Artigos

Unconstitutionalities: the Security and Vandalism Laws

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Dossier Surveillance in Angola

Newspaper article

Rui Verde

Disliking a law is not the same as declaring it unconstitutional. In fact, democracy exists to decide on disagreements and is defined by majority decision, respecting the Constitution.

This question arises in relation to two recent laws passed by the National Assembly: the National Security Law (Law No. 15/24 of 10 September) and the Law against Vandalism of Public Property (Law No. 13/24 of 29 August).

The discussion of these laws has sparked heated debates and disputes, with only one extreme position on each side of the argument: either the laws were totally unconstitutional and should be eradicated outright, or they were perfect and there was nothing to change.

The reality, however, is different. Both laws raise questions about certain unconstitutionalities that need to be removed or clarified, but contrary to what has been described, they are not draconian monstrosities. Perhaps for this reason, UNITA, the main opposition party, abstained in the final vote on both laws, not voting against them.

In this sense, it is important to distinguish between a maximalist approach and a minimalist view of unconstitutionality.

Unconstitutionality is not a political or a matter of taste, it is a technical issue and, in simple terms, it translates into the non-compliance of a legal norm with a constitutional norm.

The Constitution is the supreme norm and, as such, is necessarily general, based mainly on principles and sparse indications of the main rules that should prevail in a country. This means that, by its very nature, the Constitution does not provide a direct answer to all legal questions, and the interpretative effort is both greater and more careful than in the interpretation of a law. The foundations of the State, the freedom of citizens and the functioning of institutions are always at stake.

That is why a minimalist and technical approach to questions of unconstitutionality is advocated, freeing them as much as possible from political baggage.

The best contribution that can be made to the fair enforcement of the National Security Law and the Law Against Vandalism of Public Property is to point out specifically and concretely their possible unconstitutionalities, so that the Constitutional Court can effectively rule on them, rather than issuing generalised anathemas that mix everything up and solve nothing.

As the poet Camões beautifully wrote in a sonnet, ‘I embrace the whole world and hold nothing’. Those who opt for a maximalist view of unconstitutionalities are like the lyrical self in Camões’ sonnet: they embrace everything and hold nothing.

Thus, in summary, in order to be specific and not just use general words, the main unconstitutionalities that can be seen in the aforementioned laws are listed below.

With regard to the National Security Law – in the version of the proposed law and not the final version – it was understood that Article 40 (Special duty of cooperation) would be unconstitutional, as it established a general duty to report threats to national security, which were not clearly specified and only vaguely stated. In turn, Articles 39 (Duty to cooperate) and 36 (Preventive measures) did not appear to be unconstitutional (although the issue is debatable), since, based on their wording, they did not appear to be prescriptive rules, i.e., they did not impose a legal command. Article 39 created a civic and patriotic duty to cooperate in the pursuit of national security objectives, rather than a legal duty, let alone a sanctioned one. Article 36 – the one that caused the most uproar, as it appeared to grant broad powers to the security forces – did not, in fact, grant new or different powers to the security forces, but merely listed those already provided for in other laws and in the Constitution.

All of this was explained in an article on this website last February.

The truth is that, once the final version of the law was published (Series I, No. 174, 10 September 2024), it became clear that the detailed discussion in the National Assembly had been fruitful, and the enacted law no longer contained the main problems that had been noted.

Thus, the article that caused the most controversy – the famous Article 36 on preventive measures – no longer exists. Similarly, the former Article 40 on the special duty of collaboration, which we called the “generalised snitching” article, has been transformed into Article 37, with a defined scope based on express law, dispelling the spectre of an absurd duty to report.

However, Article 39, which was dedicated to the duty of patriotic and civic cooperation with the intelligence services, has been retained, now as Article 36. It is understood that this article does not create any legal obligation and that failure to comply with it does not entail any penalty. In any case, a constitutional assessment of the issue would be enlightening.

The novelty lies in Article 35, which reworded what was previously Article 38, which established a duty for citizens to participate in the national security system, specifying what that participation would entail: ‘[n]ot fulfilling their duty to serve in National Defence, Public Security and Internal Order’. The current Article 35 is short, stating that ‘national citizens have a duty to participate in the achievement of National Security objectives, in accordance with the Constitution and the Law.’ It has become an overly vague and generic rule, which may allow the enforcer a margin of latitude that is not well defined.

In conclusion, the final form of the National Security Law does not present the dangers anticipated in its initial version, prior to public and legislative discussion, demonstrating that civic and public discussion of the issues is fundamental. It has been modified for the better. However, in terms of legal certainty, it would be beneficial to see a clear interpretation of Articles 35 and 36.

As for the Vandalism Law, there are two articles that are cause for concern: Article 7 (Destruction of public road, rail and water transport infrastructure or means of transport) and Article 9 (Promotion of vandalism of public property and services).

These articles have two problems. Firstly, they provide for the maximum penalty of 25 years, which is disproportionate. The principle of proportionality, enshrined in Article 2 of the Constitution, establishes a balance between crime and punishment in order to ensure criminal justice. It makes no sense for the destruction of public property to be equated with genocide or aggravated murder.

Secondly, they propose a vague nature of the criminal offence, which violates the principle of criminal legality (Article 65 of the CRA). The principle of criminal legality includes what is known as criminal typicality. Typicality prevents the legislator from using vague, uncertain or indefinable formulas in the description of legal types of crime. There is a constitutional requirement for the content of criminal law to be determinable, both so that citizens can clearly understand what behaviour is not permitted and to avoid arbitrariness in the application of the law.

In summary, and according to the minimalist perspective of unconstitutionality defended here, the Constitutional Court should be called upon to rule on Articles 35 and 36 of the National Security Law as a matter of establishing constitutional interpretation, and on Articles 7 and 9 of the Law against Vandalism of Public Property.

This article was originally published in MakaAngola on the 16 February 2024. The article forms part of an eight-country research project titled “Public Oversight of Digital Surveillance for Intelligence Purposes: A Comparative Case Study of Oversight Practices in Southern Africa,” supported by the British Academy Global Professorship Programme through the University of Glasgow.

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 Angolan economy and the need for a new constitution

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Constitutions do not solve problems, but give powerful signs. It is of these powerful signs that Angola’s economy needs at this time.

If we look at the great macroeconomic data, we come across an encouraging picture. Inflation since March 2022 slowed from 27.66% to 13.86% in December 2022, an impressive data, Kwanza, the national currency, oscillates freely in the international market, the State General Budget has a surplus, public debt came down markedly, for a value close to 60% of GDP. The economy grew again in the orbit of 3% by 2022, predicting an increase of 2.7% in 2023. However, oil continues to rise, 86.27 the barrel/brent (25-01-2023).

Therefore, those who can be considered the “fundamental” of the Angolan economy are healthy after a long shortage which began in 2015/2016.

However, the international investment that should flow to Angola is not reality yet, and the threat of instability is latent, as the interview of opposition leader Adalberto da Costa Júnior demonstrates to a Portuguese newspaper [1] last week, not recognizing Electoral results, courts and, therefore, and from what one apprehends any institution of the State; in practice, assuming as possible a power outlet by force.

Consequently, we have a work of meritorious economic stabilization that for political reasons, as well as those that Keynes called “Animal Spirits” (emotions that determine human behaviour), does not produce the desired effects and usually described on economics manuals.

Now, it is precisely this need to unleash the “animal spirit” that does not move in the Angolan economy and the threats of political instability that gives rise to the urgency of discussing a new Constitution to Angola.

It is well known that the Angolan Constitution approved in 2010 is not consensual and was designed in a legal tailoring taking into account the figure of José Eduardo dos Santos, introducing, what Jorge Miranda, the famous Portuguese constitutionalist, dubbed “simple representative government system, to which, diverse configurations were reappointed  the French Cesarian Monarchy of Bonaparte, the Corporate Republic of Salazar according to the 1933 Constitution, the Brazilian Military Government according to the 1967-1969 Constitution, several African authoritarian regimes.”[2]

Although having suffered a review in a more democratizing and open sense in 2021, in which the autonomization of the Central Bank stands out and the creation of a constitutional system of supervision of the executive branch by the legislature, it is certain that the constitutional genesis prevents always whenever this is a symbol of an open society and a free economy and on the other hand, it contains no mechanisms of constitutional protection as proposed by Karl Loewenstein and adopted in the German Basic Postwar Law. These mechanisms protect the constitution of internal threats to the constitution itself and are a fundamental element for political stability.

In addition, it is important to reinforce the mechanisms of defense of private and foreign investment. If we notice, private investment is only mentioned once in the Constitution in Article 38, and the history of opportunism and true “theft” of foreign investors in Angola was a reality that requires special normative attention. Also the provisions on the land (article 15) must be updated and rationalized, as well as the guarantee of justice with rapid and impartial judgments.

Justice is admittedly one of the essential aspects of a proper functioning of the economy, expecting predictable and timely decisions. There is no doubt that the Angolan judicial system needs a large “aggiornamento” that would be introduced by a new constitution.

In a mere economic perspective, it is clear that a new constitution would be a sign, a symbol of a new time that would attract investors and give hopes of political and legal stability.

As mentioned at the beginning, a new constitution does not solve all problems, its role is to announce a new time open to investment, market economy and progress and development of the country. It would be the culmination of economic reforms recently enclosed.

[1] Adalberto da Costa Júnior, 2023, Nascer do Sol, https://sol.sapo.pt/artigo/790625/houve-muita-pressao-para-tomar-as-instituicoes

[2] Jorge Miranda, A Constituição de Angola de 2010, CJP-CIDP, p. 42

Angola: new Constitution, new Republic?

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REFLECTION PAPER

Current situation and anocratic regimes

In a usual situation, the agitation and tension that was felt in the months preceding the general elections of August 2022 in Angola, it would have given rise to the normality and quiet functioning of the institutions until the following electoral act occurred in 2027. However, the strong divisions that were felt and that kind of almost global strife that existed until August does not seem to decrease, creating a situation of constant aggression, without an end to the sight in the present system. Symptom of this is the recent interview given by the opposition leader to a Portuguese newspaper, which declares “neither I nor the party recognize MPLA’s victory, because we know that Unita had more votes. We heard people across the country. Society wanted us to take over the institutions, but we didn’t want chaos.[1] ”

Consequently, on the one hand, the main opposition party has assumed a policy that we will call the “double road.” Such a policy disputes government within the institutions, although not recognizing its legitimacy, also challenging the institutions themselves. The “double road” accepts that the opposition is made within institutions and outside them; In a way, institutions are seen as another instrument of a broader project of confrontation with the government. It is evident that this posture leads to a difficult manichaeism to manage and undermines any openness and respectability that is intended with the investment. The lack of respect for institutions makes everything too dependent on the will of the political decision makers and the conjuncture.

On the other hand, the government party is embarrassed to lead its announced reforms, it is as if the party were not one but two parties. A party mass is dissatisfied with the proposed changes, it wanted that João Lourenço to be just a more skilled manager than José Eduardo dos Santos, but not to introduce background reforms, another sector wants to be taken effective reforms and is bothered by the eventual slowness of these reforms. They have the notion that without a deep reformist process, Angola can become a state with no future.

There is thus a strong instability, for various reasons, in parties that form the sustainment of the political system.

The National Assembly does not seem to be a deliberative chamber of the nation’s feeling, but a mere stage of a broader dispute, becoming in a means and not an end, removing it the sovereign weight that would be inherent.

With a more frightening record the justice arises. The one who is the basic pillar of a democratic rule of law offers more doubts than certainties. In combating corruption, with honorable exceptions, the judicial system has been based on inefficiency and slowness, not already realizing where this structuring program of the state is walking. As we have already written: “It is true that the supreme court’s design contained in the 2010 Constitution helps to its dysfunctionality. In fact, the Angolan constitutional legislator wanted to make a court following the model of the US Supreme Court grafted in a judicial system of Roman-Germanic type, that is, Portuguese. Now a top court in the Portuguese, German or French judicial system has nothing to do with a top court in an Anglo-American system. They are different concepts and structures. What is asked for an American supreme court is not what one asks for a Portuguese Supreme Court. In the first case, only large and innovative law issues arrive there. It is already a kind of court of reflection, while in the second Roman-German case-the Supreme acts as a last instance of appeal for almost all cases. However, in Angola, a court was thought in the American way to operate in a Portuguese manner. Therefore, a light structure that was only dedicated to a small number of cases had to face the task of being a usual court of appeal for a myriad of cases. That could only give bad result, as it gave. In addition to the dysfunctionality of constitutional design, it has been understood that the judges of the Supreme Court do not have adequate preparation to deal with the complexities of economic and financial crime, not having throughout their career came across with these issues at the sophisticated level to which they have been appearing, which has led to some much criticized decisions and to a large procedural default.

“Beginning the country simultaneously a phase of great appeal to foreign investment, as well as betting on the fight against corruption, is well to see that a poorly designed and thought court has to be reformed and remodeled. [2]”

Overall, justice has not offered guarantees of speed and technical impartiality, and its actors have had a surprising tendency to get involved in consecutive scandals.

On the part of the population there is a timid idea, but discussed in many outside, that current institutions and political parties were designed for a war and confrontation environment, and these characteristics are in their core, and therefore are not able in dealing with a new Angola, where the central objectives are the development and well-being of the population. This means that it is considered that the “old” parties no longer correspond to the wishes and interests of the population, not offering consistent and appealing solutions. The abstention rate of the last general elections (54%) is a mirror of this situation.

A National Assembly that has become a mere-instrument-power and counterpower instrument, an inept justice and an anacronic party system, define this Angolan institutional system.

This whole situation, a little diffuse, but whose signs abound, can make the country in an ancracy. What is an ancracy? The ancracy has been defined as an unstable regime that combines elements of authoritarianism and democracy. The ancracy has an incomplete development of mechanisms of dissension and consensualization and is associated with permanent agitation or ingenability, which make the political process difficult[3]. The existence of an annocratic situation increases the likelihood[4] of a civil war. Putting the theme in another way, what it seeks to question is whether the Angolan situation is inherently unstable and can it resort to a civil war?

The answer is simple, although having two parts. No, Angola has not yet experienced an anocracy situation. However, structuring measures are required to exceed present blockages and dissatisfaction.

New Constitution and New Republic

It is necessary to create an agile state, with respected institutions, a functional public administration and a market economy with free and competitive actors, all contributing to the progress and well-being of the population.

The structures inherited from colonialism and wars must be transformed and exchanged for structures of modernity and development, taking into account the culture and history of Angola.

A new historical cycle with a new structure is critical.

The first measure is to establish a new constitution. The current 2010 Constitution is not consensual and, to some extent, is a legal misconception designed to please the personal desires of José Eduardo dos Santos. Fundamental will be to propose a new constitution, more Angolan and more protective of institutions, which marks a fresh start.

It is understood that this new constitution should address aspects as different as the possibility of separate (direct or indirect) election of the President of the Republic, giving him his own legitimacy and ensuring that the president presents himself as a national leader and not a party leader , the creation of a Second Legislative Chamber composed by the traditional authorities (allowing the introduction of different and plural voices in the legislative process, recovering African culture), the introduction of militant democracy mechanisms as the German fundamental law has (such as Karl Loewenstein[5] wrote Democracy should be able to resist those political agents who use democratic instruments to ensure the triumph of totalitarian or authoritarian projects of power, meaning that the Constitution must contain mechanisms of defense and repression of attempts to overthrow the constitutional regime, which now does not exist with sufficient strength in the Angolan Constitution). Obviously, that the reformulation of judicial power, the change in the symbology of the republic, would be other aspects of this new constitution.

A constitutional change is not enough without the organization and administration of the state. Also here the transformation project has to be comprehensive and seeking the release of colonial and Marxist models, introducing a public administration suitable for the new times. Examples may come from Asia, such as China and Singapore[6], or neighboring countries like Botswana or South Africa. The paradigm must be a merit -based administration based on effectiveness and service to the population. Of course, this implies the end of the clientelist influence on administration, deconcentration with autonomy and decision-making capacity, a completely new way of seeing the administrative procedure, not as a set of rules, but a set of good practices and goals dedicated for the common good and effectiveness.

It is evident that only a few topics are left here about advisable structural changes, according to our perspective, to transform Angola into a modern and prosperous state.

[1] Adalberto da Costa Júnior, interview to Nascer do Sol, 20-01-23

[2] CEDESA (2022). A necessária reforma do Tribunal Supremo em Angola, https://www.cedesa.pt/2022/11/24/a-necessaria-reforma-do-tribunal-supremo-em-angola/

[3] Jennifer Gandhi e James Vreeland (2008). “Political Institutions and Civil War: Unpacking Anocracy”. Journal of Conflict Solutions. 52 (3): 401–425; Patrick Regan and Sam Bell, Sam (2010). “Changing Lanes or Stuck in the Middle: Why Are Anocracies More Prone to Civil Wars?”. Political Science Quarterly. 63 (4): 747–759.

[4] Patrick Regan and Sam Bell, Sam (2010). “Changing Lanes or Stuck in the Middle: Why Are Anocracies More Prone to Civil Wars?”. Political Science Quarterly. 63 (4): 747–759.

[5] Karl Loewenstein (1937) Militant Democracy and Fundamental Rights, in: American Political Science Review 31.

[6] M. Shamsul Haque (2009), Public Administration and Public Governance in Singapore in Pan Suk Kim, ed., Public Administration and Public Governance in ASEAN Member Countries and Korea. Seoul: Daeyoung Moonhwasa Publishing Company, 2009. pp.246-271.

The importance of the new article 37, paragraphs 4 and 5 of the Angolan Constitution: Non-conviction-based (NCB) asset forfeiture

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1–Introduction. The Angolan constitutional review, the limits to the right to property and the fight against corruption

One of the main themes of the Angolan constitutional review underway was the delimitation of the right to property, a issue that has become controversial in light of the developments in the processes of combating corruption.

Recently, as an example, we listed the following concrete measures that in some way put the property right of private entities in question. Regarding the “freezing” of assets, assets of Manuel Vicente and Generals Dino and Kopelipa, Jaoquim Sebastião, Manuel Rabelais, among others, were seized or handed over. About Generals Dino and Kopelipa, it is noted that, as representatives of the companies China International Fund Angola — CIF and Cochan, SA, they handed over the shares they held in the company Biocom-Companhia de Bionergia de Angoala, Lda., in the network from Kero Supermarkets and at Damer Gráficas-Sociedade Industrial de Artes Gráficas SA. In relation to Manuel Vicente, the President of the Republic determined the nationalization of 60% of the shareholdings of the commercial company Miramar Empreendimentos, SA”, which covers “43% of the shares belonging to Sociedade Suninvest — Investimentos, Participações e Empreendimentos, SA” and “17% of shares owned by Sommis, SGPS. These shares will belong to Manuel Vicente. Obviously, it is also worth mentioning the restraint of assets referring to Isabel dos Santos and her associates in civil proceedings in Luanda and in criminal proceedings in Lisbon, in addition to the nationalization of Efacec in Portugal[1].

The legal formulas for the seizure of assets were diverse, generally provisional, although in some cases definitive and with the apparent acquiescence of the interested parties. Here the exception is Efacec, whose nationalization in Portugal was equally definitive, but without agreement from the interested party, Isabel dos Santos.

In one way or another, in Angola the procedures have become somewhat confusing, not realizing exactly the global legal effect of the voluntary delivery of goods and its legal stability, and in cases of provisionally seizure, problems arise in the management and maintenance of assets. It is also essential not to let these temporary situations prolong for too long, especially when the fundamental interests of the economy are at stake or jobs at risk.

In view of these events, a clear definition of the constitutional and legal regime for public seizures in Angola became urgent, to provide legal and economic security to the several movements for the recovery of assets described and in progress. This is the meaning of the text that eventually emerged in the constitutional review and that we are going to describe, adding the legal possibilities that this new text opens in terms of legislation with a view to making the asset recovery process faster, more understandable and solid.

2-Article 37 of the Angolan Constitution (ARC)

The 2010 version of the ARC, still in force, guaranteed the property right and defined the conditions for requisition and expropriation in its article 37.º. There, it was established in nº. 1 that: “Everyone is guaranteed the right to private property and its transmission, under the terms of the Constitution and the law.”. Nº. 2 stated that “The State respects and protects the property and other real rights of individuals, legal entities and local communities, only temporary civil requisition and expropriation for public utility being allowed, upon fair and prompt compensation, in the terms of the Constitution and the law.” And number 3 tightened the loop, demanding that “The payment of the compensation referred to in the previous number is a condition of effective expropriation.”

This was an article clearly framed in a liberal and absolute vision of property, not even foreseeing the possibility of nationalization or confiscation, admitting only the expropriation for public utility subject to the payment of compensation, to be effective. On paper, it would be difficult to have a more absolute guarantee of the right to property, and so the current activities of Angola’s National Asset Recovery Service (ANARS) could often touch the constitutional margins, with many of the seizures carried out lacking constitutional validity. Naturally, this fact must have been alerted to the President of the Republic, who took charge in his proposal for a constitutional review to remedy this grey area that was being created by the action of the ANARS. Thus, the President proposed the addition to article 37 of the Constitution of paragraph 4, which would have the following wording:

4. A specific law defines the conditions under which the nationalization of private assets may occur for ponderous reasons of national interest and confiscation for serious offense against laws that protect the economic interests of the State.

This version expressly established the possibility of nationalization or confiscation when there were fundamental reasons for this to happen. It would be up to the law to define the reasons. Thus, the constitutional regularity of asset recovery activities that had previously raised doubts was enshrined.

However, several Angolan jurists raised the problem that this presidential formulation could frighten potential foreign (and national) investors, so necessary for economic recovery by allowing a broad and indeterminate basis for proceeding with the nationalization and confiscation of assets. This possibility would be overstated and without adequate safeguards. That must have been why article 37, after analysis and deliberation in the National Assembly (NA), ended up with two more numbers, the 4th and 5th. Thus, the following wording was defined:

Article 37

(Right and limits of private property)

1. […].

2. […].

3. […].

4. Movable and immovable goods and shareholdings of private individual and corporate persons, in whole or in part, may be subject to public appropriation, when, for reasons of national interest, national security, food safety, public health, the economic and financial system, the supply of goods or the provision of essential services are at stake.

5. Proper law regulates the regime of public appropriation, under the terms of the previous number.

We are not going to enter into a doctrinal discussion about what is meant by “movable and immovable goods and shareholdings” and whether all the possible assets are included, although a clearer formulation that would not raise any kind of doubts would have been better.

What is clear from this article is that there may be public appropriation, ie, a “situation that (…) allows an action on the ownership of the means of production, which will lead to a coercive transfer of these goods to the public sector[2]” and that this appropriation must be justified by reasons of national interest, which the Constitution exemplifies as national security, food security, public health, economic and financial system, supply of goods or provision of essential services. Note that these are mere illustrations that the constitutional norm gives us. In fact, any motive in the national interest will be grounds for public appropriation. From the entry into force of this text, there will be, without any doubt, a general constitutional framework for asset recovery. Let’s see in what terms and what perspectives unfold.

3-The concept of public appropriation

In the absence of any other reference, it seems that the Angolan legislator was inspired by article 83 of the Portuguese Constitution (PC) to introduce the concept of public appropriation instead of nationalization and confiscation. Article 83 of the PC states: “The law determines the means and forms of intervention and public appropriation of the means of production, as well as the criteria for setting the corresponding compensation.”

From the outset, a clear difference between the Angolan and Portuguese norms regarding public appropriation can be seen. In Portugal, any form of public appropriation implies compensation, This is not the case in Angola.

We will detail the regime that appears to be established in the ARC, after the review. Public appropriation will be any coercive transfer of ownership of a good or private participation to the sphere of the State. Public appropriation encompasses nationalization, confiscation, expropriation and all other possibilities of empowerment. In the specific case of expropriation for public utility, the Constitution requires that compensation be made. In other cases, there is no such constitutional requirement. That is, for reasons of national interest the State can withdraw a property from the private sphere without compensation. The fact that the ARC admits this possibility should oblige the ordinary legislator to quickly draw up a law on the basis of public appropriation to guarantee the legal certainty of these situations, as far as possible.

4- The constitutionalization of non-conviction-based (NCB) asset forfeiture

Non-conviction-based (NCB) asset forfeiture is a critical tool for recovering assets arising from corruption when a criminal conviction is not possible[3]. Examples are when the offender has died, has fled jurisdiction, is immune from prosecution or the criminal process is anticipated to be too long rendering it ineffective. The United Nations Convention against Corruption (UNCAC) and the Financial Action Task Force (FATF) support its use.

The confiscation of NCB assets is a critical tool to recover the proceeds and instruments of corruption. It is a legal mechanism that provides for the containment, seizure and confiscation of embezzled assets without the need for criminal conviction. A growing number of jurisdictions have established NCB asset forfeiture regimes and such regimes have been recommended at the regional and multilateral level by a number of organizations, notably the World Bank through the StAR Initiative and the aforementioned FATF.

Globally, there are two types of confiscation used to recover illicitly obtained assets: NCB asset confiscation and criminal confiscation. Where criminal asset forfeiture and the NCB differ is in the procedure used to confiscate assets. The main distinction between the two is that criminal confiscation requires a criminal trial and conviction, while confiscation of NCB assets does not. In fact, it can be done through a quick civil or even administrative procedure. This is the possibility that the review of the Constitution has just admitted.

5-Conclusions. Non-conviction-based (NCB) asset forfeiture and the need for a basic law

What is essential from this constitutional modification provided for in article 37 of the ARC is the opening of dynamic possibilities for the implementation in civil or administrative proceedings of the confiscation of assets obtained illegally without the need for criminal proceedings and without compensation, therefore, we have here a large and positive step in the fight against corruption.

However, the constitutional provision immediately requires, for reasons of legal security and guarantee of the right to property, the approval of a basic law on the public appropriation of assets, specifically containing specific provisions on confiscation without criminal conviction. Consequently, after the constitutional review comes into force, it will be time for a basic law on confiscation of assets without criminal conviction and compensation.

[1] https://www.cedesa.pt/2021/05/13/radiografia-do-combate-a-corrupcao-em-angola/

[2] DIOGO SARAMAGO FERREIRA, A nacionalização do Banco Português de Negócios – Análise da Lei n.° 62-A/2008, de 11 de Novembro, Revista de Direito das Sociedades, 2011-1 (169-186), 176

[3] Theodore S. Greenberg, Linda M. Samuel, Wingate Grant, Larissa Gray (2009), Stolen Asset Recovery A Good Practices Guide for Non-Conviction Based Asset Forfeiture, The World Bank, Washington DC.

https://star.worldbank.org/sites/star/files/Non%20Conviction%20Based%20Asset%20Forfeiture.pdf

Rule of Law and Corruption in Angola: for a mini-system of justice against corruption

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1. Introduction. Fight against corruption in Angola. Goals and facts

Corruption has become such a widespread phenomenon in Angola that it has jeopardized the survival of the state itself and the country’s economic viability. The so-called fight against corruption is not a matter of the police and combating criminal activity. It is something much bigger and much more important. In fact, what is called corruption in Angola is a more widespread phenomenon of large-scale appropriation of national resources and “privatization of sovereignty”[1]. It consists of varied behaviors that fulfill various criminal types such as fraud, abuse of trust, embezzlement, tax fraud, money laundering, among others, and not just the crime of corruption. What this phenomenon entails is the capture of the State and the Economy by the corrupt forces and the use of their mechanisms of power for their own benefit. It is a systemic degradation of the country’s political and economic body. Ultimately, corruption in Angola prevents the functioning of political institutions and the economy in a free market environment[2].

We believe that it was the perception of the seriousness of corruption for the political and economic development of the country that led João Lourenço to determine as one of the fundamental goals of his presidential mandate the fight against it. It is not worth mentioning the numerous speeches and actions initiated on the topic, to confirm that the fight against corruption has effectively become an insurmountable point of the presidential mandate.

If this goal is clear and justified, the questions arise at the level of implementation. Some criticize what they call the selectivity of the cases taken to court, others the slowness and still others the trampling of legal forms.

We do not see that there is selectivity in the fight against corruption. Just observe the judgments that have taken place and we will see that the people who have been sentenced are different. We have in the case of “Thai fraud”, a former Director of the foreign investment office, Norberto Garcia and a former Chief of Staff of the Armed Forces, General Nunda. Both were acquitted and now occupy important positions, Garcia in the presidential office and Nunda as Ambassador in London. Then we have Augusto Tomás, former Minister of Transport, who was sentenced to effective imprisonment, José Filomeno dos Santos, son of the former President of the Republic, sentenced to five years in prison and awaiting the result of the appeal in freedom, just like Valter Filipe, former Governor of the National Bank of Angola. Finally, we recently had Manuel Rabelais sentenced to 14 years in prison. Rabelais was the strong man of social communication at the time of José Eduardo dos Santos. He also awaits the outcome of the appeal in freedom. It can be seen that they are not all, not even the majority, of the family of José Eduardo dos Santos, only one is a son; have different prison issues and different results. No selectivity is confirmed.

Different is the procedural slowness and some disruption with legal forms. Even recently, the Attorney General of the Republic in relation to the alleged case related to Isabel dos Santos, which will possibly be the most important and outstanding process in Angola, said that it was overdue because it was too complex[3]. And many other lawsuits drag on and raise legal doubts. Not going into details here, what is worth noting is, at this moment, (April 16, 2021), there is only one very relevant political process that has been res judicata and served time. The other two cases of very relevant people are on appeal, and nothing else has come to trial.

This scenario for a situation of extreme urgency like the one described above is very short. There is no doubt that the fight against corruption was an urgency and priority of the State and that it was assumed as such by the President, what is verified is that the judicial results are still limited. Our opinion is that this lack of results is a consequence of a good faith option of the political power that does not work. This option was to combat corruption with the normal and customary means existing in the Angolan judicial system. The use of the judicial system as it stands to fight corruption is not satisfactory. We will see the reason why such an option does not work and the alternatives.

2. The option to fight corruption within the pre-existing judicial system

When the political power chose the fight against corruption as its main goal, it decided to make this fight through the pre-existing judicial bodies and with the usual regular people. There was no organic or personnel renewal, just mere adjustments, the Vice-AGR moved up to AGR (Pesident), the Presidents of the Supreme Court and Constitutional Court switched positions and some slightly hasty laws on asset recovery were passed. So, few moves to launch the fight against corruption. This option must have corresponded to a formalistic opinion given by the most eminent Angolan jurists according to which, the fight against corruption should be carried out within the rule of law and with the existing legal means. Only in this way would the necessary rights of defense and credibility of the processes be guaranteed. And in the face of foreigners it could always be said that there would be no abuse on the part of the authorities as it was the installed judicial system that was operating within the usual regulations of the rule of law.

This legal normality seems correct, but in reality, it is what prevents a real, swift and effective fight against corruption. What we are watching is the machine and people who were captured in the past by corrupt interests to make this fight against corruption. For this reason, cases are physically lost in the courts, others turn into a mess, others come up with unacceptable decisions and others extend inexplicably. In fact, handing over the existing judicial structure the fight against corruption cases  turns out to be a mistake. If that structure was also corrupt, it cannot, for reasons of elementary logic, be judging corruption, the patronage relations of the past, the favors owed, the usual venality, are too strong, for suddenly a blanket of integrity to remove everything. What we have been seeing is that the judiciary system is unable to fight corruption. Lawsuits with beginning, middle and end are rare. It is as if there is a dysfunctionality between the intentions of the Executive Branch and the concretizations of the Judiciary Branch.

The reality is that we are asking for a structure that collaborated and benefited from the corruption that is now combating it; in the end, to turn against itself. Safeguarding, that in this structure there are agents of change, judges, prosecutors, police, employees, who must be praised for their hard work, the fact is that they are an exception – even if they are large – and do not prevent the judicial structure as a whole from being conservative and risk-averse to fighting yesterday’s allies.

To that extent, the fight against corruption may turn out to be inglorious and not work, given the various existing structural obstacles.

3. Historical examples of overcoming the atavistic magistrates

It is not the first time that magistrates, due to their conservatism and risk aversion, call into question the intentions of new regimes. There are impressive historical examples, which also contribute to solutions to this problem.

Briefly, we will refer to two situations.

The first to mention occurred after the French Revolution and the establishment of the legal regime that followed, namely at the level of administrative law. This right was considered key to the development of the new regime as it would regulate the activity of the new State and its relations with citizens. Being the revolutionary state and wanting to institute a regime based on new values ​​- Freedom, Equality and Fraternity – feared that the judges, belonging to the privileged classes and one of the pillars of the Ancien Régime, would prevent these demands and become insurmountable obstacles to the new measures. To remedy this danger as early as 1790, an August law would define a code of relations between the judiciary and the administration, prohibiting the courts from participating in the exercise of legislative and executive powers, in particular by preventing the ordinary judge from intervening in the activity of the administration . A year later, a new Penal Code provides for sanctions against judges who rule on the functioning of an administrative body. The logic that presided over administrative law after the French Revolution was a logic of tightness vis-à-vis the judiciary, for the Revolution to move forward, the judges had to be removed. This logic has evolved and has allowed the creation of a new judicial system, autonomous from the ordinary judicial system. Thus, alongside administrative laws, administrative courts and administrative judges emerged, a body foreign to previous judges[4].

Another situation in which there was a need to circumvent the conservatism of judges linked to an old regime, occurred in Austria, after the end of the First World War (1918). There, a Republic replaced the old Habsburg Empire, and a new class of judges was needed to enforce the new Republican values. It is in this context that the Constitutional Court and Hans Kelsen’s new conceptualization on the subject arises. A new court is set up with different judges.

This means that in several historical circumstances, when political power felt that judges and courts did not correspond to new times and values, it became necessary to create new parallel, complementary or supplementary judicial systems. It is a suggestion of this kind that is made in relation to the present time in Angola[5].

4. Rule of law for corruption

Many argue that in Angola there are already adequate mechanisms to fight corruption and that it is imperative to respect the rule of law, considering that this is represented by the systems and laws as they are at the moment. We cannot subscribe to this thesis for two reasons. The first is based on a theoretical point of view, while the second has an eminently practical character.

In theoretical terms, the rule of law is no more, nor less than respect for the law approved according to pre-established criteria, therefore, the opposite of arbitration. The rule of law implies that there is a law and that everyone respects it. Several legal thinkers add to this formal assumption, that the rule of law also contains a substantive element linked to equality – all are equal before the law, and to freedom – there is a presumption in favor of freedom in the implementation of legal norms. Others go even further by equating the rule of law with a range of fundamental rights and democratic principles[6]. We did not follow this last version, staying for the second. However, this is not important, it is important to note that the rule of law admits that there are specific rules for certain situations. A typical example is the constitutional rules for the State of Emergency (see Articles 58 and 204 of the Angolan Constitution), another example is the system of autonomous administrative law as it exists in France or Portugal. In Portugal, we have a very clear situation of a system completely separate from the ordinary judicial system, with its own laws, specific courts, judges with independent careers in what concerns administrative law, the right of state power and its relationship with citizens. Therefore, from a theoretical point of view and the rule of law, it is not difficult to design mini legal systems dedicated to certain matters.

If, from a theoretical point of view, there can be a different rule of law for issues of great economic and financial crime and state capture (alias corruption) with different rules from the normal rule of law, from a practical point of view it is clear that this is the only way they will be able to combat the corruption installed in the sovereign power of the State. Only by establishing a mini-system that is impervious to influence and with its own rules will this be feasible.

The truth is that each national legal system admits several subsystems according to the subjects or properties outlined. This does not violate any conception of the rule of law, on the contrary it creates rules and obligations for all, transparent and clear, in certain areas. In short, there will be a rule of law for normality and a rule of law for corruption.

5. The proposal: creation of the mini-anti-corruption judicial system

The proposal presented here is simple: to create an anti-corruption judicial mini-system from scratch, or more precisely a legal system relating to major crimes of an economic and financial nature and the capture of the State.

This legal system would operate independently of the other judicial bodies and would consist of four parts:

i) A special body with judicial powers for investigation and prosecution. This body would be a mix of judicial police and public prosecutors having powers to investigate, apprehend, search and detain, ask for international judicial cooperation and in the end make an indictment or file a major corruption case. It would only work in these cases and would be composed of a body of agents with focused and dedicated training.

ii) A system of courts dedicated to these crimes. For the judgment and appeal of cases of serious economic-financial crime and capture of the State, there would be a system of courts solely dedicated to this matter. This system of courts would imply a revision of the Constitution with regard to Article 176 nº3 and nº5. Jurisdiction should be allowed for major crimes of an economic and financial nature and also abolish the ban on courts with exclusive jurisdiction to judge certain types of offenses.

iii) An autonomous and dedicated body of judges would be another part of this mini-system against corruption. Certain judges would specialize in these matters who would fill the seats in the courts.

iv) Finally, this system should have a simplified procedural law drafted in the same way as the current American or French law that allows for quick and fair judgments.

Alternatively, and in case it is not intended to carry out a constitutional review on the subject, instead of creating a system of exclusive courts with its own judges, it could always establish specialized sections to fight corruption in the existing judicial courts. Courts in the provincial capitals or Luanda alone, as well as the Appeal and the Supreme Court, would have specialized sections for corruption. In this case, article 176 was respected when new courts were not created with exclusive powers to judge certain types of infraction, but at the same time we would have sections of ordinary courts or rooms dedicated to the topic. This is already constitutionally possible and the remaining proposed mini-system remained as described.

[1] The expression is characterized by Achille Mbembe, On the postcolony, 2001.

[2] On the impact of corruption in Angola see Rafael Marques, The space of freedom between corruption and justice, 2019, in MakaAngola (https://www.makaangola.org/2019/12/o-espaco-de-liberdade-entre -a-corrupcao-ea-justica /), Ricardo Soares de Oliveira, Magnificent and Beggar Land: Angola Since the Civil War, 2015 and Rui Verde, Angola at the Crossroads. Between Kleptocracy and Development, 2021.

[3] https://www.jornaldeangola.ao/ao/noticias/pgr-admite-complexidade-no-caso-isabel-dos-santos-2-2/ 

[4] Jean-Louis Mestre, « Administration, justice et droit administratif », Annales historiques de la Révolution française 328 | avril-juin 2002. http://journals.openedition.org/ahrf/608

[5] Sara Ligi, “Hans Kelsen and the Austrian Constitutional Court (1918-1929)”, June 2012, Co-herenci,a 9(16):273-295. https://www.researchgate.net/publication/262430581_Hans_Kelsen_and_the_Austrian_Constitutional_Court_1918-1929

[6] See a detailed analysis of the concepts of the rule of law and their historical and spatial differences in Rui Verde, Brexit. The triumph of chaos? 2019

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.

*****

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/