Artigos

The electoral system of Local Authorities in Angola and the inclusion of Traditional Power

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Rui Verde

Previous note:

Having been invited and accepted to participate in the 1st Angolan Congress on Electoral Law, to be held on December 7 and 8, 2023, for technical reasons I was unable to present my paper online. Here is the text of the presentation.

Specificity of local elections

A local electoral system does not necessarily have to replicate the national system. Although in both cases we are dealing with the choice of representatives in democratic processes, the nature of the elections and bodies is somewhat different.

In many countries, the abstention rate in local elections is higher than in national elections[1] , and local governance is dedicated to issues that are often different from national issues. To a certain extent, although this is disputable, especially in politically polarized countries like Angola, it is understood that local politics will be essentially non-ideological. In the United States, for many years, academics argued that there was little difference between the policies of locally elected officials from the Democratic or Republican parties because most local political issues were technical and non-political. As Adrian wrote, “there is no Republican way to pave a street and no Democratic way to install a sewer.”[2] It should also be noted that the issue of representation of various minorities and interests is particularly acute at the local level.[3]

It is this structural differentiation that serves as the starting point for a short commentary on the current electoral system for local authorities in Angola, addressing two specific issues. Firstly, there will be a brief description of the current constitutional-legal model for local elections, and secondly, a brief reflection on the role of traditional power, given the undeniable demographic pressure in Angola.

Local power in the Constitution

The first place to look at local power in the Angolan legal system is the Constitution (CRA), which deals with the subject in Articles 213 et seq.

It states that the “organizational forms of Local Power include Local Authorities, the institutions of Traditional Power” (art. 213, no. 2) and that Local Authorities “have, among others and under the terms of the law, the following powersº 2) and that Local Authorities “have, among others and under the terms of the law, powers in the areas of education, health, energy, water, rural and urban equipment, heritage, culture and science, transport and communications, leisure and sports, housing, social action, civil protection, environment and basic sanitation, consumer protection, promotion of economic and social development, land use planning, municipal police, decentralized cooperation and twinning.” (art. 219), with various bodies such as an “Assembly with deliberative powers, a Collegiate Executive Body and a Mayor” (art. 220, no. 1).

In terms of the electoral system, the Constitution establishes that the “Assembly is made up of local representatives, elected by universal, equal, free, direct, secret and periodic suffrage of the electors in the area of the respective municipality, according to the proportional representation system.” (art. 220, no. 2), the “Collegiate Executive Body is made up of its President and Secretaries appointed by it, all accountable to the Municipal Assembly.” (article 220, no. 3) and the President of the Executive Body of the Municipality is the head of the list with the most votes for the Assembly (article 220, no. 4). Finally, Article 220(5) states that “candidacies for elections to local authority bodies may be presented by political parties, alone or in coalition, or by groups of voting citizens, under the terms of the law.”

Regarding the institutions of traditional power, the Constitution recognizes them in its articles 223 and following, referring to customary law for their designation, and to the law for their articulation with Local Authorities (article 225).

Consequently, according to the Constitution, there are two forms of local power, local authorities and traditional power, the relationship between which is not established in the fundamental law. In the case of local authorities, their method of election is defined from the outset, which is not the case, of course, with traditional power.

The electoral system of local authorities

In order to describe the electoral system envisaged for Local Authorities, in addition to the Constitution, the Organic Law on the Organization and Functioning of Local Authorities (Law no. 27/19 of 25 September) must be added, as well as the Organic Law on Local Elections (Law no. 3/20 of 27 January), which we will stick to in this description.

As mentioned, there are three bodies in municipalities: the assembly, the executive and the mayor. Looking at the municipality, the local authority par excellence (article 218 of the CRA), we see that only two of these bodies, the assembly and the mayor, are elected. The executive is appointed by the mayor. In fact, Article 29(2) of the Law on the Organization and Functioning of Local Authorities states that the Municipal Council (the executive) is made up of Secretaries appointed by the Mayor, although they are accountable to the Municipal Assembly. The removal of Secretaries is the responsibility of the Mayor (Article 31(1)(b)).

In municipalities, there are two elective bodies, and we’ll focus on them. These are the Municipal Assembly and the Mayor.

The members of the elective bodies are elected by universal, equal, direct, secret and periodic suffrage by the citizens residing in the local district (article 15 of the Municipal Elections Law – LEA). The most relevant article of the LEA is Article 40, which defines the single-list electoral model for the Assembly and the Mayor’s Office, replicating the national constitutional model that has raised so much controversy. In fact, under the terms of this regulation there will only be one list. Article 40 of the LEA states that candidacies for Mayor are presented in the context of the presentation of lists of candidates for members of the Local Authority Assembly (Article 40(1)), and that the candidate for Mayor is the one who appears first on the list of candidates for member of the Assembly (Article 41(2)). Accordingly, each ballot paper will bear the name of the competing party, coalition or group of citizens, the name of the candidate for mayor and the respective passport photo, the acronym and symbols of the candidacy (Article 17 of the LEA). The person on the list with the highest number of votes, even if not an absolute majority, will be elected Mayor, and will have the right to appoint the entire executive (article 21 of the LEA). The members of the Municipal Assembly are elected according to the proportional representation system, following the d’Hondt method for converting votes into mandates in accordance with the rules of article 29 of the LEA.

It should be noted that this electoral system, as well as the rules regarding the ballot paper, have already been upheld constitutionally by Ruling 111/2010 of the Constitutional Court when it considered the text that became known as the 2010 Constitution.

So we have a mixture of the one-round majority system that elects the mayor and the proportional system that determines the composition of the municipal assembly.

It will be argued in its defense that it simultaneously guarantees the efficiency of the government (one-round majority system) with broad democracy (proportional system for the constitution of the Assembly).

But it could also be said that it retains the “defect” of a not entirely direct election of the President, which many in the CRA criticize with reference to the election of the President of the Republic.

Also for those who like Portuguese comparatistics, it should be noted that it does not follow the Portuguese model in which the election of the Mayor is separate from the election of the Municipal Assembly, and a party can win the Presidency and lose the Assembly as is currently the case in Lisbon, in addition to the fact that the executive (Council) is formed according to the electoral results, depending on the presidential will only the distribution or not of portfolios[4] .

In this respect, the Portuguese model could be educational, as it would teach the various parties, which are usually polarized, to enter into local government agreements, which would be a basis for a good democratic spirit of dialogue and tolerance.

As an innovative reference, it should be mentioned that groups of voting citizens can, without any authorization, stand in municipal elections (art. 44 of the LEA) provided that they are at least 150 voting citizens in the respective constituency (art. 48, no. 1 of the LEA).

Traditional power and demographic expansion

It is a fact that Angola’s demography has undergone an explosion. “Between 1960 and 2020, Angola’s population grew 6.2 times, reaching more than 30 million inhabitants, a more significant increase than that seen in sub-Saharan African countries (5.1x) and than in other regions such as East Asia (2.3x) and Latin America (2.9x).”[5]

It is clear that this number of inhabitants is not in line with the current number of Angolan municipalities, 164. Just remember that Portugal, with 10 million inhabitants, has 308 municipalities.

While it is true that the current number of municipalities in Angola does not correspond to the real needs of the population, it is also true that the idea of increasing the number from 164 to 581 is absurdly impossible, both for financial reasons and for administrative and bureaucratic reasons.[6]

We therefore need to look for innovative, possible and constitutional responses. It is in this sense that the constitutional system is relevant, placing the institutions of traditional power under the heading of local power, which also includes local authorities. The same is true of the Organic Law on Local Power, Law 15/17 of August 8, which deals with Local Authorities and Institutions of Traditional Power.

The constitutional and legal system outlines a start on answering the question we posed above. To the systematics we have to add some considerations about the current paradigm of law. We can no longer think of law in terms of the positive rational frameworks of the 18th and 19th centuries, which apply a single menu to all the regulation of social life. Without delving into the subject here, we have to consider law as an open system[7] that allows for various material intersections and contributions and not just a closed, single and reductive positivism. It is in this context that it is important to allow the institutions of traditional power to take on the role of local authority where these do not exist and are necessary.

The reality is that there are two types of Local Authorities in force, those regulated by positive law and those derived from customary law and regulated by custom, accepting a plurality of regimes, legal and customary[8] , with a view to the effective implementation of decentralized local power close to the population, accepting the “presence of more than one normative order in a social field.” [9]

In essence, it is a question of realizing a systematic desire of the Constitution, which, by placing both formal Local Authorities and Local Power Institutions under the aegis of Local Power, is not making a mistake, as some claim, but is opening up avenues for the consideration of a true legal pluralism in Angola, which will act as a solution to problems linked to the efficiency of the state machine.

[1] Anzia SF. 2013. Timing and Turnout: How Off-Cycle Elections Favor Organized Groups. Chicago: Univ. Chicago Press or Hajnal ZL. 2009. America’s Uneven Democracy: Race, Turnout, and Representation in City Politics. Cambridge, UK: Cambridge Univ. Press.

[2] Adrian CR. 1952. Some general characteristics of nonpartisan elections. Am. Political Sci. Rev. 46: 766-786, p. 766.

[3] Abott, Carolyn, and Asya Magazinnik. “At-Large Elections and Minority Representation in Local Government.” American Journal of Political Science 64, no. 3 (2020): 717-33.

[4]  Law no. 75/2013, of September 12th

[5] Economic Studies Group (2023), Demographic transition in Angola: burden or bonus? MakaAngola, https://www.makaangola.org/2023/07/transicao-demografica-em-angola-onus-ou-bonus/

[6] Verde, Rui, (2022), The “(ir)rational” of the 581 municipalities, MakaAngola, https://www.makaangola.org/?s=munic%C3%ADpios

[7] Viehweg, T. Topik und Jurisprudenz, 1954; Perelman, Ch. Das Reich der Rhetorik; Rhetorik und Argumentation, 1980

[8] Cfr. Feijó, Carlos, A coexistência normativa entre o Estado e as Autoridades Tradicionais na Ordem

Angolan Plural Law, Coimbra, Almedina, 2012.

[9] Fernandes, T. 2009. Local power in Mozambique. Decentralization, legal pluralism and legitimacy. Porto, Edições Afrontamento, p. 40

The economic and financial sector in the Angolan constitutional review – In particular, the enshrining of the independence of the central bank

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1. Introduction. Constitutional review in Angola

The present Angolan Constitution (CRA) dates from 2010 and has never been revised. Recently, President João Lourenço announced that he had taken the initiative to propose a constitutional revision.

A first comment that this action raises is that the Angolan president has a courageous policy facing the several challenges that have been placed on him: combating corruption, economic reform, quick reaction to Covid-19. At the moment, the fruits of this determined confrontation are not yet reaping, and there lies some paradox, a reformist president risks being submerged by his own reforms.

The present proposal for constitutional revision is minimalist, and so it was assumed by the government. In this sense, it risks creating expectations in the population that later will not be met. However, it represents a very important step in the discussion of the Angolan political model and the fact is that the constitutional discussion will be more important even though the effective changes that will eventually be inserted in the Constitution.

The purpose of this text is to highlight and analyze the main proposals for constitutional revision in the area of ​​economics and finance.

2. The proposed constitutional review law in the economic and financial area

The first proposed modification is found in article 14 of the CRA, which concerns private property. The expression “promotes[1]” is introduced, with the meaning of being a function of the State in addition to guaranteeing and protecting private property and free enterprise, also the promotion of private enterprise. Positive State behavior is introduced, that of promoting free private initiative.

Later on, a new number 4 is added to Article 37 that regulates the “Right and limits of private property”. This number establishes the possibility of nationalization in the case of “ponderous reasons of national interest”. It also introduces confiscation as a sanctioning measure, which is permitted when there is a serious offense against laws that protect the economic interests of the State.

Naturally, it is in the Title about the Economic, Financial and Tax Organization that some modifications in the economic area are added. Article 92 will contain new paragraphs 2 and 3. The new wording proposed for paragraph 2, aims to “clarify the scope and meaning of the principle of community property, as a type of property enshrined in Article 14 of the Constitution, which defines the nature of the economic system by calling the regulation of the exercise of this type of property the rules of customary law that do not contradict the economic system, the social market regime and the fundamental principles of the Constitution ”. Paragraph 3 establishes the legal existence of the unstructured sector of the economy, i.e., it refers to the informal economy, pointing to its progressive institutionalization.

Then we have article 100 on the National Bank of Angola (BNA). In paragraph 1 of this article, it is determined that the BNA will be the “central bank and issuer of the Republic of Angola” and will have as primary functions: to guarantee price stability in order to ensure the preservation of the value of the national currency and ensure the stability of the financial system. Therefore, the BNA’s functions are limited to combating inflation and the stability of the financial system.

Then, in paragraph 2, “the new legal nature of BNA is enshrined, as an independent administrative entity, with an eminently regulatory nature, and the content of the principle of independence of this type of entities is signaled”. “Transmission of recommendations or issuance of directives to the governing bodies of the BNA on its activity, structure, functioning, decision-making” is hereby prohibited on the priorities to be adopted in the pursuit of constitutional and legally defined attributions, by the Executive Branch or any other public entity.

Subsequent paragraphs of the same article state that: “The Governor of the National Bank of Angola is appointed by the President of the Republic, after hearing in the National Assembly’s Specialized Labor Committee.” And they stipulate a detailed procedure for that appointment. There is a duty of parliamentary hearing, but the final decision rests with the President of the Republic.

Another change concerns the General State Budget (GSB). Article 104 proposes an amendment “in order to remove a current idea that the budget of local authorities is part of the GSB”. The GSB will provide for transfers to be made to municipalities, but not their income and expenses.

3-Analysis and comment on the proposed changes to the economic and financial Constitution

The articles to be amended are 14, 37, 92, 100 and 104.

ARTICLE 14

In relation to article 14, the State will be responsible for promoting private initiative. In addition to the rhetorical aspect of such a statement, in practical terms, this rule allows the State to assist the private sector in a consistent manner, for example, expanding free zones and tax benefits for the private business, subsidizing private companies, creating partnerships with the private sector. The State shouldn’t be merely passive and adopt a positive and active attitude towards the private sector. It is a good sign for the market.

ARTICLE 37

Article 37 is of a different nature and constitutes the only constitutional amendment directly related to the fight against corruption. In the face of a constitutional gap, the general principles on which nationalization and confiscation can take place will now be established. This last part is essential to achieve the recovery of assets that is underway in which it becomes very difficult to understand the legal framework.

It is now clear that the state can confiscate assets when there has been a serious offense against laws that protect its economic interests. In simple language, it is now clear that those who have been charged at the expense of public funds may be without these assets, with no need for a final criminal case, but only the conclusion that they have carried out a serious offense against the laws that guarantee economic interests of the State. This rule is to be applauded in the present context of combating corruption.

ARTICLE 92

If the promotion of private initiative and the speeding up of the recovery of assets obtained from corrupt activities are measures that deserve praise, more doubts raises the rule of article 92 regarding the informal economy. More than “its progressive framing in the structured economy system” (proposed wording of Article 92, paragraph 3), which essentially means the payment of taxes and fees, what the Constitution should advocate was the adoption of supportive policies to the informal sector of the economy, which is a real buffer from the lack of work and an incubator for potential successful small and medium-sized companies[2].

It has already been pointed out that in southern Africa, the informal economic sector is a crucial element of survival, given that 72% of all non-agricultural employment resides in the informal sector and the majority of new jobs show up there. The informal economy provides income and employment to all people, regardless of education or experience. In Angola, the majority of employed people are also involved in the informal economy, as otherwise they would not be able to support all of their expenses. To that extent, it is necessary to be very cautious in establishing rules about the informal economy because it helps the Angolan government[3].

ARTICLE 100

In terms of public opinion, the core of the constitutional change in economic and financial terms will be found in article 100 referring to the BNA. This article contains three main lines:

  1. The BNA is the “guarantee price stability in order to ensure the preservation of the value of the national currency and ensures the stability of the financial system”. Thus, the BNA’s functions related to inflation and the financial system are precisely determined;
  2. The BNA becomes an independent administrative authority and therefore “independent in the pursuit of its duties and in the exercise of public powers”. It is the famous independence of the central bank, which today is defended by most economic doctrine.
  3. The Governor of BNA is appointed by the President of the Republic, after hearing the National Assembly. It should be noted that the National Assembly has no right of veto, but of hearing.

The enshrining of central bank independence corresponds to the modern dominant trend in economic doctrine. The arguments in favor of central bank independence can easily be summed up. Governments are thought to tend making wrong decisions about monetary policy. In particular, they are influenced by short-term political considerations. Before an election, the temptation is for the government to cut interest rates, making economic cycles of expansion and retraction more likely. Thus, if a government has a history of allowing inflation, inflation expectations start to rise, making it more likely.

An independent central bank can have more credibility and inspire more confidence. Having more confidence in the central bank helps to reduce inflationary expectations. Consequently, it becomes easier to keep inflation low. Thus, there is an attempt to introduce additional credibility in monetary policy and to increase the fight against inflation. It should be noted that inflation is an evil that has endured in the Angolan economy for too long.

This measure is correct and should be considered positive.

ARTICLE 104

The last change concerns the clarification of the differentiation between the General State Budget and the Municipalities, as part of the material preparation for the installation of the municipalities.

Conclusion

Minimalist, the proposed constitutional revision in the area of economics and finance aims to reinforce the signs of the market economy and macroeconomic stability, highlighting as an essential element of this law the consecration of central bank independence and its focus on combating inflation.

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Attachment: New proposed wording of the norms referring to the economic and financial sector

“Article 14

(Private property and free enterprise)

The State respects, and protects the private property of natural or legal persons and promotes free economic and business initiative, exercised under the terms of the Constitution and the Law ”.

“Article 37

(Right and limits of private property)

1. […].

2. […].

3. […].

4. Own law defines the conditions under which the nationalization of private goods can occur for ponderous reasons of national interest and of confiscation for serious offense to the laws that protect the economic interests of the State ”.

“Article 92

(Economic Sectors)

1. […].

2. The State recognizes and protects the right to community property for the use and enjoyment of means of production by rural and traditional communities, under the terms of the Constitution and the law.

3. Own law establishes the principles and rules to which the unstructured sector of the economy is subject, aiming at its gradual inclusion in the structured economy system ”.

“Article 100

(National Bank of Angola)

1. The National Bank of Angola, as the central bank and issuer of the Republic of Angola, guarantees price stability in order to ensure the preservation of the value of the national currency and ensures the stability of the financial system, under the terms of the Constitution and the law.

2. As an independent administrative authority, the National Bank of Angola is independent in the performance of its duties and in the exercise of public powers to which it is concerned, in accordance with the Constitution and the law.

3. The Governor of the National Bank of Angola is appointed by the President of the Republic, after hearing the Specialized Labor Committee of the National Assembly, competent by reason of the matter, under the terms of the Constitution and the law, observing, for this purpose, the following procedure:

a) the hearing is triggered at the request of the President of the Republic;

b) the hearing of the proposed entity ends with the vote on the report in accordance with the law;

c) It is up to the President of the Republic to make the final decision in relation to the nomination of the proposed entity.

4. The Governor of the National Bank of Angola sends to the President of the Republic and to the National Assembly, a report on the evolution of monetary policy indicators, without prejudice to bank secrecy rules, the treatment of which, for the purposes of control and inspection by the National Assembly it is ensured under the terms of the Constitution and the law ”.

“Article 104

(General State Budget)

1. […].

2. The General State budget is unitary, estimates the level of revenue to be obtained and sets the authorized expenditure limits, in each fiscal year, for all services, public institutes, autonomous funds and social security and must be prepared in such a way as to that all the expenses provided for therein are financed ”.

3. The State Budget presents the report on the forecast of funds to be transferred to local authorities, under the terms of the law.

4. The law defines the rules for the preparation, presentation, adoption, execution, inspection and control of the General State Budget.

5. The execution of the State Budget complies with the principles of transparency, accountability and good governance and is supervised by the National Assembly and the Court of Auditors, under the terms and conditions defined by law ”.

[1] All citations without a specific source mentioned are from the 2021 Constitutional Review Law Proposal Rationale Report made public by the Government.

[2] Alain de Janvry e Elisabeth Sadoulet, Development Economics, 2016, p. 19

[3] Moiani Matondo, Em defesa das zungueiras e da economia informal, MakaAngola. https://www.makaangola.org/2020/04/em-defesa-das-zungueiras-e-da-economia-informal/