The National Criminal Investigation Service (SERNIC) could see its investigative powers stripped away, as there are plans to take over this role from the Republic Police (PRM).

According to the weekly Briefs and Facts, the Executive submitted to the Assembly of the Republic the Proposal for a Basic Law on the Organization of Criminal Investigation, the Proposal for the Revision of Law no. 16/2013, of August 12 (PRM Law) and also the Proposal for the Revision of Law no. 2/2027, of January 9 (SERNIC Law), which are full of unconstitutional vices and other legal problems identified by the Technical Councils of the Attorney General's Office (PGR).

For example, it was noted that the Basic Law Proposal for the Organization of Criminal Investigation does not provide the grounds for Internal Resolution no. 2/95, of 13 June, which imposes the need for grounds for instruments aimed at creating rules. The reasoning behind the adoption of the legal instrument is incomprehensible without it.

The same document contains provisions of "dubious constitutionality", such as article 4 of the proposal, which defines the Police of the Republic of Mozambique (PRM) as a "Criminal Police Body", thus giving the PRM generic competence in the field of criminal investigation. This is not an attribution of the PRM, according to article 253(1) [254] of the Constitution of the Republic of Mozambique (CRM).

The newspaper quotes the draft law as saying that it has the potential to violate the principle of the separation of powers laid down in Article 134 of the CRM, since Articles 15 and 16 of the proposal, relating to the creation, composition and powers of the Coordination Council, provide for this body to be made up of government figures, and may also be made up of the president of the Superior Council of the Judiciary and the Attorney General of the Republic.

Also submitted to the PGR for the necessary technical appraisal was the Proposal to revise Law no. 16/2013, of August 12 - the PRM Law, which, from the Technical Council's point of view, also presents problems of both a constitutional and procedural nature. On a constitutional level, the Technical Council insists that the combination of the aforementioned Article 253(1) of the CRM and Article 254(2) makes it clear that the PRM does not have the power to investigate criminal offenses.

According to the weekly newspaper, there are fears that SERNIC's powers will be stripped away at a procedural level. "The proposal provides, for example, for the creation of a Division for the Investigation of Criminal Offences with powers to direct, organize, monitor and draw up methodological instructions and directives in the context of investigations into criminal offences. This division will be responsible for gathering news of crimes and preventing their consequences, discovering their perpetrators and carrying out necessary and urgent acts aimed at securing the means of evidence in all crimes whose investigation does not fall within the competence of other auxiliary bodies".

"For the experts who analyzed the document, the attribution of investigative powers to a body within the PRM (specifically the General Command of the PRM), contrary to the Constitution, seems "strange", given that "a large part of the crimes it proposes to investigate fall within the specific competence of SERNIC".

With regard to the draft law revising Law No. 2/2017, of January 9, the SERNIC Law, the Technical Council noted that the proposer (the government) says one thing and yet does another.

In other words, right from the outset, the Executive justifies the pertinence of the revision, among other reasons, by the need to accommodate new specialized organic units, which, among other functions, will be responsible for preventing and combating money laundering, terrorism and its financing and asset recovery.

Instead, however, the proposal not only fails to establish new specialized organic units, but also leaves out various aspects introduced, above all, by the new Code of Criminal Procedure, as well as dealing with other matters not mentioned in the grounds, the examiners point out.

Furthermore, according to the technical opinion, the grounds state that articles 6, 20, 22, 24 and 27 will be revised. But in practice, 51 of the 53 articles of the current law are proposed for revision.

"There is also concern about the fact that it distorts, without the necessary justification, the nature of SERNIC as provided for in Article 3(1) of the creation law, making the proposal lose its definition as a public criminal investigation service," it reads. (Source: Dossiers e Factos).