Artigos

Angola: The need for a new legal framework to fight corruption

Abstract:

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].

A picture containing plate, cup

Description automatically generated

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.

Fig.. 4- Advantages of the Plea-Bargain in Angola


[1] International Consortium of Investigative Journalists (ICIJ), Luanda Leaks. Available online at: https://www.icij.org/investigations/luanda-leaks/

[2] Graça Campos, A mamata vai solta, 17 de maio 2020. Available online at:  https://www.correioangolense.info/2020/05/17/a-mamata-vai-solta/

[3] Idem

[4]  https://www.sfo.gov.uk/

The opportunity for privatizations in Angola. 2020 analysis

Introduction

The privatization program currently underway in Angola has a scope never before outlined in the country and deserves extra attention by the international business community.

Legislation

The legal basis for the Angolan privatization program is found in the Privatization Act (Law No. 10/19, 14th of May) and ProPriv (Presidential Decree No. 250/19 5th of August). The Private Investment Act (Law 10/18, 26th of June) is also relevant.

Table 1- Basic legal regulations for privatizations

Privatization Act Law No. 10/19, May 14th
ProPriv Presidential Decree No. 250/19, August 5th
Private Investment Act Law No. 10/18, June 26th

Terms of reference

Under ProPriv, 195 public entities will be privatized during a 4-year program (2019-2022). These entities were grouped into four sectors: National Reference Companies, Sonangol’s Participating and Active Companies, Industrial Units in the Special Economic Zone (SEZ) and Other Companies and Assets to be Privatized. The sectors of activity that refer to privatizations are diverse: mineral and oil resources, telecommunications and information technologies, finance, transport, economics and planning, hotels and tourism, industries, agriculture, fisheries.

In the list of to be privatized companies, we have the country’s most important such as Sonangol (oil), Endiama (diamonds), Unitel (telecommunications), TAAG (aviation), Banco Económico (ex-Besa, bank), ENSA (insurance company)), CUCA (brewer) and also another type of more modest entities such as Centro Infantil 1 de Junho, Pungo-Andongo Farm or INDUPLAS (plastic bags industry). It is, therefore, a comprehensive and an extensive program.

Table 2 – Core elements of privatization

195 entities to privatize
4 years (2019-2022)
Key companies such as Sonangol and Endiama

Achievements

To date, the privatization program has been focused on small industries and entities. In 2019, Angola earned US $ 16 million due to the privatization of five factories, which costed the State approximately US $ 30 million. For 2020, the 2nd  phase of privatization embraces 13 plants located in the Economic Zone Luanda / Bengo. The factories operate in sectors such as ​​metal packaging, concrete, carpentry, plastic bags, paints and varnishes, metal towers, PVC tubes, metal tiles, PVC fittings manufactoring, absorbents and cement bags.

Also in progress is the privatization of several agricultural projects, as well as some assets belonging to Sonangol.

Advantages and opportunities

This vast privatization program is extremely attractive to foreign investors due to several reasons, namely:

  • IFC / World Bank Quality Assurance. The privatization program is being carried out within the framework of the IFC-International Finance Corporation, which belongs to the World Bank, that provides investment, advisory and asset management services to encourage the performance of the private sector in less developed countries. IFC guarantees a global projection of the project and the World Bank warranty seal in the procedures followed, in addition to being an experienced partner and knowledgeable of the global rules. In this way, the Angolan privatization process comes with an appreciable quality certification that can reassure foreign investors.
  • Institutional strengthening and property protection in progress. The present government is committed with the consolidation of institutions, the transparency of due process and the adequate protection of property rights through the promotion of the rule of law. This is not immediate obtained allowing to quickly remove the risks associated with losing investments in Angola.  However, it is a trend already in motion.  In this context, it is important to highlight the new Private Investment Act (Law no. 10/18, 26th of June) that expressly provides legal guarantees to investors, regarding their rights, property and also legal guarantees (articles 14 , 15 and 16 of the Law metioned). In addition, the same Act drops the local investment partner exigence for any foreign investment, which was a source of the greatest abuses and fraud in the relationship with the non-national investor. And the investment is no longer preceded by permission, preventing or delaying registration.
  • Economic reform towards free markets.The executive led by João Lourenço, with the support of technicians from the International Monetary Fund, is developing an economic liberalization program for the economy that increases competition between companies and reduces barriers to entry into the markets. This becomes accentuated connecting to the fight against corruption, which has the immediate consequence, in economic terms, of the breaking of the existing monopolies and oligopolies in the country and which limited competition, besides imposing higher prices and abusing practices regarding taxation. Consequently, in addition to the legal reinforcement, the economic component seems more prepared for a functioning market economy.
  • Atractive companies to be privatized. To privatize are companies with great worldwide attraction such as Sonangol, Endiama or Unitel. They are what can be called the Blue Chips of Angola, that will offer a very high growth potential to the investor once they are submitted to a strict management discipline, rationalized investment and optimization of their values. At a time when the African economy due to demographics and the complementarities with Asia that act as determinants, has an increased growth potential, it becomes a good bet to invest in large companies linked to natural resources and communications in Angola .
  • Small and medium-sized companies with lucrative niche markets. The interesting thing about the program is that the universe of companies to be privatized is vast and diverse. In this context, several small and medium-sized companies can be the basis for small investors who want to explore niche markets in Angola or Southern Africa from a platform that tends to be business friendly and eager in infrastructure development. In Africa, the potential of small and medium-sized enterprises is very large. Some surveys carried out in specific South African provinces, encouragingly, conclude that 94% of small businesses surveyed are profitable, while 75% of small business owners believe they earn more money running their own businesses than in any other alternative. The areas covered by these companies are very diverse: travel, tourism and hospitality; agribusiness; brewers; etc.
  • Business problems are not structural. The companies to be privatized suffer essentially two types of problems: incompetent management and lack of capital. Any new investor who provides professional management and fresh money to the company will be able to successfully exploit its potential. The markets are yet to develop and far from being mature, consequently, there is a very broad and stimulating path for companies with capital and professional management.
  • High rate of return on investment. Given the needs that are still emerging in the Angolan market and the possibilities that integration with SADC (Southern African Development Community) bring, the prospects for obtaining high profit rates are high. In fact, there is a low-cost labor force and with a very large market extension. These two factors predict growth and a good return on capital.

Table 3 – Reasons for attracting privatizations in Angola

• IFC / World Bank Quality Assurance
• Ongoing institutional strengthening and property protection
• Liberalizing economic reform
• Desirable companies
• Small and medium-sized companies with attractive niche markets
• Business problems are not structural
• High rate of return on investment

Problems to solve

The problems envisaged are of three types: bureaucratic-administrative and assessment of the real situation of companies. There is also a lack of clarity of purpose in relation to large companies and banks.

On the bureaucratic-administrative issue, it is important to highlight the multitude of coordinating entities. The President of the Republic appears as the leader and strategic coordinator, but then we have the Minister of State for Economic Coordination as the general coordinator of the program, the Secretary of State for Finance and Treasury under the Ministry of Finance as the operational coordinator, each Sectorial Ministry will have duties of sharing information and data of companies operating in the sector. The State Assets and Participations Management Institute (SAPMI) as manager and executor of the program, in addition to other institutions with specific roles. Perhaps because of this, all schedules have been exceeded. By mid-February 2020, around 50 companies were expected to be privatized. The number as seen earlier is much smaller. In fact, the privatization program has not reached an exciting dynamic phase, the so-called momentum.

“The Privatization Czar”

It is essential to give privatizations an accelerated dynamic. For this, the best solution is to nominate what can be called a “Czar of Privatizations”. Someone the President trusts  who, under his command alone, directs the privatizations with legal powers to instruct any minister or body and to override them by deciding to concentrate the competencies and powers for the privatizations.

Technical problems

The remaining types of problems are of a more technical nature. For many companies, there is no clear idea of ​​their values ​​or of any hidden losses that may exist. For example, in relation to banking, the previous due dilligence has encountered several situations in which unknown impairments are detected that require recapitalization or levels of non-compliance with some indicators of financial balance, namely excessive concentration of investments in low-profit properties.

No internal audit work has been done on the companies to be privatized. This obviously implies that investors are taking risks. The answer that cannot be given is that a thorough internal audit will have to be carried out for each of the 195 companies. This will be impossible and would require an endless delay in privatization.

Thus, it will be necessary to provide for possible state compensation mechanisms if impairments are found after a certain level, imputing liability below that level to buyers. At the same time, in doubtful cases, the State will have to sell at a sharp discount. And trust that appropriate private management will make it possible to solve most cases.

In fact, the essential point of the privatization program, more than obtaining revenues for the State, is to create professional management based on investment that contributes to the structuring of flourishing markets, so it is justified to sell at a discount or to support any previously undetected impairments. It is a risk that the State must accept in order to achieve the eagerly-awaited objective of creating a competitive free market economy.

Finally, in relation to large companies, the total privatization program must be defined and publicly disclosed with reference to the percentage amounts to be offered to the market, the dates and other qualifying conditions. There is still a lot of ignorance in the national and international markets about the privatization of these companies.

INVESTOR RECOMMENDATIONS:
◈ For large investors, the Angolan Blue Chips that are going to be subjected to privatization have vast potential for growth and rationalization of costs and organization, so they can provide very high rates of return on investment;
◈ For small and medium entrepreneurs there is a range of companies that can serve as a platform for launching moderate sized businesses;
◈ In general, given the positive Schumpeterian social climate that is being created, there is a strong recommendation to participate and buy in the privatization process in Angola.
 
RECOMMENDATIONS TO THE ANGOLAN STATE:
◈ To avoid delays and some administrative and decision confusion, a “Czar of Privatizations” should be instituted, managed directly by the President of the Republic and with delegated legal powers that will allow him/her to carry out the privatizations;
◈There must be mechanisms to compensate for the lack of internal audit by companies;
◈ Capital repatriation mechanisms for investors must be clarified;
◈ Clarification is required with dates, percentages and specific conditions for privatizations to take place in major reference companies (Blue Chips).