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  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.”
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.
 Adalberto da Costa Júnior, 2023, Nascer do Sol, https://sol.sapo.pt/artigo/790625/houve-muita-pressao-para-tomar-as-instituicoes
 Jorge Miranda, A Constituição de Angola de 2010, CJP-CIDP, p. 42
https://www.cedesa.pt/wp-content/uploads/2023/02/constiy.jpg446665CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2023-02-03 13:24:452023-02-03 13:25:09The Angolan economy and the need for a new constitution
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. ”
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. ”
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. The existence of an annocratic situation increases the likelihood 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 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, 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.
 Adalberto da Costa Júnior, interview to Nascer do Sol, 20-01-23
 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.
 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.
 Karl Loewenstein (1937) Militant Democracy and Fundamental Rights, in: American Political Science Review 31.
 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.
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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.
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:
(Right and limits of private property)
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” 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. 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.
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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”. 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.
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. 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.
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.
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. 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.
 The expression is characterized by Achille Mbembe, On the postcolony, 2001.
 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.
 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
https://www.cedesa.pt/wp-content/uploads/2021/04/martelo-juiz.jpg400720CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2021-05-14 18:11:562021-05-14 18:11:59Rule of Law and Corruption in Angola: for a mini-system of justice against corruption
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” 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.
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 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.
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.
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.
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:
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;
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.
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.
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.
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
(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 ”.
(Right and limits of private property)
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 ”.
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 ”.
(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 ”.
(General State Budget)
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 ”.
 All citations without a specific source mentioned are from the 2021 Constitutional Review Law Proposal Rationale Report made public by the Government.
 Alain de Janvry e Elisabeth Sadoulet, Development Economics, 2016, p. 19
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