1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern anti-corruption in your jurisdiction, from a regulatory (preventive) and enforcement (criminal) perspective?

The legislative and regulatory provisions that governs anti-corruption in Mozambique are the following:

  • Law on Antieconomic Crimes (Law no. 9/87, of September 19th);
  • Law against corruption and illegal economic participation crimes (Law no. 6/2004, of June 17th);
  • Law on the Protection of Victims, Witnesses, Whistle-blowers and Experts in Criminal Proceedings (Law no. 15/2012, of August 14th);
  • Public Probity Law (Law no. 16/2012, of August 14th);
  • Special Legal Regime for Extended Loss of Assets and Recovery of Assets (approved by Law no. 13/2020, of December 23rd);
  • Criminal Code (approved by Law no. 24/2019, of December 18th);
  • Criminal Procedure Code (approved by Law no. 25/2019, of December 20th).

1.2 Which bilateral and multilateral instruments on anti-corruption have effect in your jurisdiction?

Mozambique has ratified the following instruments on anti-corruption:

  • African Union Convention on Preventing and Combating Corruption – ratified by Resolution no. 30/2006 of August 2nd;
  • United Nations Convention against Corruption – ratified by Resolution no. 31/2006 of December 29th ;
  • Southern African Development Community (SADC) Protocol against corruption – ratified by Resolution no. 33/2004 of July 09th, .

1.3 Are there accessible directives or other guidance from enforcement authorities in your jurisdiction?

Other than the legislation in force, there are no accessible directives or other guidance from enforcement authorities in our jurisdiction.

1.4 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The authority responsible for enforcing the applicable laws and regulations and to investigate corruption crimes is the Central Anti-Corruption Office (Gabinete Central de Combate à Corrupção – GCCC), an agency that is subject to the Public Prosecutor's Office (Procuradoria-Geral da República), pursuant to the Public Prosecutor's Office organic law, Law no. 4/2017 of January 18th.

GCCC's task is to prevent and fight corruption crimes, embezzlement, unlawful economic participation, influence peddling, unlawful enrichment and related crimes. At the same time, the Criminal Investigation Police, in a stage that is prior to the proceedings, is responsible for leading the investigation into the corruption offence under the Public Prosecutor's supervision (pursuant to article 2 of Decree-Law no. 106/2014, of December 31st)

1.5 What are the statistics regarding past and ongoing anti-corruption procedures in your jurisdiction?

Due to recent events relating to hidden public debt, it has become very common for the governmental authority to investigate allegations of bribery. However, the procedures do not usually result in any actual convictions.

According to the annual information of the Public Prosecutor's Office for 2020, referring to January to December 2020, there was a substantial increase in the number of corruption cases: in the period concerned, 1,280 cases were registered, comparing to 911 registered in 2019, which represents an increase of 369 cases, corresponding to 40.5%.

1.6 What are the shortcomings identified in your jurisdiction's anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?

We believe that Mozambique's legislation on anti-corruption does not fall short when compared with the best international standards. As mentioned above, in the recent years the Mozambican authorities have been putting effort into applying said legislation and the means at their disposal to combat corruption in the country, which is somewhat established in the Mozambican culture, as it is shown, namely, by the place that Mozambique occupies in the Corruption Perception Index for 2020 (149 out of 180).

One aspect that we believe could contribute to combating money laundering would be for the law to expressly set out the exclusion or the mitigation of the criminal liability of corporations that would demonstrate to have solid and adequate compliance policies to prevent corruption acts.

2 Definitions and scope of application,

2.1 How is 'public corruption' or 'bribery of a public official' defined in the anti-corruption legislation?

According to the Criminal Code, the crime of corruption is included in the group of crimes against the State and there are definitions for active corruption crime, passive corruption crime for an unlawful act and passive corruption crime for a lawful act.

From the combined provisions of articles 425 and 426 of the Criminal Code, passive corruption can be defined as the act in which a public official who, by himself or through a third party, with his consent or ratification, requests or accepts, for himself or for a third party, a patrimonial or non-patrimonial advantage, or the promise thereof, without it being due, for any act or omission, even if prior to that request or acceptance.

According to said definitions, passive corruption can be divided between (article 426 of the Criminal Code):

  1. Passive corruption for unlawful acts, when the corruption of the public servant is aimed to an action or an omission of action contrary to the public servant's duties;
  2. Passive corruption for lawful acts, when the corruption of the public servant is aimed to an action or an omission of action that is not contrary to the public servant's duties.

In turn, the crime of active corruption is prescribed in article 427 of the Criminal Code and it consists of an offer or promise to offer made to a public servant, or to a third party with the former's acknowledgement, by the perpetrator or by a third party with the former's consent or ratification, of an undue pecuniary or non-pecuniary advantage, for the carrying out of a lawful or unlawful act.

2.2 How is a 'public official' defined in the anti-corruption legislation? How is a 'foreign public official' defined?

The expression used in the Criminal Code where corruption crimes are set out is "public servant", pursuant to which a public servant is a person who exercises a mandate, an office, employment or function in a public entity, by election, appointment, hiring or any other form of investiture or bond, even on a temporary basis or without remuneration. No. 2 of said article sets out that the terms "civil servant", "State official", "public employee", "municipal official" or any other similar terms used to refer to a person who exercises functions in a public entity are to be understood as synonyms for public servant.

The Criminal Code also defines "foreign public official", as someone who, in the service of a foreign country, even temporarily, for remuneration or free of charge, voluntarily or mandatorily, holds a position, mandate or employment in the public, administrative or jurisdictional function or, in the same circumstances, performs a role in public utility bodies, public companies, publicly owned companies or with a majority shareholding of public capital, public service concessionaire, and also in an international organization governed by public law, as well as whoever, at the service of a foreign country, holds a position within the scope of the legislative, judicial or executive function, at national, regional or local level, for which said person has been elected or appointed.

2.3 How is 'private corruption' or 'bribery in the private sector' defined in the anti-corruption legislation?

The concept of corruption in the private sector can be found in articles 444 and 445 of the Criminal Code, pursuant to which corruption in the private sector entails:

  1. Passive corruption - a private sector employee who, by himself or through a third party, with his consent or ratification, requests or accepts, for himself or for a third party, a patrimonial or non-patrimonial advantage, or the promise thereof, without it being due, for any act or omission of act contrary to its functional duties;
  2. Active corruption – someone who, by himself or through a third party, with his consent or ratification, offers or promises to offer a patrimonial or non-patrimonial advantage to a private sector employee, without it being due, for any act or omission of act contrary to said a private sector employee's functional duties.

2.4 How is 'bribe' defined in the anti-corruption legislation?

The concept of bribe is not defined in the Mozambican anti-corruption legislation. Notwithstanding, through the constituent elements of the crime of corruption set out in the Criminal Code, as described above, and articles 40 and 41 of the Public Probity Law, bribe can be understood as the undue patrimonial or non-patrimonial advantage offered or promised in exchange for any act or omissions. Therefore, the bribe will be the undue reward, gifts, hospitality, or expenses that the public servant or private employee receives in order to perform certain acts.

2.5 What other criminal offences are identified and defined in the anti-corruption legislation?

In the Criminal Code, we find the following criminal offences:

  • Article 428 (Illicit enrichment);
  • Article 429 (Fraud);
  • Article 430 (Simulation of competence);
  • Article 431 (Abuse of office or function;
  • Article 432 (Corruption of magistrates and criminal investigation agents); ~
  • Article 433 (Corruption of customs officers and other public servants);
  • Article 434 (Embezzlement);
  • Article 435 (Embezzlement of use);
  • Article 436 (Economic participation in business);
  • Article 437 (Violation of the rules of the Plan and Budget);
  • Article 409 (Bribery of false witness).

In the Public Probity Law, we find the following criminal offences:

  • Article 40 (Illicit enrichment);
  • Article 41 Inadmissible gifts or gratuities);
  • Article 43 (Illegitimate use of quality);

In the Law on Antieconomic Crimes, the following criminal offences are foreseen:

  • Article 16 (Abuse of office or function);
  • Article 17 (Fraud);
  • Article 19 (Abusive use of goods or services);
  • Article 20 (Abusive alienation).

2.6 Can both individuals and companies be prosecuted under the anti-corruption legislation?

Yes, both singular and collective persons such as companies can be held criminally responsible for crimes related to corruption.

Article 30(1) of the Criminal Code sets out that legal persons and similar entities may exceptionally be the perpetrators of criminal infringement, pursuant to the Criminal Code and other specific legislation. Legal persons are responsible for the crimes committed: a) on its behalf and in the collective interest by persons occupying a management position therein; b) by anyone acting under the authority of the persons referred to in the preceding subparagraph by virtue of a breach of the duties of supervision or control incumbent upon them.

2.7 Can foreign companies be prosecuted under the anti-corruption legislation?

The Criminal Code sets out, in article 4, the general principle of application of the Mozambican penal law to crimes committed on Mozambican territory. Pursuant to such principle of territoriality, foreign companies can be held responsible under the Mozambican anti-corruption legislation regarding facts carried out in Mozambique and on board a ship or aircraft registered in Mozambique, unless otherwise provided for in an international convention or an agreement in the field of judicial cooperation.

In parallel, even if the crime was committed outside Mozambican territory, the Mozambican criminal law is also applicable to foreigners, including companies, regarding corruption crimes, provided that the subject is or appears in Mozambican territory, or in case delivery to the Mozambican authorities is available.

2.8 Does the anti-corruption legislation have extraterritorial reach?

Despite the fundamental territorial principle described above, Mozambican anti-corruption legislation may have an extraterritorial scope in the following cases:

  1. Mozambican criminal law shall be applicable to crimes committed by a Mozambican national in a foreign country, provided that the infringer has not been tried in the country where he has committed the crime, or if the following requirements are met: (i) the infringer is found in Mozambique; (ii) the act is qualified as a crime also under the legislation of the country where it has been committed; and (iii) the perpetrator has not been tried in the country where the same was committed.
  2. Mozambican criminal law also applies to crimes committed by or against a legal person or equivalent that has its registered office in national territory.
  3. Lastly, Mozambican criminal law applies if the perpetrator, having been convicted at the place of the crime, has failed to comply with all or part of the penalty. In such scenario, a new case is formed before the Mozambican courts which, if the crime is found to be proven, shall apply the corresponding penalty provided for in Mozambican legislation, discounting the length of any sentence already served.

3 Corruption and bribery

3.1 How are gifts, hospitality and expenses treated in your jurisdiction?

Granting gifts, hospitality and expenses is included within the term "undue advantage", used to define the several corruption crimes.

Pursuant to the Public Probity Law, public servants shall not, through exercising their duties, demand or receive benefits and offers, directly or through an intermediary, from natural or legal entities, governed by Mozambican or foreign law. The referred prohibition includes all offers with a value greater than one third of the monthly salary of the holder of political office or public servant, paid by the public entity for which it provides services, namely in:

  • national or foreign currency;
  • movable property of any nature, such as furniture, household appliances, jewellery and other types of artifacts;
  • immovable property or any property repair services, as well as leases;
  • vehicles, boats or any means of transport;
  • paid vacations;
  • any kind of offers or benefits.

The public servant is also prohibited from receiving any kind of offer, regardless of its value, from anyone who is interested in a decision that he, the agent, may take on a given matter.

Note that such limitations are also applicable to cases in which a public servant is offered hospitality, courtesy, or any kind of offer. In addition, offers that, by their nature and monetary value, are likely to compromise the performance of their functions with the required honesty and are harmful to the good image of the State.

Public servants are allowed to receive offers in the following situations:

  1. when they are intended to be integrated into the patrimony of the State or any public entity with patrimonial autonomy, without prejudice to the fact that, if such offers are of a value greater than 200 minimum wages, they do not occur in the 365 days before or after those within of which the bodies of the beneficiary entity must carry out some act that produces effects in the sphere of those offering;
  2. offers that fall within the protocol practice and are not harmful to the good image of the State and other public persons;
  3. gifts on the occasion of festive dates, namely birthdays, weddings, religious parties, provided that they do not exceed the limits described above.

3.2 How are facilitation payments treated in your jurisdiction?

Facilitation payments are also included in the concept of "undue advantages" and shall be limited to the restrictions of the Public Probity Law – please see above.

3.3 How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?

The possible agents of crime, including for corruption crimes, are set out in Articles 23, 24 and 25 of the Criminal Code, under the following terms:

  • The perpetrator is whoever i) executes the act, by himself or through a third party, ii) takes direct part in its execution by agreement or together with another or with others, or iii) intentionally determines another person to carry out the act, as long as there is execution or beginning of execution;
  • An accomplice is whoever intentionally and, in any way, provides material or moral assistance to the crime executed by someone else.

3.4 Can a company be held liable for bribery committed by management or other employees?

Yes, as described above in 2.6, legal persons are responsible for the crimes committed: a) on their behalf and in the collective interest by persons occupying a management position therein; b) by anyone acting under the authority of the persons referred to in the preceding subparagraph by virtue of a breach of the duties of supervision or control incumbent upon them.

3.5 Can a company be held liable for bribery committed by domestic or foreign subsidiaries?

As mentioned in the reply to the previous question, companies can only be criminally liable for the crimes committed on their behalf and in their collective interest by persons that occupy management positions or by anyone acting under the authority of said persons. As such, a parent company can be held liable for bribes paid by its subsidiary, either domestic or foreign, without prejudice to the territorial scope of the Mozambican criminal law, provided that those criteria for the liability of legal persons are met.

There is no "objective" criminal responsibility of companies for crimes committed by its subsidiaries.

3.6 Post-merger or acquisition, can a successor company be held liable for bribery committed by legacy companies?

In general, a successor company can be held liable for bribery committed by legacy companies. According to article 31 of the Criminal Code, the mergers and demergers do not determine the extinction of criminal liability of the legal person or equivalent entity, with the following entities being held responsible:

  1. the legal person or equivalent entity in which the merger took place;
  2. legal persons or similar entities that resulted from the demerger.

4 Compliance

4.1 Is implementing an anti-corruption compliance programme a regulatory requirement in your jurisdiction?

There are no specific provisions in the Mozambican legal system that establishes the requirement of implementing an anti-corruption compliance programme.

4.2 What compliance best practices should a company implement to mitigate the risk of anti-corruption violations?

Although there are no specific provisions regarding what comprise adequate compliance procedures, considering that companies may have their criminal liability excluded when the perpetrator of the offence has acted against the express orders or instructions of the proper authority, the existence of such procedures may be used as an argument of defence in order to try to demonstrate that the perpetrator acted against those orders or instructions.

4.3 Which books and records requirements have relevance in the anti-corruption context?

There are no specific provisions in the Mozambican legal system regarding books and records requirements in the anti-corruption context.

4.4 Are companies obliged to report financial irregularities or actual or potential anti-corruption violations?

Companies are not obliged to report financial irregularities or actual or potential anti-corruption violations.

However, the Criminal Procedure Code, under its article 285, provides that even if the agents of the crime are not known, certain persons are obligated to report any offence of which they become aware. These include both police entities, regarding all crimes that they become aware of; and public officials, regarding crimes that they become aware of in the exercise of their functions and due to them.

According to the established in the Law against corruption and illegal economic participation crimes, any person can request the competent administrative, police authority and/or the Public Ministry to open an investigation to confirm facts relating to the corruption crimes. In addition, whenever a public or private audit finds evidence of the commission of corruption crimes, it must communicate such fact, in writing, to the Central Anti-Corruption Office.

4.5 Does failure to implement an adequate anti-corruption programme constitute a regulatory and/or criminal violation in your jurisdiction?

There are no specific provisions in the Mozambican legal system that establishes the requirement of implementing an anti-corruption compliance programme.

5 Enforcement

5.1 Can companies that voluntarily report anti-corruption violations or cooperate with investigations benefit from leniency in your jurisdiction?

According to articles 449 and 118 of the Criminal Code (CP), there can be special reduction of the imposed penalty when the perpetrator shows remorse (namely, by compensating as much damage as possible, as per article 118 of the CP) or contributes to gathering evidence decisive in revealing the truth (article 449 of the CP). The spontaneous confession of the crime, as well as the discovery of its other perpetrators and instruments, when revealed to the authorities and as long as it is useful and true information, are considered mitigating circumstances, as per article 45 of the CP.

The penalty can also be altogether dismissed if the perpetrator, prior to the execution of the promised act, refuses or returns whatever advantage they had received in return (article 449 of the CP). It is, however, unclear whether legal persons can benefit from leniency on the same basis as individuals do.

Article 39 of Law 9/87 (which alters and republishes the Law on Anti-Economic Crimes and Law on the Defence of the Economy) also states the whistle-blower may receive 10% of apprehended assets, as well as have priority access, should he wish to buy them (it is not specified whether a perpetrator can also be a whistle-blower).

5.2 Can the existence of an anti-corruption compliance programme constitute a defence to charges of anti-corruption violations?

No specific rule in the Mozambican legal system excludes liability of legal persons based on the mere existence of anti-corruption programs or mechanisms.

For example, article 6 of Law 6/2004 (Which Combats the Crimes of Corruption and Unlawful Economic Participation) states that in all contracts to which the State (or other public entity) is a party the inclusion of an anti-corruption clause is mandatory.

However, and in keeping with article 31, n. º 2 of the CP "the liability of legal persons or equivalent entities is excluded whenever the perpetrator has acted against express orders or instructions of whoever is legally entitled to give them" [our translation]. Therefore, and if one considers certain compliance programs to be actual sets of orders or instructions, given their specific characteristics and implementation, the violation of those policies may result in the exclusion of liability of the legal person for acts of corruption carried out by its workers, employees or any other person who has acted in the name and/or in representation of the corporate body.

5.3 What other defences are available to companies charged with anti-corruption violations?

According to article 30, n. º 1 of the CP, legal persons are liable for the crimes committed by those who hold a managerial position in them or those under their authority, when acting in the company's name and interest. Thus, a company charged with anti-corruption violations could, theoretically, in its defense, argue that the perpetrator of the crime was not acting in the company's name and/or interest.

Furthermore, and as previously seen, liability may be excluded when the perpetrator acted against express orders or instructions of whoever was legally entitled to give them (article 31, n. º 2 of the CP). The same applies, according to article 5 of Law 9/87, to the company's solidary liability in the payment of the penalties incurred in by its representatives and employees.

However, according to article 4 of the same law, those acting in the name and on behalf of others are presumed to be acting on instructions received, notwithstanding any personal liability they may incur. This means that a company wishing to defend itself of anti-corruption charges will have to prove its representatives did not act on given instructions.

Without excluding its liability, a legal person may also defend itself by claiming the existence of mitigating circumstances, listed in article 45 of the CP. Among these are previous good behaviour, the rendering of relevant services to society, spontaneous confession to the crime, and information on other perpetrators and instruments of the crime, when revealed to the authorities, useful and true.

5.4 Can companies negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?

There are no pre-trial negotiation-based settlement mechanisms (equivalent or similar to plea bargaining) in Mozambique. However, and as mentioned in question 5.1, there are different leniency or penalty-mitigating mechanisms in place.

5.5 What penalties can be imposed for violations of the anti-corruption legislation? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?

The penalties imposed for violations of anti-corruption legislation are generally fines and imprisonment for individuals, and fines or judicial winding up for legal persons such as companies. Legal Persons will, however, only be subject to judicial winding up if the intention behind their creation was the commission of the crime, or if there are being used for that purpose by whoever runs them.

Note that, according to article 69 of the CP, non-imprisonment sentences are prohibited whenever the perpetrating individual has committed corruption or related crimes. Public officials convicted of corruption and sentenced to imprisonment for over 2 years shall also be removed from their office (article 440 of the CP).

Furthermore, the convicting sentence will be made visibly public, whether it regards a legal person or an individual (articles 448 and 89 of the CP). Both may also be subject to ancillary sanctions, such as rules of conduct for, respectively, 1 to 5 and 2 to 6 years.

Legal persons may also be subject to the exclusion from entitlement to public benefits or aid, disqualification from the practice of certain activities or prohibition to contract, or compulsory closure.

Lastly, all goods or values unlawfully received as a product of the crime at hand will be lost to the State, as defined by article 8 of Law 13/2020 (Special Legal Regime of Extended Asset Forfeiture and Recovery), and assets necessary to the compensation of damages to the State will be apprehended (as per article 6 of Law 9/87).

5.6 What is the statute of limitations to prosecute anti-corruption violations in your jurisdiction?

According to article 155(3) of the CP, the statute of limitations is of 15 years, when the maximum sentence prescribed for the crime at hand exceeds 8 years of imprisonment, and of 5 years when the maximum sentence prescribed is of less than 8 years of imprisonment.

In Mozambican law, no corruption or corruption-related crime has a predicted maximum sentence of over 8 years. Most maximum sentences, are, in fact, equal to or under 5 years of imprisonment.

Therefore, and in accordance with article 155(3) of the CP, the statute of limitations on all corruption or corruption-related crimes is of 5 years.

6 Trends and predictions

6.1 How would you describe the current anti-corruption enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

As mentioned above, our perception, supported by the publicly available statistics, is that, currently, the Mozambican authorities are very active in the prevention and sanctioning of corruption practices. The cases related to the hidden public debt demonstrate that Mozambican authorities are willing to pursue any person that is a suspect of having committed corruption acts.

To the extent of our knowledge, there are no legislative developments on the pipeline in regard to anti-corruption.

7 Tips and traps

7.1 What are your top tips for the smooth implementation of a robust anti-corruption compliance programme and what potential sticking points would you highlight?

We have already stated that Mozambican legislation does not expressly set out that compliance programs or policies can lead to the exclusion or mitigation of legal persons' criminal liability. However, considering that legal persons will not be held responsible if they are able to demonstrate that the person that committed the crime acted against express orders, it can be argued that compliance policies can be deemed as express orders not to commit corruption practices. As such, an anti-corruption policy should, on the first hand, clearly set out the main principles according to which the company develops its activity; on the second hand, it should clearly and expressly set out the type of actions that may constitute corruption crimes according to the Mozambican legislation and clearly and expressly prohibit such practices. Control mechanisms are also essential for the implementation of a compliance program on anti-corruption. Lastly, but not the least, it is of extreme importance that the compliance programs are custom made and adequate to the organization, considering its dimension, complexity and also the sectors where it develops its activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.