under the Forestry and Wildlife Regulations is 100,000,000 MT  and the lowest fine is 2,000,000 MT . In addition to the monetary fines under the Forestry and Wildlife Regulations, the court is also required to give an additional fine of the value of the resource in question.

Imprisonment
The deprivation of liberty through imprisonment in Mozambique is guided by the Constitution. The Constitution gives all Mozambicans the right to liberty and security. Everyone has the right to security and nobody shall be detained except in accordance with the law. Further, penalties and security measures that deprive or restrict freedom in perpetuity or for an unlimited or indefinite period are prohibited. Everyone deprived of their liberty shall be informed of the reasons for their imprisonment or detention promptly and in a way that they understand and shall be informed of their rights in relation thereto. The judicial decision by which an imprisonment or detention is ordered or maintained shall be communicated at once to a relative or trusted acquaintance of the detainee, as indicated by the detainee.

According to the Penal Code, the execution of custodial sentences shall be with a view to the social rehabilitation of convicts, without prejudice to its repressive nature. Prison sentences are divided into 2 categories. These are correctional penalties and higher penalties. A correctional penalty is a prison term from 3 days to 2 years and a higher penalty is a prison term from 2 years to 24 years. The Constitution states that there shall be no death penalty in Mozambique and the Penal Code prohibits corporal punishment and criminal measures involving deprivation or restriction of freedom for life or for an unlimited or undefined duration.

The Forests and Wildlife Law and the Forestry and Wildlife Regulations do not provide for prison sentences. The Conservation Areas Law provides for imprisonment in certain circumstances. The lowest prison term is 2 years for committing offences using firearms or mechanical traps. The highest prison term is a minimum of 8 and a maximum of 12 years for setting fire to forests, woodlands or trees, killing protected species without a license and using explosives, poisonous or toxic substances or their equivalent in the commission of an offence. Imprisonment is not mandatory where the prison term is up to a maximum of 8 years.

The Penal Code provides for alternatives to imprisonment which include community service, compensation, forfeiture, fines and temporary suspension of rights. Measures and alternatives to imprisonment only apply in cases where the accused person is the primary offender, he/she has proceeded with the restitution of property which is the subject matter of the offence, he/she has repaired all or part of the harm and damage caused to the victim or the community or he/she has met any other conditions required by the court. A sentence of imprisonment not exceeding two years may be replaced with a fine.

Forfeiture
The Penal Procedure Code  gives general directions on search and seizure and disposal of seized items by authorised officers. It provides that the articles liable for seizure are those that have been used or were going to be used for the commission of an offense. These include any product of the crime, the profits or rewards gained from the crime and anything left by the offender at the scene of crime and is likely to serve as evidence.

The Wildlife laws in Mozambique provide for both instrumentality and subject matter forfeiture for wildlife offences. The Forests and Wildlife Law provides for forfeiture as an additional penalty. Forest and wildlife products and the instruments used in committing the offence are to be forfeited to the State. The forfeited items can be disposed of in several ways. They can be sold in a public auction, except in those cases as provided for by this law or returned to the offender after the payment of the fine or completion of his sentence, so long as they are not wildlife or forest products or prohibited items. Perishable products may be donated to social institutions or non-profit organisations and live plants and wildlife shall be returned to their areas of origin or the nearest protection area.

The Conservation Areas Law provides for confiscation by the state of products and by-products of flora and fauna as an additional penalty. It also provides for means of disposal of forfeited items. These are sale by auction, donation of perishable products to social institutions, non-profit organisations and local communities, return of live wildlife to their places of origin or the nearest conservation area and return of the items to the offender after conclusion of his sentence, provided that they are not prohibited items.

The Forestry and Wildlife Regulations provide for the seizure of objects and instruments that have been used to commit the offense and the seizure of the proceeds of the offense. Seized goods shall be disposed of according to the provisions of the Forests and Wildlife Law. Motor vehicles and declared weapons shall be disposed of according to the directives given by the relevant minister. The Penal Code provides for seizure and forfeiture of firearms used for illegal hunting.

Author: DidiWamukoya

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