Rule of Law and Corruption in Angola: for a mini-system of justice against corruption
1. Introduction. Fight against corruption in Angola. Goals and facts
Corruption has become such a widespread phenomenon in Angola that it has jeopardized the survival of the state itself and the country’s economic viability. The so-called fight against corruption is not a matter of the police and combating criminal activity. It is something much bigger and much more important. In fact, what is called corruption in Angola is a more widespread phenomenon of large-scale appropriation of national resources and “privatization of sovereignty”. It consists of varied behaviors that fulfill various criminal types such as fraud, abuse of trust, embezzlement, tax fraud, money laundering, among others, and not just the crime of corruption. What this phenomenon entails is the capture of the State and the Economy by the corrupt forces and the use of their mechanisms of power for their own benefit. It is a systemic degradation of the country’s political and economic body. Ultimately, corruption in Angola prevents the functioning of political institutions and the economy in a free market environment.
We believe that it was the perception of the seriousness of corruption for the political and economic development of the country that led João Lourenço to determine as one of the fundamental goals of his presidential mandate the fight against it. It is not worth mentioning the numerous speeches and actions initiated on the topic, to confirm that the fight against corruption has effectively become an insurmountable point of the presidential mandate.
If this goal is clear and justified, the questions arise at the level of implementation. Some criticize what they call the selectivity of the cases taken to court, others the slowness and still others the trampling of legal forms.
We do not see that there is selectivity in the fight against corruption. Just observe the judgments that have taken place and we will see that the people who have been sentenced are different. We have in the case of “Thai fraud”, a former Director of the foreign investment office, Norberto Garcia and a former Chief of Staff of the Armed Forces, General Nunda. Both were acquitted and now occupy important positions, Garcia in the presidential office and Nunda as Ambassador in London. Then we have Augusto Tomás, former Minister of Transport, who was sentenced to effective imprisonment, José Filomeno dos Santos, son of the former President of the Republic, sentenced to five years in prison and awaiting the result of the appeal in freedom, just like Valter Filipe, former Governor of the National Bank of Angola. Finally, we recently had Manuel Rabelais sentenced to 14 years in prison. Rabelais was the strong man of social communication at the time of José Eduardo dos Santos. He also awaits the outcome of the appeal in freedom. It can be seen that they are not all, not even the majority, of the family of José Eduardo dos Santos, only one is a son; have different prison issues and different results. No selectivity is confirmed.
Different is the procedural slowness and some disruption with legal forms. Even recently, the Attorney General of the Republic in relation to the alleged case related to Isabel dos Santos, which will possibly be the most important and outstanding process in Angola, said that it was overdue because it was too complex. And many other lawsuits drag on and raise legal doubts. Not going into details here, what is worth noting is, at this moment, (April 16, 2021), there is only one very relevant political process that has been res judicata and served time. The other two cases of very relevant people are on appeal, and nothing else has come to trial.
This scenario for a situation of extreme urgency like the one described above is very short. There is no doubt that the fight against corruption was an urgency and priority of the State and that it was assumed as such by the President, what is verified is that the judicial results are still limited. Our opinion is that this lack of results is a consequence of a good faith option of the political power that does not work. This option was to combat corruption with the normal and customary means existing in the Angolan judicial system. The use of the judicial system as it stands to fight corruption is not satisfactory. We will see the reason why such an option does not work and the alternatives.
2. The option to fight corruption within the pre-existing judicial system
When the political power chose the fight against corruption as its main goal, it decided to make this fight through the pre-existing judicial bodies and with the usual regular people. There was no organic or personnel renewal, just mere adjustments, the Vice-AGR moved up to AGR (Pesident), the Presidents of the Supreme Court and Constitutional Court switched positions and some slightly hasty laws on asset recovery were passed. So, few moves to launch the fight against corruption. This option must have corresponded to a formalistic opinion given by the most eminent Angolan jurists according to which, the fight against corruption should be carried out within the rule of law and with the existing legal means. Only in this way would the necessary rights of defense and credibility of the processes be guaranteed. And in the face of foreigners it could always be said that there would be no abuse on the part of the authorities as it was the installed judicial system that was operating within the usual regulations of the rule of law.
This legal normality seems correct, but in reality, it is what prevents a real, swift and effective fight against corruption. What we are watching is the machine and people who were captured in the past by corrupt interests to make this fight against corruption. For this reason, cases are physically lost in the courts, others turn into a mess, others come up with unacceptable decisions and others extend inexplicably. In fact, handing over the existing judicial structure the fight against corruption cases turns out to be a mistake. If that structure was also corrupt, it cannot, for reasons of elementary logic, be judging corruption, the patronage relations of the past, the favors owed, the usual venality, are too strong, for suddenly a blanket of integrity to remove everything. What we have been seeing is that the judiciary system is unable to fight corruption. Lawsuits with beginning, middle and end are rare. It is as if there is a dysfunctionality between the intentions of the Executive Branch and the concretizations of the Judiciary Branch.
The reality is that we are asking for a structure that collaborated and benefited from the corruption that is now combating it; in the end, to turn against itself. Safeguarding, that in this structure there are agents of change, judges, prosecutors, police, employees, who must be praised for their hard work, the fact is that they are an exception – even if they are large – and do not prevent the judicial structure as a whole from being conservative and risk-averse to fighting yesterday’s allies.
To that extent, the fight against corruption may turn out to be inglorious and not work, given the various existing structural obstacles.
3. Historical examples of overcoming the atavistic magistrates
It is not the first time that magistrates, due to their conservatism and risk aversion, call into question the intentions of new regimes. There are impressive historical examples, which also contribute to solutions to this problem.
Briefly, we will refer to two situations.
The first to mention occurred after the French Revolution and the establishment of the legal regime that followed, namely at the level of administrative law. This right was considered key to the development of the new regime as it would regulate the activity of the new State and its relations with citizens. Being the revolutionary state and wanting to institute a regime based on new values - Freedom, Equality and Fraternity – feared that the judges, belonging to the privileged classes and one of the pillars of the Ancien Régime, would prevent these demands and become insurmountable obstacles to the new measures. To remedy this danger as early as 1790, an August law would define a code of relations between the judiciary and the administration, prohibiting the courts from participating in the exercise of legislative and executive powers, in particular by preventing the ordinary judge from intervening in the activity of the administration . A year later, a new Penal Code provides for sanctions against judges who rule on the functioning of an administrative body. The logic that presided over administrative law after the French Revolution was a logic of tightness vis-à-vis the judiciary, for the Revolution to move forward, the judges had to be removed. This logic has evolved and has allowed the creation of a new judicial system, autonomous from the ordinary judicial system. Thus, alongside administrative laws, administrative courts and administrative judges emerged, a body foreign to previous judges.
Another situation in which there was a need to circumvent the conservatism of judges linked to an old regime, occurred in Austria, after the end of the First World War (1918). There, a Republic replaced the old Habsburg Empire, and a new class of judges was needed to enforce the new Republican values. It is in this context that the Constitutional Court and Hans Kelsen’s new conceptualization on the subject arises. A new court is set up with different judges.
This means that in several historical circumstances, when political power felt that judges and courts did not correspond to new times and values, it became necessary to create new parallel, complementary or supplementary judicial systems. It is a suggestion of this kind that is made in relation to the present time in Angola.
4. Rule of law for corruption
Many argue that in Angola there are already adequate mechanisms to fight corruption and that it is imperative to respect the rule of law, considering that this is represented by the systems and laws as they are at the moment. We cannot subscribe to this thesis for two reasons. The first is based on a theoretical point of view, while the second has an eminently practical character.
In theoretical terms, the rule of law is no more, nor less than respect for the law approved according to pre-established criteria, therefore, the opposite of arbitration. The rule of law implies that there is a law and that everyone respects it. Several legal thinkers add to this formal assumption, that the rule of law also contains a substantive element linked to equality – all are equal before the law, and to freedom – there is a presumption in favor of freedom in the implementation of legal norms. Others go even further by equating the rule of law with a range of fundamental rights and democratic principles. We did not follow this last version, staying for the second. However, this is not important, it is important to note that the rule of law admits that there are specific rules for certain situations. A typical example is the constitutional rules for the State of Emergency (see Articles 58 and 204 of the Angolan Constitution), another example is the system of autonomous administrative law as it exists in France or Portugal. In Portugal, we have a very clear situation of a system completely separate from the ordinary judicial system, with its own laws, specific courts, judges with independent careers in what concerns administrative law, the right of state power and its relationship with citizens. Therefore, from a theoretical point of view and the rule of law, it is not difficult to design mini legal systems dedicated to certain matters.
If, from a theoretical point of view, there can be a different rule of law for issues of great economic and financial crime and state capture (alias corruption) with different rules from the normal rule of law, from a practical point of view it is clear that this is the only way they will be able to combat the corruption installed in the sovereign power of the State. Only by establishing a mini-system that is impervious to influence and with its own rules will this be feasible.
The truth is that each national legal system admits several subsystems according to the subjects or properties outlined. This does not violate any conception of the rule of law, on the contrary it creates rules and obligations for all, transparent and clear, in certain areas. In short, there will be a rule of law for normality and a rule of law for corruption.
5. The proposal: creation of the mini-anti-corruption judicial system
The proposal presented here is simple: to create an anti-corruption judicial mini-system from scratch, or more precisely a legal system relating to major crimes of an economic and financial nature and the capture of the State.
This legal system would operate independently of the other judicial bodies and would consist of four parts:
i) A special body with judicial powers for investigation and prosecution. This body would be a mix of judicial police and public prosecutors having powers to investigate, apprehend, search and detain, ask for international judicial cooperation and in the end make an indictment or file a major corruption case. It would only work in these cases and would be composed of a body of agents with focused and dedicated training.
ii) A system of courts dedicated to these crimes. For the judgment and appeal of cases of serious economic-financial crime and capture of the State, there would be a system of courts solely dedicated to this matter. This system of courts would imply a revision of the Constitution with regard to Article 176 nº3 and nº5. Jurisdiction should be allowed for major crimes of an economic and financial nature and also abolish the ban on courts with exclusive jurisdiction to judge certain types of offenses.
iii) An autonomous and dedicated body of judges would be another part of this mini-system against corruption. Certain judges would specialize in these matters who would fill the seats in the courts.
iv) Finally, this system should have a simplified procedural law drafted in the same way as the current American or French law that allows for quick and fair judgments.
Alternatively, and in case it is not intended to carry out a constitutional review on the subject, instead of creating a system of exclusive courts with its own judges, it could always establish specialized sections to fight corruption in the existing judicial courts. Courts in the provincial capitals or Luanda alone, as well as the Appeal and the Supreme Court, would have specialized sections for corruption. In this case, article 176 was respected when new courts were not created with exclusive powers to judge certain types of infraction, but at the same time we would have sections of ordinary courts or rooms dedicated to the topic. This is already constitutionally possible and the remaining proposed mini-system remained as described.
 The expression is characterized by Achille Mbembe, On the postcolony, 2001.
 On the impact of corruption in Angola see Rafael Marques, The space of freedom between corruption and justice, 2019, in MakaAngola (https://www.makaangola.org/2019/12/o-espaco-de-liberdade-entre -a-corrupcao-ea-justica /), Ricardo Soares de Oliveira, Magnificent and Beggar Land: Angola Since the Civil War, 2015 and Rui Verde, Angola at the Crossroads. Between Kleptocracy and Development, 2021.
 Jean-Louis Mestre, « Administration, justice et droit administratif », Annales historiques de la Révolution française 328 | avril-juin 2002. http://journals.openedition.org/ahrf/608
 Sara Ligi, “Hans Kelsen and the Austrian Constitutional Court (1918-1929)”, June 2012, Co-herenci,a 9(16):273-295. https://www.researchgate.net/publication/262430581_Hans_Kelsen_and_the_Austrian_Constitutional_Court_1918-1929
 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