1-Reasons that justify the reform of the Supreme Court in Angola
Angolan justice became, suddenly, one of the daily themes of discussion in public arena. This essentially happened due to the fact that the so-called “fight against corruption” was carried out through the common courts. It seems obvious that it is so, but in reality it is not that usual. Each country has chosen the methods it considers most suitable for this task. In China, where under the presidency of Xi Jinping it is developed a powerful effort against corruption, such commitment has been made through internal mechanisms of the Communist Party, only intervening the courts in a final phase. In South Africa, it was chosen to create a commission that explored everything and analyzed, and only then, having a huge dossier ready, sent the results to the judicial power. This means that it is not mandatory for the fight against corruption to focus or begin with the courts. However, that was the Angolan option.
This option has made some weaknesses of the Supreme Court appear far too much. The disagreement between several judges has become patent, the delays and lack of decision as well, and the debatable reasoning of many judgments has been noted by many commentators.
It is true that the supreme court’s design contained in the 2010 Constitution helps to its dysfunctionality. In fact, the Angolan constitutional legislator wanted to make a court following the model of the US Supreme Court grafted in a judicial system of Roman-Germanic type, that is, Portuguese. Now a top court in the Portuguese, German or French judicial system has nothing to do with a top court in an Anglo-American system. They are different concepts and structures. What is asked for an American supreme court is not what one asks for a Portuguese Supreme Court. In the first case, only large and innovative law issues arrive there. It is already a kind of court of reflection, while in the second Roman-German case-the Supreme acts as a last instance of appeal for almost all cases.
In Angola, a court was thought the “American way”, but to operate like the Portuguese. Therefore, a light structure that was only dedicated to a small number of cases had to face the task of being a regular court of appeal for a myriad of cases. That could only produce bad results
In addition to the dysfunctionality of constitutional design, it has been understood that the judges of the Supreme Court do not have adequate preparation to deal with the complexities of economic and financial crime, not having throughout their career came across these issues at the sophisticated level at which they have been appearing, which has led to some much criticized decisions and great procedural delay.
Beginning the country simultaneously a stage of great appeal to foreign investment, as well as betting on the fight against corruption, is good to see that a poorly designed and thought court has to be reformed and remodeled.
It does not seem possible to think, at this moment, in a constitutional revision, any reform must be made within the framework of the constitution in force.
2- Proposals for reform of the Supreme Court (SC)
a)Increased number of judges: 50
The first measure is quantitative but necessary, given the delays and imperative of technical and generational renewal of the Supreme Court. At this time, the SC has a board of 21 judges, which is being extended to 31 judges pursuant to this Organic Law of the Supreme Court (Law No. 2/22 of 17 March).
It seems insufficient. Portugal with a population of a third against Angolan has 50 counselors judges in his Supreme Court. Spain, with a population more similar to Angola, has 71 magistrates in his supreme court. For these numbers and in view of the similarity of extended jurisdiction that these courts have in Angola, Portugal or Spain, it is easily seen that more judges are needed in the court in Angola of those who are now foreseen.
It is believed that 50 (fifty) will be an adequate number of judges in the Supreme Court of Angola, which will allow a strong, so imperative renewal of this Court.
b)Chamber rationalization: the Economic Affairs Chamber and the economic and financial crimes section
The objectives of the judicial policy impose a review of the number of chambers in SC and a higher specialization. At this time, the law provides for five chambers: the Criminal Chamber, the Civil Chamber, the Chamber of Administrative, Tax and Customs Litigation and the Labor Chamber and the Youth Family and Justice Chamber (Article 17 of the Organic Law). However, just the criminal, civil and administrative and work chambers seem to be in operation.
It seemed better to rationalize the cameras according to the effective needs of society. Thus, there would be a Criminal Chamber, a Civil Chamber (which would encompass family and minors), a social chamber (work, social security and the like), an administrative and tax chamber, and a new chamber entitled Chamber of Economic Affairs, this Chamber would have Two sections, one of commercial litigation to deal with major contracts with relevance to investment and another of economic and financial crimes, specializing only in the trial of crimes such as corruption, bleaching, embezzlement, etc.
In the background, this new Chamber of Economic Affairs would be responsible for responding to new investment policy challenges against corruption.
c)Transparent model of appointment of the President: Hearing in the National Assembly
The two most recent presidents of the Supreme Court (Rui Ferreira and Joel Leonardo), for different reasons, have been the target of much contestation. In fact, Rui Ferreira fired due to this contestation while Joel Leonardo has difficulty managing his peers.
The Constitution in its article 180, paragraphs 3 and 4 states that the President of the Supreme Court is appointed by the President of the Republic, between 3 candidates selected by 2/3 of the counselors in effective functions, being his term of seven years, not renewable.
Joel Leonardo was appointed by the President of the Republic in 2019, so his mandate only ends in 2026. Leonardo was born in 1962, so it will only be 70 years old in 2032. This means that, unlike many rumors that flow in the legal world in Luanda, in formal terms, there is a long way to finish his mandate.
However, an additional appointment mechanism should be introduced, similar to that adopted in the recent constitutional revision in relation to the governor of the National Bank of Angola.
Accordingly, the President of the Supreme Court should be appointed by the President of the Republic after hearing in the National Assembly, observing, for that purpose, the following procedure:
a) the candidate’s hearing is triggered by the request of the President of the Republic;
b) the hearing of the proposed candidate ends with the vote of the reporting opinion;
c) It is up to the President of the Republic the final decision regarding the appointment of the proposed candidate.
Consequently, the President of the Supreme Court would only be designated after publicly heard in the National Assembly.
d) Impartiality and independence in SC: the Botswana model, visiting judges
One of the criticism that is most heard about the judicial power in Angola is about its lack of independence or little impartiality, either before the executive or the strongest/powerful. We do not enter the substance of these allegations, but we note that even if being false, the perception of justice plays a significant role. It’s not enough to be it, you have to look it. The saying of the English judge always come to mind “not only justice must be done; also, it must be seen to be done”, delivered by Lord Hewart CJ in R V Sussex Justices, ex part McCarthy ( 1 Kb 256,  All er Rep 233). Therefore, it is not just about arguing that Angolan justice is not dependent or partial, but of using symbols that attest to this same practice.
An uncomplicated example can be one that has been used for many years in Botswana, which has in no way diminished national pride or sovereignty, and, on the contrary, increased the prestige of its system of government. In fact, until 1992, in the High Court – the second most important in the court hierarchy – judges were expatriate foreigners appointed with short contracts from 2 to 3 years. In the Court of Appeal, still a third of the judges are visiting justices (visiting judges).
This means that something similar could be thought to Angola, that is, to save some seats in the Supreme Court (perhaps a quarter) for judges or merit jurists hired abroad with long enough contracts to guarantee their independence, but not renewable. Perhaps contracts from five to seven years.
These visiting judges would have exactly the same powers and jurisdiction as other judges , they could not be presidents or vice-presidents of the Court, however, could occupy the function of mayor or any other. They would be recruited in SADC and CPLP countries.
Thus, widening the Supreme Court to visiting judges could open a window of doctrinal renewal and guarantee of impartiality with judges from other nearby but properly remoted countries. Eventually it could be a provisional measure for 10 or 15 years.
What this measure would allow was to create a wide body of judicial debate with several visions, some tendentially independent, which would allow a more fruitful dialogue in the creation of a just Law.
Here are several suggestions for reforming Angola’s Supreme Court in order to make it faster and effective in fulfilling the tasks, as well as increasing its guarantees of independence.
 SADC-South Africa, Angola, Botswana, Lesoto, Malavi, Mauritius, Mozambique, Namibia, Congo Democratic Republic, Seicheles, Swaziland, Tanzania, Zambia and Zimbabwe. CPLP-Angola, Brazil, Cape Verde, Guinea-Bissau, Equatorial Guinea, Mozambique, Portugal, Sao Tome and Principe and Timor-Leste.
https://www.cedesa.pt/wp-content/uploads/2022/11/Tribunal-supremo.jpg439659CEDESA-Editorhttps://www.cedesa.pt/wp-content/uploads/2020/01/logo-CEDESA-completo-W-curvas.svgCEDESA-Editor2022-11-24 12:12:002022-11-17 18:30:27The necessary reform of the Supreme Court in Angola
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.
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”. 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.
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.
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;
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. 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. “
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.
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.
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.
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.
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.
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. 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, 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. 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”. 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.
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.
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.
 On the evolution of Angolan constitutional texts, see Adérito Correia and Bornito de Sousa, (1996), Angola. Constitutional History. Almedina.
 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
 Decisoion No. 700/2021 of the Constitutional Court, https://jurisprudencia.tribunalconstitucional.ao/wp-content/uploads/2021/10/ACORDAO-No-700.pdf
 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
 Vânia Gonçalves Álvares (2015), O governo da justiça: O Conselho Superior da Magistratura. Universidade Nova. P.33.
 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
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