Artigos

The necessary reform of the Supreme Court in Angola

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[1]. 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[2]. 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[3].

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 ([1924] 1 Kb 256, [1923] 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[4]. In the Court of Appeal, still a third of the judges are visiting justices (visiting judges)[5].

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[6] 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.


[1] Rahul Karan Reddy, The Diplomat, 2022, China’s Anti-Corruption Campaign: Tigers, Flies, and Everything in Between, https://thediplomat.com/2022/05/chinas-anti-corruption-campaign-tigers-flies-and-everything-in-between/

[2] Zondo Comission, https://www.statecapture.org.za/

[3] See for example, Manuel Luamba, DW, Justiça angolana está em descrédito fora do país?, https://www.dw.com/pt-002/justi%C3%A7a-angolana-est%C3%A1-em-descr%C3%A9dito-fora-do-pa%C3%ADs/a-63253282

[4] Cfr. https://www.justice.gov.bw/services/about-high-court

[5] Cfr. https://www.gov.bw/legal/hierarchy-courts

[6] 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.

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

The economic and financial sector in the Angolan constitutional review – In particular, the enshrining of the independence of the central bank

1. Introduction. Constitutional review in Angola

The present Angolan Constitution (CRA) dates from 2010 and has never been revised. Recently, President João Lourenço announced that he had taken the initiative to propose a constitutional revision.

A first comment that this action raises is that the Angolan president has a courageous policy facing the several challenges that have been placed on him: combating corruption, economic reform, quick reaction to Covid-19. At the moment, the fruits of this determined confrontation are not yet reaping, and there lies some paradox, a reformist president risks being submerged by his own reforms.

The present proposal for constitutional revision is minimalist, and so it was assumed by the government. In this sense, it risks creating expectations in the population that later will not be met. However, it represents a very important step in the discussion of the Angolan political model and the fact is that the constitutional discussion will be more important even though the effective changes that will eventually be inserted in the Constitution.

The purpose of this text is to highlight and analyze the main proposals for constitutional revision in the area of ​​economics and finance.

2. The proposed constitutional review law in the economic and financial area

The first proposed modification is found in article 14 of the CRA, which concerns private property. The expression “promotes[1]” is introduced, with the meaning of being a function of the State in addition to guaranteeing and protecting private property and free enterprise, also the promotion of private enterprise. Positive State behavior is introduced, that of promoting free private initiative.

Later on, a new number 4 is added to Article 37 that regulates the “Right and limits of private property”. This number establishes the possibility of nationalization in the case of “ponderous reasons of national interest”. It also introduces confiscation as a sanctioning measure, which is permitted when there is a serious offense against laws that protect the economic interests of the State.

Naturally, it is in the Title about the Economic, Financial and Tax Organization that some modifications in the economic area are added. Article 92 will contain new paragraphs 2 and 3. The new wording proposed for paragraph 2, aims to “clarify the scope and meaning of the principle of community property, as a type of property enshrined in Article 14 of the Constitution, which defines the nature of the economic system by calling the regulation of the exercise of this type of property the rules of customary law that do not contradict the economic system, the social market regime and the fundamental principles of the Constitution ”. Paragraph 3 establishes the legal existence of the unstructured sector of the economy, i.e., it refers to the informal economy, pointing to its progressive institutionalization.

Then we have article 100 on the National Bank of Angola (BNA). In paragraph 1 of this article, it is determined that the BNA will be the “central bank and issuer of the Republic of Angola” and will have as primary functions: to guarantee price stability in order to ensure the preservation of the value of the national currency and ensure the stability of the financial system. Therefore, the BNA’s functions are limited to combating inflation and the stability of the financial system.

Then, in paragraph 2, “the new legal nature of BNA is enshrined, as an independent administrative entity, with an eminently regulatory nature, and the content of the principle of independence of this type of entities is signaled”. “Transmission of recommendations or issuance of directives to the governing bodies of the BNA on its activity, structure, functioning, decision-making” is hereby prohibited on the priorities to be adopted in the pursuit of constitutional and legally defined attributions, by the Executive Branch or any other public entity.

Subsequent paragraphs of the same article state that: “The Governor of the National Bank of Angola is appointed by the President of the Republic, after hearing in the National Assembly’s Specialized Labor Committee.” And they stipulate a detailed procedure for that appointment. There is a duty of parliamentary hearing, but the final decision rests with the President of the Republic.

Another change concerns the General State Budget (GSB). Article 104 proposes an amendment “in order to remove a current idea that the budget of local authorities is part of the GSB”. The GSB will provide for transfers to be made to municipalities, but not their income and expenses.

3-Analysis and comment on the proposed changes to the economic and financial Constitution

The articles to be amended are 14, 37, 92, 100 and 104.

ARTICLE 14

In relation to article 14, the State will be responsible for promoting private initiative. In addition to the rhetorical aspect of such a statement, in practical terms, this rule allows the State to assist the private sector in a consistent manner, for example, expanding free zones and tax benefits for the private business, subsidizing private companies, creating partnerships with the private sector. The State shouldn’t be merely passive and adopt a positive and active attitude towards the private sector. It is a good sign for the market.

ARTICLE 37

Article 37 is of a different nature and constitutes the only constitutional amendment directly related to the fight against corruption. In the face of a constitutional gap, the general principles on which nationalization and confiscation can take place will now be established. This last part is essential to achieve the recovery of assets that is underway in which it becomes very difficult to understand the legal framework.

It is now clear that the state can confiscate assets when there has been a serious offense against laws that protect its economic interests. In simple language, it is now clear that those who have been charged at the expense of public funds may be without these assets, with no need for a final criminal case, but only the conclusion that they have carried out a serious offense against the laws that guarantee economic interests of the State. This rule is to be applauded in the present context of combating corruption.

ARTICLE 92

If the promotion of private initiative and the speeding up of the recovery of assets obtained from corrupt activities are measures that deserve praise, more doubts raises the rule of article 92 regarding the informal economy. More than “its progressive framing in the structured economy system” (proposed wording of Article 92, paragraph 3), which essentially means the payment of taxes and fees, what the Constitution should advocate was the adoption of supportive policies to the informal sector of the economy, which is a real buffer from the lack of work and an incubator for potential successful small and medium-sized companies[2].

It has already been pointed out that in southern Africa, the informal economic sector is a crucial element of survival, given that 72% of all non-agricultural employment resides in the informal sector and the majority of new jobs show up there. The informal economy provides income and employment to all people, regardless of education or experience. In Angola, the majority of employed people are also involved in the informal economy, as otherwise they would not be able to support all of their expenses. To that extent, it is necessary to be very cautious in establishing rules about the informal economy because it helps the Angolan government[3].

ARTICLE 100

In terms of public opinion, the core of the constitutional change in economic and financial terms will be found in article 100 referring to the BNA. This article contains three main lines:

  1. The BNA is the “guarantee price stability in order to ensure the preservation of the value of the national currency and ensures the stability of the financial system”. Thus, the BNA’s functions related to inflation and the financial system are precisely determined;
  2. The BNA becomes an independent administrative authority and therefore “independent in the pursuit of its duties and in the exercise of public powers”. It is the famous independence of the central bank, which today is defended by most economic doctrine.
  3. The Governor of BNA is appointed by the President of the Republic, after hearing the National Assembly. It should be noted that the National Assembly has no right of veto, but of hearing.

The enshrining of central bank independence corresponds to the modern dominant trend in economic doctrine. The arguments in favor of central bank independence can easily be summed up. Governments are thought to tend making wrong decisions about monetary policy. In particular, they are influenced by short-term political considerations. Before an election, the temptation is for the government to cut interest rates, making economic cycles of expansion and retraction more likely. Thus, if a government has a history of allowing inflation, inflation expectations start to rise, making it more likely.

An independent central bank can have more credibility and inspire more confidence. Having more confidence in the central bank helps to reduce inflationary expectations. Consequently, it becomes easier to keep inflation low. Thus, there is an attempt to introduce additional credibility in monetary policy and to increase the fight against inflation. It should be noted that inflation is an evil that has endured in the Angolan economy for too long.

This measure is correct and should be considered positive.

ARTICLE 104

The last change concerns the clarification of the differentiation between the General State Budget and the Municipalities, as part of the material preparation for the installation of the municipalities.

Conclusion

Minimalist, the proposed constitutional revision in the area of economics and finance aims to reinforce the signs of the market economy and macroeconomic stability, highlighting as an essential element of this law the consecration of central bank independence and its focus on combating inflation.

*****

Attachment: New proposed wording of the norms referring to the economic and financial sector

“Article 14

(Private property and free enterprise)

The State respects, and protects the private property of natural or legal persons and promotes free economic and business initiative, exercised under the terms of the Constitution and the Law ”.

“Article 37

(Right and limits of private property)

1. […].

2. […].

3. […].

4. Own law defines the conditions under which the nationalization of private goods can occur for ponderous reasons of national interest and of confiscation for serious offense to the laws that protect the economic interests of the State ”.

“Article 92

(Economic Sectors)

1. […].

2. The State recognizes and protects the right to community property for the use and enjoyment of means of production by rural and traditional communities, under the terms of the Constitution and the law.

3. Own law establishes the principles and rules to which the unstructured sector of the economy is subject, aiming at its gradual inclusion in the structured economy system ”.

“Article 100

(National Bank of Angola)

1. The National Bank of Angola, as the central bank and issuer of the Republic of Angola, guarantees price stability in order to ensure the preservation of the value of the national currency and ensures the stability of the financial system, under the terms of the Constitution and the law.

2. As an independent administrative authority, the National Bank of Angola is independent in the performance of its duties and in the exercise of public powers to which it is concerned, in accordance with the Constitution and the law.

3. The Governor of the National Bank of Angola is appointed by the President of the Republic, after hearing the Specialized Labor Committee of the National Assembly, competent by reason of the matter, under the terms of the Constitution and the law, observing, for this purpose, the following procedure:

a) the hearing is triggered at the request of the President of the Republic;

b) the hearing of the proposed entity ends with the vote on the report in accordance with the law;

c) It is up to the President of the Republic to make the final decision in relation to the nomination of the proposed entity.

4. The Governor of the National Bank of Angola sends to the President of the Republic and to the National Assembly, a report on the evolution of monetary policy indicators, without prejudice to bank secrecy rules, the treatment of which, for the purposes of control and inspection by the National Assembly it is ensured under the terms of the Constitution and the law ”.

“Article 104

(General State Budget)

1. […].

2. The General State budget is unitary, estimates the level of revenue to be obtained and sets the authorized expenditure limits, in each fiscal year, for all services, public institutes, autonomous funds and social security and must be prepared in such a way as to that all the expenses provided for therein are financed ”.

3. The State Budget presents the report on the forecast of funds to be transferred to local authorities, under the terms of the law.

4. The law defines the rules for the preparation, presentation, adoption, execution, inspection and control of the General State Budget.

5. The execution of the State Budget complies with the principles of transparency, accountability and good governance and is supervised by the National Assembly and the Court of Auditors, under the terms and conditions defined by law ”.


[1] All citations without a specific source mentioned are from the 2021 Constitutional Review Law Proposal Rationale Report made public by the Government.

[2] Alain de Janvry e Elisabeth Sadoulet, Development Economics, 2016, p. 19

[3] Moiani Matondo, Em defesa das zungueiras e da economia informal, MakaAngola. https://www.makaangola.org/2020/04/em-defesa-das-zungueiras-e-da-economia-informal/