The state of emergency, originally declared by Presidential Decree 11/2020 of 20 March and ratified by Law 1/2020 of 31 March, was extended three times by means of Presidential Decree 12/2020, of 29 April, Presidential Decree 14/2020, of 28 May, and Presidential Decree 21/2020, of 26 June, respectively. Given that the risk of spread of the COVID-19 outbreak was still very high at the time, the President of the Republic, backed in the Parliament’s Resolution no. 72/2020, of 5 August, decided, by means of Presidential Decree no. 23/2020, of 5 August, and Law no. 9/2020, of 7 August, to extend the state of emergency situation one more time, i.e., until 11:59 p.m. of 6 September.
With the enactment of Decree No. 79/2020, of 4 September, Mozambique ceased to be in a state of emergency situation, being now, i.e., as of 7 September (00.00am), in a situation of public calamity.
We have laid down hereunder a short summary of the legal regime of the state of public calamity and the state of emergency.
STATE OF PUBLIC CALAMITY
What is a state of calamity and when can it be declared?
The situation of public calamity is provided for in the Legal Regime of Management and Disaster Risk Reduction, approved by Law no. 10/2020 of 24 August, which in turn is regulated by the Regulations of the Disaster Risk Management and Reduction Law, approved by Decree no. 76/2020 of 1 September.
This new legal framework revoked Law No. 15/2014 of 20 June, which established the previous legal framework for disaster management, including prevention, mitigation of the destructive effects of disasters, development of relief and assistance actions, as well as reconstruction and recovery of affected areas.
A situation of public calamity is considered to be an abnormal event caused by a major disaster, which causes, damages and losses severely compromise the response capacity of the public authorities.
A situation of public calamity/disaster may be deemed local or national, depending on the capacity of the local authorities to deal and address at their own the hardship.
The declaration of a situation of public calamity must be backed by an act of the Government.
With a view to mitigate the spread of the Covid-19 pandemic, by means of Decree No. 79/2020, of 4 September, the Government has declared – for the first time in the history of the country – a situation of public calamity, effective as of 7 September (00.00am). The situation of public calamity shall be in place for an indefinite period, i.e., until being formally terminated by the Government.
What impacts can the State of Calamity have?
Pending a situation of public calamity, the Government is entitled to: (i) adopt measures aimed at ensuring compliance with the approved safety measures; (ii) reorganize activities in the commercial and industrial sectors and the access to goods and services; (iii) reorganize the operations in public transports (i.e. the traffic by road, air, sea, river and rails); (iv) reorganize the functioning of educational institutions, public administration, border movement, as well as the performance of shows, sporting, cultural and leisure activities; (v) manage the use of places of worship – in coordination with the relevant religious orders; (vi) limit or rationalise the use of public services (i.e. supply of water, energy, fuels and lubricants) as well as the consumption of essential goods; (vii) acquire goods and services in urgent need using special procedures for such purpose; (viii) order the mobilisation of civil forces, for a certain period of time, to a specific area in the country or business sector; and (ix) use the necessary coercive means in order to ensure compliance with the measures in force.
Furthermore, during a situation of public calamity/disaster, all national and/or foreign citizens are under a general duty of collaboration with the authorities and shall implement the actions deemed advisable to prevent, manage and mitigate the risk of disasters.
STATE OF EMERGENCY
What is a state of emergency?
The declaration of a state of emergency is an act carried-out by the President, following consultation of the Council of State and of the National Council for Defence and Security, and that it is subject to a subsequent ratification by the Parliament, which shall determine or allow for the determination of a suspension or limitation of freedoms and guarantees of citizens in case of actual or imminent aggression, serious threat or disturbance of constitutional order or of public calamity.
The state of emergency legal framework is laid down in Article 282 et seq. of the Constitution of the Republic of Mozambique.
What are the potential impacts?
In practical terms, the declaration of a state of emergency may involve the partial suspension of certain rights, freedoms and guarantees, as ordered: e.g. a ban on travel or freedom of assembly.
The declaration of a state of emergency grants public authorities’ powers to adopt the necessary and adequate measures, exempting them from complying with certain formalities in doing so, if necessary with recourse to the Defence and Security Forces.
Asa rule, the declaration of a state of emergency must abide by the principle of proportionality and be limited, in particular regarding its scope and duration and the resources used, to what is strictly necessary in view of the specific circumstances.
Can the State adopt any measures?
The state of emergency cannot affect rights of superior constitutional dignity identified in the law and the Constitution.
The declaration of a state of emergency may not, under any circumstance, suspend or limit the constitutional rights to life, to personal integrity, to personal identity, to civil capacity and citizenship, to the non-retroactivity of criminal law, to the defendants' right of defence or religious freedom.
As for its content, the declaration must specify which rights, freedoms and guarantees are suspended.
Can measures be imposed to just some parts of the territory?
A state of emergency may be declared regarding all or part of the national territory and must only be declared regarding such area or territory where the measures are deemed required to ensure or restore normality.
How long can the state of emergency stay in force for?
The state of emergency shall only last for as long as strictly required to protect the envisaged rights and interests and to restore normality.
Maximum duration is 30 days, without prejudice to any renewal for one or more identical periods if the cause determining it, should subsist. The state of emergency cannot be renewed more than 3 times.
What are the consequences of breaching the measures ordered by the authorities during a state of emergency?
Failure to respect the measures ordered by the authorities constitutes a crime of disobedience, punishable with 3 to 15 days of imprisonment (substitutable for fine or community service).