Author: Eduardo Kapapelo
Centre for Human Rights, University of Pretoria
In May 2020 Angolan President Joao Lourenço through Dispatch 72/20 established the Commission for Law and Justice Reform (the Commission). The Commission has the mandate to reforming Angola’s law and justice institutions. At first glance the Commission is in line with achieving continental objectives such as the African Union’s Agenda 2063 which stresses that key to achieving Africa’s developmental needs requires ‘democratic values, culture practices, universal principles of human rights, gender, equality, justice and the rule of law are entrenched’.
The Commission has within its scope of work to reform Angola’s judicial system with a particular focus on amending the organic laws of the Constitutional Court, the Supreme Court, the Court of Auditors, the State House, the Attorney General’s Office and the Angolan Bar Association. The exact nature and concrete steps of such reform are still to be seen.
In the commission’s first meeting, Angola’s minister of justice and human rights Francisco Quiero who also serves as coordinator stated that, the establishment of the Commission attested the to the interest of ‘maintaining and reinforcing the institutional cohesion of Angola’s sovereign organs in the promotion of justice and in the construction of justice’. Ironically enough and though Angola’s law and justice reform is of vital importance, the approach in which such reforms are being proposed seem to raise a number of eyebrows.
A troublesome feature of the Commission can arguably be said to be in part in its objective of ‘reinforcing’ the organs of sovereign power as per the 2010 Constitution. Such approach of ‘reinforcing’ implies bolstering the already disproportionate power dynamics which exist between the three branches of government in Angola – in which the president already holds extensive powers as both head of state and holder of ‘executive power’. In addition, the Commission’s reforms would seem to have very little effect in changing the legal system as the major issues facing Angola relate to the nature of political power as provided for within the 2010 Constitution and the implications of such power both within the legal system and social life.
As opposed to ‘reinforcing’ the organs of sovereign power, the Commission might be better served in dealing with issues of constitutional imbalance seen through the 2010 Constitution. Imbalances which not only undermine human rights in Angola but also make it nearly impossible for the administration of justice to take place within the confines of what is generally understood to be a functioning constitutional democracy.
In its current form, and as it relates to political power, the 2010 Constitution creates a vertical relationship dynamic in which political power rests squarely within the hands of the president who rules through his auxiliary organs. Article 105 of the Constitution vests sovereign power on three institutions: (1) the President of the Republic, (2) the National Assembly and (3) the Courts. Theoretically, these institutions should be independent and inter-dependent of each other. In the case of Angola, this is not the case such relationship is rather hierarchical – with the executive being at the top followed by the National Assembly and then the Courts.
An interesting aspect within the Angolan Constitution which was carried over from Angola’s one party state system is the creation within the constitution of ‘auxiliary bodies serving the president’ in which according to article 14 of the Constitution include, the vice-president of the republic, the ministers of state and ministers, secretaries of state and vice-ministers.
In regards to the already skewed and imbalanced nature of power within the Angolan system is the fact that the national assembly has no oversight powers over the executive. A 2013 Constitutional Court decision read that: ‘to have powers to call on members of the executive would be the same as having the power to call on the President who is the head of government – and that is unacceptable’. The Court further stated that it is unacceptable to call on ‘members of the executive; this then means that the national assembly in addition to not having the power to hold the president to account – it neither has the power to call on members of the executive, and in this case the ‘auxiliary organs’ of state serving the president. This has dangerous consequences for human rights and democratisation.
Any legal reform in Angola requires drastic change not only of the law itself but also the very nature of power, and how such power is wielded. There is also a need to take into consideration that within the Angolan constitutional framework there are no accountability mechanisms which would force those holding political power to account.
As Angola embarks on this journey of legal and judicial reform, it is not sufficient to only focus on the judiciary, but also in ways in which to dismantle Angola’s overly centralised state as seen through the 2010 Constitution. The current nature of Angola’s constitutional democracy poses a danger towards achieving what agenda 2063 describes as the need to establish institutions that are ‘at the service of its people’ and where citizens ‘will actively participate in the social, economic and political development and management’.
The Commission must also acknowledge the nature of the social and political dimensions of Angola’s post-war peace, through elaborating legal and transitional justice (TJ) mechanisms which would allow for victims and perpetrators to address past crimes. The simple minded ‘forgive and forget’ narrative and blanket amnesty for war crimes passed by the Angolan government at the end of its civil war poses a danger towards building a society which is at peace both with itself and its past. Past crimes and injustices must be identified, investigated and addressed.
Why deal with the past? and how can it benefit the future?
The World Report on Violence and Health (2002) defined violence as:
The intentional us of physical force or power, threatened or actual, against oneself, or another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation.
This definition is broad and associates ‘intentionally’ with the ‘committing’ of the act of violence itself, irrespective of the outcome it produces. Moreover, the use of the word ‘power’ as per the report broadens the nature of the violent act to include those acts that result ‘from a power relationship, including threats and intimidation’. Moreover, the use of ‘power’ also serves to include neglect or acts of ‘omission’. The report concludes that ‘the use of physical force or power should be understood to include neglect and all types of physical, sexual and phycological abuse, as well as suicide and other self-abusive acts’ (WHO Report 2002).
Such definition of violence fits well into identifying forms of violence within states that have experienced periods of violent conflict and forms of domination such as racial, religious, and ethnic just to mention a few. Moreover, and as per the definition, one can extrapolate that individuals who were violated and still face the psychological and the maldevelopment effects of the violence done to them continue to face violence even after the acts have been committed.
Incorporating this idea of violence to transitional justice might assist in not only creating a greater sense of urgency in dealing with past violence but also help societies emerging from violence understand the after effects and consequences of violence in building strong, viable and democratic societies.
The preamble of the Constitutive Act of the African Union (AU) acknowledges the threat posed by conflict and commits the organisation to promote peace and security, human rights and the fight against impunity. The significance of transitional justice within the AU is based on the acknowledgement that Africa’s history of upheaval through colonialism, wars of liberation and internal conflicts should be addressed within the context of states’ own experiences.
Having in mind such upheavals and its consequences on African States, as they strengthen their political and social institutions the AU’s transitional justice approach was significantly captured through various initiatives: (1) the AU Transitional Justice Policy which acknowledges that transitional justice is ‘crucial for the promotion of human rights and justice, peace and security, good governance and development’ which links directly to Agenda 2063 on the ‘Africa we want’ and (2) the Panel of the Wise Report on Peace, Justice, and Reconciliation in Africa which acknowledges that ‘justice and reconciliation are antidotes to impunity’.
The AU Transitional Justice Policy establishes the notion of justice in reference to the provision of ‘judicial and non-judicial measures that not only ensure accountability of perpetrators of violations, but also redress to individuals and communities that suffered violations’. The AU Transitional Justice Policy goes on to define transitional justice as ‘the formal and non-formal policy measures and institutional mechanisms that societies, through an inclusive and consultative process, adopt in order to overcome past violations, divisions and inequities and to create conditions for both security and democratic and socio-economic transformation’.
A major outcome of the Panel of the Wise Report was the recognition of impunity as a phenomenon which arises in the ‘absence of institutions that promote pluralism, participation, impartiality, accountability, and fairness’.
Addressing past and present impunity in post-conflict states like Angola is of vital importance as massive and widespread human rights violations have significantly influenced the relationship between trust, justice and the rule of law as the violations which occurred have effectively broken the trust between citizens and the institutions of the state.
As Angola works towards reforming its law and justice system, institutional impunity is a major obstacle which the Commission must tackle. Yet, as it addresses such issues transitional justice cannot be left out of the process, because dealing with transitional justice issues in Angola is directly linked to undermining the impunity culture which has been allowed to go unchecked since the one party state system in Angola which arose in the 1970s and continued onwards through the country’s near thirty year old civil war. Impunity is directly linked with institutional repression which is coupled with violence and rights violations – and as a result tackling such impunity in Angola requires a careful and intentional institutional investigation of past crimes and abuses.
Consequently, and in order to build trust and the legitimacy of institutions in the present, addressing past violations is vital and has two very specific benefits: (1) it will work towards reinforcing fundamental principles such as those of justice and the rule of law and (2) it recognises that only through addressing past violations can justice and the rule of law have real meaning in post-conflict states.
Addressing Angola’s forms of domination
Angola and its people have endured three forms of domination: (1) colonial rule (2) Angola’s violent and brutal civil war which resulted in massive and widespread human violations and (3) the stripping of citizens fundamental rights and liberties seen within the post-civil war period.
As the Commission works towards elaborating the scope of its work, and in particular regarding issues of law and justice, the Commission faces a singular and unique opportunity to work towards contributing to social and political stability through addressing Angola’s history of domination and with it set the country on a trajectory towards national reconciliation.
In light of such ‘triple domination’, the Commission should take into consideration both past and present forms of violence while looking at ways in which the legal framework may address both. The past violence, thorough appropriate transitional justice mechanisms and the present violence through the establishment of a justice system which will ensure that the Angolan people are never again subjected to violence and domination – least of all through the state and its institutions.
As a result, a human rights approach must underpin the work of the Commission while expanding its mandate to not only deal with past and present crimes against the Angolan people experienced during its civil war but also work towards reforming the justice system so as to address and prevent future rights violations. In light of this, constitutional amendments must be strongly considered.
Amending the Angolan Constitution would aid in what constitutional scholars such as Meledje (2010) have argued would ensure ‘stability of institutions and relations between them, within the framework of the operation of the power of the State’, something which in its current form, the 2010 Angolan Constitution lacks. In addition, amending the Constitution would also work specifically towards addressing issues of impunity and past crimes and how in the case of Angola the two terms are mutually inclusive. Teitel (1999) noted in speaking about transitional constitution making argued that ‘transitional constitutionalism is also responsive for prior rule, through principles that critically refine the prevailing political system, effecting further political change in the system’.
Establishing a hybrid National Human Rights Institution
Human rights accountability bodies such as independent national human rights institutions (NHRIs) are vital within any constitutional democracy. In addition to Angola’s Constitution disproportionally centralising power within the executive branch, Angola has no national human rights institution which would at the very least work towards identifying rights violations.
The Paris Principles adopted in 1991 stressed that the establishment of national human rights institutions are vital towards the protection of human rights. It went further in noting that, ‘a national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a Constitution or legislative text, specifying its composition and its sphere of competence’.
Angola is one of a few African countries which has still failed to set up a national human rights institution. Such failure further undermines not only the promotion and protection of human rights, but also hinders legitimate processes through which government action can be checked by an independent organisation out of the control of government.
Under the Paris Principles, NHRIs are required: (1) Protect human rights, including receiving, investigating and resolving complaints, mediating conflicts and monitoring activities and (2) promote human rights, through education, outreach, the media, publications, training capacity-building, as well as by advising and assisting government. NHRIs are also important because they play directly towards the promotion of a civic political culture which prioritises human rights as a vital pillar towards democratisation and state building.
The Paris Principles further identified five criteria that NHRIs should meet in order for them to be successful, (1) mandate and competence- their mandate should be based on global human rights standards, (2) autonomy from government- meaning that such institutions must not in any way be dependent on government and or influenced by government hence – the need for them to be constitutionally mandated, (3) Independence, plural in nature, (4) financial autonomy and (5) adequate powers of investigation.
The Commission in this regard, should consider working towards establishing a NHRI as part of the constitutional amendments which would work towards safeguarding rights and governance mechanisms. According to the Vienna Declaration and programme of Action, States have the right to choose the NHRI framework that best suits their contextual needs. An Angolan NHRI should then adopt a hybrid administrative mandate which would have the mandate to:
(1) promote and protect human rights and (2) address maladministration and institutional corruption.
Such a hybrid model would be a first step towards creating stability within the Angolan political and social system while serving as a constitutionally mandated accountability mechanism which would aid in supplementing Angola’s current democratic deficit. The transitional justice process would then be prioritised under the mandate to promote and protect human rights.
About the Author:
Eduardo Kapapelo is a Doctoral candidate and Project Coordinator at the Centre for Human Rights, University of Pretoria. His research interests include human rights and foreign policy, comparative constitutional law and normative political theory.