An unexpected constitutional overhaul in Angola
The Angolan President’s intention of “punctual” revision to the Constitution in 2021 may be a very intelligent political maneuver. Although the stated intention is to improve the constitutional provisions relating to the functioning of the organs of the State and the economy, measures allowing asset confiscations and nationalizations, as well as the limitation of the sovereignty of the judiciary, raise great fears – writes Leandro E. G. Ferreira.
The announcement of the intention of “punctual” revision of the Constitution of Angola by President João Lourenço on 2 March 2021 caused an absolute surprise, eleven years after the Constitution’s approval in 2010. There was nothing to foresee it, there was no announcement, no prior public consultation and it raises several questions about its real purposes, since the previous pronouncements of the President, who strongly rejected earlier requests for revision from the Opposition and civil society.
There may be several real reasons. The first three years of the President's term (2017-2022) were significantly marked by his policy to fight corruption and the recovery of State assets, the commitment to recover the economy in deep crisis since 2016 and to face the Covid 2019 pandemic, which significantly exposed the fragility of the social and health sectors in the country. His entrance to the presidential palace was also marked by the feeling of deep conflict with the previous governance model of the outgoing President José Eduardo dos Santos and his direct followers, caused by the political wear and tear of long-term governance, by the economic crisis, by the low index of economic and human development and by the practice of corruption and nepotism in relation to public contracts of great relevance, especially on the eve of the inauguration of his successor.
The structural reform of the system that was promised by the Popular Movement for the Liberation of Angola (MPLA) – the ruling party since Angola’s independence in 1975 – imposed significant reforms on the State, party politics and the economy from the outset on the new President’s tenure, including the urgent holding and implementation of local elections and local authorities, the amendment of the Constitution to reassess and reduce presidential powers and the way in which he is elected, and the strengthening of parliamentary oversight of the Executive, a matter on which the opposition political forces and civil society have consistently insisted.
2019 and 2020 were not, however, prosperous for the President's political image and popularity, unlike the initial period after the elections (a factor believed to be at the root of the successive postponement of the holding of local elections). His loss of popularity resulted mainly from the continuous worsening of the national economic situation, an excessive concentration of efforts on combating the elites of the previous regime and the lack of tangible results in the lives of citizens from this policy of asset recovery. Recently, in addition to street protests, several Opposition forces have presented their intention to create a united front to run for the 2022 elections against the ruling party.
Politically it is convenient to revise the constitution now, since the President's party is projected to lose seats in the 2022 elections.
This scenario reinforced the opinion of political analysts who predict a heated electoral competition in 2022. Most academics believe that the MPLA will win in 2022, but in a less expressive manner, reducing the number of seats in Parliament. In 2017, the MPLA won 150 of the 220 possible seats in Parliament (more than two-thirds) allowing them to freely change the Constitution, unlike the Opposition, which has less than one-third (70 seats) and is therefore unable to even initiate a constitutional revision procedure, which needs at least 74 requesting members of Parliament.
Should such a parliamentary reduction occur in the 2022 elections, with a loss of representation, the President and his party would be under significant pressure from the Opposition and from society to a constitutional revision, should a petition to that effect be presented, which would certainly happen early on. Politically, it would be convenient to revise minor matters now, postponing for another five years the discussion of the main issues of the constitutional document, which would imply a broad revision of its text (due to temporal limits for constitutional revision imposed by article 235). One doubts, therefore, the pertinence and urgency of these changes, which are slight in the face of the social pressure for more significant reform of the constitutional text. The discussion around the revision has also diverted attention from the main issues on the national political agenda, such as the municipalities and the fight against hunger and poverty, which would gain a great deal of space in 2021. This being the rationale, it was a very shrewd and intelligent political maneuver.
The matters under review and their meaning
The proposal has approximately 40 topics of revision, the most notable of which are: strengthening and clarifying the parliament's powers to scrutinise the Executive and the Administration (article 162); enshrining the independence of the Central Bank (article 100) and clarifying the Executive's competence to carry out officious voter registration (article 107).
The proposal further clarifies presidential and vice presidential eligibility, disqualification/impediments, replacement and makes improvements in the regime for exercising the mandate of the President and Vice President (articles 110, 132, 132-A); fixes general elections in the third week of August in the year of term expiry (article 112); limits presidential powers pre-election to day-to-day management (article 116-A); and extends voting rights to citizens abroad (articles 143, 144).
The proposed amendments limit presidential powers pre-election to day-to-day management.
The proposal also includes: a restriction of the status of lower courts as a body of power, the protocol precedence of the Supreme Court over the Constitutional Court (articles 176, 181); inclusion of the President of the Supreme Court in the Council of the Republic and expansion of the number of members (article 135); transfer of the ombudsman from the judiciary to the administrative power (article 212-A); and constitutionalises the nationalisation of private goods for “serious reasons” of national interest and, in the same article, authorises the confiscation of assets for serious offenses against “the economic interests of the State” (article 37).
The reforms further include the revocation of the principle of gradualism for the implementation of municipalities (formerly article 242) and the enshrining of the “public calamity situation” as a new constitutional state of emergency (an alternative to the currently constitutionally enshrined states of war, siege, and emergency), which is more adjusted to health crises and subject to less parliamentary control (article 58-A).
The changes are considerable in number and relevance; politically it clearly represents an opening to respond to the demands of society and political parties when there was no expectation that the President would give way. But it also deserves criticism.
Critical assessment of the proposal
The first criticism is that many issues of greater relevance have not been dealt with and corrected, such as fundamental rights, the correction and strengthening of criminal justice system safeguards (including the revocation of the Public Prosecutor's Office power to order arrests without the authorisation of a judge), administrative guarantees, the effective readjustment of the balance of constitutional powers with the reduction or conditioning of several presidential powers, the system for the election of the President, the institutions of traditional power, and the system for the administration of customary justice.
Two proposed amendments are causing apprehension: the nationalisation of private goods/confiscation of assets and the reduction of the sovereign power of the lower courts.
On the other hand, there is much apprehension, especially from civil society and from lawyers, regarding two matters: the nationalisation of private goods/confiscation of assets and the reduction of the sovereign power of the lower courts.
In the first case, while nationalisations/confiscations are part of the State policy of asset recovery from corruption, there are fears from the suspicions that these concepts raise. The measures may stunt the private sector, reduce internal investment, increase the risk of restoring a governance model that is inadequate and too interventionist for market economies, and reduce foreign investment.
It certainly represents a strategy of the Executive, intelligent and fast, to close this chapter, the biggest system matter of the last few years, which has already taken a few years, without the economic gains that were expected. Recently, Presidential Decree (Dispatch) nº 155/20 of 28 October effected the nationalisation of shares in a hotel complex in Luanda, which were considered recoverable as originating from illicit appropriation of the assets of a public company.
This set off alarm bells in the justice sector, arousing suspicion that nationalisations might occur without prior or immediate compensation, without a judicial process based on impartiality and due process, with imputation of guilt to those targeted by administrative means, and reversal of the burden of proof on the legitimacy of assets to obtain compensation. While the population seems to applaud this move and the political forces have not yet spoken, there are several lawyers who are apprehensive about this possibility.
The reform of the Judicial Power proposes that only the Superior Courts will be qualified as sovereign bodies (branch of the State). The lower and intermediate courts, which decide the largest number of disputes under common jurisdiction, would cease to be sovereign bodies, a quality that they could assume only when they hold hearings and produce sentences. The Executive affirms that the intention is to make normative evolutions, including defining the protocol precedence. It was an obvious mistake.
The intention of the proposal was fundamentally to define the protocol treatment of the judges, but their statute was wrongly changed. In the law of the State Protocol (now in the National Assembly), sovereign bodies appear first. The Constitution says that all courts are sovereign (article 105), so all judges should have protocol precedence, whatever their level. The aim was to say that only the judges of the higher courts should deserve this treatment. But the concept of sovereignty was mistakenly moved, which is something other than protocol.
It is also claimed that the problem of protocol between the courts will be resolved by placing the Supreme Court as the representative of all courts, including non-judicial courts, such as the Constitutional Court, the Court of Auditors, and the Supreme Military Court. This seems incorrect again, as it is also dangerous and can create a non-independent judicial system, on lower courts, which could find limitations on their power when they are not in hearings or making sentences.
The text is very dubious, difficult to understand and suspicious, and there is no parallel in the entire African continent. For this reason, there was a strong reaction from various sectors of society and from the association representing judges, because it is understood that the intended reform is not justified, does not fit the effective needs for revision, as perceived directly by the Judiciary Body, and offers a clear risk of weakening these courts. In my view, if it were to materialise, the planned amendment would be a step backwards in the constitutional evolution achieved with the democratic opening of 1991/1992 and with the approval of the 2010 Constitution, both of which already presented a progressive evolution in the consolidation of the democratic Rule of Law in Angola.
The project was generally approved by the National Assembly with the main opposition party, National Union for the Total Independence of Angola (UNITA), and some independent deputies abstaining. The proposed reforms are currently under consideration by the specialty committees. The duration here is indefinite. I believe that it will likely be finally approved before 15 August 2021, the formal closing date of the parliamentary year (articles 102, 234, Rules of Procedure of the National Assembly).
The National Assembly is mobilising to admit the contribution of members of civil society and public organisations, although there are doubts and relevant debates in society and in political forces about whether the revision should be more extensive than the text that the President of the Republic has proposed. In addition to the legal discussions, there is a fear that a broad political discussion of the document could postpone the forthcoming political events of 2022, which the President and his advisers have already stated is not the purpose of amending the Constitution.
Leandro E. G. Ferreira, Attorney, Consultant, Msc and PhD candidate in Legal and Political Sciences. Professor at the Faculty of Law of the Catholic University of Angola (Constitutional Law, Administrative Law, Constitutional Justice) and at the National Institute of Judicial Studies – INEJ. Advisor to the President of the Constitutional Court of Angola between 2012 and 2018.