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The Mozambican police and the bar association (OAM) are at loggerheads over whether the police campaign against smoked or darkened glass windows in vehicles is legal.
On Monday the OAM issued a statement that the police fines of motorists driving cars with darkened windows have no basis in law.
The police defend their actions on the grounds that vehicles with darkened glass are used for criminal purposes, since it is impossible for people outside the vehicle to see who is inside it or what they are doing.
Windows are often darkened by covering them with a dark plastic coating. The police argue that this is an alteration of the characteristics of the vehicle. Such an alteration violates the Highway Code, which has the force of law.
But a decree of 1954 lists what is meant by the term “characteristics of the vehicle”. This covers such aspects as gross weight, number of axles, number and size of the tyres, number and size of the cylinders, year of manufacture, colour, and country of origin. This list does not mention the characteristics or colour of the windows.
Hence the OAM argues that darkening the windows does not constitute an alteration of the characteristics of the vehicle and so cannot be illegal. On the contrary, the OAM’s statement adds, it is the police campaign against darkened windows that is “illegal, unacceptable and a violation of the principle of legality to which agents of law and order are bound”.
Since bans restrict the rights of citizens, the lawyers continued, “they cannot be presumed, but should result expressly and unequivocally from the law”. But in the Mozambican legal order, there are no provisions banning the circulation of vehicles with darkened windows”.
The OAM regarded the police campaign as “a violation of the principle of the democratic rule of law, which is characterised by compliance with the laws and respect for the constitutional rights, freedoms and guarantees of citizens”.
The lawyers state that they are willing to assist citizens who have been victims of this police campaign and urged them “to use the mechanisms envisaged in the law for the best defence of their rights and freedoms”.
The OAM also called on the Public Prosecutor’s Office “to exercise effectively its function in the control of legality”, and hold responsible for their actions members of the police force who commit illegal acts.
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But on Tuesday the General Command of the police retorted that the OAM was mistaken. At a Maputo press conference the spokesperson for the General Command, Inacio Dina, claimed there was “no doubt” that the police action was legal.
He said the campaign is covered by the police law of August 2013 and by those articles of the Highway Code which supposedly refer to the police power to search vehicles. But neither of the articles mentioned by Dina (number 7 and 89) seems to have anything to do with the colour of windows.
Article 89 does indeed mention a “ban on the use of certain equipment”. But it specifies that this refers to equipment that can “reveal the presence or disturb the functioning of instruments intended to detect or register transgressions”.
This appears to refer to anything that interferes with safety equipment such as speed cameras, but the police are now stretching its meaning to cover darkened windows, and to justify fines of 2,750 meticais (45 US dollars) for any motorist using them.
Dina protests that the OAM statement did not mention article 89 which, he claimed, gave the police the power to remove immediately any dark coating from car windows. He claimed the police had been “saddened” to read the OAM document.
For the police, darkened windows fall within the equipment mentioned in article 89 because “they hinder visibility inside vehicles when the police are investigating in the case of any suspicion”.
“The police are working to guarantee the comfort of citizens”, said Dina. “Guarantees of public order and tranquillity are not given by people wearing ties in air conditioned offices, full of papers with pretty words. It’s done on the ground, and the police are always strictly obeying the law, always guaranteeing the supreme interest of citizens”.
Dina seemed unaware that Article 89 of the Highway Code is not even Mozambican legislation. It is copied, almost word for word, from the Portuguese Highway Code. The only significant difference is that the fines are expressed in euros in the Portuguese code, and in meticais in the Mozambican one.
Furthermore, the Portuguese article was not written to stop motorists from darkening their windows. This is not illegal in Portugal, as long as the type of coating is recognised as valid by the Portuguese Institute of Mobility and Transport, and is applied to the window by a duly certified company.
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