Generalised Nonsense Law
Dossier Surveillance in Angola
Newspaper article
Rui Verde
Bizarre things happen in Angolan politics. The most recent concerns the proposed National Security Law. This legislation has already been approved in general terms by the National Assembly, with 112 votes in favour, zero against and 85 abstentions. Therefore, no one, not even any party, voted against it. However, after the vote, a storm arose, with some claiming that this law would establish a dictatorship, transforming Angola into North Korea, and so on.
The truth is that this discussion should have taken place before the general approval, in the context of the debates in the National Assembly. While it is legitimate to discuss the issue now, it is not clear why the proposal was not sufficiently scrutinised prior to the vote.
It is necessary to read the text of the law carefully, with as much distance and objectivity as possible, in order to understand what it actually does or does not endanger. That is what we propose to do here.
Let us begin with what cannot be included in the law. This is Article 40, which stipulates that all civil servants, administrative agents of public and private companies and others have a special duty to report to the national security system any facts that come to their knowledge in the course of their duties, or because of them, and which constitute risks and threats to national security. The same article adds that violation of this duty is subject to disciplinary or criminal liability, in accordance with the law.
This rule is poorly worded, as it is not clear who it covers. All employees of public and private companies? Does the owner of a private company not have this duty to report? What about a sole trader? In addition, the meaning of the term “others” to identify who has this duty is unclear. Other employees? Other people? Who?
This shows that the rule would be impracticable. Similarly, there is no known law that imposes criminal liability on those who violate this duty. Where is this law?
Therefore, we have here a legal mess, with a rule that is vaguely worded, inoperative, and absolutely unconstitutional. If the aim of the rule was to copy a recent provision of Chinese security law, which makes every citizen a potential spy (the National Intelligence Law of the People’s Republic of China, which was enacted in 2017), requiring all organisations and citizens to cooperate with and support intelligence agencies in their work and granting them immunity from legal liability for their actions, then the law is obviously unconstitutional because it violates the rights of freedom enshrined in Article 36 of the Constitution of the Angolan Republic (CRA), namely the right to enjoy full physical and mental integrity, as well as the freedom of conscience in Article 41, among others.
In short, Article 40 of the proposed National Security Law seems to want to establish a general duty to report threats to national security, which are not clearly specified and are only vaguely stated. Consequently, Article 40 should be removed from the law. Generalised ‘snitching’ does not build a democratic rule of law.
Along the same lines, although no longer creating legal duties, but merely civic ones – and therefore without binding legal force – is Article 39, which prescribes to citizens and legal persons the patriotic and civic duty to collaborate in the pursuit of national security objectives and not to obstruct the normal functioning of the sectors, institutions, bodies and services of that system.
This is merely a moral statement, and not a threat of legal action. Similarly, this rule is meaningless, not least because it is not a true legal rule.
Article 36 has been much debated, especially paragraph 4, which would allow the security system’s forces and services to propose the temporary interruption of land, air, sea and river communication routes, telecommunications systems, access and movement of persons, as well as the evacuation or temporary abandonment of places or means of transport.
This rule is not injunctive, i.e. it does not create a new and immediate right. It is merely a list of possibilities that must be specifically provided for or limited by other laws. This means that, for example, the security services may propose internet cuts, provided that this is provided for in other legislation or within the limits of other legislation. This is not a new right established without limitation by this rule, neither in this case nor in any of the measures set out in Article 36. Perhaps the wording could be improved.
If we look closely, this problem (internet disruption) arises in other Western countries and with dubious responses. For example, in the United States, it seems to be accepted that the government can disrupt the internet for national security reasons, although it is not clear exactly who can do so. The President of the United States has executive authority to declare a national emergency and take the necessary measures to protect the nation from external or internal threats. However, the President’s power is subject to constitutional and legal limitations, as well as judicial and congressional oversight. The Department of Homeland Security (DHS), which is the primary federal agency responsible for coordinating and implementing national security strategy, including cybersecurity and critical infrastructure protection, has the authority to issue binding operational directives to federal agencies and request the cooperation of private sector entities to address cyber threats and vulnerabilities. The Department of Justice (DOJ) has the authority to request or obtain court orders to compel or authorise the interception or disruption of communications for law enforcement or national security purposes. The Federal Communications Commission (FCC), which is the independent federal agency that regulates the telecommunications sector, including the internet, has the authority to issue rules and orders that affect the availability and quality of communications services, as well as to enforce its regulations and impose penalties for violations. This is a confusing legal framework.
Essentially, the rest of the Angolan bill does not consist of prescriptive rules, i.e. rules that require certain conduct, but merely principles and framework rules that create general guidelines and are essentially organisational. Few elements of this law have immediate application and effect on citizens.
In fact, when it comes to issues related to security services, laws can hardly be perfect. The question that always arises is whether there should be a law on this subject, even if it is imperfect, or whether, on the contrary, there should be no law at all, leaving the services to act in the best way possible in the world of mere facts.
