Mozambique: Act No. 21/91 of 31 December 1991 (Refugee Act)

Through the appropriate instrument, the Republic of Mozambique acceded on 22 October 1983 to the Convention relating to the Status of Refugees of 28 July 1951, at the same time making its reservations in accordance with article 42 of the said Convention.

The Mozambican State, by resolutions Nos. 11/88 and 12/88 of 25 August, ratified the Convention of the Organization of African Unity governing the specific aspects of refugee problems in Africa, dated 10 September 1969, and the additional Protocol to the Geneva Convention relating to the Status of Refugees, dated 31 January 1967.

For the purpose of correct implementation of the above-mentioned Conventions and Protocol it is necessary to establish the appropriate procedural mechanisms to guide all the formalities with which applications for refugee status for the persons concerned should comply.The legal establishment of these mechanisms reflects an activity forming a necessary complement to the contents of the above-mentioned Conventions, both to ensure legality in the application of the said instruments and to make it possible to conform to the same legality in relation to petitions for asylum, from the submission of the relevant petition up to the final decision thereon, the ultimate objective being to apply the constitutional principle of respect for and defence of human rights.

Wherefore, pursuant to article 135, paragraph 1, of the Constitution, the Assembly of the Republic hereby decides as follows:

Article 1 (The concept of the refugee)

1.   Any person:

(a)        who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to return to that country or to seek its protection;

(b)        who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it;

(c)        who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in a part or the whole of the country of origin, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality shall be considered a refugee.

2.   A person who has more than one nationality shall be eligible for refugee status only when the above-mentioned grounds apply in relation to all the States of which he is a national.

Article 2 (Impediments to and forfeiture of refugee status)

1.   Any person:

(a)        who has committed or is accused of having committed a crime against peace, a war crime, or a crime against humanity, as defined in Mozambican criminal law or in the international instruments drawn up to make provision in respect of such crimes and signed by the Republic of Mozambique;

(b)        who has committed acts contrary to the purposes and principles of the United Nations;

(c)        who has voluntarily re-availed himself of the protection of the country of his nationality;

(d)        who, having lost his nationality, has voluntarily re-acquired it;

(e)        who, having acquired a new nationality, enjoys the protection of the country of his new nationality;

(f)         who has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution;

(g)        who, because the circumstances in connection with which he was recognized as a refugee have ceased to exist, refuses the protection of the country of his nationality: cannot be considered a refugee or shall forfeit that status.

2.   Any person:

(a)        who has committed outside the national territory a crime under ordinary law which is also considered serious in the light of Mozambican criminal law;

(b)        who has infringed the purposes and objectives of the OAU Convention governing the specific aspects of refugee problems in Africa: may not be considered a refugee or may forfeit that status.

Article 3 (Competence to rule upon asylum)

1.   The Minister of the Interior shall be competent to rule upon a petition for asylum after consulting the Advisory Committee for Refugees.

2.   An appeal from the ruling of the Minister of the Interior shall lie to the Administrative Court.

Article 4 (Extension of refugee status)

1.   Once any person has been recognized as a refugee, admission to the Republic of Mozambique shall be facilitated for any member or members of his nuclear family who may wish to join him.

2.   The spouse and minor children and the ascendants in the first degree of the petitioner or of his spouse shall be deemed to be members of the nuclear family for this purpose.

Article 5 (Juridical status of the refugee)

1.   The refugee shall in principle enjoy the rights and have the duties proper to aliens resident in the Republic of Mozambique; he shall essentially be bound to conform to and obey the legislation in force in the country, including any instructions relating to the maintenance of public order, and to refrain from any subversive activities against any foreign State.

2.   The refugee shall enjoy any rights not applicable to aliens in general which arise out of the United Nations Convention of 28 July 1951, the additional Protocol thereto of 31 January 1967 and the OAU Convention of 10 September 1969, subject to the reservations made by the Republic of Mozambique.

3.   An identity document attesting his refugee status and, when he has to leave the country, a travel document shall be issued to the refugee.

4.   The documents referred to in the previous paragraph may be withheld on grounds of national security or public order determined by the Republic of Mozambique.

Article 6 (Advisory Commission for Refugees)

An Advisory Commission for Refugees shall function within the Ministry of the Interior.

Article 7 (Petition for refugee status)

Any person interested in acquiring refugee status pursuant to article 1 may petition the competent authority therefor in writing or orally.

Article 8 (Authority competent to receive the petition)

The authority normally competent to receive the petition for asylum shall be the Ministry of the Interior through the competent migration body.

Article 9 (Provisional residence)

A provisional residence permit shall be granted, after receipt of the petition for asylum, to the petitioner and the persons indicated by him in accordance with the provisions of article 4, paragraph 2.

Article 10 (Situation of the petitioner and family members if a provisional residence permit is not granted)

1.   If a provisional residence permit is not granted, every effort shall be made to limit the movements of the petitioner and his family members to the indispensable minimum.

2.   The restrictions referred to may be imposed on serious grounds of national security or of public order cited by the Republic of Mozambique.

Article 11 (Offences connected with illegal entry)

1.   Where any criminal or administrative offence directly connected with illegal entry into the Republic of Mozambique has been committed by the petitioner and his family members and has given rise to criminal or administrative proceedings, any such proceedings shall be suspended immediately upon the submission of the petition.

2.   If the ruling is in favour of the grant of asylum, the suspended proceedings shall be filed, provided that the offence or offences committed were determined by the same facts as those which warranted the grant of the petition for asylum.

Article 12 (Naturalization)

1.   The Republic of Mozambique may authorize the acquisition of Mozambican nationality by naturalization for any person who has refugee status and who seeks to acquire such nationality by that means.

2.   Once the requirements of the legislation concerning nationality have been met, naturalization shall be granted on the same terms as to other aliens.

Article 13 (Expulsion of the refugee)

1.   A refugee who is lawfully in the Republic of Mozambique shall not be expelled save on grounds of national security or public order.

2.   A refugee shall be expelled only in pursuance of a decision of the Ministry of the Interior, and on condition that that decision conforms to the rules governing the legal process of expulsion.

3.   The refugee shall be allowed to defend himself, by the means prescribed by law, against the facts that determined his expulsion, specifically by submitting evidence to clear him.

Article 14 (Restriction on the decision to expel)

1.   It shall not be lawful in any manner whatsoever to expel a refugee (non-refoulement) to a territory where his life, physical integrity or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion or where, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in a part or the whole of the country of origin, he would be compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

2.   For the purposes of the previous paragraph of this article, a refugee who is expelled shall be entitled to an option with regard to the choice of the country to which to be sent.

Article 15 (Prohibition on sending a candidate for asylum to another territory)

It shall be unlawful to send a candidate for the right of asylum to any country before a final ruling has been made on the petition for asylum.

Article 16 (Regulations)

It shall be for the Council of Ministers to issue regulations to give effect to this Act.

Article 17 (Entry into force)

This Act shall enter into force immediately.