2.1  The Persistent Influence of Portuguese Law in the Legal Orders of the Lusophone African States

The ties maintained by each of the Lusophone African states with the Portuguese legal order is a key factor to understanding the functioning of their legal systems. An (p. 161) awareness of the importance of this connection is also very significant in assessing the relationship between the executive and the judiciary, taking into consideration the image of subordinate power that the courts have in these states.

Two aspects of the legal ties that bind the Portuguese-speaking African countries and Portugal should be highlighted: on the one hand, there is the similarity between the legal texts that are used in these states; and, on the other hand, there is the model that has been followed in the training of Portuguese-speaking African jurists, particularly with regard to the magistrates.

The importance of this framework has as its starting point the existence of a common language between the various African Lusophone states and Portugal, but it goes far beyond the mere sharing of a common instrument of communication. Indeed, the understanding of what law is (and what its mechanisms of action are) remains identical in these states, even four decades after their independence. In fact, the understanding that lawyers of those states have of the central issues of the legal systems, in particular in matters of constitutional law, can be properly understood only if the personal and institutional links to the former colonial power behind them are properly acknowledged. It follows then that to understand the actual content of the concepts of separation of powers and independence of the judiciary in Portuguese-speaking African states implies taking into account what the Portuguese doctrine has taught on the subject in recent decades, regardless of what those concepts mean outside Portugal, or even whether the origin of the concepts have any connection with Portugal.

First of all, it should be noted that a very large percentage of the written legal sources used in Lusophone African states is substantially identical to those that were in force, or are in force, in Portugal.

The Portuguese influence on the legal systems of African countries with Portuguese as their official language is manifested, first, at the level of constitutional texts currently in force. A comparison between the different constitutions shows many similarities in the structure and nature of the legal institutions⁵ and even in the wording of the provisions in the constitutional texts.

In the wording of the articles, it is possible to find some cases where articles or paragraphs of articles of the Portuguese constitution of 1976 have been reproduced virtually without any change into the articles of the constitutions of African Portuguese-speaking states. As an example, in the rules governing the judiciary, the wording used in article 202(1) of the Portuguese constitution, namely, ‘[t]he courts are the sovereign bodies with competence to administer justice on behalf of the people’, can also be found in article 120(1) of the constitution of São Tomé and Príncipe, in article 119 of the constitution of Guinea-Bissau, and in article 174(1) of the constitution of Angola. In similar terms, article 202(2) of the Portuguese constitution of 1976—‘[i]n the administration of justice the courts should act in defence of the rights and legally protected interests of the citizens, punish breaches of democratic legality and to resolve conflicts of public and private interests’—is the source of article 120(2) of the (p. 162) constitution of São Tomé and Príncipe, of article 209 of the constitution of Cape Verde, and of article 174(2) of the constitution of Angola.

The similarity between the wording of the legal texts in force in the Portuguese-speaking African states and in Portugal could be seen as being something merely secondary, had the ties between these legal systems not been maintained and continually enhanced by the legal training that has been given to the Lusophone African jurists in the last two decades.⁶

Indeed, since the adoption of a model of democratic political organization of Western origin, the training of the majority of the Lusophone African jurists has followed the model of teaching used in Portuguese law schools and in the Portuguese institutions providing training for magistrates. The influence of the Portuguese model of training can be observed at various levels in the Faculties of Law of the Lusophone African states: in the organization of their curricula; in the legal literature recommended in undergraduate courses; in the professors invited to teach on masters and doctoral courses and at postgraduate level; in the professors who are invited to join panels to evaluate masters and PhD students; and in the professors who are invited to join panels whose role is to determine the progress of those who teach in those universities. Additionally, the influence of the Portuguese training model can be fully appreciated if one also takes into account the number of professors of the Faculties of Law of the Portuguese-speaking African states who, in the last two decades, have obtained their Masters and PhD (Doutor em Direito) degrees at Portuguese universities.⁷ Finally, note should be taken of the influence that the Portuguese model has in the training of the magistrates of the Portuguese-speaking African states, either indirectly through participation in the organization of training centres for judges on the Lusophone African states,⁸ or directly through the attendance of training courses in Portugal by Lusophone African judges.⁹

One manifestation of this persistent influence is the express quotation of Portuguese doctrine in judicial decisions of the higher courts in Portuguese-speaking (p. 163) African states.¹⁰ The following examples can be given: i) Judgment No 7/2011 of 31 January 2011, of the Supreme Court (acting as Constitutional Court) of Cape Verde, about the reasoning for a judicial decision;¹¹ ii) Judgment No 1/CC/2010 of 6 January, of the Constitutional Council of Mozambique, about granting authorization to open and run a casino; iii) Judgment No 4/CC/2009 of 17 March, of the Constitutional Council of Mozambique, on the issue of the competence of sovereign bodies;¹² and iv) Judgment No 40/2010 of 18 November 2010, of the Supreme Court (acting as Constitutional Court) of São Tomé and Príncipe about the use of pre-trial detention.

2.2  The judiciary of Western origin versus the traditional mechanisms of conflict resolution

Any attempt to analyse the functioning of the legal systems of the three continental Lusophone African states, Angola, Guinea-Bissau, and Mozambique, without taking into account traditional authorities,¹³ customary law, and the mechanisms those countries use to resolve conflicts,¹⁴ would lead to an incomplete and inaccurate understanding of the legal structures of these states.

Indeed, the more recent Lusophone African constitutions make an express reference to these matters. Accordingly, article 4 of the 2004 constitution of Mozambique provides that ‘[t]he State recognizes the different normative systems and mechanisms for conflict resolution that exist within the Mozambican society, insofar as they do not contradict the fundamental values and principles of the Constitution’. In a similar sense, article 223(1) of the 2010 constitution of Angola states that ‘[t]he State recognizes the status, role and functions of the institutions of traditional power according to customary law insofar that they are not contrary to the Constitution’.

The constitutional framework of these issues is, however, only the starting point of a more appropriate approach to the problems that are posed by the existence of traditional mechanisms of conflict resolution. The use of traditional mechanisms of conflict resolution does not seem to be a way to negate a judicial system of Western origin, but (p. 164) rather a way to overcome the inadequacy of such a system, or its absence, in many parts of the territory of the states in question. The information relating to the spread of the judiciary in the Angolan territory is particularly significant in this context. In 2003, in an International Bar Association report on justice in Angola it was reported that: ‘[o]nly 23 of the 168 municipal courts are actually operational. All provincial courts are functioning and in areas without courts cases are sent to the provincial courts. The situation has created delays and a large backlog of cases. Many courts are in a poor state of repair.’¹⁵ Five years later, in 2008, the ‘Report of the Working Group on Arbitrary Detention’ of the Human Rights Council of the United Nations was in agreement in its reference to that insufficient distribution, stating: ‘[o]nly 14 out of 165 municipalities have municipal courts and there is still a shortage of qualified judges in the country’.^{16, 17} In 2010, the shortage of judges in the territory was officially confirmed by the Angolan government in Implementation of the African Charter on Human and Peoples’ Rights, when it stated that: i) nineteen provincial courts, with a total of 129 judges, are in operation, of whom forty-eight judges are located in Luanda and thirteen judges in Lobito-Benguela; and ii) there are nineteen municipal courts, with a total of seventy-seven judges, of whom twenty-three judges were in the Municipal Court of Ingombota, and nine judges in the Municipal Court of Caala.¹⁸

In any case, further analysis of this issue can be undertaken properly only with the use of updated data on the content of customary law that is actually applied by traditional authorities. Only by comparing these data with the written law of Western origin does it become possible to ascertain the areas of incompatibility which exist and to find appropriate ways to overcome them.

The collection and codification of customary law applied in the six major ethnic groups of Guinea-Bissau carried out between 2008 and 2011, enables us to reach three important conclusions in this area. The first of these is that customary law is not static and adapts to the changing circumstances of the populations to which it applies. Secondly, members of a particular ethnic group must be aware that the use of the rules of conduct available in the written law of Western origin is an option which may be exercised, particularly when customary law does not adequately safeguard their interests. And, finally, the resolution of conflicts is usually understood as an integrated (p. 165) task in the exercise of traditional power, and there is no institutional distinction between members of the traditional authorities that govern and members of the traditional authorities that resolve disputes.¹⁹

The relevance of customary law and of the traditional mechanisms of conflict resolution is something that can remain relatively invisible in a first encounter with Lusophone Africa states, but the importance of Portuguese law and the Portuguese legal system in the Portuguese-speaking African countries and for African Lusophone lawyers is an unavoidable aspect of any attempt to understand how the Portuguese-speaking African states’ legal systems really work.

Bearing in mind this historical background and the framework assumptions, we can move on to consider an overview of the relationship between the judiciary and the executive in constitutions in force in Portuguese-speaking African states.

3.1  Introduction

The power structure in the constitutions of the African Portuguese-speaking states is organized in line with a democratic model of political organization of Western origin (using the concepts of ‘separation’ and ‘interdependence’ of state bodies). The organization of political power has, at its base, the existing organs of sovereignty that can be found in the Portuguese constitution of 1976 (after the 1982 constitutional revision), namely the president, the parliament, the government, and the courts. The concrete interrelationships between the organs of sovereignty vary according to the political evolution of the individual state concerned, and these political variations have led to the different adaptations of the basic Portuguese semi-presidential model to incorporate innovative solutions such as the presidential concentration of power that can be found in the Angolan constitution.²⁰ To understand the relations between the executive and the judiciary, it is first necessary to consider briefly the distribution of executive and judicial power within the constitutions of these Lusophone African states.²¹

In Angola,²² according to article 108(1) of the constitution, the ‘President of the Republic shall be the Head of State, the Executive Power, and the Commander-in-Chief (p. 166) of the Angolan Armed Forces’. According to article 176(1), the Angolan judicial system comprises the following High courts: the Constitutional Court (article 180); the Supreme Court (article 181); the Court of Auditors (article 182); and the Supreme Military Court (article 183). The management of the judiciary is carried out by the High Council of Judicial Bench (article 184), a body chaired by the President of the Supreme Court. The representation of the state, the defence of legality, the promotion and exercise of prosecution is in the hands of public prosecutors (article 186). The management of the public prosecutor’s office is the responsibility of the Supreme Judicial Council of the Public Prosecutor’s Office (article 190), a body chaired by the Attorney-General.

In Cape Verde,²³ under article 185 of the constitution, the ‘Government is the body that defines, directs and executes internal and external general policy of the country, and is the supreme organ of the Public Administration’, and is politically responsible to the National Assembly (article 186). Under article 214, the judicial system of Cape Verde consists of the following courts: the Constitutional Court (article 215);²⁴ the Supreme Court (article 216); Courts of Appeal (article 217); Courts of First Instance (article 218); the Court of Auditors (article 219); Military Court of Instance (article 220); and Tax and Customs Courts (article 221). The management of the judiciary is the responsibility of the Superior Council of the Judiciary (article 223), a body chaired by one of the ‘judges who are part of it, upon the proposal of the other members of that body’ (article 223(6)). The defence of citizens’ rights, democratic legality, and public interest, criminal prosecution, and the implementation of the criminal policy set by the government is carried out by the public prosecutor’s office (article 225). The management of the public prosecutor’s office is done by the Board of Public Prosecution (article 226), a body chaired by the Attorney-General.

In Guinea-Bissau,²⁵ under article 96(1) of the constitution, the ‘Government is the supreme executive and administrative organ of the Republic of Guinea-Bissau’, and it is established that the president may ‘[p]reside over the Council of Ministers when he wishes to do so’ (article 68(m)). Articles 120 and 121 state that the Bissau-Guinean judicial system includes the following types of courts: the Supreme Court; the Military Tribunals (‘who are responsible for the prosecution of essentially military crimes’ in accordance with article 121(1); and Administrative, Tax, and Audit Courts. The management of the judiciary is the responsibility of the Supreme Judicial Council (article 120). The defence of legality, the representation of the state for public and social interests, and criminal prosecution are in the hands of public prosecutors (article 125). The Public Prosecutors’ Office is organized according to a hierarchical structure under the direction of the Attorney-General of the Republic (article 125(1)).

(p. 167) For Mozambique,²⁶ pursuant to article 146(2) of the constitution, the ‘President of the Republic is the Head of Government’, the Council of Ministers is ‘convened by the Prime Minister, by the President’s delegation of power’ (article 202(2)), and the formulation of government policies by the Cabinet ‘is made during sessions chaired by the President’ (article 202(2)). According to article 223, the Mozambican judicial system comprises, as a minimum, the Supreme Court (articles 225 to 227), the Administrative Court (articles 228 to 231), and ordinary courts. The judicial system also comprises of ‘administrative courts, labour courts, tax courts, customs courts, maritime courts, arbitration courts, and community courts’, and military tribunals ‘during the duration of the state of war’ (article 224). The constitution also provides for a Constitutional Council, with powers to ‘administer justice in matters of a constitutional nature’ (article 241(1)). Managing judges is the responsibility of the Superior Council of the Judiciary (article 220), a body chaired by the President of the Supreme Court (article 221(2)). The constitution also provides that the management of the administrative courts is the responsibility of the Superior Council of the Administrative Courts (article 232). The representation of the state, the defence of the legality, the protection of certain rights, including minors, incapacitated persons, the control of the duration of arrests, the direction of the pre-trial instruction of criminal cases, and criminal prosecution are the responsibility of the Public Prosecutors’ Office (article 236). The management of the public prosecutors’ office is done by the Board of the Public Prosecutor (article 238).

In São Tomé and Príncipe,²⁷ under article 108 of the constitution, the ‘Government is the executive and administrative organ of the state, and shall conduct the general policy of the country’, and the president may only ‘[p]reside over the Council of Ministers, at the request of the Prime Minister’ (article 81(c)), but the president has the powers to ‘[c]onduct, in consultation with the Government, any negotiation process for the conclusion of international agreements in the area of defence and security’ (article 82(e)). In accordance with article 126, the court system of São Tomé and Príncipe comprises the Constitutional Court,²⁸ the Supreme Court of Justice, the Court of First Instance, the Regional Court, and District Courts, and ‘military courts and arbitration courts’ may also be created. The defence of legality, the representation of public and social interest, and criminal prosecution are the responsibility of public prosecutors (article 130). The management of the judiciary is conferred on the Superior Council of the Judiciary (article 223), a body chaired by one of the ‘judges who is part of it, upon the proposal of the other members of that body’ (article 223(6)).

The relations between the judiciary and the executive in the constitutions in force in the Lusophone African states are organized in accordance with the principles of the (p. 168) separation of powers and of the independence of the courts. The importance given to these two principles is so central to the structuring of the relations amongst the different branches of government that amending constitutional provisions dealing with these matters is strictly restricted in the Constitutions of all Lusophone African states.

It should also be noted that the treatment of judicial and executive relations is not comparable to the level of attention accorded to the relations between the executive and the legislative branches of power, which is another demonstration that the matter is perceived as being relatively minor in the organization of political power. According to the most widespread perception of the exercise of political power in these states, the position of the judiciary in the political system is subordinate because it has very limited powers concerning the interpretation or application of legislation. In addition, following the powers that were actually granted to courts in Portugal during the Estado Novo (1926‒74), the decisions of the legislative and executive powers are not seen as capable of being contested by using the judiciary in the African Lusophone states. In line with the prevailing attitude before the establishment of democracy in Portugal, the courts ultimately serve to resolve conflicts between private persons, and not for the defence of the rights of private persons when they are subject to acts of the political power by the state or by other public bodies.

It is now time to turn our attention to some of the most striking aspects of the relations between the judiciary and the executive. First, we will consider the rule of law and the principles of the separation of powers and of the independence of the courts and the constitutional guarantees that are set to safeguard the principle of independence of the courts. Secondly, the rules governing the appointment of the judges of the High Courts, the Attorney-General, and the members of the supervisory bodies of the judiciary in the constitutions of the Lusophone African states will be examined. Finally, to conclude this overview, mention will be also made of the power of pardon and the power of commutation of sentences provided for in the constitutions of the Lusophone African states.

Although the independence of the courts is unquestionable in terms of the texts of the constitutions of Lusophone African states, it is important to stress the way the relationship between the judiciary and executive works in practice. This relationship is, essentially, a practical expression of the effectiveness of constitutional texts that can be found ​​in Portuguese constitutional doctrine, especially in the work of the Portuguese constitutional scholar, Jorge Miranda, based, as it is, on the opposition between normative constitutions and semantic constitutions.²⁹ The work of Jorge Miranda is widely used by lawyers in the African Portuguese-speaking states and constitutes a reference point for the understanding of the constitutional law in these states. There is a particular focus on the fact that the express reference in the constitutional texts to constitutional concepts does not mean that these concepts are properly understood or adequately used in these legal systems. In this regard, attention is drawn to the fact that only after the Revolution of 25 April 1974 was the teaching of constitutional law in (p. 169) Portugal given a democratic context taking into consideration the authoritarian nature of the political regime in Portugal from 1926 and the fact that the provisions of the 1933 constitution, especially those concerning the protection of fundamental rights, were hardly respected.

In many respects, there is a gap in the African Lusophone countries between the constitutional concepts in the constitutional texts and the real understanding and application of these constitutional concepts. There is also a difference between judicial independence de jure and judicial independence de facto.³⁰ Drew A Linder and Jeffrey K Staton bring this out very clearly in their study entitled: ‘The Measurement Model for Synthesizing Multiple Comparative Indicators: The Case of Judicial Independence’.³¹ These authors present the following data regarding the independence of the courts with regard to the Lusophone African countries during the period since their independence to 2010 (considering 1 as the value for the most independent courts): i) Angola: virtually a constant underperformance at 0.3 between the time of independence and 2010; ii) Cape Verde: a variation from 0.2 at the time of independence to 0.8 in 2010; iii) Guinea-Bissau: a variation between 0.3 at the time of independence and 0.4 in 2010; iv) Mozambique: a variation between 0.2 at the time of independence and 0.4 in 2010; and v) São Tomé and Príncipe: virtually a flat line of 0.4 between the time of independence and 2010, with a rise and a fall in the 1980s.

3.2  The proclamation of the rule of law and the principle of the separation of powers in the constitutions of the Lusophone African states

It is necessary to preface this section by reiterating the fact that the constitutions of the Lusophone African states are based on the model of the rule of law of Western origin with an explicit recognition of the predominance of law and of the separation of powers amongst the organs of political power. The wording adopted in the constitutional norms has its origin in the Portuguese constitution of 1976. The constitutional texts incorporate the idea of the separation powers of Western origin even when it is not compatible with the political philosophy of the ruling elites of these states. In fact, with the possible exception of Cape Verde, they still apply the concepts of the exercise of power, rooted in the organization of political power of Marxist origin that prevailed until the end of the 1980s. Similarly, the references to written law are difficult to understand in countries such as Angola, Guinea-Bissau, and Mozambique, where a significant part of their legal system is still based on customary law and the resolution (p. 170) of conflicts does not greatly rely on the use of formal mechanisms contained in written legislation.

In the 2010 constitution of Angola we find: i) in article 2(1), that ‘[t]he Republic of Angola shall be a democratic state based on the rule of law … the primacy of the Constitution and the law, the separation of powers and the interdependence of functions … ’; ii) in article 6(2), that ‘[t]he State shall be subject to the Constitution and shall be based on the rule of law and ensuring that the law is respected’; and iii) in article 105(3), that ‘[t]he sovereign bodies must respect the separation and interdependence of functions established in the Constitution’.³²

In the 1992 constitution of Cape Verde it is stated: i) article 2(1), that ‘[t]he Republic of Cape Verde shall be organized in a democratic State based on the rule of Law … ’, recognizing and respecting the ‘separation and interdependence of powers’ (article 2(2)); and ii) in article 3(2), that ‘[t]he State shall be subordinated to the Constitution and based on democratic legality and shall respect and impose the respect of the law’. The Supreme Court of Cape Verde expressly used the principle of the separation of powers to declare the unconstitutionality of Arbitration Committees of Automobile Accidents, in the Judgment of the Supreme Court (SN/1994) of 16 May 1994.³³

In the constitution of Guinea-Bissau 1993 it is established: i) in article 3, that ‘[t]he Republic of Guinea-Bissau shall be a State of constitutionally-instituted democracy … ’; ii) in article 8(1), that ‘[t]he State shall be subordinate to this Constitution and shall be based on democratic legality’; and iii) in article 59(2), that ‘[t]he organization of political power is based on the separation and interdependence of sovereign bodies and in tying them all to the Constitution’.

The 2004 constitution of Mozambique states: i) in article 2(1) that ‘[t]he State is subordinate to the Constitution and is founded on legality’; ii) in article 3, that ‘[t]he Republic of Mozambique is a State governed by the rule of law … ’; and iii) in article 134, that ‘[t]he organs of sovereignty are established on the principles of separation and interdependence of powers enshrined in the Constitution, and shall owe obedience to the Constitution and the laws’.

The 1992 constitution of São Tomé and Príncipe provides: i) in article 6(1) that ‘[t]he Democratic Republic of São Tomé and Príncipe is a State of democratic law’; ii) in article 7 that ‘[t]he State of democratic law implies the safeguard of justice and legality as fundamental values of collective life’; and iii) in article 69(1), that ‘sovereign bodies shall observe the principles of separation and interdependence laid down in the Constitution’.

(p. 171) 3.3  The proclamation of the independence of courts in the constitutions of the Lusophone African states

The constitutions of the Portuguese-speaking African states, moreover, proclaim the independence of courts and its judges without any restriction. This is done in different ways: i) in Angola, article 175 of the constitution provides that ‘[i]n the exercise of their jurisdictional functions, the courts shall be independent and impartial and subject only to the Constitution and the law’; ii) in Cape Verde,³⁴ article 211(1) of the constitution provides that ‘[i]n the exercise of their functions, the courts are independent and subject only to the Constitution and the law’; iii) in Guinea-Bissau,³⁵ article 123(2) of the constitution provides that ‘[i]n the exercise of their duties, every judge shall be independent and should only obey the law and his conscience’; iv) in Mozambique, article 217(1) of the constitution states that ‘[i]n the exercise of their functions, judges shall be independent and shall owe obedience only to the law’; and v) in São Tomé and Príncipe,³⁶ article 121 of the constitution provides that ‘[t]he courts are independent and are subject only to the laws’.

In practice, despite the unequivocal constitutional affirmation of the independence of the courts, the actions of the judiciary are strongly influenced by the executive branch, as shown by international studies. The examples of Angola and Mozambique are particularly significant because of their size and the way they are considered particularly attractive as foreign investment destinations.

For Angola, the following excerpts of Bertelsmann Stiftung’s Transformation Index (BTI) 2014, covering the period from 31 January 2011 to 31 January 2013, are relevant (p. 172) to an understanding of the relations between the judiciary and the executive branches of power:

1. i)  Although legally, government powers are formally separated, there is in practice a predominance of the executive over the legislative and the judiciary, which was further consolidated in the 2010 reform of the constitution. More than just the executive, it, is, in fact, the president and his close advisors that can overrule parliamentary and ministerial decisions by presidential decree;³⁷

2. ii)  Judges and members of government commissions are appointed by the president according to political loyalty, and are routinely subject to political interference; in large parts of the country, especially in the provinces, the courts are largely irrelevant;³⁸

3. iii)  Although there is a Supreme Court, a Constitutional Court, a state attorney general and an ombudsman, these positions are filled according to political loyalty and are subject to political influence. Investigations are routinely opened or closed according to the ‘superior orientations’, that is, directives from the presidency while complaints filed by the opposition or civil society activists are dismissed or simply not pursued … By contrast, the courts are quick to prosecute opposition figures for libel, defamation, unpaid fines or even abuse of professional titles. At lower levels, the judiciary functions more independently (in civil and criminal courts), but corruption is rife, and condemnations of persons linked to the elite only happen in cases of a political settling of accounts, when the person in question somehow fell out of favour.³⁹

For Mozambique,⁴⁰ in similar terms, the following excerpts from the BTI 2014,⁴¹ are relevant to an understanding of the practice of relations between the judiciary and the executive branches of power:

1. i)  Given the FRELIMO party’s dominance of society and the state administration, including the justice sector, the separation of powers does not exist in Mozambique de facto;⁴²

2. ii)  De jure, the constitution speaks of a separation of powers in article 134. However, rather than looking to the constitution and their own institutional independence in the course of decision-making, representatives of the judiciary, executive and (p. 173) legislature look instead to the party line and decisions from the party presidency;⁴³

3. iii)  The independence of the judiciary is heavily impaired by political authorities;⁴⁴ and

4. iv)  An assessment conducted by the United Nations in 2010 revealed the inefficiencies of the sector due to interferences by political authorities. When, for example, President Guebuza moved judges from the Supreme Court to the Constitutional Court, the vacancies were not filled for over a year. The poor functioning of the Supreme Court has earned it a reputation as a ‘cemetery for court cases’. FRELIMO party affiliation is a must for anybody wishing to enter the justice system or, once there, to advance his or her career. Only half of the cases that have reached the Supreme Court are being currently attended to. In total, the justice sector has a backlog of more than 100,000 cases each year.⁴⁵

The Angolan and Mozambican practice can be properly understood only if one takes into consideration that the elites currently in power form part of political parties whose creation had their origin in the national liberation movements that led to the independence of these states. Having been structured in accordance with a centralized model of power of Marxist origin, the internal functioning of the political parties which has been controlling the state administration since independence is not organized according to the democratic model that is provided for by the constitutions currently in force.

3.4  The guarantees of independence of the courts in the constitutions of the Lusophone African states

The independence of the judiciary is guaranteed in the constitutions of Lusophone African states in a relatively homogeneous way⁴⁶ with an emphasis on the technical and formal precision of the more recent constitutional texts, like that of the constitution of Cape Verde in the version amended by the 2010 constitutional revision, and that of the 2010 constitution of Angola.

In Angola: i) serving judges may not be candidates for election as President of the Republic (article 110(2)(b)–(d)) or members of the National Assembly (article 145(1)(a), and article 149(1)(d)); ii) judges are independent with regard to the exercise of their duties (article 179(1)); iii) judges are irremovable and may not be transferred, promoted, suspended, retired, or dismissed unless under the terms of the constitution and the law (article 179(2)); iv) judges are not responsible for the decisions they make during the course of their duties, except for the restrictions imposed by law (article 179(3)); v) serving judges may not become affiliated to political parties or become involved in party political activities (article 179(6)); vi) the courts shall enjoy administrative and (p. 174) financial autonomy, and the law must define mechanisms to enable the participation of the judiciary in the process of drawing up their budget (article 178); vii) organs of the judicial power may present opinions on matters relating to the organization of the judiciary, the status of judges, and the functioning of the courts during the legislative process relative to those matters (article 167(2)); and viii) the independence of the courts is subject to a limit on constitutional revisions (article 236(i)).

In the concluding remarks made in the initial report submitted on Angola in 2013 under the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee⁴⁷said with reference to the independence of the courts:

The Committee is concerned at the reported lack of independence as well as corruption of the judiciary, and the insufficient number of judges, lawyers, tribunals and courts, all of which may create difficulties regarding access to justice; [ … and the] State party should strengthen the independence of the judiciary and effectively combat corruption. It should also increase the number of trained judges and lawyers. The State party is encouraged to implement its plan aimed at increasing the number of tribunals and courts (municipal and provincial) in order to ensure that justice is accessible to all, in particular to disadvantaged persons and those living in rural areas. … ⁴⁸

In Cape Verde: i) judges are independent in the exercise of their functions (article 222(3) of the constitution); ii) judges are irremovable and may not be transferred, suspended, retired, or dismissed peremptorily except in cases specified by law (article 222(4) of the constitution); iii) judges are not responsible for their judgments and decisions, except in cases specified by law (article 179(6) of the constitution); iv) judges in office may not be affiliated to any political parties or devote themselves, in any way, to party political activities (article 222(8) of the constitution); and v) there are limits to the amendment of the provisions dealing with the independence of the courts (article 290(f) of the constitution).

In Guinea-Bissau: i) judges are independent with regard to the exercise of their duties (article 123(2) of the constitution); ii) judges are not accountable for their judgments and decisions and may be subject to civil, criminal, or disciplinary liability only in cases specified by law (article 123(3) of the constitution); iii) the appointment, removal, placement, promotion, and transfer of judges and the exercise of discipline is a competence of Supreme Judicial Council (article 123(4) of the constitution); and iv) there are limits to the amendment of the provisions dealing with the independence of the courts (article 130(j) of the constitution).

In Mozambique:⁴⁹ i) the offices of President of the Supreme Court, the President of the Constitutional Council, President of the Administrative Court, Attorney-General (p. 175) of the Republic, Vice-president of the Supreme Court, and the Deputy Attorney-General of the Republic are mutually incompatible with other public offices (article 137(1) of the constitution); ii) judges in office may not be deputies (article 172(1)(b) of the constitution); iii) judges are independent with regard to the exercise of their functions (article 217(1) of the constitution); iv) judges are given guarantees of impartiality and of irresponsibility (article 217(2) of the constitution); v) judges shall be irremovable from office and may not be transferred, suspended, retired, or dismissed, except in accordance with the law (article 217(3) of the constitution); vi) judges may be held responsible in civil, criminal, and disciplinary proceedings for acts performed in the exercise of their duties only in cases prescribed by law (article 218(1) of the constitution); and vii) there are limits to the amendment of the provisions dealing with the independence of the courts (article 292(i) of the constitution).

The UN Human Rights Commission, in their concluding remarks made ​​in the initial report submitted on Mozambique in 2013, drew attention to the following concerning the courts:⁵⁰ i) ‘While noting the efforts made by the State party regarding the training and employment of more judges, the Committee remains concerned about the insufficient number of judges and their inadequate training. It is further concerned about the lengthy delays in the administration of justice, the lack of clarity on the calculation of court fees and difficulties encountered by disadvantaged persons in accessing legal assistance. The Committee is also concerned at reports that the system of community courts inherited from colonial times does not appear to function according to basic fair trial principles and their decisions can contradict human rights principles (articles 2 and 14)’; and ii) ‘The State party should continue to increase the number of qualified and professionally trained judicial personnel, as a matter of urgency; continue efforts to decrease delays in proceedings, simplify and make transparent the procedure by which court fees are calculated and ensure that legal assistance is provided in all cases where the interest of justice so requires. The state party should also ensure that the system of community courts functions in a manner consistent with article 14 and paragraph 24 of general comment no 32 (2007) on the right to equality before courts and tribunals and to a fair trial, and decisions emanating from these bodies do not run counter the state party’s obligations under the Covenant.’⁵¹

The ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers’, dedicated to Mozambique, was presented by Gabriela Knaul, in 2011, to the United Nations Human Rights Council. The following excerpts from the report are particularly relevant:

i) During her visit, the Special Rapporteur observed that CSMJ [the Higher Judicial Magistrates’ Council] has found it difficult to exercise its mandate in an effective and independent manner, due to a number of factors: it is understaffed and has not (p. 176) adopted internal statutes governing its functioning, thus leaving its effective control in the hands of its President, who is also the President of the Supreme Court. CSMJ should undertake planning processes, including determining staffing and budgeting needs. It should also publish its activities. In the Special Rapporteur’s view, these factors, together with the nomination process of its members, seriously undermine the functioning of CSMJ, which is crucial to ensuring the independence of the judiciary;⁵²

ii) Budget allocations are used in some instances to undermine the independence of the judiciary. Several interlocutors inquired how judges and prosecutors could carry out their mandates independently and impartially when the same judges and prosecutors often need to negotiate the budget for their respective offices. The possibility of making concessions to obtain suitable budget allocations was mentioned;⁵³

and

iii) The Special Rapporteur heard from many stakeholders that the concentration of powers in the President of the Republic is a major factor having a detrimental impact on the independence of the judiciary.⁵⁴

In São Tomé and Príncipe: i) the courts are independent and subject only to the laws (article 121 of the constitution); ii) judges are irremovable and may not be transferred, suspended, retired, or dismissed except in accordance with the law (article 125(1) of the constitution); iii) judges cannot be held accountable for their decisions, unless otherwise provided for by law (article 125(2) of the constitution); and iv) the independence of the courts is subject to a limit of constitutional revision (article 154(h) of the constitution).

3.5  The appointment of judges to the High Courts, the Attorney-General, and members of the supervisory bodies of the judiciary in the constitutions of the Lusophone African states

It is in the matter of the appointment of judges to the High Courts, the Attorney-General, and members of the supervisory bodies of the judiciary where it is possible to find the greatest differences between the constitutions of the Portuguese-speaking African states. From a strictly legal perspective, these differences are a consequence, first of all, of the type of system of government adopted in the respective states. From another perspective, taking into account the effective functioning of the political system, the differences listed are the translation to a greater or lesser degree of the independence of members of the judiciary from the executive.⁵⁵

(p. 177) The possibility of executive power controlling the judiciary through the appointment of its members is particularly high in the case of Angola. In fact, article 119 of the 2010 constitution of Angola sets out that the President of the Republic, as Head of State, with the responsibility of: i) appointing the Presiding Judge of the Constitutional Court and other judges of the said court (article 119(e)); appointing the Presiding Judge of the Supreme Court, the Deputy Presiding Judge, and the other judges of the said court on the recommendation of the Supreme Judicial Council (article 119(f)); iii) appointing the Presiding Judge of the Court of Auditors, the Deputy Presiding Judge, and the other judges of the said court, under the terms of the constitution (article 119(g)); iv) appointing the Presiding Judge, the Deputy Presiding Judge, and the other judges of the Supreme Military Court (article 119(h)); v) appointing and discharging from office the Attorney-General, the Deputy Attorney-General, and, on recommendation of the Supreme Judicial Council, the Assistant Attorneys-General, as well as the Military Prosecutors of the Supreme Military Court (article 119(i)); and vi) appointing members of the Supreme Judicial Council, under the terms prescribed by the constitution (article 119(t)).

The issue of the compatibility of the independence of the courts and the appointment of office holders in the justice system was explicitly acknowledged in Judgment No 111/10, of 21 January, of the Constitutional Court of Angola. The reasoning used by the Constitutional Court is of particular interest since it stated that the intervention of the executive in the appointment of judges is required by the need to overcome the lack of democratic legitimacy in the exercise of their functions. In addition, based on a strictly formal approach to the matter, it is assumed that the existence of a process where candidates are selected based on a study of their curriculum vitae is a sufficient guarantee for the appointment of judges independent from the executive manipulation.

Given the rarity of such judgments in the African Portuguese-speaking countries, a fairly extensive quotation from the judgment may aid an understanding of the terms under which the matter is approached using a merely legalistic reasoning. The Court stated:

The Constitution provides for the intervention of the President to appoint four of the 11 judges of the Constitutional Court, as does the National Assembly (Article 180); it also provides for the appointment by the President of the Judges of the Supreme Court (Article 181), the Judges of the Military Court, and the Court of Auditors.

It is also provided that the President and the National Assembly may intervene in the appointment of members of the Supreme Judicial Council (article 184).

It is important to assess whether these appointments and designations made by the executive branch (the President) and the legislature (National Assembly) violate the principle of the independence of the courts.

With regard to the Supreme Court judges, we can immediately stress that the power committed to the President is a simple formalization of the designation, as the (p. 178) Supreme Court judges are selected by curricular tender, with the appointment of the President subject to a proposition from the Supreme Judicial Council. A similar solution prevails in the light of its organic law for the appointment of the judges of the Court of Auditors which is preceded and conditioned by a curricular tender.

On the other hand, it is common in the democratic law state, that the powers of the state democratically legitimated by direct universal suffrage (as the President and the National Assembly) intervene in the process of appointment of Judges, either to avoid or limit corporatist access to the Courts and the Judiciary, and also, although indirectly, to contribute to a reduction of the democratic deficit of the judiciary itself.

Therefore, and because the Judges so appointed are constitutionally protected by the guarantees of tenure, exempt from bearing responsibility for judgments, independence, and of no subordination to the entities that appoint or elect them, the Constitutional Court understanding is that the text of the Constitution under consideration does not violate the principle of the independence of the courts.

The wording of Cape Verde’s 1992 constitution, in contrast to the constitutions of the other Lusophone African countries, incorporates the most appropriate legal conditions to ensure the effective independence of the judiciary from the executive power. Article 135 of this constitution provides that the President of the Republic is competent: i) to appoint the Chief Justice of the Supreme Court from amongst the judges of such court, following nomination by the candidate’s peers (article 135(1)(k)); ii) to appoint a judge to the Supreme Council of Magistrates (article135(1)(l)); iii) to appoint the President of the Supreme Council of Magistrates, following nomination by the members of that body (article 135(1)(m)); iv) to appoint, following the government’s proposal, the President of the Court of Auditors (article 135(2)(k)); and v) to appoint, following the government’s proposal, the Attorney-General of the Republic (article 135(2)(f)).

In Guinea-Bissau’s fairly short and concise constitution, the issue of appointment of members of the judiciary is not subject to a very detailed treatment. It states inter alia that: i) the President of the Republic has the right: a) to induct the judges of the Supreme Court (article 68(n)); b) to appoint and dismiss, after hearing the opinion of the Government, and the Attorney-General of the Republic (article 68(p)); and ii): a) the judges of the Supreme Court are ‘appointed by the Supreme Judicial Council’ (article 120(1)); and b) ‘in its composition, the Supreme Judicial Council will have, at least, representatives of the Supreme Court and of the other courts, and representatives from the National Assembly, in terms to be fixed by law’ (article 120(6)).

In Mozambique, in terms similar to those applying in Angola, the progressive presidentialization of the system of government has led to a process for the appointment of members of the judiciary that can be used to put them in a position of subordination in relation to the executive branch. In the constitution it is stated: i) that it is the responsibility of the President of the Republic: a) to appoint the President of the Supreme Court, the President of the Constitutional Council, the President of the Administrative Court, and the Vice-President of the Supreme Court (article 159(g)); b) to appoint, exonerate, and dismiss the Attorney-General of the Republic and the Deputy Attorney-General of the Republic (article 159(h)); and ii) in article 179(2)(h) that the Assembly of the Republic shall have exclusive power to ratify (p. 179) the appointment of the President of the Supreme Court, the President of the Constitutional Council, the President of the Administrative Court, and the Vice-President of the Supreme Court.

In São Tomé and Príncipe, besides the fact that the judicial power of appointing members to the judiciary is not subject to detailed treatment in the constitution, it must also be added that the selection of the members of the judiciary is considerably influenced by the very small number of qualified lawyers available. In the 1990 constitution it is provided: i) that it is the responsibility of the President of the Republic: a) to appoint a judge to the Constitutional Court (article 81(k)); b) to appoint and dismiss the Attorney-General of the Republic, according to government proposals (article 81(l)); and ii) in article 97(e) that it is the responsibility of the National Assembly to appoint and dismiss the judges of the Supreme Court of Justice.

3.6  The power to pardon and commute sentences in the constitutions of the Lusophone African states

The power to pardon and to commute sentences appears in all the constitutions of Lusophone African states as a power granted to the President of the Republic, regardless of the form of government adopted in that state. In Angola, this is referred to in article 119(n) of the constitution and it appears under the ‘powers as Head of State’.⁵⁶ In Mozambique, it is referred to in article 159(i) of the constitution and is included within the so-called ‘general powers’.⁵⁷ In Guinea-Bissau, in accordance with article 68(t) of the constitution, that power is attributed solely to the president.⁵⁸ In Cape Verde and São Tomé and Príncipe it is a competence of the President of the Republic that can be exercised only after ‘consulting with the Government’ under, article 135(1)(n)⁵⁹ and article 80(f) of the respective constitutions.⁶⁰

Following the Portuguese tradition, this presidential power is not considered to be of great importance in any of the Lusophone African systems, nor is it considered to constitute a potential interference by the executive in the judiciary. The justification for this view results from the fact that amnesties have been granted when criminal matters involving a component of political nature need to be solved.