It is public that the Angolan authorities issued an international warrant for Isabel dos Santos.
The merits of the warrant is not discussed, because without knowing the concrete accusations it will be all speculation, but it is important to pay attention to the opportunity. And what catches the eye, in terms of opportunity, is the time that took place between the departure of Isabel dos Santos de Angola (August 2018) or the publication of the so-called Luanda Leaks (January 2020) that would compromise it in unshakable and the issuance of the warrant (November 2022). That is, between two and four years to issue a warrant.
Obviously, it is too much time without listening directly and personally Isabel dos Santos in criminal proceedings with the public and notorious scope of them.
This temporal gap makes it question what failed in the Angolan judiciary. The answer seems to be in the model followed in Angola in the so-called “fight against corruption”, or, generalizing, in the big economic crime.
Angolan authorities chose to refer cases of large economic crime to the common means, Attorney General’s Office, Ordinary Courts, etc. The problem is that questions of “state capture” or “privatization of sovereignty” such as those that happened in Angola would hardly be resolved by the common means that have their times and bureaucratized practices, often committed to the actors themselves from supposed Crimes.
The fight against economic crime at this level of “state capture” has required several countries in which it happens, the creation of special instruments to overcome the above structural obstacles.
One can start with the United States, where situations of great severity with political impact, such as investigations to Richard Nixon, Bill Clinton or Donald Trump have been based on the appointment of an independent counsel attorney. These independent prosecutors have their own powers and may exceed normal federal structures.
In South Africa, where the expression “capture of the state” emerged, the option was the creation of a powerful commission of Inquiry into Allegations of State Capture, better known as the Zondo Commission, the name of the judge who presided over to the commission. This commission has led to an exhaustive and independent investigation work that originated several reports that now serve as a basis for criminal accusations. It also existed in Ukraine, before the war, the creation of a system supported by several international entities.
The essential point of this very brief international court is that very serious corruption situations that undermine the viability or survival of the state impose combat solutions that leave the sphere of the normal judiciary, which will also be plagued by the same corruption problems and “State capture”. Therefore, the difficulties that the fight against economic crime finds in Angola are normal, and it is important to change the structure and methodology.
The change in the structure and methodology of combating corruption in Angola is based on the institution of a high authority against corruption with its own and independent judicial powers to investigate, accuse and bring to trial the large cases of corruption in a single judicial system. High authority against corruption could investigate, interrogate, seize, search and decree precautionary measures under the law and then have a chamber for trials or directly refer to a new chamber of economic crimes with the Supreme Court. Operating in the constitutional and legal framework, this authority would be a specific organism for repressing corruption. This high authority would have exclusive competence for all the main cases of corruption and would make the necessary international crosses.
Nations need specific, focused and flexible structures to combat the most evolved economic crime as is big corruption. In Angola, it urges such a structure. It is important to take this step in the area of economic crime.
https://www.cedesa.pt/wp-content/uploads/2022/11/isabel-santos.jpg10801920CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2022-11-23 18:08:392022-11-23 18:12:23Isabel dos Santos, economic crimes and a high authority against corruption
Angola’s history has been one of constant and overcoming challenges, and its survival as a single entity has been threatened since independence in 1975. It is never too much to remember that independence itself was declared at different times and in different places by different entities, with greater or less legitimacy. Agostinho Neto proclaimed the independence of the People’s Republic of Angola at 11 pm on November 11, 1975, in Luanda. Holden Roberto, leader of the FNLA, announced the Independence of the People’s Democratic Republic of Angola at midnight on November 11, in Ambriz and Jonas Savimbi did the same for UNITA in what was then Nova Lisboa on the same day, declaring the birth of the Republic Social Democratic Republic of Angola.
Immediately, a civil war followed that more or less sporadically, covering larger or smaller areas, lasted until 2002. Attempts at external invasion were also frequent, South Africa, even before independence, entered Namibia and Mobutu’s Zaire the same to the north. Then it was Cuba’s turn, at the invitation of the Luanda government to also enter the country to counter the other invasions[1]. Indirect interventions by the then superpowers also abounded, and it is unnecessary to recall the threats of disintegration that the country experienced until the end of the civil war in 2002.
After that date, the threats posed to Angola diminished, although many remained latent and others emerged, such as those linked to the capture of the State and corruption[2].
Currently, there is an increase in external threats after 2002, not assuming the dramatic contours of the years after independence, but posing demanding challenges to the forces defending sovereignty, territorial integrity and national public order.
Separatism
Internally, we can see the rekindling of separatist attempts, both in Lundas and in Cabinda, which could be a trigger for other initiatives. In relation to Cabinda, reports have recently appeared on social media, replicated in some media of clashes between the armed wing of the Front for the Liberation of the State of Cabinda (FLEC) and the Angolan Armed Forces (FAA)[3]. These attacks, real or virtual, follow several complaints from the Democratic Republic of Congo (DRC) about Angolan incursions into its territory in apparent hot pursuit of FLEC members. Last August, the Chief of Staff of the Armed Forces of the DRC, Célestin Mbala Musense, criticized alleged incursions by the Angolan Navy into the country’s territorial waters in operations against rebels in Cabinda and claimed that FAA soldiers were multiplying incursions into the country, persecuting FLEC rebels[4].
Alongside this possible military upsurge, which is uncertain and about which there is no reliable information, there is a duly publicized current of opinion that invokes the need for a solution, although it is not clear what it is, or is tired of a confrontation.
The truth is that the Constitution of Angola (CRA) in its articles 5 and 6 is determinant: “… no part of the national territory or of the sovereign rights that the State exercises over it may be alienated.” It should be noted that this formulation implies that any territory always remains an integral part of the State, but does not prohibit different statutes and approximations, such as the establishment of autonomies always integrated into the national whole and of local authorities, more or less decentralized.
There is, therefore, a constitutional duty to combat any attempt at territorial secession, the CRA admitting the use of force to make this happen (“energetically fought”). In this context, the FAA will play a crucial role in preventing any dismemberment. In addition to constitutional law, it is also easy to see that any separation or “detachment” of Cabinda from Angola would have a disintegrating effect on the country, which as we know, historically, is a recent construction in progress.
This leads to the second threat of the same separatist type that exists in the Lundas. In January 2021, there was a bloody confrontation, the contours of which were duly described in Rafael Marques’ text, “”Miséria & Magia.[5]” In addition to socio-economic aspects, the event has been seen as linked to independence attempts by a self-styled Movement of the Portuguese Protectorate Lunda Tchokwe (MPPLT).
It is evident, in the first place, it is the duty of the State and the government to deal with the grievances of local populations, taking into account their developmental, economic and social demands. It is primarily a question of politics and progress. However, it is not worth ignoring that in the end, national integrity and sovereignty will always have to be guaranteed, and the FAA may play a decisive role in ensuring territorial cohesion.
That is why it is considered that a real threat to the sovereignty of Angola are the separatist impulses or intentions of part of its territory, with the FAA as the mainstay of the State to guarantee the integrity and unity of the State.
State capture and corruption
The second internal threat is linked to the aforementioned capture of the State and the fight against corruption. The option of political power was to hand over the fight against corruption to the common judicial means, therefore, this is not a function of the FAA, but of the police forces, criminal investigation and judiciary. The FAA only enters in what refers to the “capture of the State”. If forces or entities that benefit from corruption try to affect the normal functioning of the Rule of Law and Justice, weakening political power, it can be understood that the FAA will have a duty to defend constitutionality and legality, not intervening in specific judicial proceedings, but guaranteeing the conditions of tranquility and peace for the normal judiciary bodies to do their work. This is a difficult line to draw for the actions of the military, so the posture here must be understood as one of surveillance and symbolic support for the activity of the police forces and not of direct intervention.
If separatism and “state capture” are threats to sovereignty and peace in Angola, from the external point of view there are more and varied threats that have to be listed and have increased in recent years, requiring special attention from the FAA. The following stand out as external threats:
i) instability in neighboring countries, namely the DRC;
ii) the spread of terrorism designated as Islamic;
iii) crime and maritime piracy;
iv) increased competition between world powers with interests in African goods.
A few quick words about each of these segments:
i) instability in neighboring countries, namely the DRC
Although for the first time in 2018/2019 there was a peaceful transition of power in Congo (DRC), the truth is that the situation in this huge country is far from under control. The porosity with the Angolan border is a fact that is usually mentioned, but the main problem is that Tshisekedi, the President of the Republic and the state apparatus do not seem to control vast areas of the country that, according to some, are subject to militias promoted by Rwanda to search richness for processing in that country. A recent article by the Angolan professor and member of the Angolan government party, Benjamim Dunda, states that “What some do not know is that Rwanda is the gateway to the looting of excessive mineral resources in the DRC. Much of the endless instability of the neighboring nation of Mobutu has Kagame’s fingerprints. The Rwandan Patriotic Army (EPR) and Ugandan military, militarily occupy part of the territory of the DRC. Coltan (columbite and tantalite) is currently the most coveted ore in the technology industries worldwide. 80% of the world’s reserves are in the Democratic Republic of Congo.[6]” Without Dunda’s exalted tone, Laura McCreedy, from the International Peace Institute’s Center for Peacekeeping Operations, is on the same wavelength, referring already this month to reports of the resumption of proxy violence – attributed to Uganda, Rwanda and Burundi – as well as recent offensive operations against Allied Democratic Forces (ADF) by Ugandan forces and the alleged presence of Rwandan police and Burundian troops in eastern DRC, which is particularly alarming[7].
What appears is that there is a latent conflict in the DRC that is far from being resolved, to which is added a kind of asymmetric invasion, using the techniques popularized by Vladimir Putin in Crimea and Ukraine, by forces from Rwanda and perhaps Uganda within the DRC. This could soon provoke a more intense and not so covert war in the country with obvious effects in Angola. We shouldn’t forget that Angola was present in the so-called First Congo Civil War (1996-1997) and Second Congo Civil War (1998-2003), in addition to having directly or indirectly intervened in subsequent relevant moments in the DRC’s history. Consequently, it will not be indifferent to the evolution of the situation in the DRC and to this kind of discreet or disguised invasion that takes place, with the FAA having at least a deterrent role.
ii) the spread of terrorism designated as Islamic
The Angolan religious reality would not suggest an imminent danger from Islamic terrorism. However, there are two factors that must be taken into account to increase the degree of danger of Islamic terrorism in Angola.
The first factor is that what is often called “Islamic terrorism” does not have a real religious connotation, but represents a kind of franchise or brand adopted by insurrectionary movements or guerrillas in economically and socially degraded areas. This means that it is possible that in disaffected areas in Angola there may arise “Islamic” terrorist movements, which have nothing but Mohammedan but the designation, adopted to instill fear and terror in the populations and authorities. In fact, it seems clear that several Islamic terrorist movements that emerge in Africa are not the result of a command or central planning, but are more or less autonomous cells that imitate and mutually inspire, seeking common elements in propaganda and methodologies. As Chatham House experts Alex Vines and Jon Wallace put it, “[In Africa, the] line between jihadism, organized crime and local politics is often blurred and further complicated by global factors such as climate change, population and migration.[8] ” This means that the aforementioned “broth” can arise in Angola, and suddenly, the Islamic flag will be attractive to insurrectionary groups dissatisfied with the government.
Added to this first factor is the spreading across the African continent in relation to Islamic terrorism and which is gradually surrounding Angola. In the neighboring DRC, although still far from the Angolan borders, there is already talk of Islamic terrorism regarding the ADF (Allied Democratic Forces), with links between this organization and the Islamic State. In Tanzania, there are small attacks such as those in October 2020, in the village of Kitaya in the Mtwara region; attack that was claimed by Islamic extremists operating from northern Mozambique. Obviously, the case of Cabo Delgado in Mozambique is paradigmatic of the combination that can be foreseen for Angola, a socio-economic discontent allied to the emergence of Islamic terrorism. Further north, whether in the Central African Republic, Chad or Nigeria, there is a permanent threat from terrorist groups that identify themselves as Islamic.
The porosity of the borders, allied to the socio-economic difficulties, become powerful magnets for the expansion of terrorism that can become an internal threat in Angola, and it is certainly already a border threat and spreading across the African continent.
iii) crime and maritime piracy
From Cape Verde to the Angolan coast, attacks on ships have increased in recent years. In this vast maritime region, pirates – initially concentrated around the Niger Delta – extended their activities to all Nigerian coasts, as well as Benin and Togo. Since 2011, no less than 22 acts of piracy have been recorded in Benin, affecting traffic in the port of Cotonou, which has dropped by 60%. The massive economic impact of maritime crime – which includes illegal fishing, drug trafficking and weapons – on the coasts of West Africa increases every year. The Gulf of Guinea is now considered the continent’s maritime red zone[9].
Angola’s position has been clear, assuming itself as a strategic engine in the fight against piracy, pointing to the creation of a government funding strategy in the Gulf of Guinea and in the Great Lakes region, recognizing that crime has been growing in this area, endangering the region itself from a national, international and regional point of view. It is in this perspective that Angola attaches great importance to the maritime spaces that have to be controlled. In fact, of the 90 percent of crimes committed in the Atlantic Ocean, 70 percent occur in the Gulf of Guinea, which is worrying.
iv) increased competition between world powers with interests in African goods
This situation is more general and perhaps less imminent in causing disruption than the previous ones, however it exists and in the medium term could be the main threat to Angola. Some authors speak of a new “race for Africa”, such as those that took place at the end of the 19th century in connection with the Berlin Conference and after independence in the context of the Cold War. Angola was obviously a central part of both “races”. The first served to delimit its borders and complete the Portuguese colonial intervention, while in the second, it was one of the main battlefields of the US-Soviet Union confrontation. The prestigious English magazine The Economist summarized in 2019 the new, and third, rush to Africa, writing that there is a third wave in the works. The continent is important and is becoming increasingly important, mainly because of its growing share of the global population (by 2025 the UN predicts that there will be more Africans than Chinese). Governments and companies around the world are racing to strengthen diplomatic, strategic and commercial ties[10]. In fact, those who first discerned the continent’s opportunities were the Chinese who, since the beginning of the 21st century, have invested heavily in Africa, with Angola as their main partner, at least in terms of debt. The rest of the world has only just woken up to Africa. But in fact, we see Turkey in search of new markets and allies since it abandoned its alignment with the European Union, the Persian Gulf countries in the same line looking for diversification projects for their economies, and the European Union, led by Germany and France, with Italy and Spain also intensively recovering old ones and arranging new contacts, either for economic reasons or to try to stop the illegal immigration that affects their countries and can cause their governments to lose elections. Also Russia, in the mix of imperial recovery and business demand, returns to Africa. Only the United States of America has pursued a dormant policy towards the continent since Donald Trump, not yet understanding very well what they are doing in substance, apart from some noises against China and/or about Islamic terrorism. However, this lethargy can end.
At the moment, China is far ahead in the new race for Africa. As soon as Europeans and North Americans definitively understand – we are still in an ambivalent stage – that the Chinese presence in Africa is a threat to their geopolitical and economic interests, competition will intensify. It should be remembered that China currently absorbs around 60% of cobalt exports from Africa; 40% iron; and 25-30% of its exports of chromium, copper and manganese.
Consequently, Angola’s role as holder of key raw materials and a stabilizing force for the DRC, another immense repository of resources, will be decisive.
The current moment of the FAAs
In view of the above, it is easy to understand that these times is of great demand for the FAAs, who can once again be called upon to perform functions of national survival.
At this time, according to the most credible sources, the FAAs are comprised of approximately 107,000 active soldiers (100,000 Army; 1,000 Navy; 6,000 Air Force); there are still an estimated 10,000 in the Rapid Intervention Police (2021)[11].
Military expenditure is around 1.7% of GDP, therefore, below the 2% that the United States intends as a parameter for NATO countries (North Atlantic Treaty Organization of which Angola is obviously not a part, but whose parameter can serve as an ideal value of military expenditure). It is not an exaggerated expense, on the contrary, one might think.
Most Angolan military weapons and equipment are of Russian, Soviet or Warsaw Pact origin; since 2010, Russia remains the main supplier of military equipment to Angola[12].
Regarding its military capability in 2022, Angola is ranked 66th among 140 countries considered by Global Fire Power[13]. Its forces include 320 tanks, 1210 armored vehicles, and several artillery pieces. It should be noted, however, that tanks are essentially old, acquired in the 1990s from the Soviet Union. From our research, we could only find a reasonably modern (2016) tank-destroyer type vehicle, the PTL-02 Assaulter purchased from China. As for the naval forces, despite having an extended coastline and responsibilities in the Gulf of Guinea, the country only has 37 patrol boats and no medium or larger ships such as corvettes, frigates or cruisers.
As for the Air Force, there are 299 planes, of which 71 are fighters, 117 are helicopters and 15 are attack helicopters.
A recent analysis by Africa Monitor, which, it should be noted, has reflected a critical stance on the part of João Lourenço’s government, presents an alleged factuality, which, even if it is exaggerated or represents an overly pessimistic perspective, paints a less than encouraging picture of the readiness and material from the Angolan Air Force and Navy. Second, this publication, the navy fleet has its operational levels chronically “impaired by non-compliance with maintenance requirements and/or unpreparedness of its crews.[14]” In the Air Force, too, paralysis will be the keyword. According to the same newspaper, “the units of the transport helicopter fleet that were still operating (Russian-built Mil Mi-8) will be paralyzed, either aircraft from the 1980s-1990s, or units reconditioned later”, there is a “inability to ensure the maintenance of combat helicopters (Mil Mi-24)” and also in “a situation of near paralysis (…) Sukhoi (Su-22, Su-25, Su-30, Su-27).[15] ”Specialists with whom we have contacted directly and who prefer to remain anonymous assure that in recent years there has been no significant purchase of military material. So apparently there may be a need for reinforcement with these branches of the military.
In summary, there are three types of needs in the Armed Forces: obsolete and not modernized material, lack of equipment maintenance and unpreparedness of some cadres for specific activities. This obviously makes it important to intervene in the FAAs in order to increase their budget and increase their operational capacity in the face of the challenges described.
FAA modernization vectors
From all the above, two basic assumptions result that lead us to a simple conclusion. The assumptions are that threats to Angola’s sovereignty and integrity have increased in recent years after a period of some calm after 2002. Today the country faces a new “race for Africa” by the great and emerging powers, the threat of so-called Islamic terrorism spreads across the continent and piracy and criminality in the Gulf of Guinea along the coast is a reality. Added to this is the renewal of internal separatist tendencies and the strong reaction of the formerly dominant oligarchy to the fight against corruption. These facts correspond, at this moment, to some FAAs with some gaps in terms of material, readiness and training, which may, eventually, make an adequate reaction unfeasible in the event of an increase in any of the exposed threats.
It follows from the equation of these assumptions that an FAA modernization policy in terms of equipment, training and readiness/maintenance is essential. On the contrary, what many would claim, a reinforcement of the military budget and a modernizing reform of the Armed Forces is necessary.
The General State Budget for 2022 does not yet fully reflect these needs. If we look at it, from 2021 to 2022 there is a nominal increase in defense spending of 19.7%. It is enough to think that official inflation is around 27% in 2021[16] to realize that in real terms defense spending is decreasing, probably leading to cuts in the military sphere. In turn, defense spending is equivalent to 1.4% GDP[17].
We understand that the modernization of the FAA has a qualitative vector that must be defined by specialists in the area and involve the readiness of the Armed Forces, their implementation capacity and levels of sustainability, as well as the quality of the force they can exert. However, the vector that we focus on in this report is quantitative and we present the very simple suggestion already adopted by the countries of the North Atlantic Treaty Organization (NATO), which is to place defense expenditure at around 2% of GDP[18] . This is not a magic number and can be subject of much criticism, but it represents an objective and quantifiable parameter, and in fact gives political power a measurable instrument to achieve[19] , which can be an advance in good governance and transparency policies that intend to implement in Angola.
[1] Cfr. Pedro Pezarat Correia (1991), Descolonização de Angola: jóia da coroa do império português, Lisboa: Inquérito; Silva Cardoso (2000) Angola, anatomia de uma tragédia, Lisboa: Oficina do Livro; «Involvement in the Angolan Civil War, Zaire: A Country Study». United States Library of Congress;
Donald S. Rothchild (1997). Managing Ethnic Conflict in Africa: Pressures and Incentives for Cooperation. Brookings Institution Press. pp. 115–116; Ndirangu Mwaura, (2005). Kenya Today: Breaking the Yoke of Colonialism in Africa. pp. 222–223; Chester A Crocke, Fen Hampson, Pamela Aall, Pamela (2005). Grasping The Nettle: Analyzing Cases Of Intractable Conflict.
[2] For a good definition of these themes in South Africa, but with conceptual application to Angola, see Judicial Commission of Inquiry into State Capture Report: Part 1 [Zondo Report] (2022).
[19] About the criticisms and advantages see Jan Techau (2015), THE POLITICS OF 2 PERCENT. NATO and the Security Vacuum in Europe. Carnegie Foundation.
https://www.cedesa.pt/wp-content/uploads/2022/02/FAA.jpg345473CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2022-02-14 14:00:002022-02-14 14:37:31The new threats and the reinforcement of the Angolan Armed Forces
The initial vision of the role of justice in Angola was established in the initial constitutional law following independence in 1975, the Constitutional Law of November 11, 1975. This fundamental law considered the courts as organs of State, having the exclusive responsibility of exercising the jurisdictional function with a view to achieving democratic justice (Article 44), ensuring that in the exercise of their functions judges are independent (Article 45).
Interestingly, the basic principle referring to the judiciary is not very different from that currently enshrined in the 2010 Constitution of the Republic of Angola (CRA), despite the changes in the political system that have taken place in the meantime. The courts continue to be sovereign organs with the competence to administer justice on behalf of the people (articles 105 and 174) and “in the exercise of their jurisdictional function, the courts are independent and impartial, being subject only to the Constitution and the law.” (Article 175). There is structural continuity in the essential conceptualization of the judiciary since independence, although its forms and practices have varied over time[1].
In terms of relevance, perhaps the so-called “fight against corruption” announced in 2017 by President João Lourenço has brought a focus to justice that had never existed before, and that is why today it is essential to discuss the reform of justice.
From what can be seen from the summary reference made to the constitutional texts, over time there was no special doctrinal or even practical concern with judges and the application of justice. In fact, in 1977, it became famous for the saying attributed to the then President of the Republic Agostinho Neto, regarding the events of the 27th of May, in which a multitude of people were shot: “We are not going to waste time with judgments[2]”. Justice has always played a secondary role in the main concerns of Angolan governments and probably public opinion.
It was only after the initiation of lawsuits against the “famous” (Filomeno dos Santos, Augusto Tomás, Manuel Rabelais, and Isabel dos Santos) and some accusations and trials that justice became the stage of political struggle and focused attention. It is a very interesting fact that João Lourenço has chosen to hand over the fight against corruption to the ordinary justice and, therefore, challenging it to be effective. Later, the political struggle entered the courts even more, with the famous ruling by the Constitutional Court on UNITA which declared the election of Adalberto da Costa Júnior null and void[3].
These two converging facts, the handing over of the fight against corruption to the ordinary courts and the dismissal of Adalberto da Costa Júnior by the constitutional court, gave rise to two innovative phenomena in the Angolan judicial world.
First, a kind of very strong light was turned on, which began to illuminate the activities of the judiciary. What used to happen in the obscurity and unintelligibility of legal language became visible to the general public, and many defects in the system emerged with the naked eye: slowness, lack of technical specialization or the absence of material means.
Second, the courts became the object of strong attack from all those who did not agree with the decisions or were not afraid of being covered by them. Thus, a large part of the Angolan elite, which is afraid of going to court, began to fiercely criticize the courts, their decisions, their functioning, their independence. The objective of these attitudes is very simple: to delegitimize court decisions, devaluing their weight. Added to this are the bombastic statements of many of the defense lawyers, who do not hesitate to criticize decisions that do not benefit their constituents. At the same time, this dislike and anti-court “campaign” was accelerated by discontent with the constitutional court’s decision regarding UNITA.
Consequently, the courts became a field of political and legal struggle. It is false and wrong to assert that old jargon that “justice and politics don’t mix”. In fact, in Angola they are quite mixed, as in Portugal or the United States[4].
All these facts lead to questioning the role of justice in Angola, underlining, above all, its slowness and eventual politicization. In fact, this discussion turns out to be beneficial because from the questioning, discussion and the need for reform arise.
What should be guaranteed is that this justice, which politics has entered, remains impartial and independent, taking its decisions without influence, in a transparent and technically based way. It is with this desire that Angolan justice could be reformed.
2.The blockades: the legal paradigm, the material means and budget, corruption, the political issue.
In order to propose an adequate reform of the Angolan justice system, it will be necessary, as a matter of priority, to identify the obstacles and impediments to its proper functioning, as it will be in these “Gordian knots” and not in general and abstract declarations that the reformist process should focus.
We have identified five blocks that impede the proper functioning of justice in Angola:
1-The inadequate legal paradigm;
2-Lack of material resources and efficient budget management;
3- Corruption;
4- The political issue.
Let’s analyze, albeit briefly, each of these blocks.
2.1- The inadequate legal paradigm
The first blockage of the Angolan judicial system is the one that cannot be seen, as it involves the entire system and therefore there is no perception of its existence. This is the legal paradigm in which Angolan law moves. It is easy to understand that despite some proximity to Marxist formulas between 1975 and 1992, Angolan law remained essentially identical to Portuguese law, whether in the major legislative bodies, whether in doctrine or training.
In terms of legislation, it is a fact that for decades after independence, Portuguese laws continued to be Angolan laws. The Civil Code and the Code of Civil Procedure are still those received from Portugal in the 1960s, while the Penal Code of the Monarchy and the Code of Criminal Procedure at the beginning of the “Estado Novo” were only replaced in 2021, and by very similar texts, when not copies, of texts approved in Portugal after April 25, 1974.
If, at the legislative level, Portuguese influence prevails, the same happens at the doctrinal level. Portuguese teachers are the most cited in Angolan jurisprudence. Suffice it to exemplify with the ruling of the Constitutional Court referring to UNITA (Rule No. 700/2021), whose doctrine cited is mainly Portuguese. Antunes Varela, Miguel Bezerra and Sampaio da Nora, Carvalho Fernandes, Abílio Neto, Alberto dos Reis, Ana Prata, all Portuguese, are mentioned to substantiate the deliberation of the judges. Only one Angolan, Raul Araújo, is mentioned. Naturally, this small doctrinal detail reveals how much Angolan law is still subsidiary to Portugal.
The same is true in terms of training. A good part of the Manuals used in teaching is still written by Portuguese authors or written in collaboration between Angolans and Portuguese, which is already an evolution. In constitutional law, the manual of Professor Bacelar Gouveia, Portuguese, or professors Jónatas Machado, Nogueira da Costa and Esteves Hilário, here a mixed collaboration between Portugal and Angola, as in the fundamental manual of administrative law by Carlos Feijó and Diogo Freitas do Amaral. At the same time, it is still regarded as the most prestigious graduation to obtain a master’s or doctorate in law at the universities of Lisbon or Coimbra.
There would be no special problem here if Portuguese law responded to the demands of modernity and its practice were simultaneously translated into something fair and effective. The problem is that Portuguese law, and by absorption of Angolan law, live in a bureaucratic and impractical paradigm. The norms and ways of acting in Portuguese law are out of date, the interpretation of the law has become exaggeratedly subjective, never knowing exactly what is coming, procedural norms imply long trials, and the tendency, in the criminal area, has been to reduce rights of the defendants, reaching a situation in which the processes do not end in good time for justice, nor do the defendants already have adequate defenses and guarantees. Portuguese criminal law has fallen into the worst of all worlds, slow processes, inquisitions and defendants without rights, depending on the common sense of the magistrates and little else. It’s an unfair law. In turn, procedural law was transformed, above all by the famous Coimbra professor Alberto dos Reis, into a too elaborate science to which few insiders have access, cluttering up the processes, and in which the goals of speed and justice ceased to exist.
The Portuguese legal system, in whose paradigm Angola moves, is slow, confused and not very adequate to present times, generally not being fair or fast, leaving everything too much in the hands of the judges. This is the main problem facing the Angolan judicial system and the first blockade to overcome.
2.2-Lack of material resources and efficient budget management
The contention that the Angolan justice system is depleted and has no means has been persistent. In the now distant year of 2017, on May 26, a request from the Angolan Judges Association had entered the Provincial Court of the District of Luanda, with a view to the procedure of a “separate judicial notification” to the Republic of Angola in the persons of its Justicea and Finance ministers. This notification reminded that several legally provided subsidies and other instruments necessary to carry out the work of magistrates were not made available by the political power. According to the description of the judges, the day would not come far when they would be living in houses without electricity and water, and when they would not be able to go to court, as they did not have a car or any other means of travel[5]. The judicial magistrates stated that, since 2013, they have been obliged to defray the cost of work material. Specifically: paper, ink cartridges, photocopies of processed sheets (with the letterhead of the various models used in the courts), travel by bailiffs for the purposes of citations and notifications, purchase of cell phones and a monthly recharge plan to assist with citations/notifications of the lawyers and users, fuel for the generators (in the rooms where they exist). Even at the time, they mentioned that the Judgment Room, located in Zango 3, in Viana, had no regular electricity during the office hours. This made it impossible for the magistrates to fully perform their functions, forcing them to draft the hearings by hand, namely interrogations, trials, procedural instructions, social inquiries… The generator was out of order. Furthermore, due to the distance, the employees who worked there were transported in one of the institution’s vehicles, whose fuel and maintenance was supported at their expense.
The situation has not significantly improved since then, despite the new focus on justice. In July 2021 there were public protests by judges and prosecutors; complained about the “lack of technical conditions and even low salaries (…) The president of the National Union of Magistrates of the Public Ministry (SNMMP), José Buengas, even stated that most of the courts and prosecutors” in Angola operate with money from the magistrates who “take out of their pockets to buy paper and ink. The day you stop doing this and wait for a ream of paper for the entire month to arrive to print all the documents, constituents, lawyers and the population will wait, with all the consequences that may result. [6]“
The State General Budget (SGB) for 2022 foresees an allocation of 1.21% of the revenues for the judicial bodies, equivalent to 113,777,899.457,00 Kwanzas. This represents an increase of more than 100% compared to the year 2020 when only 0.37% of the revenues were imputed to Organs judicial bodies, representing 49,414,027,773.00 Kwanzas. Considering that inflation accumulated in this period will have ranged between 45% and 48%, the truth is that we have a real increase in spending on justice above 50%.
Comparing, in turn, the current year (2021) and the forecast for 2022, we have an expected monetary expenditure of 133.8 billion kwanzas, against 55.9 billion kwanzas in 2021. This corresponds to a nominal increase of 103 .5%. And it corresponds to 1.2%, 0.6% and 0.2% of fiscal expenditure, fiscal expenditure and percentage of GDP, respectively[7].
Therefore, we have here a certain paradox that becomes an obstacle to the efficient functioning of justice. On the one hand, there is a persistent and constant complaint by magistrates, which can be visually proven in many courts, about the lack of material means, on the other, there is an effective effort by the State to increase the means available to the justice sector, having proceeded to a budget that provides for the doubling of spending on justice in two years (2020-2022), which in fact accelerates in the transition from 2021 to 2022.
2.3- Corruption
Corruption in the Angolan judiciary is a little-studied but much talked about phenomenon. A short closed inquiry carried out by this center in relation to corruption in the Angolan magistracy among judicial operators led to the conclusion that the majority believes that judges are influenced by monetary or political reasons (the latter we will see below), and in that sense many decisions are taken on the basis of these influences, disregarding the applicable law. There were even references by magistrates of several attempts to offer gifts or monetary amounts.
This survey does not have a sufficiently large sample to allow scientific conclusions to be drawn, it only gives us an impression of the existing opinions among lawyers, magistrates and court officials.
On another level, the investigative journalist Rafael Marques’ portal, MakaAngola, has told several stories of inexplicable court decisions, which possibly could only have been taken due to external stimuli.[8]
What is certain is that this is a situation that is talked about a lot, but about which there is little information, but it has created an image of legal uncertainty among legal operators and investors and that is why it is essential to overcome it.
2.4- The political issue
On the agenda is the issue of politicization of Angolan courts. There is no day that doesn’t show up a published opinion, generally linked to the opposition, indicating the lack of credibility, above all, of the higher courts, and in these, of the constitutional court, due to its politicization[9].
The argument focuses on two fundamental axes.
The first axis is linked to the party affiliation of judges. The case of the present President of the Constitutional Court, Laurinda Cardoso, has been invoked by society, as until the moment of her appointment she was affiliated with the MPLA and in addition to being a member of the government of João Lourenço, she was also in higher organs of the party. The fact of having her membership suspended has not absolved her of criticisms of political commitment, especially given that one of her first acts was to sign the aforementioned judgment nº. 700 that removed Adalberto da Costa Júnior from the leadership of UNITA.
The second axis is of a more institutional nature, and is based on the argument that, directly or indirectly, the vast majority of judges end up depending on the nomination of the President of the Republic or of the majority party in the National Assembly, the MPLA. In fact, at the level of the Constitutional Court, the CRA determines that four judges out of eleven are appointed by the President of the Republic and another four by a 2/3 majority in the National Assembly, which the MPLA has always held. To that extent, at least 8 of the 11 judges would be aligned with political power. As for the Supreme Court, the President and Vice-President are appointed by the President of the Republic from among 3 candidates selected by 2/3 of the Counselor Judges in effective functions.
Given these various factors, the feeling of dependence of the judiciary on political power has grown in some public opinion, serving for various attacks that delegitimize judicial decisions.
3.The axes of judicial reform: legal paradigm shift, reinforcement of material resources and new public management, fight against corruption, transparency in politicization: the German model.
Legal paradigm shift: the “de-Berlinization” of Law
The first priority of a reform of the judicial system is the change of the legal paradigm, or in other words, the modification of the legal mentality and the standards used. We argue that the excessive copying of Portuguese models, norms, doctrines and teachers is harmful to Angola, as it does not provide the country’s legal culture with instruments and ways of thinking that are adequate to the concrete challenges in which it is involved.
So, we have to look for new inspirations elsewhere. A wide-ranging investigation should be carried out in relation to cases of stability and/or success in Africa itself, as is the case in Namibia and above all in Botswana. It seems to have a legal logic to verify the type of principles and norms, as well as the judicial organization adopted in Botswana and adapt what is understood for Angola. Another legal order that could be explored in greater depth, particularly with regard to the judicial and procedural organization, as well as criminal law, is Brazil, especially from the perspective of combating corruption and the various normative instruments that it has “imported” of US law.
As far as the fight against corruption is concerned, the Angolan legal system has to “Americanize” itself, investing in the right to prizes, the plea bargain, the sentence agreements, and the specific police forces.
In order to accelerate the paradigm shift at the level of judges, judges should have specialized advisors who study and prepare decisions in accordance with the new legal paradigm.
One suggestion would be to institute a law reform commission not only containing Angolan luminaires advised by Portuguese, as is currently the case, but admitting multinational contributions. Thus, the law reform commission should contain Angolan and Portuguese experts, but also from Botswana, Namibia, Brazil and, if possible, from the United States of America and Great Britain. Most important of all, there is a renewal of the plurality of contributions and meta-legal sources for Angolan law.
Reinforcement of material resources and new management model
Regarding the reinforcement of material resources and a new management model, there will be three items to consider[10].
The first is natural and concerns the strengthening of the State Budget for justice. It should be noted that the government seems to have been sensitive to this aspect, since, as mentioned above, in 2022 we have a projected monetary expenditure of 133.8 billion kwanzas, against 55.9 billion kwanzas in 2021, more than a doubling of the funds allocated to justice, which is to be applauded.
A second step has already been taken, and it is also to be applauded, except for one detail. At issue is Presidential Decree Nº. 69/21, of March 16, which approves the reimbursement scheme attributed to the administration of justice for financial and non-financial assets recovered by them. The underlying idea is positive. It is about delivering to the justice bodies some of the assets obtained in the fight against corruption, creating a stimulus for effective and efficient action in the recovery of assets, in addition to providing justice with means that it would not otherwise have. This disposition is right. The justice bodies must benefit from the assets they seize, only the judges who decide the seizures and losses in favor of the State should have been left out, as it can be argued that their impartiality would be obstructed when deciding that someone loses a certain asset, knowing that eventually a certain magistrate would benefit directly or indirectly from it. Expressly safeguarding this aspect, this idea is to be fostered, and follows on from what we have upheld in previous reports in the sense that it is necessary to place the funds obtained in the fight against corruption at the direct service of the public interest.
Lastly, in addition to the reinforcement of funds, whether through the General State Budget or through assets recovered in corruption processes, a new model for the management of legal funds should be considered that guarantees rationality and efficiency in the allocation of resources.
The handover of management to judges is not supported. But the creation of an autonomous institute with transparent management of the administration of justice, which would manage budget revenues, revenues from the fight against corruption and could have its own revenues linked to the activities of justice. This institute would have professional managers and would be audited by an international auditing firm. Its operation would be decentralized with a manager attached to each district court and higher court.
Thus, in addition to the increase in funds, there would be autonomy in the management of funds from the courts, which would be administered by an institute with professional managers constituted for the purpose and which would work in a decentralized manner in each court.
Fighting Corruption in the Judicial System: an own Police Dependent on the National Assembly
This is a difficult topic. As seen above, it is a topic that many talk about, but there is no concrete evidence. Furthermore, it is complicated to have a system to combat corruption within the judiciary that does not in any way affect the independence of judges or is seen as an intrusion on the judiciary. However, believing in self-regulation in terms of combating corruption in the judiciary does not seem to remedy the problem either, as there will be a tendency towards corporate solutions to cover up.
We are prone to a radical but provisional solution. This solution would be the creation of an Anti-Corruption Police in the Magistracy (PACOM) dependent on the National Assembly; the legislative power is directly dependent on the sovereign popular will and therefore has the legitimacy to syndicate judges. PACOM would be created for seven years, with magistrates’ investigative powers limited to situations of corruption (it would have a very restricted mandate to avoid accusations of interference) and would be controlled by the National Assembly as well as civil society. Control by civil society would be through an American Grand Jury-style system. Any investigation that PACOM decided to carry out against a judicial magistrate would only proceed after being validated by a group of 12 members of civil society who would function as a filter and monitor of the anti-corruption Police’s intentions in relation to the magistrates.
Therefore, the investigation of the corruption of a certain judge would not only be a police decision, but also a decision of society. This system would provisionally operate for seven years, after which self-control systems would be implemented within the magistracy itself, hoping that at the end of that time a new pedagogy and practice would have been adopted.
Transparency in politicization: the German model
The politicization of Angolan justice, especially the higher courts, is the accusation that is most frequently heard today. However, this issue is not typical of Angola, there are several countries, especially when court decisions have political consequences or there is a certain judicialization of politics in which the politicization of courts is a recurrent theme. This is the case in the United States, where President Trump conducted an intense campaign to create a right-wing majority in the Supreme Court and where this court is under intense scrutiny to see whether or not it enters a political drift with such a right-wing majority, noting a strong commitment by its president, John Roberts, to seek balanced solutions in decisions and to avoid these accusations of politicization[11]. Politicization was also one of the most used epithets by former president Lula in Brazil to confront the court decisions that were unfavorable to him regarding the Lava-Jato operation.
Not being an Angolan monopoly, the reality is that the issue of political influence in court decisions has often been brought up. The solution generally suggested to solve this supposed political influence has been the modification of the ways in which the judges of the superior courts are appointed by the political power, be it the executive or the legislature. It is stated that the fact of being the President of the Republic or the qualified majority of two-thirds of the deputies of the National Assembly always amounts to the same: the MPLA designating the heads of the higher courts, and in the case of the constitutional court, its large majority .
As an alternative, it is proposed that there be a self-selection system for the choice of judges, or a public competition/independent commission-style model, and that institutional mechanisms are created to guarantee the independence of judges, which make them autonomous and insulate them from political influence. Basically, these solutions turn out to be corporate: judges choosing judges and judges controlling judges. And to that extent, they have a legitimacy problem. There is no good reason why the judges should choose their peers or that they form a tight circle in which no one has a say.
The magistracy, like any sovereign body, must have a political justification that legitimizes its choice. In the system idealized by Plato of the philosopher king[12], one could think of a kind of high qualification exams in which those who proved to be the wisest would become judges. We would have the platonic legitimacy of the philosopher-king, which in a way, was also adopted by the Confucian formulas of the mandarinate in China, from the Sui dynasty, and only based on merit after the Song[13]. However, one lives neither in the model idealized by Plato, nor in imperial China, but in democratic states of law. And the reality is that the prevalence of the democratic principle imposes that judges ultimately establish their legitimacy in the democratic process. And to that extent, political power should always intervene in the choice of judges. To remove political power from the judicial choice is to remove democracy from it, hence legitimacy. Political power must be present in the process of choosing magistrates, as that is where its popular and democratic legitimacy derives.
On the other hand, it does not seem that the formula for choosing judges or the control and management bodies are truly determinants of their independence. It turns out to be better to have transparency, to know what each judge thinks and defends and to assess their work by analyzing the grounds of the decisions they take, than to create countless mechanisms that only serve to confuse. It is better to have a President of the Republic or a Parliament appointing a judge, which mediately confers democratic legitimacy to the judge and to know which party the judge belongs to, than to create fictions of independence that only make appointments and decisions opaque.
What is essentially of interest to society is to assess the judge’s independence in their judicial decisions. Therefore, these must be published, known and subject to discussion; apart from that, the judge is a woman or man like any other and this must be assumed and said.
In this sense, the system in force in the Federal Republic of Germany turns out to be the most honest. In this country, which has one of the most reputable magistrates in the world,” magistrates are allowed to be affiliated with political parties as well as publicly speak out on political issues. Judges with aspirations to be appointed to the higher courts may even consider party affiliation to some advantage, particularly if it is in one of the two largest parties (SPD and CDU). In this legal framework there is also no impediment for a judge to hold a position in a political party”[14]. For example, section 36 of the Deutsches Richtergesetz (German Judges Act) allows a judge to stand as a candidate for parliament, granting him the vacation necessary to prepare his election in the last two months before the election, without compensation.
The German system, as bizarre as it may sound, has two advantages. The first one already mentioned is that of transparency. The second is more technical and requires that the law be said in a universally accepted and understandable way, subject to greater discussion and critical publicity. What is intended is that judges are independent technicians in their decisions, so there will be decision models and legal logic that everyone will follow, adopting the highest criteria of the science of law. What matters here is that the judge decides according to the law and in a methodologically correct way, hence the importance of the rules of methodology and interpretation in German doctrine. The aim is to apply a conduct of syndicable reasoning that guarantees autonomy. The training and technical preparation of judges are the guarantee of their independence[15].
It seems to us that this method would be more honest for Angola, a legal requirement and disregard for political aspects that will hardly exist.
Conclusions
Given the above, a real reform of Angolan justice will involve changing the paradigm of legal culture, the “de-Berlinization of law”, looking for other new influences besides the Portuguese ones, such as successful neighboring African countries such as Botswana, in addition to Brazil and the United States.
To this will be added the budget reinforcement and the creation of an autonomous and decentralized institute for the financial administration of justice.
It also advocates its own police based on the National Assembly and with the participation of society to fight corruption
And finally, the assumption of the German model of transparency and technical requirement to guarantee the non-politicization of court decisions, admitting that judges may be affiliated with political parties.
[1] On the evolution of Angolan constitutional texts, see Adérito Correia and Bornito de Sousa, (1996), Angola. Constitutional History. Almedina.
[2] There are numerous references to this statement by Agostinho Neto, see for example Edgar Valles, (2020), 27 May: reconciliation and forgiveness in Angola? PÚBLICO, https://www.publico.pt/2020/05/27/opiniao/noticia/27-maio-reconciliacao-perdao-angola-1918297
[3] Decisoion No. 700/2021 of the Constitutional Court, https://jurisprudencia.tribunalconstitucional.ao/wp-content/uploads/2021/10/ACORDAO-No-700.pdf
[4] J.A.G. Griffith,(2010), The politics of the judiciary, Fontana Press; Rui Verde, (2015) Juízes: O Novo Poder
Ensaio sobre a acção e reforma do poder judicial em Portugal. RCP Edições
[14] Vânia Gonçalves Álvares (2015), O governo da justiça: O Conselho Superior da Magistratura. Universidade Nova. P.33.
[15] On the training and preparation of judges in Germany see: Johannes Riedel, (2013). Training and Recruitment of Judges in Germany. International Journal for Court Administration, 5(2), pp.42–54. DOI: http://doi.org/10.18352/ijca.12
https://www.cedesa.pt/wp-content/uploads/2022/01/justica-angolana.jpg8101440CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2022-01-09 11:00:002022-01-09 16:18:22The blockades and the reform of the Angolan justice system
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.
[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
[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
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
0-Introduction. A different focus for Angolan economic analysis
The consulting companies that are dedicated to the study of the Angolan economy follow a conjunctural methodology in which the predominant narrative is based on the negative numbers about the macroeconomic aggregates and their possible perspectives.
However, a more detailed analysis of the evolution of the Angolan economy suggests that behind the numbers of inflation, unemployment, GDP growth and public debt, which are not very encouraging[1], a series of public political reforms are taking place together with the reinforcement of certain economic trends that will indicate the construction of a new, more positive economic reality for Angola.
This study deals with the positive elements that point to the correction of the direction of the Angolan economy in a sense more consistent with the necessary prosperity.
A-Positive trends in the Angolan economy
1-The International Monetary Fund (IMF) and public policy reform
A first element that allows to shed a different light on the perspectives of the Angolan economy lies in the recent assessment carried out by the IMF. In fact, on January 11, the IMF Executive Board concluded the fourth review of the Extended Fund Mechanism Agreement for Angola and approved the disbursement of an additional USD 487.5 million[2].
The important thing in this decision is the IMF’s positive assessment of the reform of Angolan public policies. The IMF states that: “The [Angolan] authorities achieved a prudent budgetary adjustment in 2020, which included gains in non-oil revenues and containment of non-essential expenses, while preserving essential spending on health and social security networks. The approval of the 2021 budget in December consolidates these gains. The authorities have also allowed the exchange rate to act as a shock absorber and have begun to implement a gradual shift towards monetary restraint to face increasing price pressures [3]”.
According to what the IMF explains, the economic policy followed by the Angolan government is developed in the following vectors:
-The stabilization of public finances, which is the cornerstone of the authorities’ strategy. In this regard, the government achieved a strong fiscal adjustment in 2020. In addition, its budget for 2021 consolidates non-oil revenue gains and the containment of budget expenditures for 2020, while protecting priority social and health expenditures.
These advances help to reduce the budget’s dependence on oil revenues.
– Reformulation and management of public debt. The government has implemented debt profile reform agreements, in addition to benefiting from the extension of the Debt Service Suspension Initiative until the end of June 2021, which will provide significant debt service relief and help reduce risks related to debt sustainability. We will elaborate below on the reformulation and management of public debt.
-Restrictive monetary policy and exchange rate easing. After easing the monetary constraint to mitigate the shock of COVID-19, the National Bank of Angola (BNA) began, once again, to face the increase in inflationary pressures through the tightening of monetary policy. A more gradual tightening of monetary policy is needed to reduce inflation. Exchange rate flexibility served as a valuable buffer during the crisis. Efforts are underway to develop a liberalized foreign exchange market.
-Reform of the financial sector. Continued progress in financial sector reforms was critical, especially the completion of the restructuring of the two struggling public banks. The timely adoption of the revision of the BNA Law and the revision of the Financial Institutions Law is the key to continuing this progress.
Finally, the IMF highlights the fundamental aspect that underlies all political reform, which is the maintenance of the fight against corruption.
What can be seen clearly from this IMF assessment is that the government is pursuing a reformist policy based on the assumptions made by this international organization, and is implementing difficult reforms.
It is known that many of these IMF policies have an initial recessive effect, especially fiscal consolidation when it involves raising taxes and cutting wages and subsidies, as well as restrictive monetary policy to fight inflation. It is therefore no wonder that the first result of adopting IMF policies is recession and not growth.
What is expected is that this “housekeeping” creates the conditions for a sustained and virtuous growth of the Angolan economy.
Fig. Nº. 1 – Economic policies of the Angolan government celebrated by the IMF
2-Management and careful reformulation of public debt
The executive followed an appropriate strategy when initially negotiating with China the issue of public debt. As we described in previous reports, the Chinese debt is key to Angola, as it represents about 50% of external commitments[4]. Consequently, it was important, first of all to ensure the appropriate terms with China, although they are not public knowledge, apparently imply a three-year suspension of payments agreement. The adherence already mentioned to the IMF’s debt suspension program allowed the government room for maneuver. It should be noted that the Eurobonds on which a lot has been written and pointed out various dangers, has a smaller weight in the total Angolan debt, around USD 8 billion, thus not having, on the contrary, what one could think of exaggerated pressure on Angolan finances in this area.
So, for now, the issue of public debt pressure seems to be eased and within the government’s management capacities.
3-Meridian oil price recovery
As we had also anticipated, after an abrupt drop in the price of oil at the beginning of the pandemic (March 2020) there would be a rise[5], which is gradually happening.
The reality is that following a trend that was already very clear at the end of the year, the barrel of brent finally reached a price above $ 55, a value that had not been reached since the end of February 2020, the month before the start of the pandemic. Still being the most relevant indicator for the Angolan economy, and considering that the budget for 2021 was calculated based on USD 33 per barrel, we have a financial margin of more than USD 20. This is an additional “cushion” in the management of Angolan public finances.
It is clear that it is not known for how long this rise in the price of oil will continue. The commitment of the new Biden administration to the Paris Agreement, the evolution of the Chinese economy, the decision to cut or increase production by Saudi Arabia and the maintenance of the restrictions resulting from the Covid-19 pandemic are factors that may imply a further decline in the oil price.
Therefore, movements in the oil price are always unknown and these moments of increase must be used by the government to reinforce its reserves for future reproductive and social investments.
Fig. No. 2- Evolution of the Brent price since February 2020
4-Decrease in imports of food basket and agricultural production with continental relevance
The diversification policy combined with the promotion of the national industry through the substitution of exports has been another “motto” of this government. This policy allows in one fel swoop to reduce external dependency and create a thriving national industry.
While it is still untimely to draw any definitive conclusions about the results of this policy, some figures emerge that can be encouraging, at least in relation to the dependence on imports and foreign exchange spending on foreign trade.
According to data provided by the Ministry of Industry and Trade, Angola managed to record a reduction of almost US $ 100 million in the import of products from the basic basket and other essential goods in the last month of 2020, compared to the same period in December 2019. In December 2019, the Government disbursed US $ 250 million for imports, while in the same period of 2020, it only spent US $ 152 million[6].
In particular, it is worth noting the reduction in sugar imports, which went from 2.1 million tons in 2019, at the cost of 17.6 million dollars, to 1,472 tons, at the cost of 831,121 dollars. Regarding the importation of current rice, in 2019 Angola imported 136,985 tons in the amount of US $ 37.2 million and in 2020, only 59,505 tons, in the amount of US $ 10.5 million. In what concerns chicken (the most consumed meat in Angola), it is also worth mentioning a considerable reduction, compared to 2019. In that year, 46,385 tons were imported, for US $ 51.5 million, whereas last year, only 32,447 tonnes were acquired, for a value of just over US $ 25 million.
Fig. Nº. 3- Comparison of annual imports of basic basket products (Dec.2019 / 2020 in USD million)
These are just some of the products highlighted in the considerable reduction in imports, however this trend has proved to be general in the remaining products that make up the basic basket.
For these numbers to be considered a success, it is necessary to compare them with the internal consumption of the same goods, and understand if the decrease in imports was due to a substitution by domestic products or only reflects a decline in demand as a result of the economic crisis.
In the latter case, although they represent savings in foreign exchange, they do not mean a success in politics, but a decrease in the quality of life of the population. However, even in this situation, national investors should be alert to proceed with investments in these areas in order to correspond to future demand growth.
Statistics published by the Angolan Ministry of Industry and Trade and released by the Portuguese news agency Lusa show the enhanced sustainability of some Angolan agricultural production.
Angola asserts itself as a continental-level agricultural producer. Angola is the largest African banana producer and the seventh in the world with an offer of 4.4 million tons, according to the latest table of the United Nations Food and Agriculture Fund (FAO). It should be noted that the banana continues to be the most produced and consumed fruit in the world. Angola, in particular, has declared itself self-sufficient in banana production for more than six years, with emphasis on the provinces of Bengo and Benguela. In these provinces, private companies already export the fruit to countries such as Portugal, Zambia, Democratic Congo and plan to bring the fruit to the United States, the world’s largest consumer[7].
In relation to cassava, Angola has an annual production estimated at more than 11 million tons of cassava, being today the third largest producer in Africa, after Nigeria and Ghana, and wants to bet on its transformation into starch[8].
5-New investments and exports. Two examples: Rio Tinto and Gold
The finance minister recently told Reuters: “We are building a future (through our reform program) that prioritizes direct investment (not just with China, but with other partners). We want to add value for our economy to create jobs. We want the money to stay. Borrowing is an option, but we are trying to change the way we relate to our partners [9]”.
Thus, it appears that the government is betting on direct investment to revive the economy and also to increase exports.
There are two recent examples that are important to underline in this context. The first is the entry of the powerful multinational Rio Tinto into the Angolan market. Apparently, such a perspective will materialize this year[10].
Also important is the first export of gold mined in Huíla in 2020, in the amount of sixteen hundred and ninety-six ounces sent to Portugal and the United Arab Emirates, which corresponds, at the current price, to more than three million dollars. Obviously, what is relevant is not the amount of gold exported, but the beginning of a trend. As with the entry of Rio Tinto, it is important to mark a trend that brings other big investors like Anglo-American or DeBeers.
None of these investments is very firm yet. Their reference is important because they can represent future axes for the development of the Angolan economy, now in the beginning.
Fig. nº 4 – Signs of optimism in the Angolan economy
B-Necessary policy adjustments
The foregoing demonstrates that the Angolan government pursues an economic reform policy based essentially on the IMF’s revenues: i) budgetary balance and debt control, considering financial solvency as a sine qua non for economic growth; ii) restrictive monetary policy to control inflation; iii) flexible exchange rate policy, allowing for a devaluation of the currency that encourages exports and hinders imports; iv) investing in investment and the private sector as engines of the economy.
Basically, the policy followed corresponds to what was once called the Washington consensus[11]. This is the standard reform package adopted by the IMF, World Bank and the US Treasury Department since the late 1980s and which corresponds to a liberal model of the economy, based on fiscal prudence and the free market.
Naturally, this model has potential for Angola, but it is not enough. There are not strong enough institutions in Angola yet to guarantee the functioning of a free market in which some do not end up dominating others and creating oligopolistic and inefficient situations, as there is not a private sector strong enough to become the engine of the economy.
Making Angola’s economic reform dependent on reforms inspired by the Washington Consensus is not enough, a broader view is needed.
This broader view should imply structural institutional reform. This means that property rights must be clarified by abandoning the confusion that the collectivization of property has generated and still generates, courts must be put in place, bureaucracy is no longer an obstacle, and obviously great corruption must be eradicated. In addition to structural institutional reform, it should be realized that the State has a role to play in this new phase. There is no robust private sector in Angola, nor can everything be delivered to foreign investors with short-term perspectives. A mix should be found between the state and the private sector. In fact, this is how the most advanced Western countries work, despite rhetoric. It is important to adopt the concept advanced by Mariana Mazzucato of Entrepreneurial State[12].
The point to consider in economic reform in Angola is that the role of the government, in the most successful economies, went far beyond creating the right infrastructure and setting the rules. The State is a fundamental agent to achieve the type of innovation that allows companies and economies to grow, not only by creating the “conditions” that allow innovation. Instead, the state can proactively create a strategy around new areas of high growth before the potential is understood by the business community by financing the most uncertain phase of research in which the private sector is risk-averse, seeking new developments, and often even supervising the marketing process.
In addition, the IMF’s recessionary policies, while necessary, must be offset by other types of policies that alleviate the socially depredating burden of those. In short, there must be a mix of reformist policies that is more comprehensive and adequate to Angola, so that in the end the first flashes of success have sustained results.
C-Conclusions
It is necessary to look beyond the negative conjuncture numbers of the Angolan economy and understand that there is a reformist economy policy that is beginning to bear fruit and to mark some new trends. This policy has been applauded (and possibly advised) by the IMF, and here lies its strength and weakness. Strength because it contains some indispensable measures to clean up the Angolan economy and launch it on the path of growth. It also strengthens because its adoption and implementation brings the praise and support of the IMF and sister organizations. However, this policy also has weaknesses, including the lack of attention to institutional reform, the weakness of the private sector in Angola, the recessive effects of contractionary policies, among others.
Consequently, with signs of optimism in the medium-term perspectives of the Angolan economy, it is necessary to improve the economic policy that is being followed, including the intensification of institutional reforms that ensure that the judiciary works, bureaucracy does not hinder, corruption does not divert resources. In addition, the role of the State as an entrepreneurial partner in the private sector should be reviewed.
[1] See the most recent figures: Unemployment 34% (III quarter 2020), Annual inflation 25.19% (December 2020 / December 2019), GDP growth -5.8% (III quarter 2020) at https: // www. ine.gov.ao/
https://www.cedesa.pt/wp-content/uploads/2021/01/otimismo-economia-2.jpg10801920CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2021-05-12 18:51:492021-05-12 18:51:51Flashes of optimism in the Angolan economy at the beginning of 2021
The fight against corruption initiated by João Lourenço, President of the Republic of Angola, is finding several obstacles.
In order to be successful, a structural change is required that includes the creation of a new judiciary body focused on corruption, a specialized Court section on corruption and money laundering, and new legislation to allow plea-bargain and agreements between the parties.
It was in
February 2018, when the then Chairman of the Board of Directors of Sonangol,
Carlos Saturnino, presented at a public press conference facts that he
considered very serious and related to the management of Isabel dos Santos in
that company.
In May 2020,
after several reports about these and other facts, for example the Luanda Leaks[1], possibly
attributable to Isabel dos Santos, the truth is that, apparently, she has not
yet been notified to make statements in the judicial procedure which was opened
in Angola.
The reality is
that there is a risk of a sharp prolongation in this case, neither condemning
nor absolving herself, leaving a trail of injustice over all matter. The comic
episode about the passport with Bruce Lee’s signature that would be in one of
Isabel dos Santos’s cases is a first tenuous symptom of the hypothesis of
failure of this symbolic process of fighting corruption in Angola.
Also, in May
2020, very recent suspicions about acts of corruption were made public in the
Interministerial Commission to Combat the Coronavirus Pandemic, namely, the
unjustified chartering of Ethiopian Airlines planes and the purchase of goods
from private entities, all of them with large tax debts in Angola. Companies
that were hastily resuscitated to compete with the government’s biosafety
material supply program[2]. In the words
of the veteran Angolan journalist Graça Campos, we begin to see that the “PIIM
(Integrated Plan for Intervention in Municipalities) has become the official
free transit of access to public money[3].”
It is not for us
to evaluate or judge the claims made by Carlos Saturnino, the ICIJ or Graça Campos, but to conclude from
the factual point of view that the fight against corruption in Angola, despite
the very clear intentions expressed by the President of the Republic, João
Lourenço, isn’t having an immediate and permanent effect. Neither the processes
move quickly, nor the corrupt practices seem to have been eradicated, lasting
as a reality in the life of the country.
It is in this
context that it is essential to proceed with a structural change in the organic
and fundamental legislation regarding the fight against corruption.
We envision
three areas of intervention:
-The creation
of a judiciary body focused on combating corruption;
– New
judicial judicial with the competence to investigate and judge cases of
corruption and money laundering (specialized sections of courts, judges and
procedural law).
-The
introduction of legislation that provides for plea-bargain and the possibility
of procedural agreements ratified by judges between the parties to a criminal
case.
Fig. 1- Proposed measures to fight
corruption
These three
measures are essential to put the fight against corruption on the right path.
We will briefly go through each of the proposals.
Judiciary
body focused on combating corruption
A body with sweeping
legal powers, i.e. to investigate, search, seek, apprehend, listen, detain,
demand international cooperation, etc., specialized in combating corruption,
should be created. This body would centralize all the investigation regarding
major cases of corruption and money laundering, having its own structure and
statute equally separate from other bodies. It would be a focused body, capable
of investigating a case, accusing, filing or reaching an agreement, proceeding
to argue the case in court, and finally appealing to follow cases from
beginning to end.
An example that
can be followed and properly adapted is the Serious Fraud Office (SFO) in the
United Kingdom. Here we have an entity that investigates, prosecutes and
follwow several of the proceedings in cases of serious or complex fraud,
bribery and corruption[4].
Fig. 2- The British Serious Fraud
Office can be a reference for the body to be created in Angola in order to
fight corruption
Specialized
sections in the ordinary Courts with the competence to judge cases of
corruption and money laundering (Investigation and Judgment) and its own
procedural law
Concomitantly,
an investigating judge attached to this kind of criminality would be established, as
well as a specific section within the ordinary Courts. The procedure in this
section, both in the investigation phase and in the judgment phase, would be
the subject of a specific procedural law, albeit guaranteeing the defense will
allow an acceleration of the process, avoiding delays. Only the appeal would be
made to the usual criminal section of the Supreme Court.
Hence,
investigation and prosecution would have bodies specialized in corruption and
money laundering.
Fig. 3- New
judicial structure for fighting corruption
Legislation
that provides for plea-bargain and the possibility of procedural agreements
ratified by judges between the parties in a criminal case.
Finally, it is
urgent to pass legislation that enables and speeds up the fight against
corruption, allowing for the adoption of measures of premium law, as well as
the possibility of reaching agreements in the processes between the parties,
with such agreements subject to ratification by a judge.
We advocate the
existence of the plea-bargain, that is, of negotiations between the Public Prosecutor
and the defendants that lead to the return of assets, a lighter or nonexistent
penalty and the denunciation of other co-participants.
“Plea-bargain”
is a legal benefit granted to a defendant who agrees to collaborate in a criminal
investigation or explain the role of his or her co-participants in a crime.
This formula facilitates criminal investigation and, provided certain guarantees
are safeguarded, allows for quick convictions within the framework of the rule
of law.
It will be not enough for the defendant to confess a
crime and to indicate other culprits. He/She must provide evidence of what he/she is saying and cannot be repeating what is
already known. Therefore, the plea-bargain has to bring evidence and novelties,
and it is subject to a detailed menu of regulations that prevents abuse.
The approval of
a law on “negotiations” with defendants, should be an urgent objective, to substantiate
the activities of asset recovery through agreements.
https://www.cedesa.pt/wp-content/uploads/2020/05/corrupcao-combate.jpg523940CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2020-06-10 08:15:462020-06-10 08:15:48Angola: The need for a new legal framework to fight corruption
In its December 2019
report on Angola, the International Monetary Fund (IMF) stated that: “Angola’s
public debt is sustainable, but the risks have increased and the
vulnerabilities remain. [1]”While
forecasting a peak of 111% public debt/ GDP by the end of 2019, the IMF’s view
was optimistic for several reasons, namely the mobilization of new non-oil
revenues in the 2020-2021 budgets, the rapid implementation of structural
reforms and the continuation of the privatization program.[2]
The percentage increase in
public debt/ GDP forecasting was due to three factors: the depreciation of the
kwanza in the fourth quarter of 2019 (about four fifths of the increase), the
fall in prices and oil production, and the slow economic recovery. Therefore,
the first point to be emphasized is the fact that 80% of the increase in the
percentage of public debt/GDP derives from the depreciation of the kwanza.
Consequently, a policy favoured
by the IMF (currency depreciation) would negatively influence another aspect
considered important by the same organization (public debt / GDP ratio). This
means that it was not too important to look at this relationship to calculate
the possible fragility of the Angolan public debt, as it essentially reflected
nominal and not real fluctuations. In December 2019, Angolan public debt was
sustainable.
However, after four
months, the state of affairs has become more difficult. Now, the real aspects
of the economy may hinder debt service. However, Angola is not in that
situation yet, and proper action can avoid any problem. The Covid-19 economic shock
has consequences for Angola, adding pressure on the two material elements that are
important for the sustainability of debt payments: the price of oil and the
economic recovery. As we already know, oil has seen its price drop sharply, and
the prospects for the recovery of the Angolan economy are weak.
Consequently, in April
2020, the same IMF predicted a 1.4% recession for the Angolan economy and a
debt value equal to 132% /GDP. The IMF’s forecast is just that, and it does not
yet correspond, in terms of public debt, to any new reality. In fact, 2019 closed
with a public debt of 109.8%/ GDP and not 111%, slightly better than expected.[3]
It should also be noted
that the share corresponding to the external public debt will be 85.4% of GDP,
which is what we are interested in analyzing.
The several elements
considered so far, leads us to two conclusions: the first: the Angolan public
debt was evolving in a sustainable manner, and the nominal degradation of the
country’s public debt as a percentage of GDP reflected, above all, the nominal
depreciation of the currency and not some absurd lack of control that would
have occurred in recent times ath the public finances. Between 2017 and 2019, in an
epoch of recession, the stock of
external debt increased only 14%, whereas it was previously, between 2012 and
2016, that it increased 100%. This means, politically, that the government of
José Eduardo dos Santos doubled the external public debt in four years, while
João Lourenço has tried to stop this exponential increase. [4]A detailed
analysis of the figure below shows the great boost in the Angolan external debt
ocurred between 2012 and 2016. There was an attempt to stabilize in 2017 and
only a modest increase in 2018 and 2019.
Figure 1 – Angolan
external public debt stock (2012-2019) [amounts in millions of dollars; BNA
source]
However, and this is the
second conclusion, if in the past there was confidence in Angola’s capacity to
pay the debt, and its control by the current government, the truth is that the
Covid-19 global crisis has launched a cloud of uncertainty over the public
debts in global terms, obviously affecting perception in relation to Angola.
Naturally, this post-Covid-19 perception requires governments to anticipate and
take steps to avoid future problems.
It is in this
context that the possible adjustment of the Angolan external debt to the
current reality brought by Covid-19 deserves attention, as well as the need to
lighten its weight to guarantee the sustainability of the economic recovery.
The importance of debt to
China
The current global
situation brought about by Covid-19 implied the need that Angola has to ensure
that its public debt is sustainable and do not to disturb the economic kick-start
that is urgently necessary to mobilize.
Regarding the essential features
of the Angolan public debt, the Cartesian method must be followed. This means
that one should not look at the debt as a whole, but divide it into sections,
addressing each one independently. It is wrong from a methodological point of
view to perceive the Angolan external public debt as a whole due to the huge
weight that China has in it.
Total Angolan public
external debt (stock) was worth US $ 49,461 million at the end of 2019,
according to data from the National Bank of Angola. [5]It turns out
that $ 22.424 million is owed to China. [6]This means that
China accounted for almost half of Angola’s external responsibilities, more
precisely, 45.3%.
Figure 2-Weight of the
Angolan external debt to China (in percentage; source: BNA)
It seems clear that the
Angolan debt to China represents an enormous magnitude and obviously has the
most important weight in Luanda’s public finances.
Given the historical features
of Angola’s relationship with China, as well as its global positioning,
especially with regard to the relationship with Africa, this is the time to
propose a thorough negotiation of the Angolan debt to China, promoting its
reduction and time-based rescheduling.
In simple terms, the
negotiation of the Angolan public debt to China should lower the debt amount and
increase the payment times.
It is easy to see that debt
to China may become the main obstacle to Angola’s development.
Nevertheless, China in
Angola must be a factor of development
and not of economic recession. At the outset, it should be noted that since
2017, the year when João Lourenço took office, the date on which the debt
peaked, Angola has been lowering the stock value (see Fig. No. 3 below) thus
demonstrating its capacity and good faith towards China.
There are three very
strong reasons for carrying out China to renegotiate its debt with a view to
reducing and prolonging it over time.
1-China’s global
positioning, especially in Africa.
China is currently one of
the great world powers, intending to engage with the United States in terms of
projected influence in the world.
In that sense, with a new
power comes new responsibilities, as happened in relation to the United States at the end of
the Second World War (1939-1945), in which it took on is shoulders the European economic reconstruction through
the Marshall Plan and actively promoted the creation of which became the EEC
(European Economic Community), today the European Union. It was the American
commitment that made this reality possible and brought prosperity and peace to
Europe.
China has been taking a
similar position in relation to Africa, using a rhetoric of friendship and
solidarity. President Xi Jinping’s words at the opening ceremony of the
China-Africa Cooperation Forum (FOCAC) in 2018: “China seeks common interests
and puts friendship first in the search for cooperation. China believes
that the right way to boost China-Africa cooperation is for both sides to
leverage their respective strength; it is up to China to complement Africa’s
development through its own growth, and it is up to China and Africa to seek
cooperation for mutual benefit and common development. In doing so, China
follows the principle of giving more and receiving less, giving before
receiving and giving without asking for a return ”[7](emphasis
added).
What is certain is that
the current situation caused by the Covid-19 disease presents itself as the
ideal one for President Xi Jinping to turn his speech into reality and move on
to concrete acts of friendship, giving more and receiving less, as well as
giving without ask for return.
In this way, it will build
positive China’s image in Africa as a great world power that bets on the
effective development of a continent and will show, from the geostrategic point
of view , that it is a real competitor of the United States in the creation of a more
prosperous and secure world.
It is at this moment that
China’s place in the post-Covid-19 world will be seen.
2-Pragmatism
Deng Xiaoping is
attributed with the slogan “It doesn’t matter if the cat is black or white, as
long as it hunts mice”. It is precisely this pragmatism that has brought so
much success to China that it will justify the remission of the Angolan debt.
Angola has always been
presented as the model for investment in Africa. The scientific literature even
refers to the “Angolan model” that served as a basis for China’s contemporary
performance in Africa.
Thus, it will be worrying
for China to see that its model fails and becomes a burden on the economy.
If we look at the numbers,
during 2019 Angola spent almost 43% of public revenues to pay debt, where, as
already mentioned, China occupies the largest share. Consequently, the
continuation of this situation may prove to be justified by the allegations that
the US Secretary of State, Mike Pompeo, made during his recent tour of Africa,
that the Chinese debt is becaming an
unbearable burden for the development of the continent. In fact, to conclude that
this is ocurring in Angola, will turn the whole of China’s African policy into
a disaster, since its initial model failed badly.
In addition to this
political pragmatism, there is an obvious economic factor. The most recent
evaluations show that Chinese companies in Angola recorded a loss of 350 to 500
million dollars due to the COVID-19 pandemic[8]. And these
losses can be widened if Angola’s economic situation does not improve.
Therefore, it is of Chinese interest to create the conditions for a relaunch
for the Angolan economy, as such a relaunch will benefit in a massive scale Chinese companies.
It is called the win-win situation.
Consequently, it is
therefore of Chinese practical interest to reduce Angolan debt to show the
world that its model of intervention in Africa works and is not predatory, and also
help the countless Chinese companies established in Angola.
3-Combat corruption and odious
debt
There is a fundamental and
ultimate reason to reduce the Angolan debt to China. There is no doubt that
part of this debt is what is doctrinally called “odious debt”, ie,
debt whose purposes were not the public interest and the common good, but the
private appropriation of sovereignty by members of the highest organs of the
State . [9]More bluntly, it
is a debt that was used in acts of corruption or served to finance the private interests
of Angolan leaders and possibly of Chinese officials.
One can never forget the
role that Chinese citizen Sam Pa, today, apparently imprisoned in China, played
in several businesses in Angola. Names like the CIF-China International Fund, the
Queensway Group, or China Sonangol, are paradigms of activities considered
illegal that are or have been under close investigation. It is a fact that
Chinese money was involved in diverse acts of corruption.
In addition to this, there
is another one with undefined contours and that deserves a more careful
investigation by researching journalists. The analysis of the disaggregated
statistical series provided by the National Bank of Angola on the evolution of
Chinese debt shows that in the second quadrimester of 2016 (May to August) this
debt went from US $ 10,531 million to US $ 21,228 million. Debt to China
doubled in 2016.[10]
Figure 3- Evolution of
Angola’s external public debt (stock) to China-2012/2019 (Millions of dollars.
Source: BNA)
This movement was
relatively recent and it is, still, badly
explained. In terms of timing, this event coincides with an announced trip by
José Eduardo dos Santos to China to negotiate a loan in July 2015, which was
subsequently followed by several events such as the fall from grace of the Vice
President of the Republic, Manuel Vicente, and the Sam Pa’s arrest in October
2015. After this, Isabel dos Santos assumed the presidency of Sonangol in June
2016, coinciding with the launch of the Chinese debt in the BNA’s accounts.
Apparently, it was from this new Chinese debt that the Government attributed to
Sonangol 10 billion USD. At the time the company was starting to be chaired by Isabel dos Santos. Apparently from those 10
billion USD, Sonangol paid loans in the total amount of five billion dollars.
This allowed the Sonangol`s debt to be reduced from 9.8 billion to 4.8 billion
USD. The remaining five billion USD will have been channeled to investments in
and from Sonangol.
In view of the judicial
controversy that currently involves Isabel dos Santos’s appointment as
President of Sonangol and the apparent simultaneity of her appointment with the
doubling of the Angolan debt to China that may have served to finance Sonangol,
perhaps there should be a suspension of payment of this debt until it becomes
clear whether there was any illegality or not, namely in what refers to the 5
billion that were apparently allocated to investments in and from Sonangol.
It should be noted that
this is what Chinese law, enforced by Xi Jinping, imposes. The Chinese
President and his administration are taking a long and hard fight against
corruption in their country. Current Chinese law on corruption is found in the
Penal Code of the People’s Republic of China approved in 1981, revised in 1997
and enhanced in 2015. According to this
rule, all activities involving corruption related to foreign rulers are a crime
for which Chinese courts have jurisdiction. In effect, since May 1, 2011, it is
a crime to pay illegally to foreign officials. The truth is that, currently,
the Chinese Penal Code acts beyond its borders, so corrupt payments, the
“odious debt”, already has to be considered by the Chinese authorities when
making their assessments of situations.
This means that for political
reasons as well as for reasons of domestic law, China is obliged and must
analyze the debt that may have been incurred for corrupt purposes or for
illegitimate benefit. Angola’s debt must be thoroughly reviewed in this
perspective.
Figure 4- Reasons for China to reduce Angolan debt
Conclusions
The reasons explained
strongly advise China to proceed with a substantial unilateral reduction of the
Angolan debt. It is an imperative of its current position in the world, its
pragmatism and sinic law.
https://www.cedesa.pt/wp-content/uploads/2020/05/china-angola-2.jpg400912CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2020-05-07 08:38:312020-05-07 08:38:33Why China should reduce Angola's debt
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