1.1  Pre-independence constitutional status

Angola’s constitutional development thus far has not claimed a place in the writings and debates of constitutionalists and constitutional law practitioners outside the community of Portuguese-speaking scholars. This chapter aims to introduce to the community of constitutional law experts in Southern Africa and beyond, the evolution of the current Angolan constitution of 2010. The chapter further introduces the new Angolan Constitutional Court and cites and discusses the first and thus far only substantive decision of this Court, in a serious constitutional conflict between parliament and the president, the Parliamentary Oversight Judgment of 9 October 2013. Although the conservative leaning of the Court in this dispute disappointed the opposition and many commentators, the judgment nevertheless strengthened the rule of law and of the constitutional state and contributed to a wider debate about the future of how governance can and should be organized in a modern African state.

Angola has a five-century-long centralist and presidentialist tradition. The country’s seat of government was established in the city of Luanda in 1576, eighty-two years after the territory had been occupied by Portuguese explorers.¹ Following independence in 1975, the colonial administrative tradition was easily absorbed and reinforced by the Movimento Popular de Libertação de Angola (MPLA) liberation movement.² Article 60 of the independence ‘Constitutional Act’ of 11 November 1975 recorded that the Independence Constitution was enacted by resolution of the Central Committee of the MPLA liberation movement, in the absence of any constituent assembly process or elections.³

(p. 183) Article 1 of the 1975 constitution declared the new independent state of Angola to be a country where ‘any form of exploitation of man by man’ would be abolished,⁴ and article 2 announced that the MPLA party was vested with the status of the only lawful political party in Angola, with the constitutional mandate to exercise complete control over the state and all its organs. Accordingly, the new government replaced the colonial administrators throughout the country and at all levels of administration with party commissars, as mandated in articles 31 to 52 of the new constitution, and later in Act No 1 of 1976.⁵

The self-proclaimed ‘People’s Republic of Angola’ established political party primacy over all political, social, cultural, and economic activity. All natural resources, land, industries, private enterprises, real estate, and other private assets (such as private bank account balances or insurance policies), were nationalized and transformed or merged into so-called ‘State Economic Units’ (Unidades Economicas Estatais; UEE) under the concurrent management and control entrusted to the Ministries of Planning and Economy. This policy persisted well into the 1990s.

Three amendment Acts of the Independence Constitution, each passed by resolution of the Central Committee of the MPLA, served to reinforce the centralist and executive system of government. First, Act 13/77 of 7 August 1977 transferred the power to appoint the prime minister and any ministers from the legislative Revolutionary Council to the state president alone, and further gave the president the right to appoint anyone to act in his place, in the event of his absence or illness. Second, on 7 February 1978 the MPLA Central Committee resolved to ‘re-enact’ the Independence Constitution and in the process, further formalized Leninist government ideals, whilst at the same time introducing fundamental new concepts, such as the notion of ‘Socialist Property’ (article 9). Third, Act 1/79 abolished the offices of the prime minister and deputy prime minister, concentrating further political power in the office of the state president. Shortly after this amendment the first Angolan president, Agostinho Neto, who was suffering from severe cirrhosis of the liver, died on 10 September 1979 during treatment in Russia.

The successor of President Neto, José Eduardo dos Santos, appointed by the MPLA Central Committee on 20 September 1979, initiated the establishment of a system of local, regional, and one national ‘Peoples’ Assemblies’. Almost exactly a year after the demise of President Neto, a Constitutional Amendment Act was passed on 23 September 1980, again by resolution of the MPLA Central Committee, to institute the first elected state organ, namely an indirectly elected, national ‘People’s Assembly’. The People’s Assembly replaced the earlier ‘Revolutionary Council’. However, most of the envisaged local and provincial peoples’ assemblies that should have secured an indirect electoral legitimacy for the People’s Assembly were never constituted. Instead, Act 1/86 of 1 February 1986 created the position of ‘state minister’, namely ministers appointed by the president, to function in the state president’s office (as opposed to government ministers). The measure strengthened the day-to-day grip of the president on the country’s affairs and relegated the Cabinet and its ministers to a secondary level.

Page Id: 183ReferencesConstitution of the Republic of Angola: November 11, 1975 (as Amended to 26 August 1992) (Angola [ao])Part 1 Fundamental Principles, Art.1 OCWPart 1 Fundamental Principles, Art.2 OCWPart 2 Fundamental Rights and Duties, Art.31 OCW(p. 184) At that point in the history of post-colonial Angola, negotiations were underway to end the civil war that had continued since the declaration of independence, in view of the exclusion of two other important liberation movements, namely União Nacional para a Independência Total de Angola (UNITA) and Frente Nacional de Libertação de Angola (FNLA).⁶ The first formal peace agreement between the three rival movements was the Tri-Partite Agreement of 22 December 1988 between Angola, South Africa, and the United States. It gave rise to a United Nations Angola Verification Mission (UNAVEM I), from 20 December 1988 until 1 July 1991.⁷ There were two main objectives, namely to create the conditions regionally for an honourable withdrawal of the South African military from Angolan territory, and for the proclamation of the independence of South West Africa, as the new independent State of Namibia.

A month before the UNAVEM I mission ended, Portuguese mediation efforts produced a new ceasefire agreement, as part of the so-called Bicesse Accords of 31 May 1991. The Bicesse Accords envisaged the political transformation of Angola into a multi-party democracy, motivated by the general anticipation of the dissolution and prohibition of the Communist Party of the Soviet Union on 29 August 1991.

1.2  The 1991/92 constitutional reforms (multi-party democracy)

The fundamental change of Angola from a one-party state into a multi-party democracy prompted the passing of Constitutional Act 12/91 of 6 March 1991.⁸ When the March 1991 amendment was rejected by UNITA, a Constitutional Amendment Act No 92 of 16 September 1992 was passed. Technically this was an amendment of the 6 March 1991 Constitution Act. In reality however, Act No 92 of 16 September 1992 introduced an entirely new constitutional text. Act 92 of 1992 remained in force as Angola’s constitution for nearly eighteen years, until 5 February 2010, simply because the Angolan civil war resumed just before the conclusion of the October 1992 elections, making it impossible to take the envisaged further constitution-making steps.

The last remaining rebel forces of UNITA were overrun on 22 February 2002. UNITA President Savimbi was captured and executed. The Luena Protocol of 30 March 2002 formalized the surrender of all UNITA forces and ended twenty-seven years of civil war by military victory, thus opening a new chapter in the constitution-making process in Angola.

1.3  The road to a democratic constitution-making process

The 1992 constitution vested, in its article 158, constitution-making authority in the National Assembly, empowering it to adopt a ‘New Constitution’ as well as to amend Page Id: 184ReferencesConstitution of the Republic of Angola: November 11, 1975 (as Amended to 26 August 1992) (Angola [ao])Part 5 Guarantee and Amendment of the Constitutional Law, Ch.II Amendment of the Constitution, Art.158 OCW(p. 185) the ‘current constitutional law’ with a two-thirds majority of all its members.⁹ The 1992 constitution had come into force as a provisional and circumstantial text, conditioned by the assumption that a first freely-elected national parliament would proceed to elaborate and approve a more final and inclusive constitution. When the first term of this Assembly came to its end in 1996, whilst the civil war was continuing unabated, it was not possible to hold new elections. A Constitutional Amendment Act of 14 November 1996¹⁰ provided for an indefinite extension of the term of the 1992 legislature, whilst at the same time setting a number of conditions for the holding of the next general elections: amongst them, and most importantly, the elaboration and approval by the 1992 Assembly of a new constitution before the holding of any new elections.

The task of elaborating a new constitution commenced in 1998, when the Assembly appointed a forty-four-member Constitutional Committee.¹¹ It took the Constitutional Committee almost two years, until 16 February 2000, to agree on a list of twenty-seven constitutional principles that would guide the drafting process.¹² Finally, after the cease-fire agreement of Luena of 30 March 2002 put a definite end to the civil war, the National Assembly appointed a technical drafting team under the direction of Professor Rui Ferreira of Agostinho Neto University. The drafting team produced a final text for comment in January 2004, incorporating in it, as far as possible, the individual drafts submitted by the parties.¹³

At that stage, on 12 May 2004, the opposition in the National Assembly embarked on an indefinite boycott of the proceedings of the Constitutional Committee over the refusal of State President Dos Santos to commit his government publicly to an election date, not just for parliamentary elections, but for the direct presidential election as well. The government retorted by insisting that article 1 of Constitutional Amendment Act 18/1996 of 14 November 1996 had determined that a new constitution had to be adopted before any new parliamentary elections could take place, whilst being silent on presidential elections. Consequently, only a newly elected assembly would be in a position to establish the framework for presidential elections. Eventually, a compromise was found and expressed in Constitutional Amendment Act 11/05 of 21 September 2005,¹⁴ amending the aforementioned Act 18/1996 by removing the requirement for the passing of a new constitution for the holding of parliamentary elections only. As a result, parliamentary elections took place on 8 September 2008, whilst the president as (p. 186) head of state continued in office for the twenty-ninth consecutive year, since 20 September 1979, as the original ‘interim President’ in terms of article 5 of the transitional and introductory provisions of Constitutional Amendment Act 23/92 of 16 September 1992.¹⁵

One of the first tasks of the newly elected Assembly was to pass the Act to constitute a new Constitutional Commission (CC).¹⁶ This occurred on 15 December 2008. The CC commenced its work on 6 January 2009 and established on 7 March 2009 an all-important Technical Committee under the chair of Professor Carlos Feijó, who subsequently assumed the role of Minister of State in the Office of the President, tasked with the responsibility of directing the civilian administration of that office. The Technical Committee assumed the responsibility of consolidating a total of five complete constitutional proposals that had been submitted by the political parties. The consolidation produced three alternative model drafts, published by the CC on 1 November 2009.¹⁷

The main differences between the drafts focussed on the proposal by the governing MPLA party to circumvent the requirement of a direct election of the head of state and president contained in the list of entrenched principles in article 159 of the 1992 constitution.¹⁸ In order to avoid tampering with the entrenchment clause, the MPLA proposed that the first name appearing on the list of candidates of the winning list of members of parliament would automatically be deemed to have been directly elected as president and head of state.

The final consolidation of the three alternative models favouring the MPLA proposal was approved in the National Assembly on 3 February 2010, after some last-minute changes to the wording of two provisions at the request of the Constitutional Court, exercising its pre-emptive review jurisdiction in respect of the CC’s proposal.¹⁹ The UNITA opposition party boycotted the final vote in the Assembly (its deputies Page Id: 186ReferencesConstitution of the Republic of Angola: November 11, 1975 (as Amended to 26 August 1992) (Angola [ao])Part 5 Guarantee and Amendment of the Constitutional Law, Ch.II Amendment of the Constitution, Art.159 OCW(p. 187) abandoned the proceedings before the vote), in protest against what they stated had been a total exclusion of their views in the final drafting stages. The final text, currently in force, was promulgated by the state president and gazetted on 5 February 2010 and is thus known as the constitution of 5 February 2010.²⁰ The text was gazetted by the ‘Constituent Assembly of the Republic of Angola’ as the National Assembly elected in September 2008 was deemed to have acted as a ‘constituent assembly’ for the purposes of voting on the constitution.²¹

An obvious procedural point of criticism is that the constitution-making process was compromised by the defects of the electoral process in September 2008. In a document exceeding 300 pages, the opposition parties listed significant discrepancies and irregularities that affected the results.²² What most observers believed to have been an ‘over-correction’ by the government-dominated election administration yielded an 81.64 per cent majority to the government party MPLA.²³ The overwhelming result would have been hard to match by any presidential candidate in a direct election, becoming an unintended but persuasive motivation to adopt a constitutional procedure whereby a direct presidential election could be avoided.

2.1  Separation of powers

The constitution mentions the principle of separation of powers twice. The principle is included in the definition of ‘democratic state based on the rule of law’ in article 2(1) whereby ‘Angola is a democratic State based on the rule of law that has as its foundations in the sovereignty of the people, the supremacy of the Constitution and the law, the separation of powers and the interdependence of functions, national unity, pluralist freedom of expression and of political association as well as representative and participatory democracy’. As the most recent commentary by Araujo and Rangel Nunes laconically observes, the ‘separation of powers’ principle in the Angolan constitution is a ‘relative’ one.²⁴ Article 105(3) lists as the sovereign organs of the state, the state president, parliament, and the courts and stipulates that they shall respect ‘the separation and interdependence of the functions’ attributed to them by the Page Id: 187ReferencesConstitution of the Republic of Angola: November 11, 1975 (as Amended to 26 August 1992) (Angola [ao])Part 1 Fundamental Principles, Art.2 OCW(p. 188) constitution. Nevertheless, the principle of separation of powers is listed in article 236(j) as one of the ‘entrenched’ principles or guarantees that may not be abolished by constitutional amendment. The scope of application and the exact understanding of the principle of separation of powers are clearly left to interpretation, in the context of the other fundamental principles.

2.2  Constitutional principles

Articles 1 to 21 in Title I of the constitution provide individual provisions on the republican nature of the state (article 1); the principle of a democratic state based on the rule of law (article 2, a literal translation of the German concept of the ‘demokratischer Rechtsstaat’); the concept of sovereignty vested in the people (article 3); the exercise of political power through elected officials and organs (article 4); territorial integrity (article 5); the supremacy of the constitution and the rule of the law of the constitution (article 6); the subsidiary and thereby merely subordinate legal force of (African) customary law (article 7); the unitary (as opposed to federal) organization of the state (article 8); the Angolan nationality in terms of the ius sanguinis rule (article 9); the secularity of the state (article 10); commitments to international peace and national security (article 11); peaceful international relations (article 12); international law (article 13); the acknowledgment of the right to private property and free economic initiative (article 14); the state’s original (but transferrable) right of ownership of land (article 15); the state ownership of all natural resources (article 16); the recognized role of political parties (article 17); the definitions of the national symbols (article 18); the official languages (article 19); the capital city (article 20); and the ‘fundamental tasks of the State’ (article 21; a term taken again from the German constitutional law concept of ‘Staatsziele’).

2.3  Constitutional and democratic rule of law

The guarantees just listed indicate the constitution’s strong leaning towards the liberal values of individual rights and freedoms, the rule of law, and a market economy. The latter is conditioned, however, by the principles stipulated in articles 14, 15, and 16, characterizing Angola as a typical developmental state, where ownership of all natural resources, including (in principle) land, is retained by the state. The ‘Economic Constitution’, retaining the duty of the state to plan the economy, is regulated in a separate Title III, containing articles 89 to 98. Thus, the fundamental principles and fundamental rights provisions cannot be read and fully understood without reference to the constitution’s Part on ‘Economic, Financial and Fiscal Organisation’.²⁵ The originally Marxist tradition of the primacy of the political over all aspects of law and government still inspired the provisions setting up the national bank, the ‘Banco de Page Id: 188ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title I Fundamental Principles, Art.1 (The Republic of Angola) OCWMain Text, Title I Fundamental Principles, Art.14 (Private property and free initiative) OCWMain Text, Title I Fundamental Principles, Art.15 (Land) OCWMain Text, Title I Fundamental Principles, Art.16 (Natural resources) OCWMain Text, Title III Economic, Financial and Fiscal Organisation, Chapter I General Principles, Art.89 (Fundamental Principles) OCW(p. 189) Angola’, which is established in article 100 without any guarantees of autonomy or independence.

3.1  Obligatory dual vote

The most controversial aspect of the 2010 constitution is its choice of a ‘presidentialist’ system of government in the absence of a direct election of the president. The procedure chosen in the constitution utilizes as a basis the Angolan party list or proportional representation electoral system and excludes the possibility of independent candidates. According to article 109, the first name appearing on the winning list of candidates for seats in the National Assembly is deemed to have been ‘directly elected’ to the office of state president, and no further vote in the Assembly is required for his assumption of office.²⁶ An original clause, whereby the president would nominate and appoint the deputy president who would succeed him in case of impeachment or illness or death, and represent him during his absence, was disallowed by the ruling of the Constitutional Court in its review of the draft constitution.²⁷ Instead, article 131(2) provides that the second name appearing on the list of candidates for election to parliament, of the list of candidates achieving the highest number of votes, shall be deemed to have been elected as vice-president.

The appointment of the president and deputy president by mere reference to their ranking on the winning list of candidates for election to the National Assembly established an appointment by way of legal fiction, referred to by some authors as ‘parliamentary presidentialism’.²⁸ Article 111 determines that only political parties or coalitions of political parties can ‘nominate’ a candidate for the office of president. The nomination is achieved through the ranking of a candidate on the list of candidates for the parliamentary election. Also termed ‘obligatory dual vote’, the list-ranking determination for the appointment of the president and deputy president presupposes a proportional electoral system based on a national list, and takes the democratic deficit inherent to proportional list systems to the extreme. The party list of candidates for members of parliament that accumulates the majority of the votes automatically also ‘generates’ the appointments of the president and the deputy president, the first and second names appearing on that wining list being deemed to have been elected as president and deputy president.

Page Id: 189ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter II Executive Power, Section I President of the Republic, Art.109 (Election) OCWMain Text, Title IV Organisation of State Power, Chapter II Executive Power, Section I President of the Republic, Art.111 (Nominations) OCWMain Text, Title IV Organisation of State Power, Chapter II Executive Power, Section IV Liability, Resignation and Vacant Office of President of the Republic, Art.131 (Vice-President)(2) OCW(p. 190) Vital Moreira, one of the foremost authorities on constitutions and constitutionalism in Lusophone countries and a member of the European Union Parliament labelled the 2010 Angolan Constitution ‘hyper-presidentialist’.²⁹ Another renowned Portuguese constitutional law expert, Jorge Miranda, equated the presidential powers granted by the 2010 constitution to those established by the 1933 Portuguese constitution of the authoritarian Salazar regime.³⁰ Others have pointed out that the concentration of presidential powers is not balanced by the checks and balances normally afforded by a direct election of the president and that the resulting parliament is weak.³¹

According to article 119(d), the president freely appoints and dismisses the ministers of state in his own office, as well as the ministers and deputy ministers making up his Cabinet (Conselho de Ministros) which he chairs, and all provincial governors and deputy governors.

The president further appoints all judges, based on different nomination procedures. In the case of the Constitutional Court, the president appoints and selects the Judge President plus a further three out of the total number of eleven judges as will be discussed in more detail in the next section. In the case of the Supreme Court, the president appoints and selects the Judge President and the Deputy Judge President from a list of three candidates proposed to the president by the Council of the Judiciary (Conselho da Magistratura). The judges of the Auditor-General Court and the Supreme Military Court, as well as the Attorney-General and his deputies and the Military Chief Prosecutor and his deputies, are all freely appointed by the president.

The president’s power to declare war or national emergencies is exercised freely, requiring merely that the National Assembly be consulted (article 119(m)–(p)). As permanent Commander-in-Chief of the Defence Force, the President also directly appoints all chiefs-of-staff, as well as the top commanding officers of the police and state security and intelligence agencies (article 122).

Besides the power to initiate referenda (article 119(m)), the president has his own legislative powers. This goes back to a particular legislative tradition in Portuguese constitutional law which is continued by providing for a distinction between the exclusive and non-exclusive legislative competencies of the National Assembly. In matters not pertaining to the exclusive competency of parliament (listed in article 164), as well as on the basis of delegated legislative authority, both the president and his government can legislate by means of a so-called legislative decree. Additionally, the president can pass provisional presidential legislative decrees on any matters, including Page Id: 190ReferencesConstitution of Portugal (Portugal [pt])Constitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter II Executive Power, Section III Reponsibilities, Art.119 (Responsibilities as Head of State) OCWMain Text, Title IV Organisation of State Power, Chapter II Executive Power, Section III Reponsibilities, Art.122 (Responsibilities as Commander-in-Chief) OCWMain Text, Title IV Organisation of State Power, Chapter III Legislative Power, Section IV Competence, Art.164 (Exclusive power to legislate) OCW(p. 191) those pertaining to the exclusive competency of parliament, subject only to the subsequent approval of the National Assembly within sixty days, which term is extended for equal periods of sixty days for as long as the National Assembly has neither rejected or converted the presidential legislative decree into an Act of Parliament (article 126).

Other than by impeachment, the president cannot be removed, but unlike under the 1992 constitution, he no longer enjoys an explicit power to dissolve the National Assembly. However, he can resign from office and thereby trigger the provision in article 128 for the automatic or ipso jure dissolution of the National Assembly, for the holding of new parliamentary elections within ninety days which election can reappoint the same president, provided his name reappears as the first name listed on the list of candidates for members of parliament.

Besides his ‘Council of Ministers’, the president’s office is supported by a State Council (Conselho da República) and a State Security Council. Both are consultative organs assembling a number of officials and ex officio members.

It is clear that the office of the president is subject to ‘checks and balances’ only from the National Assembly (parliament), and the Constitutional Court. The functioning and interaction of both was most recently tested in the judgment by the Constitutional Court of 9 October 2013, case no 319 of 2013.

3.2  Presidential absolutism

The Constitutional Court already existed before the 2010 constitution, in terms of Acts 2/08 and 3/08 of 17 June 2008. The original enabling legislation was amended by Acts 24/10 and 25/10 of 3 December 2010.³² Act 2/08 provides for the establishment of the Constitutional Court and Act 3/08 for the procedure before the Constitutional Court.

In terms of article 180(2)(a) and the corresponding article 16(m) of Act 2/08 (as amended), the Court enjoys a generic jurisdiction to ‘examine the constitutionality of any norm or other acts of the State’. This widely cast provision was, and continues to be, interpreted by the Court to grant it the power to hear individual complaints against unconstitutional encroachments of fundamental rights and freedoms.

The legislature, in Amendment Act 25/10, acknowledged this ‘inherent’ competency of the Court by amending article 49 of Act 3/08 (procedure before the Constitutional Court) so as to provide that individual complaints of an unconstitutional encroachment upon fundamental rights and freedoms can only be heard once all ordinary legal remedies have been exhausted.

As provided in article 16 of Act 2/08 (as amended by Act 24/10), the Constitutional Court decides on requests for a finding of unconstitutionality of any law or legal norm (abstract review); the pre-emptive examination of the constitutionality of any proposed legislation (abstract pre-emptive review); possible infringements of the constitution by omission; appeals against the refusal of an ordinary court to apply a law on the grounds Page Id: 191ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter II Executive Power, Section III Reponsibilities, Art.126 (Provisional Presidential legislative decrees) OCW(p. 192) of unconstitutionality; appeals against the application of an unconstitutional law by a court; all appeals relating to national elections and disputes arising from a referendum; mandates of members of the National Assembly; the establishment, legality, and prohibition of political parties; matters of constitutional interpretation submitted to the Court by the president or the National Assembly; and conflicts of competency between organs of the state.

The Court is composed of eleven judges: four—including the Judge President—who are appointed by the State President, four who are appointed by the National Assembly (including the Deputy Judge President), two who are appointed by the National Council of the judiciary, and one judge based on a national and open tender and selection process to be conducted by the Constitutional Court itself. All the judges hold one term of office of seven years, which is not renewable. An original intention to set up chambers has so far not materialized. The procedure is a written one only, and the Court does not conduct any trials or hearings.

In case no 319 of 9 October 2013,³³ the Constitutional Court declared unconstitutional several key provisions of the Procedural Rules of Parliament (‘Regimento’, Act 113/12 of 2 May 2012), governing the parliamentary right of putting questions to the executive, namely articles 261(1)(c), 261(2), 260, 269, 270, 271, and 268 (partially). To any scholar unfamiliar with the intricate turns of interpretation of Angolan constitutional law the provisions in the Assembly’s Rules that a group of deputies of the majority MPLA party had challenged before the Constitutional Court, would appear to be entirely normal and innocent.

Article 261 lists specific powers of the Assembly to ‘exercise its controlling and oversight functions’, for example, in subsection 1(c) read together with subsection (2) the right to ask questions and put interpellations to any state organs, as well as to conduct hearings and parliamentary inquiries. Article 260 of the Assembly’s Rules provides that the oversight by the Assembly shall be directed chiefly at the activities of the executive, of the public administration on central, local, indirect, and municipal levels as well as in relation to any organs applying public funds or utilizing public assets. As far as this oversight will affect the administration of justice, its scope shall be limited to utilization of public funds and public assets. Articles 269, 270, and 271 regulate the exercise of the powers of the Assembly to put questions and to interrogate ‘Ministers of State’ (that is, ministers appointed in the office of the state president), Cabinet ministers, and provincial governors, on request of any member, but through the leader of that member’s parliamentary group. The questions must be submitted with fifteen days’ notice and during their debate, members shall each only be allowed five minutes for their interventions. Finally, article 268 defines parliamentary hearings as meetings convened by parliamentary commissions for the purpose of hearing members of the executive, public servants, or any persons with particular knowledge on matters that may be relevant to the workings of the Assembly.

The constitutionality challenge to the above provisions provides an invaluable insight into the evolution of the Angolan form of presidentialism. The challenge was (p. 193) a reaction of the MPLA group of deputies against requests made by the opposition party UNITA to summon the administrators of the national water and electricity utility companies over continuing and worsening service delivery issues.

The first argument to bar the opposition from requesting the appearance in parliament of members of the executive or administrators of state-owned utility companies, invoked a formalistic reading of article 162 of the constitution on the Assembly’s ‘Oversight and Controlling Competencies’. The opponents of a comprehensive right of oversight and interpellation of the Assembly argued that article 162 of the constitution does not specifically determine how the Assembly may exercise its oversight and controlling powers, and that parliamentary hearings or question sessions are not specifically mentioned in article 162.

The Constitutional Court essentially concurred with the restrictive reading of article 162 of the constitution and added that parliament under the 1992 constitution had wider powers than under the 2010 constitution, because of an allegedly fundamental change in the system of government. The judgment began by recalling that the constitutionally guaranteed principle of separation of powers grants a power of decision within the scope of an organ’s competencies, as well as a blocking power, in relation to other state organs. The Court referred verbatim to the French concepts of ‘faculté de statuer’ and ‘faculté d’empécher’.³⁴

The Court than expanded this approach by stating (author’s own translation):

In a democracy, government systems are based primarily on one of the following models of separation of powers: separation of powers by integration, or separation of powers by coordination.

The separation of powers by integration is characteristic of government systems that have a parliamentary foundation in which the executive branch is the result of a parliamentary majority elected by the citizens. Consequently, there is a relationship of subordination of the Executive branch in relation to Parliament, to whom it is accountable. Furthermore, and in its oversight role, Parliament can put questions to the members of the Executive and even pass motions censuring the Executive branch or rejecting motions of confidence, thus provoking the dismissal of the Government.

In systems where the separation of powers is achieved by means of coordination, as in the case of presidential systems of government, the situation is different. Here, the organization of state power, is established through a triangular relation between the Legislative, Executive and Judiciary, by means of checks and balances so that the functions among different organs are divided and balanced in such a manner that none can exceed the limits established by the Constitution, without being prevented and restrained by the other organs, resulting in an interdependence between them.

Page Id: 193ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter III Legislative Power, Section IV Competence, Art.162 (Competence for control and scrutiny) OCW(p. 194) …

The current Constitution of the Republic of Angola has introduced substantial changes to the governance system and to the nature of the Executive branch.

The system of governance adopted now has a presidential base and the Executive is a singular body grounded on a system where the President of the Republic is the Head the State, the head of the Executive branch, as well as the Commander in Chief of the Armed Forces (article 108(1) of the Constitution). The Ministers of State and the Cabinet Ministers, whilst retaining the competencies and designations that they already had during the previous system of government, are now auxiliary organs of the office of the President (article 108(2) and 134 of the Constitution).

The new configuration of the constitutional organs of sovereignty has two fundamental characteristics that enhance the independence between the Executive and the Legislative branches: the Executive does not depend politically on the Legislature, who may not vote on any motions of censure and cannot thereby dismiss the government; on the other hand, the Executive cannot dissolve the National Assembly.

Under the current Constitution, Ministers of State and Ministers exercise delegated powers, and therefore the tasks carried out by them are attributed to the President (article 137 of the Constitution).

…

Thus, in summary, it is the understanding of this Constitutional Court, that the Constitution does not grant the National Assembly authority to put questions and inquiries to the Executive, or to convene hearings to ask questions or interrogate Ministers, because in Angola the Ministers of State, the Ministers and Governors perform functions delegated to them by the head of the Executive branch, who is the President of the Republic (articles 134 and 139 of the Constitution). In fact, to have the power to summon ‘members of the Executive’ would be the same as to have the power to summon the President who is the head of the Executive branch, which is constitutionally not acceptable.

However nothing prevents the permanent special committees of National Assembly, if they require clarifications, to request the President of the Republic, through the Speaker of the National Assembly, to authorize a particular Minister or a senior manager of a particular ministerial department to appear before that Commission. The head of the Executive branch, in keeping with the principles of collaborative cooperation between organs of the State, institutional cooperation and institutional solidarity may grant such requisite authorization.

It is in this context and within these limits that parliamentary hearings under article 268(2) of the Procedural Rules of the National Assembly shall be conducted: only upon prior approval of the Head of the Executive branch and on the request of Speaker of the National Assembly can Ministers and senior officials from ministerial departments participate and be heard in parliamentary hearings.

In conclusion: a) Under the Constitution of the Republic of Angola, the Executive is not politically accountable to Parliament, nor is there a relationship of political subordination of it to the Legislature. There is indeed a relationship interdependence by coordination between the branches of Political Power (ie the Executive and the legislative), who share the same democratic legitimacy, whereby it is not acceptable Page Id: 194ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter II Executive Power, Section I President of the Republic, Art.108 (Head of State and Executive Power) OCWMain Text, Title IV Organisation of State Power, Chapter II Executive Power, Section V Auxiliary Bodies Serving the President of the Republic, Art.134 (Council of Ministers) OCWMain Text, Title IV Organisation of State Power, Chapter II Executive Power, Section VI Acts, Incompatibilities and Liability of Ministers of State, Ministers, Secretaries of State and Vice-Ministers, Art.137 (Acts of Ministers of State and Ministers) OCW(p. 195) that the Procedural Rules of the National Assembly should make provision for the political subordination of the Executive; …

Clearly, the judgment was political in nature and its critics point out that it came about in a suspect manner, as the result of an unusual special sitting of the Court in the distant provincial capital of Uige, with only six of the full complement of eleven judges having participated and passed the judgment, just passing the minimal quorum requirement.

The substantive shortcoming of the Angolan Parliamentary Oversight Judgment however is that the Court failed to correctly interpret the nature of democratic legitimacy in the Angolan system of government and made the wrong deductions on the relationship between the legislature (the National Assembly and parliament) and the executive. The Court tried to disguise its conservative bias by invoking explicitly a very select number of interpretation principles, as follows (author’s own translation):

In this regard we will refer not only to princip1es of legal hermeneutics, but also to some principles of constitutional interpretation, namely, the principle of the unity of the constitution, which says that the interpretation of the constitution must take into consideration the connection and systemic unity of the principles that are found throughout the length of this fundamental law and integrated in the framework of the unity of the political and ideological meaning of this law; further, the principle of integration, which provides that in the resolution of legal and constitutional issues, preference must be given to those views or criteria that preserve its political consistency and integrity; and, finally, the principle of functional constitutionality that forbids alterations to the functions attributed by the Constitution to the state organs tasked with the exercise of political power.

The Angolan Court’s canon of rules of constitutional interpretation thus contain some peculiar adaptations of Luso- and Francophone constitutionalism. The references to the rules of systematic and contextual interpretation are unproblematic as they merely articulate the commands of consistent and objective legal reasoning and deduction. However, the emphasis placed by the Angolan Court on the ‘principle of functional constitutionality that forbids alterations to the functions attributed by the Constitution to the state organs’ is less innocent, in particular when considered together with the complete omission of any reference to principles of interpretation consistent with the overall legislative purpose (telos), as to be deduced from the overall interdependence and interaction of constitutional provisions. The omission of the principle of teleological interpretation that is undisputed in Portuguese constitutional law, which took place at the same time as the Court emphasized a far less established and accepted general ‘principle of functional constitutionality’, allowed the Court to interpret the constitution rather manipulatively. The Court assumes that it was the intention of the constitutional legislature to attribute certain unfettered powers to the head of state, and in a next step of reasoning refuses to apply the clear and unequivocal meaning of the wording in certain other constitutional provisions because that might result in an interference with the assumed absolute power of the head of state. Such a reductionist interpretation, camouflaged as ‘functional constitutionality’ is not supported by the meaning of the wording of the contested constitutional provisions, nor by their (p. 196) aim and purpose, which is clearly to strengthen the parliamentary accountability of the executive.

Despite its assurances to the contrary, the judgment offends the interpretation principles that it specifically invoked. It reads into the constitution the strictest possible separation of powers between the legislature and the executive, despite the fact that the constitution specifically adopted a cooperative and ‘coordinated’ separation of powers doctrine, and also ignoring entirely that the Angolan president is not directly and separately elected, but instead automatically chosen from the list of deputies elected to serve as members of parliament. The fact that a particular candidate for a parliamentary seat is placed by a political party executive as the first name appearing on the list of candidates does not establish an own and separate electoral legitimacy, but simply attributes a particular consequence, for a particular candidate, to a purely parliamentary election. There is no relevant distinction that can be made between a presidential appointment by an explicit vote of the majority group of parliamentarians, or simply by considering that choice to have already been made implicitly, by placing a particular candidate for election to parliament as the first name appearing on the list of candidates. Hence, whether the parliament actually elects someone from their midst to become the head of the executive, or whether that same choice is made simply by a choice of ranking on the list of candidates to be elected, cannot make a difference for legal deductions on the nature and authority of the executive organ so established, within the system of ‘coordinated’ separation of powers.

The positivist reading of the constitution becomes clear in the statement of the Court that ‘the Executive cannot dissolve the National Assembly’. The statement does not take into account the functional result of legal provisions. As mentioned earlier, article 128 of constitution provides that the president is free to declare a ‘political resignation’ that automatically causes the National Assembly to be dissolved and a new Assembly to be elected within ninety days, during which election the president is free to be re-elected, as the first name appearing on the list of candidates for election to parliament.³⁵ The president thereby has the power to dissolve parliament at will, just like a prime minister in a Westminster constitution. As is also the case in a Westminster constitution, there is only one political legitimacy under the 2010 Angolan constitution, which is the parliamentary legitimacy, parliament being the only elected organ of state. The invoking of the principle of separation of powers cannot convincingly justify the curtailment of the parliamentary powers to oversee the workings of the executive, nor can it attribute a degree of institutional autonomy to a parliamentary-appointed head of the executive. Even a president vested with their own and distinct democratic legitimacy, established by a separate presidential election, could not claim to have an entirely unaccountable authority, totally separate and unfettered by the legislative powers and democratic legitimacy of parliament. The democratic legitimacy of the Angolan president is derived from the democratic legitimacy of parliament, and has no own and independent origin.

Page Id: 196ReferencesConstitution of the Republic of Angola: January 21, 2010 (Angola [ao])Main Text, Title IV Organisation of State Power, Chapter II Executive Power, Section IV Liability, Resignation and Vacant Office of President of the Republic, Art.128 (Political resignation of the President of the Republic) OCW(p. 197) Together with its earlier rulings on the validity of the national elections held on 31 August 2012,³⁶ the judgment on parliamentary oversight powers has been criticized as positivist, regressive, and even reactionary.³⁷ Clearly, the Court was reluctant to make a ruling that could have been perceived as encouraging a challenge to the more than thirty-four years of patriarchal rule by President José Eduardo Dos Santos. An effective forty-year civil war in Angola ended only recently, in 2002, and there is widespread fear that such hard won stability and the relative developmental progress during the first decade of peace could be jeopardized if organs of the state are allowed to challenge and weaken the authority of the president.

The question must be asked whether the invoking of the principle of separation of powers by the Constitutional Court to severely curtail the powers of parliament, was really just a Machiavellian intellectual ploy, to frustrate any possible challenge to the rule of President Dos Santos. In this author’s view, a balanced assessment needs to take into consideration the constitutional reality of Angola and cannot simply assume that the Court acted in bad faith. In Angola, all three main political parties have always supported a presidentialist system of government. In the run up to each parliamentary election, hundreds of small, break away and sectarian parties emerged, challenging political stability and confirming a widespread perception that the fate of the nation cannot be entrusted to the reign of political parties.³⁸

Judge President Rui Ferreira of the Angolan Constitutional Court is not only one of the principal authors of the 2010 constitutional text, but also of the constitutional text of September 1992 which remained in force until 2010, and further the remarkable draft of 2004.³⁹ He can rightly claim to have been a principal architect of the transformation of Angola from an aggressively Marxist–Leninist one party state into a constitutional democracy. In particular, he succeeded in securing the support of his president for the successive strengthening and implementation of the principles of the constitutional rule of law and of constitutionalism, and of the relevance and authority of Angola’s young Constitutional Court.

Justice Rui Ferreira and the other justices of the Constitutional Court have, in academic discussions with the author of this chapter, shared their concerns about the fragility of African governments and that a pure transplant and enforcement of European constitutional governance models, in the past and elsewhere, has provoked political, social, and economic divisions and cleavages that could not be managed and eventually destroyed the state. The collapse of minimal levels of public administration (p. 198) in Somalia, Guinea Bissau, Mali, and Central African Republic are the most recent examples. Even Mozambique, widely praised as a transformation and modernization model case, has been unable to effectively control and prevent public violence and the arming of the main opposition party since 2013. These are concerns that never overshadowed the deliberations of the South African Constitutional Court and it would be unfair to measure the Angolan Court’s maiden judgment against the abundant and internationally acclaimed case law produced by the South African Constitutional Court.

The Angolan Constitutional Court justices, in contrast to their South African counterparts, have much greater reason to fear that constitutional transplants throughout Africa continue to produce anything but ‘virtual democracies’.⁴⁰ The equation of multi-party democracy with development, growth, and widely distributed prosperity in the Northern Hemisphere and maybe in South Africa, does not seem to work for the rest of the African continent. As Jeffrey Herbst demonstrated fifteen years ago, the transplants of the Northern Hemisphere models of democracy have remained so very fragile and unsuccessful in Africa because of a fatal combination of geographical and developmental circumstances.⁴¹ Herbst’s proposition in 2000 was, essentially, that with a population density of merely approximately fourteen inhabitants per square kilometre in Africa in 1975, as opposed to approximately 100 in Europe, coupled with an absence of infrastructure and generalized economic underdevelopment, African states were inherently handicapped in ‘broadcasting their power’, throughout their territories.⁴² The proposition by Herbst is not simply contradicted by the fact that population density in Africa has increased and now stands at eighty-seven inhabitants per square kilometre,⁴³ or that population density in North America is a mere fifty-seven inhabitants per square kilometre. With only 5.1 per cent of the world population, North America consumes just under 26 per cent of the world energy production and produces 22 per cent of the world’s GDP, whilst Africa, with 15 per cent of the world population and 20 per cent of the world’s landmass, has access to a mere 3.1 per cent of the global energy production and produces a mere 2.4 per cent of world GDP.⁴⁴ States in Africa continue to be handicapped by persistent economic underdevelopment, with (p. 199) most of their adult populations trapped in absolute poverty, measured as an income per capita of less than 1 USD per day.⁴⁵

The developmental hindrances to a faster and more successful establishment of modern systems of government in Angola are exacerbated by persistently high levels of illiteracy, slow progress of mass education, as well as the chronic underdevelopment of political party organization and party political programmatic articulation, resulting in candidate-based rather than policy-based alternatives for political affiliation and identity.⁴⁶

As African governments continue to suffer from their relative inability to effectively ‘broadcast state authority’ throughout their state territories, they reveal themselves as weak, rather than exceedingly powerful governments.⁴⁷ Against this background it may be easier to understand why the Constitutional Court in Angola, faced with an immense institutional responsibility, shied away from a ruling that might have weakened the executive power, only to give the starting signal for a race ‘to bring down Dos Santos’.

The perceived need for political stability is ever-present in Africa because Africa’s governments may appear to have concentrated unmitigated power, but in reality lack the capacity to govern and develop their immense territories. The humanitarian disasters that have all too often been the result of state failures in Africa, have caused the main world powers in their external policy decisions also to give priority to stability rather than perfection and purity of democratic rule and representation. The overriding preoccupation with stability can be found in the Constitutive Act of the African Union (AUCA) of 2000, where ‘unconstitutional changes of government’ were specifically outlawed (article 4 of AUCA). The principle of non-interference in internal affairs in the days of the OAU of 1963 was replaced by a principle of non-indifference to governments coming to power through unconstitutional means. They are not allowed to participate in the activities of the Union (article 30 of AUCA), and are at risk of ‘the right of the Union to impose sanctions on states failing to comply with the policies and decisions of the Union’ (article 23 of AUCA).⁴⁸

Under these circumstances, policies attempting to progressively change the nature of presidential power in Angola (and in many other African states as well) may be more likely to succeed than policies attempting to curtail presidential powers in favour of a more parliamentarian governance model. The South African case does not contradict (p. 200) this conclusion. The South African constitution of 1993–96, acclaimed for its fundamental rights provisions, chose to establish a typically parliamentary or Westminster system of government, but continued nevertheless the peculiar South African tradition, since its 1983 constitution, to attribute the title of ‘president’ to what is in effect a South African prime minister. In constitutional reality, a politically subservient parliament has helped to move the system of government closer to a presidentialist model, where the president, as in the case of Angola, is not directly elected but relies on his party political domination over parliament.⁴⁹ Unlike in Angola however, the South African Constitutional Court has never endorsed or encouraged this development.

It is significant though that Professor Carlos Feijó, as Chairman of the Technical (drafting) Committee of the Constitutional Commission, found the inspiration for the Angolan list-ranking determination for the appointment of the president and deputy president (referred to commonly as the ‘obligatory dual vote’), in the South African constitutional model. In his correspondence with the author in 2009, he justified and defended the ‘obligatory dual vote’ by characterizing the vote in the South African parliament to elect the president as a mere ritual. According to Feijó’s Cartesian logic, the real choice of who would become president in South Africa is made with the decision of the majority party on who will lead the list of candidates in the election campaign, as the first name appearing on the list of candidates for member of parliament. Undoubtedly, no South African majority party would ever appoint anyone to the office of state president but their winning leader, who will have appeared on the ballot paper as the first candidate for that party.

The Leninist tradition in the Southern African liberation movements and current majority parties played a role in making this choice in Angola. In the Leninist party tradition, the ranking of candidates for appointment to serve on the party’s Central Committees (or National Executive Committee as it is called in the case of the South African ANC), is all-important in determining power and influence. It seemed natural to follow the same tradition in the constitutional procedure for the appointment of the president. The South African practice does not contradict this interpretation of the Angolan ‘obligatory dual vote’ system. The South African parliament never voted on the appointment and subsequently also not on the removal of South Africa’s second president, Thabo Mbeki. The decisions were taken by the ANC’s National Executive Committee and both Thabo Mbeki and parliament simply acted and proceeded accordingly.

Rather than advocating in vain the strengthening of parliamentary authority and powers, the next quest in constitutionalism in Angola (and elsewhere in Africa) might be the reflection on how the nature and the organization and budgetary control, and therefore the effectiveness and actual capacity of presidential powers, may be improved. A possible direction could be to reassess the concept of collective presidencies, such as known in Switzerland, where the Bundesrat, a seven-person collective acts Page Id: 200ReferencesConstitution of the Republic of South Africa: December 16, 1996 (as Amended to February 1, 2013) (South Africa [za]) Act No 108 of 1996, Government Gazette Vol 378, No 17678, 18 December 1996 OCW(p. 201) as the head of state, or state presidency.⁵⁰ In an historic narrative much more familiar to the liberation movements and current majority parties in Southern Africa, the equivalent of the Swiss Bundesrat was the former Staatsrat of the defunct German Democratic Republic.⁵¹ With the ever closer ties between the states in Africa and the People’s Republic of China, the perception is growing in Africa that the twenty-one-member Politburo of the Chinese Communist Party with its seven-person Standing Committee, is an efficient and successful governance model.

Whilst the Angolan Parliamentary Oversight Judgment of 9 October 2013 disappointed the opposition and many African constitutionalists, it also contributed to a reflection on the future of presidentialism in Africa. The judgment avoided rekindling conflict about the form and principles of democratic government in Angola.