Luanda – With its approval, following a review, the new Angolan Penal Code (CPA), passed earlier on in January 2019, contains almost everything it needed to serve as the best anniversary gift for Angola, as the country turns 45 years as an independent nation.
By Frederico Issuzo, Angop editor
The first “made in Angola” Penal Code represents the major infra-constitutional legislation produced in the country’s post-independence period, for its relevance in helping maintain social peace and protect life and other legal assets essential to the safeguard of the State.
For some reason its discussion triggered an unprecedented movement of popular demonstrations, seeking to influence the orientation of a legal norm, namely concerning abortion.
It also has the merit of, for the first time, in Angola, having stirred up the political veto to force the Parliament into re-examining the draft, as it was the Head of State’s perception that certain grave attitudes towards public funds received a too lenient punishment proposal.
To be more precise, President João Lourenço demanded tougher punitive measures for crimes “committed in the performance or to the damage of public duties”, including those involving environment and property.
The idea, according to the Head of State, is to send “a clear message” of the Angolan State’s commitment to the promotion of public probity, moralisation, prevention and combat against corruption and impunity.
In his reaction to the concerns raised by the Head of State, the law-makers tightened the sentences for the crimes in respect, with stress for embezzlement, whose maximum punishment jumps from seven to 14 years in prison, although remaining below the 16-year jail term contained in the previous law.
Besides, a fully Angolan Penal Code certainly constitutes a new historical landmark in the national legislative process, only second to the constitutional reform of 1991, that dictated the breakaway from the one-party system.
Its approval, that symbolises the emancipation of the Angolan criminal policy, was long awaited and became a constitutional imperative with the advent of the 2010 Constitution (CRA).
In fact, the substitution of the colonial legislation, in general, has been independent Angola’s “Achilles heel”.
Today, 45 years after the national independence, the bulk of laws in force in the country is still from the colonial era, with due exceptions, especially in matters directly linked to the business and economic activity.
In the case of the Commercial Law, for example, the Commercial Code of 28 June 1888 is still to be revoked, but the bulk of the business activity is regulated by the new Commercial Companies Act, of 13 February 2004, which replaced it.
In the fiscal sphere, the colonial Customs Tariff was revoked in 2008, while the General Tax Code remained in place until 2014, when it was replaced with a new one.
At the time, the explanation was that despite the various changes made, that bill “no longer suited the country’s political, economic and social reality”, and therefore required a “profound revision” to suit the CRA.
In fact, the above realisation supports the idea that, no matter how consolidated the laws might be, they can’t remain unchanged perpetually, as new adjustments will always be required from time to time.
But, for most of the norms, the reality is completely different, with far long outdated laws still governing life in a globalised and dynamic society.
Even the names of some provinces of the country continue awaiting the substitution of the colonial norm that imposes the use of “C” and “U” in the place of “K” and “W”, like in the cases of Cuando Cubango, Cuanza-Sul and others.
In the Civil Registration domain too, the country is delaying to adopt a new name list to put an end to what many call “complication” citizens face giving their children names, confronted with officers willing to impose names of their own choice.
Officially, in this regard, one of the excuses utilised to justify the prevailing inertia has been the Public Administration’s unspecified “reduced capacity”, whether humane or financial, in a country with surplus of almost all sort.
The first sign of political will to change the situation only came in 2009, with the creation of the first Justice and Law Reform Commission (CRJD), whose work eventually produced the new Penal Code “from scratch”.
The entry into force of this legal instrument will mean the end, both in Angola and in all Portuguese speaking Africa, to an archaic criminal policy inherited from the colonialism, through a law enacted more than a hundred years ago.
Angola is, until now, the only former Portuguese colony that still utilises this book known as Portuguese Penal Code of 1886 (CPP), which was once common to all African Lusophone community, at least until recently.
Guinea-Bissau was the first of the five former Portuguese colonies, in Africa, to do away with it, by approving its own Code, in 1993, followed by Cape Verde (2003), São Tome and Principe (2012) and Mozambique (2014).
Invariably, the argument was: the need for the modernisation of the criminal justice, in the face of an outdated text inherited from the coloniser “that no longer suits the modern legal-criminal technique”.
what the new Code changes
Among the various innovations, the new text introduces the criminal liability of legal persons, subject to admonition, fine or dissolution.
For individuals, the new Code provides for jail sentences to be optionally served at weekends only, in cases involving prison terms not longer than five months and unreplaceable with a fine, with the “convict’s consent”.
Contrary to the law currently in force, the CPA incorporates the Criminal Law science progresses and seeks to respond to the modern criminal policy requirements that recommends the States to place the human being in the centre of its regulations.
From a text designed to protect the Portuguese monarchy’s religious dignity, it evolved to follow constitutional principles of the dignity of the human being and inviolability of life.
The CPP devotes its first two chapters of its special part to the protection of the “Kingdom’s Religion”, with penalties for crimes like “insult and offence against the minister of religion”, or even, “religious functions abuse”, and others, relegating the matter relating to the human being.
The two following chapters cover crimes against order and public tranquillity, with penalties for “illegal assembly” , “insult against public authority”, “drunkenness and breaking the seal”, “resistance”, “coercion against public servant”, “disobedience” and others.
For its part, the CPA opens with the crimes against persons, with stress to those committed against life, physical and psychic integrity, sexual freedom, dignity and honour, with severe punishment for murder, offence, slavery and others.
It presents in details the pregnancy termination crime and expands the range of sexual offences, going beyond rape and covering sexual harassment, fraud and child pornography.
Fraud should be understood as taking advantage of someone else’s mistake or misleading someone about one’s identity for sexual purposes, while harassment as exhibitionism or explicit sexual proposition.
The new Code also introduces the “people abandoning” crime, “contagion of transmitted disease”, “healthcare denial by medical personnel” and “discrimination”, including cybercrimes and attempt on “press freedom”.
The latter punishes those who, illegally impede or disturb the issue of media contents in periodicals, radio-television programmes, or seize or damage material required in the exercise of journalism.
In order words, the inclusion of the so-called “new crimes”, associated with the effects of globalisation and others, as well as the incorporation and revocation of the plethora of assorted laws produced over the last few years, are other advantages of the new codification.
The text drops such confusing terms as “long-term prison sentence”, “prison sentence” or “correctional sentence”, to only talk of “jail term”, putting the maximum punishment to 25 years, against the current 24, limiting aggravation to 30 years.
Exception to colonial law tolerance
Reversely to the other branches of the juridical science, the Family Law stood out in spearheading the reform of the colonial law, with radical changes made in the early years of the national independence.
The Concordat, the pact with the Holy See, that is now back in the Angolan legal order, was one of the first “victims” of this “divorce”, with a big change to the colonial legislation, regarding crucial matters like marriage, affiliation and succession.
All started with the 53/76 Act, gazetted on 2 July 1976, which dropped the Concordat norms, thus enabling the dissolution of Catholic marriages and giving consent to the separation of people and property in divorce, and others.
Signed between Portugal and the Holy See, in May 1940, and in force in the colonies six years later, the Concordat imposed the perpetuity of the canonical marriage and banned divorce.
In April 1977, another act likened the rights and duties of all children in relation to their parents, banned all reference to concepts of legitimate and illegitimate children and established norms on the composition of the citizen’s name and civil registration.
Under the 11/85 Act, of 28 October, canonical marriages formally ceased to have a value, giving in to civil registration marriages.
The need for wrapping up this number of norms into a single law led to the drafting of a Family Code (CF), based on new principles, oriented to the creation of new rules of conduct that would exert “a determining influence on the social environment”.
Submitted to national popular consultation, the new Code was promulgated on 27 October 1987 and gazetted on 20 February 1988, through the 1/88 Act, fully revoking the Book IV of the present Civil Code that regulated all matters related to family relations.
At the time, Angola was a country with limited number of law specialists and less financial resources as compared to present days.
Among the main innovations, the Code equates marriage to recognised de facto union, with the latter gaining the same legal effects as the former, and abolishes the spouses’ universal communion of goods and upheld the partial communion of goods and total separation of property.
It also establishes a special obligation of the State to protect the family, equality between man and woman in all family relations, and stresses the obligation to provide food.
As professor Maria do Carmo Medina put it, the new norms of the Family Code compel urgent changes to other branches of Law.
The specialist mentions the case of the Succession Law norms that, to her, “need to be adjusted” to the new vision, namely that of the unity of the family affiliation concept, adoption as a form of kinship, the succession rights in “de facto” union and others.
With the recent reversal noted in the canonical marriage, market by the return to the Concordat, the Angolan State is confronted with having to make significant changes to the law, in order to accommodate this new reality and other pressing cases.
Under the document signed in 2019, pending ratification ahead of coming into effect, Angola again recognises the civil effects of the canonical marriage, but demands it be transcribed into the appropriate civil registration records.
Due to the spiritual, moral and educative value of the canonical marriage, the Angola State “attaches to it a particular relevance in the building of the family within the nations,” the accord states.
The officer celebrating the marriage must be Angolan by nationality or, being a foreigner, is supposed to hold a valid residence permit in Angola, the new accord between Angola and the Holy See says.
The recognition of the civil effects of the marriages celebrated by all legal churches, in Angola, is part of the existing proposals for a new and ampler revision of the Family Code that, apparently came to standstill with the death of professor Medina, its main promoter.
The 2010 Constitution “revolution”
The aspirations to build a socialist society, stemming from the national liberation struggle, started to fade away right from birth, following the declaration of independence, on 11 November 1975.
In March 1991, the country is forced to perform a deep constitutional change that definitely puts an end to the socialist dream and paves the way for the multiparty democracy, on the threshold of the signing of the Bicesse Peace Accords on 31 May that year, in Portugal.
This is the second change to the Constitutional Act of 1975, that founded the emerging State, following the first one that took place just three years after independence, in 1978.
This last alteration was meant to formalise the option for socialism and transformation of the MPLA into a Marxist-Leninist party (MPLA-PT), with the role of leading the Angolan State.
However, ahead of that, an ordinary law (3/76 Act) is adopted, establishing the so-called “resistance economy”, within the framework of the nationalisations then underway, with a view to a strong public economic sector as a “sine qua non” condition for the construction of a the socialist society.
The nationalisations thus served to mobilise the financial resources to industrialise the country, through channelling the “resources previously usurped by the exploiters or applied in parasitic spending and now placed at the service of the revolution”. But, soon, the results of the policies adopted prove disastrous, in the economic plan.
With an
inefficient and unproductive public sector, the country succumbs to grave imbalances and economic distortions that led to the flourishing of the parallel market.
The need to handle the tensions resulting thereof leads to the adoption of a legislative package that creates, in 1988, the so-called Economic and Financial Reform (SEF), a programme apparently designed to correct the situation.
However, all laws drafted to support this programme, clearly contrary to the socialist model, especially the 10/88 Act (Privatisation) and 13/88 Act (Foreign Investment), are passed without a previous review of the 1978 economic Constitution.
With the spirit and letter of the Constitution breached,
the then reigning economic system is put at stake. But, still, the new laws prevail as “fully valid”.
The prevailing thinking, at the time, refuses to admit its unconstitutionality, mentioning an ample “material openness” of the Constitution of 1978, then considered as being part of the kind of “flexible constitutions provided with great mobility”.
This thinking ended up scrapped a few years later, with those laws considered unconstitutional, as they had, to a certain extent, “neutralised” the logic of various constitutional principles and programmatic norms.
In this new vision, the unconstitutionality of those laws consisted in “easing” the then prevailing socialist system, through the contraction of State intervention in the economy and a greater private initiative.
In order words, the guarantees obtained from the previous changes to the economic system were not taken into account, namely concerning the nationalisations, which included the privatisation of public assets and consolidation of the mixed economy.
But, in 1992, a new constitutional revision, intended to consolidate the changes started in 1991, ends up banning the nationalisations and eliminating the references to the socialist society.
Instead, death penalty is abolished, bringing into effect the principle of universal, direct, equal, secret and regular ballot for the election of the President of the Republic, through the two-round majority system, and the MPs, through the single-round model.
The new constitutional review also reinforces the recognition of the guarantees of the rights and fundamental freedoms, based on existing international treaties on human rights, mainly the 1940 UN Universal Declaration.
This, thus, launches the foundations for the multiparty democracy and the bases for the establishment of the market economy.
