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Theories of electoral fraud, legislation and public scrutiny in Angola

The images of electoral fraud in Angola

The starting point for this study is the statement of a renowned researcher during the II International Congress of Angolanistics according to whom the “next elections in Angola should be the least transparent and credible.”[1]

It is recalled that Angola had its first elections in 1992, after which there was a resurgence of the civil war that ended in 2002, and it only held elections again in 2008, followed by electoral acts in 2012 and 2017, so far, four electoral processes in Angola.

The next elections are scheduled for August 24, 2022.

In all the elections whose count has reached the end, the MPLA, the party in government since independence in 1975, won with the following results: 1992- 53.74%; 2008- 81.76%; 2012-71.84%; 2017- 61.05%.

Table no. 1- Winner of the elections in Angola (1992-2017)

1992MPLA53,74%
2008MPLA81,76%
2012MPLA71,84%
2017MPLA61,05%

Interestingly, in every election, even in 1992[2], which had wide international coverage and had over 400 foreign observers, the main opposition party alleged fraud.

In 1992, these allegations resulted in renewed civil war and undisguised massacre and violence. In fact, the resolution of the dispute only took place with the death of the opposition leader and the end of the war in 2002. In the other elections, there was final acceptance of the results and integration into the constitutional-legal functioning.

In 2008, 90 observers from the European Union were present, and the MPLA’s victory was overwhelming. It was, in fact, the time of the oil boom. Even so, the opposition claimed fraud, and demanded a repetition of the elections due to delays that marked the process, described by the opposition leader as “a disaster”, with numerous delays across the country. In any case, despite these protests, the elections were eventually accepted and the deputies took their seats. This time there was no war and a certain democratization of public life began.

2012 was again the year of elections, and again, there were reports of irregularities, but without the vocality of the past. The opposition took their seats in parliament and played their part.

In the year 2017, the African Union sent observers to the elections, with the aim of guaranteeing democratic elections, but the European Union decided not to send a large team of observers. The opposition contested the results, but ended up accepting them after decisions by the Constitutional Court that validated the elections.

There are patterns that repeat themselves. The first two are obvious, the victory of the MPLA and the permanent contestation of the process by the opposition. There is also the intervention of external observers, for example 400 in 1992.

Despite repeated accusations of fraud on the part of the defeated candidates, what is certain is that, with the exception of 1992, they always ended up accepting the results and taking their seats in the National Assembly.

Comparisons: Transparency and Democracy in 2022

The question that we are going to answer is whether the present elections, scheduled for August 24, 2022, represent a decrease in the electoral conditions of the past, as some researchers claim, or if, on the contrary, even though they are not perfect, they present a clear evolution in terms of transparency and democracy?

To assess the conditions, we will review current legislation, as well as the characteristics of the current public scrutiny compared to the past, as we believe that this is the realistic critical mechanism to assess the transparency of elections.

Legislation

Regarding the legislation in force, there are some aspects to emphasize, many of which have been the target of misunderstandings or not very literal interpretations. Elections are now regulated by Law No. 30/21 of 30 December, which amended Law No. 36/11 of 21 December — Organic Law on General Elections (OLGE). In the current legislation we have to highlight the following topics that focus on the electoral process:

i) Basic conditions: demonstration, right to broadcast and financing

During the electoral campaign period, freedom of assembly and demonstration for electoral purposes is governed by the provisions of the general law applicable to the exercise of freedom of assembly and demonstration, with the following specificities (article 66 of the OLGE):

a) Processions and parades may take place on any day and time, respecting only the limits imposed by freedom of work, maintenance of calmness and public order, freedom and traffic management, as well as respect for the period of citizens’ rest.

b) The presence of public authority agents at meetings and events organized by any candidate can only be requested by the competent bodies of the applications, with the organizing entity responsible for maintaining order when such a request is not made.

c) The communication to the competent administrative authority of the area about the intention to promote a meeting or demonstration is made at least 24 hours in advance.

What results from the law is a broad possibility of demonstration, with no constraints or noticeable obstacles.

It should be noted, moreover, that in the pre-campaign period there have already been large demonstrations without incident, either by the government party or by the opposition.

The opposition leader has moved freely in the territory from north to south, specifically, from Cabinda to Menongue and carried out large mass acts, without any impediment or confrontation. This fundamental aspect for the electoral process has been ensured.

In relation to the right to broadcast, article 73 of the OLGE provides that candidates for general elections are entitled to use the public broadcasting and television service, during the official period of the electoral campaign, in the following terms: a) Radio: 10 minutes a day between 3 pm and 10 pm; b) Television: 5 minutes a day between 6 pm and 10 pm.

The law guarantees what we might call the minimum amount of political intervention during the electoral campaign period.

The global funding of all political parties carried out by the State is also provided for and is imperative under the terms of article 81 of the OLGE, which provides that the State will allocate an amount to support the electoral campaign of candidates for the general elections, which is distributed equitably, and it can be used to support the List Delegates.

The letter of the law offers sufficient guarantees that certain minimums of equity and competition between parties are upheld for the 2022 elections[3].

ii) Voting and counting of votes

This is an area where there has been a lot of discussion and perhaps misunderstandings or misinterpretations. Therefore, it is important to underline the essential provisions of the law.

Firstly, polling stations, contrary to what one might think in light of some published analyses, play a central role in the process. From the outset, the List Delegate present at the Polling Station can request clarifications and submit, in writing, complaints regarding the electoral operations of the same Polling Station and instruct them with the appropriate documents, and the Polling Station cannot refuse to receive the complaints, and must initial them and attach them to the minutes, together with the respective resolution, whose knowledge will be given to the claimant. (Article 115 of the OLGE).

This means that there is a direct inspection by each of the parties in each of the Polling Stations. What we might call an atomist oversight. Every atom of the election is being verified.

Afterwards, it is still at the Polling Station that the polls are opened and the votes are counted, also contrary to what has been stated.

In fact, once voting is over, the Chairman of the Board, in the presence of the other members, opens the ballot box, followed by the counting operation in order to verify the correspondence between the number of Voting Ballots in the ballot box and the number of voters who voted at that Polling Station. (Article 120 of the OLGE).

Then, the President of the Polling Station orders the counting of the Ballots, respecting the following rules:

a) The President opens the bulletin, displays it and reads it aloud;

b) The first scrutineer records the votes allocated to each party on a sheet of white paper or, if available, on a large board;

c) The second scrutineer places, separately and in batches, after displaying them, the already read votes corresponding to each of the parties, the blank votes and the null votes;

d) The first and third tellers proceed to the counting of the votes and the Chairman of the Board to divulge the number of votes that fell to each party.

After this operation, which is well detailed in the law, the President of the Polling Station compares the number of votes in the ballot box and the sum of the number of votes for each lot. The List Delegates have the right to verify the lots without being able to complain in case of doubt to the Chairman of the Board who analyzes the complaint. (Article 121 of the OLGE).

Consequently, we have an electoral act that is supervised and the votes are counted locally at each Polling Station with the presence of delegates from each party.

This is what the law defines.

After this local operation, a Minute of the Polling Station is drawn up by the Secretary of the Table and duly signed, in legible handwriting, by the President, Secretary, Tellers and by the List Delegates who have witnessed the voting, being then placed in a sealed envelope that must be duly forwarded, by the quickest route, to the Provincial Electoral Commission. (Article 123 of the OLGE). Subsequently, the National Electoral Commission is responsible for centralizing all the results obtained and for distributing the mandates (article 131 of the OLGE). In summary, the national tabulation is based on the summary minutes and other documents and information received from the Polling Stations (article 132 of the OLGE).

It can thus be seen that the counting of results is carried out at the local level, with no centralization of the opening of the polls or the counting, the centralization is carried out a posteriori, based on the results obtained at the Polling Stations.

Looking at the legal provisions mentioned above, a transparent and properly supervised mechanism can be seen at the local level.

Added to this mechanism is the rule of article 116 of the OLGE which makes it mandatory that the technologies to be used in the scrutiny activities meet the requirements of transparency and security.

The same rule requires the audit of source programs, data transmission and processing systems and control procedures and makes it imperative that before the beginning of each election, the Plenary of the National Electoral Commission carry out an independent, specialized technical audit, for public tender, to test and certify the integrity of source programs, data transmission and processing systems and control procedures to be used in tabulation and scrutiny activities at all levels.

iii) The transparency of the President of the Republic election

The Voting Ballot is printed in color, on smooth and non-transparent paper, in a rectangular shape with the appropriate dimensions so that it can fit all the candidacies admitted to the vote and whose spacing and graphic presentation do not mislead voters in the exact identification and signage of the application one has chosen.

 The serial number, the statutory designation of the political party, the name of the candidate for President of the Republic and the respective passport-type photograph, the acronym and the symbols of the political party or coalition of political parties, arranged vertically, are printed on each Ballot, one below the other, in the order of the draw carried out by the National Electoral Commission, after the approval of the candidacies by the Constitutional Court (article 17 of the OLGE).

This means that despite the presidential election method chosen by the Constitution, voters clearly know who they are voting for for President of the Republic. It has the face and name indicated.

iv) Electoral litigation

The assessment of the regularity and validity of elections is ultimately the responsibility of the Constitutional Court (article 6 OLGE). This rule commits the Constitutional Court (CC) all final decisions on elections, not the National Electoral Commission (NEC).

The fact that the CC has the final word and not the NEC is an added jurisdictional guarantee. At the present time, as we will see later, this is relevant because the CC has been the subject of a great deal of public scrutiny, making it more difficult to make decisions that have no legal basis.

Public Scrutiny

It is natural, above all for the supporters of a realistic vision of the law[4], in which we include ourselves, according to which what is important is not what is written in the law, nor even the meta-legal principles on which it is based, but its application and practical result, one is not satisfied with the mere legal enumeration, even if it appears well constructed and promising, as it seems to us to be the case with the present Organic Law on General Elections.

It is necessary to invoke other real factors that allow a more objective assessment of the electoral phenomenon in Angola, as expected for 2022.

We understand that the key factor is the public scrutiny that the electoral process is having. Public scrutiny understood as a thorough examination and diligent investigation of a phenomenon carried out by society in general, and not just by specific bodies that may or may not be aligned with a given political or ideological option.

Our argument is that the greater the public scrutiny to which an electoral phenomenon is subject, the greater its transparency and democracy and the lower the probabilities of fraud, with a direct relationship between scrutiny and transparency.

Now, the brief excursus that we carried out on the several elections that took place in Angola, and removing the one from 1992, which due to its specificity and historical context has no place in this comparison, and considering that some of our contributors personally followed the 2012 and 2017 elections, allows us to advance with some trends in relation to aspects of scrutiny by members of civil society or non-political structuring bodies of the community. These themes lead us to a qualitative comparison between 2008 and 2017.

First, let’s highlight the Catholic Church. Possibly, as a result of certain accusations of collaboration with the colonial power and some clash with the post-independence Marxist ideology, the Catholic Church, in general, had committed itself in the previous elections to a discreet and little public intervention role, not contributing for a strong debate about the electoral process in the previous elections (2008 to 2017).

This will not happen in 2022, following in the footsteps of its counterpart in the neighboring Democratic Republic of Congo (DRC) in which the Catholic Church played a decisive role in the 2018/2019 electoral transition between Kabila and Tshisekedi, the Angolan Catholic Church has adopted a manifesto leading role in the preparation of the Angolan elections. Its bishops and priests are active in their pastoral care and in their homilies and have an intense public activity, demanding adequate elections[5].

It is precisely this Catholic activism, bearing in mind that according to statistics, around 40% of the Angolan population is Catholic[6], which allows us to conclude that the scrutiny that the Catholic Church is carrying out of the elections will not leave a large part of the population indifferent and obliges by itself to increased transparency in the process. In other words, Catholic scrutiny and its multiple organizations is, in itself, an intrinsic factor of transparency.

A second factor that we notice different in relation to other Angolan elections is the role of social networks. These will cover about a quarter of the voting population[7], but perhaps more of those who actually vote. By frequenting social networks, one can easily glimpse the intensity with which they talk about the elections and how they discuss their realization and the need for transparency. A candidate for deputy for the opposition party and activist constantly present on the networks like Hitler Samussuku has 52,000 followers on Facebook and his posts often reach more than 1000 likes. This is just a random example, but many others could be mentioned.

Never before have social networks in Angola been so alive and active as in this period, contesting, discussing and affirming positions.

As in the situation of the Catholic Church, we understand that this digital scrutiny has a double function. By itself it is synonymous with transparency and at the same time it increases transparency by placing the discussion on the elections in the public space.

We have here two factors intrinsically conducive to electoral transparency: the activism of the Catholic Church and digital activism.

Finally, it is worth mentioning the issue of international observers. In the difficult year of 1992, according to public information, 400 international observers were present[8], in 2017, more than 1000 observers will have been present[9], currently, according to publications that have focused on the subject, 2000 national observers are expected for 2022 and an undisclosed number of international observers. It should be said that in view of the aforementioned activism of the Church and in the digital world, national observers will play a very intense role, contrary to what could happen in the past.

Conclusions

The issue we studied here is not the platonic perfection of the Angolan elections, but the evolution of electoral transparency since 2008 with the forecast for 2022.

What we have found, taking into account two indices, legislation and public scrutiny, is that, at the moment, there is a law strong enough to hold free and fair elections, and that public scrutiny, namely by the Catholic Church and its satellite organizations and also through social networks, has never been as high as it is today.

To that extent, even with imperfections, it is expected that these elections will be more transparent than in the past, because if this does not happen, public opinion will feel better and more deeply than in the past.


[1] https://www.rtp.pt/noticias/mundo/proximas-eleicoes-em-angola-deverao-ser-as-menos-transparentes-e-crediveis-avisa-investigadora-de-oxford_n1413623

[2] https://arquivos.rtp.pt/conteudos/unita-diz-que-houve-fraude-nas-eleicoes/

[3] We do not discuss in this work the problem of public service imbalance in the pre-campaign period. It will possibly be the object of another study pointing out solutions and needs for a holistic view of the situation encompassing all sources of news: public, private, foreign and digital.

[4] See for exemple Rui Verde, Juízes: o novo poder, 2015.

[5] https://www.rtp.pt/noticias/mundo/bispos-angolanos-pedem-eleicoes-transparentes-e-participacao-responsavel-dos-cidadaos_n1381285; https://www.vaticannews.va/pt/africa/news/2022-06/angola-eleicoes-bispos-convidam-a-moderacao-respeito-e-sentid.html ; https://www.dw.com/pt-002/angola-bispo-de-cabinda-nega-crispa%C3%A7%C3%A3o-entre-igreja-cat%C3%B3lica-e-o-executivo/a-61651439

[6] https://observatoriodaafrica.wordpress.com/2016/04/04/maioria-da-populacao-angolana-e-catolica/

[7] https://marcasemaccao.com/utilizadores-de-redes-sociais-cresce-36-em-angola/

[8] http://www.angonoticias.com/Artigos/item/48509/primeiras-eleicoes-em-angola-realizaram-se-ha-23-anos

[9] https://www.voaportugues.com/a/mais-de-mil-observadores-as-eleicoes-em-angola/3926114.html

A radiography of the fight against corruption

1- Introduction. The discussion on fighting corruption in Angola

The fight against corruption was established as a main goal in the beginning of João Lourenço’s presidential term. What we want to know in this analysis is whether this fight has gone from rhetoric to practice, and, above all, what elements can identify a clear response to a theme that has become the subject of political dispute in Angola. To reach provisional conclusions – since the process against corruption has not ended yet – we will analyse some structural elements of the fight against corruption, such as the discourse of political power, the legislation adopted, the bodies created, international cooperation, the cases under investigation, the asset recovery and the universe of legal charges. Balancing all these elements together we will draw a picture of the current fight against corruption.

This text seeks to ascertain whether there is a fight against corruption in Angola, using the mentioned index elements. It does not take a general assessment of this fight, this will only be done at the end of the presidential term, nor does it investigate the failures and improvements necessary for that fight, which has been done in other studies. Here we want to gather elements and conclude about the praxis of fighting corruption in Angola.

2- Structuring elements of the fight against corruption

2.1- The political discourse

The fight against corruption began with a strong appeal from the political power that started with the inauguration of the President of the Republic. At that time, in September 2017, João Lourenço elected the fight against corruption as one of his priorities, stating that he will confront the corruption that “rages in state institutions.” The President emphasized the “direct negative impact on the State” of corruption, saying that it threatens “the foundations of the country” and concluding that this will be “one of the most important fronts of struggle in the coming years”[1]. Later, in February 2020, after several speeches of the same content, when the possibility of an agreement between the State and Isabel dos Santos was publicly raised, the President went out on a rally to vigorously reaffirm the priority of fighting corruption and denying any agreement with Isabel dos Santos[2]. Recently, on the anniversary of the Attorney General’s Office (AGO), he reaffirmed his commitment to this fight and praised the role of the AGO[3].

Three different moments, and three clear and solemn speeches on the fight against corruption by the President of the Republic and the holder of the executive power. The same rhetoric has been followed by other policy makers over the past few years. There have been no hesitations or setbacks in grammatical constructions. Therefore, from the point of view of political discourse, there is no doubt that there has been a strong and permanent commitment since 2017 in the fight against corruption, with the first analytical element being fulfilled. It is necessary to comply the following elements.

2.2.- Anti-corruption legislation

The political discourse was accompanied by legislation with a focus on combating corruption. The government passed two laws on the repatriation of capital, which it considered to be the cornerstone of its anti-corruption policy. These laws are the Law on the Repatriation of Financial Resources, alias the Law on Voluntary Repatriation (LVR), Law No. 9/18, of June 26, and the Law on Coercive Repatriation and Extended Loss of Assets, alias the Repatriation Corercive Law. (RCL), Law No. 15/18, of 26 December. These laws will represent the executive’s commitment to ensure that funds diverted by corruption, return to their rightful owner, the State. We will see further below which are the effects of applying these laws in terms of values. Later, in 2020, the National Assembly passed a new Penal Code and a new Penal Procedure Code. Although these laws are structuring for the entire State and the legal system, it should be noted that the new Penal Code has a specific chapter on Crimes Committed in the Exercise of Public Functions and in Prejudice to Public Functions (articles 357 to 375) which includes corruption (art. 358 to 361), undue receipt of advantages (art. 357), influence peddling (art. 366) and embezzlement (art. 362), among others. The entire sanctioning typology of criminal law has been revised and systematized to make it easier to understand and adapt.

Also, in the area of ​​public contracts, there were several changes aimed at strengthening transparency and the fight against corruption. Public contracting legislation was amended by Law No. 41/20, of 23 December. In 2018, the government approved the Primer on Ethics and Conduct in Public Contracts, the Practical Guide for the Prevention and Management of Risks of Corruption and Related Infractions in Public Contracts and the Guide for Reporting Corruption and Related Infractions in Public Contracts. In the area of ​​financial information, mechanisms to control illicit flows and to prevent money laundering were clearly reinforced. Note should be taken about Law No. 5/2020 of 27 January on the prevention and fight against money laundering, the financing of terrorism and the proliferation of weapons of mass destruction, resulting from the ratifications of the United Nations Conventions against Illicit Traffic in Narcotics and Psychotropic Substances, against Transnational Organized Crime and on the Suppression of the Financing of Terrorism. Important, too, was Presidential Decree No. 2/18 of 9 January, which approved the Organic Statute of the Financial Information Unit, hereinafter referred to as the FIU and the Supervisory Committee, as a public service specialized in the coordination at national level of reinforcements for the prevention and repression of money laundering, financing of terrorism and the proliferation of weapons of mass destruction.

We see, therefore, there is a massive update of legislation against corruption and money laundering. The rhetoric was lumped by the legislative act, the words to the norms. The next element of analysis concerns the organic.

2.3- Anti-corruption agencies

The government chose not to create new bodies, and to base the execution of the anti-corruption policy on the already existing institutions: Attorney General’s Office (AGO), Banco Nacional de Angola, Financial Information Unit, Criminal Investigation Service (CIS), etc.

However, at the level of the AGO, it created a sub-body with specific functions in the fight against corruption: the National Asset Recovery Service. This service was created by Law 15/18, of December 26, Law on Coercive Repatriation and Extended Loss of Assets. According to article 13 of that Law, the main task of this National Service is to proceed with the location, identification and seizure of assets, financial and non-financial assets or products related to crime, whether those assets are in Angola or abroad. In addition, the Service has the expertise to ensure international cooperation among its counterparts, as well as to exercise the other attributions conferred by law, in which it is worth mentioning the initiation of any civil, administrative or fiscal action in order to recover the assets taken out illegally from the State.

The practical functioning of the Service has been based on the opening of patrimonial investigations attached to the criminal proceedings that are under terms in the judicial authorities, to investigate and identify the location of assets that may be the subject of a confiscation order and the adoption of measures necessary for its recovery. Within this scope, the Service carries out all necessary measures (sending rogatory letters to its counterparts, ordering seizures and requesting foreclosures) to ensure that the assets do not dissipate. It should be noted that this body does not act alone, but in cooperation with the bodies that have the main processes. However, the truth is that it has stood out for the amount of seizures and measures taken.

There are several examples of the Asset Recovery Service’s activity. In July 2020, it ordered the seizure of three buildings, office and residential, called Três Torres, in Luanda. The buildings, known as Três Torres and recently built, include Torre A Offices, and Torre B and C Residencial, are located in the urban district of Ingombota, in Luanda, the country’s capital. At the time, Deutsche Welle said that: “The name of Manuel Vicente, ex-president of Sonangol and ex-vice president of the country, is pointed out, on the grapevine, as being connected to the buildings[4].” In September 2020, the Service determined the seizure of the minority shareholding of 49% of AAA Ativos in the SBA, as well as buildings of the AAA group, belonging to Carlos São Vicente, within the scope of the patrimonial investigation process linked to the criminal process that it concerns. In 2021, five housing projects were seized, namely Tambarino Project (Lobito, Benguela), Palanca Negra (Malanje), Mifongo Project (Malanje) and the Ex-Petro projects, in Golf II and Nova Vida III, both in Luanda. At the same time, as part of a lawsuit against the former chairman of the board of the Banco de Poupança e Crédito (BPC), Paixão Júnior, the Service also seized containers of material for the erection of a yoghurt factory in Benguela that was delivered to the Smart Solution company.

These are mere examples of a broad work that is being developed by this service dynamically directed by Public Prosecutor Eduarda Rodrigues. This Service could possibly be the embryo of a more global and comprehensive anti-corruption body, as we have argued.

2.4.- International judicial cooperation

Along with the asset recovery work carried in the sub-organ described above, there has been a wide appeal to international judicial cooperation. First, it is important to highlight the requests addressed and fulfilled to Portugal. The activity with Portugal has been immense, since the rogatory letters referring to Isabel dos Santos and her associates that have already led to multiple “freezes” of social participation in Portuguese lands. It was recently reported that the Central Court of Criminal Investigation (TCCI) arrested the bank accounts in Portugal of three Isabel dos Santos’ friends, at the request of the judicial authorities of Angola. The seizure of the accounts of Mário Leite da Silva, Paula Oliveira and Sarju Raikundalia was carried out in the context of a rogatory letter sent from Angola to Portugal in January 2020. In that letter, the Angolan authorities requested the preventive seizure in Portugal of assets by Isabel dos Santos and his three friends up to a total value of 1.15 billion euros, as a guarantee of possible future compensation to Angola[5].” Carlos São Vicente and others were also the subject of rogatory letters and requests to Portugal.

The Angolan AGO reported days ago that requests for cooperation have already been made to Switzerland, the Netherlands, Luxembourg, the United Kingdom, Singapore, Bermuda, the United Arab Emirates, Mauritius, the Kingdom of Monaco, Malta, the Isles of Man and others. Within the scope of international cooperation, the Attorney General’s Office has already requested the seizure of assets worth approximately US $ 5 billion.

3- Benchmarks

3.1.- Quantitative indices

All the activity that has been described has shown quantifiable results that are reproduced here:

• Since the beginning of the fight against corruption, the Angolan State has definitively recovered in cash and assets a total of around 5.3 billion dollars.

• In addition, it asked to seize US $ 5.4 billion in foreign jurisdictions.

• In Angola, assets worth around US $ 4 billion have already been arrested and seized. Such assets are still subject to the respective lawsuits still pending, awaiting a final decision at first instance or on appeal.

• 1522 criminal cases were opened regarding corruption-related crime and alike.

3.2. Qualitative indices

In terms of criminal charges, the prosecutor’s office has handed down charges against a variety of senior dignitaries. Noteworthy are the accusatory orders against: General Sachipengo Nunda, former Chief of Staff of the Armed Forces, Norberto Garcia, former director of the External Investment Agency, Valter Filipe, former Governor of the central bank, José Filomeno dos Santos, former CEO from the Sovereign Fund, Augusto Tomás, former Minister of Transport, Manuel Rabelais, former Minister of Social Communication, Carlos São Vicente, former President of the AAA Group.

In addition to these public figures, there are a myriad of cases at the provincial level that are replicated in each one. Recently, it was noted that the former director of the Regional Office Planning, Urbanism and Environment in the province of Bengo was sentenced to two years in prison for the crimes of active and passive corruption and undue receipt of 125 million kwanzas. In the same process, the former director of the legal office of the Provincial Government of Bengo, and the ex-director of the office of the former governor were also sentenced to one year in prison for the crimes of passive corruption and degree of influence and having benefited from monetary values in the business.

In what concerns the “freezing” of assets, the assets of Manuel Vicente and generals Dino and Kopelipa, among others, were seized or handed over. Regarding the latter two, it should be noted that as representatives of the companies China International Fund Angola – CIF and Cochan, SA, the generals handed over the shares they held in the company Biocom-Companhia de Bionergia de Angoala, Lda., in the Kero Supermarket chain and in the company Damer Gráficas-Sociedade Industrial de Artes Gráficas SA. Still in relation to Manuel Vicente, the President of the Republic determined the nationalization of 60% of the shareholdings of the commercial company Miramar Empreendimentos, SA “, which covers” 43% of the shares belonging to the Suninvest — Investimentos, Participações e Empreendimentos, SA “and” 17% of the shares belonging to Sommis, SGPS. These shares belong to Manuel Vicente.

Obviously, it is also necessary to mention the seizures of assets referring to Isabel dos Santos and her associates.

4-Conclusions

In this study we tried to assess, with precise elements, the reality of the fight against corruption in Angola at this moment. Take an “x-ray”. We conclude that there is a powerful rhetoric to support the fight against corruption, that appropriate legislation has been passed, a specific sub-body has been created with a view to recovering assets, an entity that has shown itself to be quite committed. International judicial cooperation is quite broad. From the asset recovery point of view, between seizures and definitive deliveries, perhaps US $ 10 billion have already been obtained. Various accusations have already been made against several senior individuals.

What is to be concluded from this list is the scope of those who have already been the target of an accusation or action to recover assets. It cannot be said that there is selectivity, because in fact we have a representative sample of the former senior officials, nor can it be said that there is no action. There were many and diverse. It does not mean that the scope of the fight cannot and should not be extended. In sum, there is a wide-ranging fight against corruption in Angola, which translates into the elements that we have identified here.

However, this does not mean that this fight does not need several improvements and has several flaws, which we have already identified in previous studies, namely, the lack of specialization and of its own extensive investigation and justice bodies, the need for promptness, and the creation of modern mechanisms to prevent the continuation of corrupt practices.

Fig. nº 1-  Table of Contents to Combat Corruption

Supporting political SpeechYES
Adequate new legislationYES
New OrganicYES/Partial
International Judicial CooperationYES
Asset RecoveryYES
Criminal chargesYES/Need for specialization and promptness

[1] https://www.publico.pt/2017/09/26/mundo/noticia/joao-lourenco-promete-combater-a-corrupcao-que-grassa-o-estado-1786811

[2] https://www.dw.com/pt-002/jo%C3%A3o-louren%C3%A7o-quebra-o-sil%C3%AAncio-e-fala-%C3%A0-dw-sobre-isabel-dos-santos/av-52240806

[3] https://novojornal.co.ao/politica/interior/joao-lourenco-elogia-pgr-no-combate-a-corrupcao-uma-das-suas-prioridades-anunciadas-quando-tomou-posse-101998.html

[4]  https://www.dw.com/pt-002/angola-pgr-apreende-tr%C3%AAs-pr%C3%A9dios-em-luanda/a-54272442

[5] https://angola24horas.com/component/k2/item/20926-justica-portuguesa-arresta-contas-bancarias-de-amigos-de-isabel-dos-santos

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].

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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).