The growth in the registration of foreign non-governmental organizations (NGOs) in Mozambique resulted in a significant increase in the hiring of foreign labor necessary for the development of their activities. However, the limitations created by law and the bureaucracy that characterizes the hiring process of foreign workers has contributed to the shortage of personnel trained in the implementation of NGO projects, thus hampering their performance in the crucial sectors of our country.

According to Decree No. 37/2016, of 31 August, which approves the Regulation of Mechanisms and Procedures for the Hiring of Foreign Citizens (D37/16), the hiring of foreign citizens is completed under three regimes, namely (i) short-term regime; (ii) quota regime; and (iii) work permit regime.

It should be noted that in 2013, the National Directorate of Migration Work of the Ministry of Labor, Employment and Social Security (MITESS) abolished the hiring within the quota for NGOs, through Circular no. 004/MITRAB/GD/2011/2013, of 26 September. In this way, the hiring of foreign employees by NGOs was undertaken through the work authorization and short duration regime, observing Article 17 of the old Regulation. From February 2017, without any written directive, the Labor, Employment and Social Security Directorate of Maputo City began to reject the submission of short-term work communications requests to NGOs alleging that, by recommendation of the National Directorate of Migratory Work, NGOs were required to hire only through the work permit regime, by the imposition of article 19 of D37/2016, observing the procedures of Article 18 to which it refers.

However, it should be noted that from the reading of Article 19 of D37/2016, it is concluded that it refers to hiring (referring to permanent work), while the short-term regime applies to foreign citizens even if they are contractually linked to other entities, that is, for specific work that does not give rise to the actual hiring, to the extent that submission of the employment contract is not a requirement for the issuance of short-term communication. For this reason, specific and unpredictable works do not deserve the treatment provided for in Article 18 of D37/2016. In addition, paragraph 4 of Article 5 of D37/16 states that short-term work is neither part of nor a subsidiary of the quota and work permit regimes.

As mentioned above, it should be noted that the work permit regime applies to permanent jobs, such as management positions, for example. The MITESS requirement of adoption of the work permit regime by NGOs as the only form of hiring is problematic because: a) it prevents employees who intend to carry out unpredictable and casual work (those with a duration of up to 90 days a year); or b) obliges employees who wish to attend training courses, perform audits, provide technical support or participate in meetings, to request equivalence certificates, which may take up to 105 days, without taking the work permit process itself into account. It is also time consuming, complex and may take up to 60 days for its completion, and in the case of a process submitted in the Province, it may take longer, since the process must be submitted to the respective Provincial Directorate of Migration Work and subsequently sent to the Ministry of Labor.

These delays have a negative impact, as it discourages the carrying out of the intended activities in fields that are essential to the country, such as health (HIV) education and environment, which: a) results in a reduction of transfer of knowledge to local NGO staff and other national entities, as well as other activities that contribute to the objectives of the Government's Five-Year Program; b) impedes the carrying out of activities contemplated in the project approved by the Ministry of Foreign Affairs and Cooperation and/or Memorandum with other Ministries that supervise the sector of activity of the NGO; and (c) creates an environment of uncertainty among donors about the way the law is applied in Mozambique, jeopardizing the attribution of the funding allocated by them, which is indispensable for the pursuit of NGO activities.

It should be noted that NGOs' projects are previously approved by the Ministry of Foreign Affairs and Cooperation (MINEC) and subject to prior opinion of the respective Ministry, which oversees the area of activities carried out by them, hence it does not make sense that the Government having previously authorized the carrying out these projects, authorization afterwards creates barriers to the implementation of the same.

Lastly, according to the principle of unity of the legal system provided for in Article 9 of the Mozambican Civil Code, Article 19 of D37/2016 should not be viewed in isolation, but rather within the legal system, integrated with other contiguous norms (of the same context), whose knowledge (and recognition of the short durations regime) is necessary. In view of the above, it is of the utmost importance that MITESS reconsiders the restriction imposed, since the restoration of the short-term work regime for NGOs is very important for the full development of NGOs' activities approved by MINEC and ratified by other Ministries that oversee the areas of their activities, contributing to the pursuit of the objectives of the Government's Five Year Program, aimed at the development of our country.


The article was also published in the SAL & Caldeira Advogados LDA Newsletter No. 39. You can click here to access the article. It is reproduced with permission of SAL & Caldeira Advogados LDA.

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