Chapter 9

COMBATING ORGANISED CRIME IN ANGOLA

Introduction

The purpose of this chapter is to examine organised crime and the fight against it in Angola, as well as other related issues.

In the research undertaken for this chapter, it was discouraging to note that Angola has no policy structured and specifically designed to combat organised crime. The official reason given is that the country is totally committed to employ all its resources to resolve the armed conflict in which the country has been embroiled for almost 40 years. Hence, all resources, whether human, material or financial, are being channelled into this objective. The police force has been involved in military action in support of the military.

There is also a total absence of studies or published research on this issue. It is expected, however, that more attention will be paid to other sectors of civic life from 2001 onwards.

Taking into account the country’s current level of economic development, organised crime has not been considered a problem that requires much attention or a concentration of efforts for its effective combat. The weak banking system contributes towards the fact that money-laundering in Angola is seen as a problem of another world — in fact, there is no legislation covering this issue, which leaves the field wide open for people who wish to take advantage of the situation.

The legal system does not have the training required, which means that the majority of roleplayers, including police officers, magistrates, judges or public prosecutors, do not have the required educational qualifications.

Second only to the war, corruption is considered one of the factors that has contributed most towards making Angolan life more difficult. This was the reason for the establishment of the High Authority Against Corruption in 1995. To date, no one has been appointed to the Authority and no strategy has been implemented against corruption to make an impact on the current state of this phenomenon.

Closely connected to corruption and money-laundering is organised crime and, in this regard, there is no specific legislation. This forces members of the legal profession to interpret the laws that are in force loosely in order to try, by any means possible, to accommodate these types of actions. This is a very difficult task if it is taken into account that the application of criminal law is vested in certain guarantees, for example, the principle of legality or nulum crimem sine lege.

With regard to mutual assistance, bilateral agreements have been signed with some countries and others are at an advanced stage of negotiation. Among these, specific mention must be made of the agreement signed with the Republic of Namibia on the illegal traffic of vehicles along the two countries’ common border.

Another great stumbling block, which is perhaps also the most important, is the lack of infrastructure (new infrastructures are not established and those that do exist are either not maintained or have been destroyed by the war). This requires large investments, which have not been made available to date. This situation may be connected to the fact that organised crime in Angola has not reached alarming proportions, or so it appears. It would be excellent if conditions were in place that would be able to respond when the first signs do appear, so that the risk of having to fix what has been undone can be avoided.

Existing legislation

Apart from the 1886 Penal Code, Angolan criminal law also includes other laws and decrees — so-called sundry laws.

Generally, the Penal Code and the Criminal Procedure Code are the two main instruments in the system. Both are outdated in terms of current Angolan social reality. In some cases, they go so far as to contradict certain constitutional provisions — sometimes quite blatantly. Given that the Constitution is more recent (it was passed in 1992), it contains values that are much more current than those contained in the 1886 Penal Code.

When the Penal Code and the Criminal Procedure Code were passed, organised crime did not have the harmful effects it has today. As such, neither law addresses the phenomenon to the extent that is required under current circumstances.

Reference is made to crimes committed by groups of people, but these provisions are inadequate before the huge proportions of organised crime on an international level.

It is extremely difficult to combat new criminal phenomena with outdated legislation. This forces members of the legal fraternity to attempt veritable feats of interpretation in order to ensure that crimes, some of which are quite repugnant in terms of the damage caused to society, do not go unpunished. This task becomes truly complicated as the person responsible for applying the law, when performing his or her duties, is faced with the constitutional limits beyond which he or she cannot act, as repugnant as the crime may be (principle of legality, prohibition of analogy in the application of the criminal laws, and others), given that the people responsible for applying the law must adhere to the spirit and letter of the law.

Besides these two codes, there is also some relatively new legislation. This does not necessarily mean that these legal instruments are modern — they were merely passed and promulgated more recently. Thus, there is the law on economic crimes and the law on drugs, which were promulgated in 1999, the law on the trafficking and illegal possession of diamonds, passed in 1994, and the law on the possession and use of firearms, which was passed in 1967.

Unfortunately, there are no modern laws in place against organised crime and corruption, neither are there laws dealing specifically with issues such as mutual assistance and witness protection, among others. Some reference is made to organised crime and corruption in the Penal Code, but against the background that prevailed more than a century ago (1880s).

Some bilateral agreements dealing with mutual assistance have been signed, but these usually deal with certain specific cases only.

In terms of the Constitution, the extradition of national citizens is not permitted. The extradition of foreign citizens requires the existence of an agreement with the country requesting such an extradition.

The lack of modern legislation renders the legal system vulnerable, particularly in respect of those who know the Angolan juridical and legal realities and are predisposed to act in a manner that would normally not be permitted and would be punishable in the large majority of countries.

For 2001, the Ministry of Justice has identified the review and updating of legislation as one of its priorities. Should this be effected, it would perhaps be the start of the process of change in the current state of Angolan legislation.

Strengths and weaknesses in current legislation: Reasons for the lack of modern legislation

Without a shadow of a doubt, it can be said that the greatest drawback in the Angolan legal system is the fact that it has not kept pace with developments in society. There are reasons for this stagnation. These will be examined from the perspective of combating organised crime.

The legislation itself

Because criminal groups move large amounts of money, they constantly seek to become better organised in order to attain their objectives in the best manner possible. In many cases, they have access to experts in the various fields of science and technology.

Globalisation and the international exposure of economic markets facilitate the perfection and enrichment of methods used in performing these crimes, often through the exchange of experiences in other parts of the world. Crime also takes advantage of technological developments. In this sense, it would be normal for all legal systems, regardless of their geographic position, to keep abreast of developments by drawing from the positive and negative examples offered by other countries in the world on the same issues.

Unfortunately, this has not been the case in Angola to date. After 25 years of independence, only drugs are dealt with in recent legislation. Issues such as corruption, money-laundering, witness protection and mutual assistance mechanisms simply do not feature in the legislation presently in effect.

As has already been mentioned, judges, magistrates and public prosecutors are currently forced to conduct veritable feats of interpretation. Despite all the limitations they face at all levels, they are forced to try and combat organised crime in any way possible. Although the dimensions of organised crime are still small, it cannot be ignored, given the snowball effect that is usually felt over time.

It is hoped that the Justice minister’s announcement on the revision of the penal legislation is a signal of the intention to introduce changes in the system. For example, the illegal use of computer technology and the internet is not covered by any law. This is because the issue has not been prioritised by the government.

There is also no criminal studies institute in the country or another association of legal professionals that concentrates on legal matters. It is highly probable that, if institutions of this kind existed, it would be possible to draw attention to certain aspects that are sometimes not taken into account by the authorities when defining their priorities. Such institutions could assist in narrowing the gaps and could contribute more positively towards the establishment of a crime prevention and justice system policy that is in line with current realities. At the moment, it is imperative that a process must be instituted to revise Angolan legislation and that this process must be undertaken speedily. No studies on the status of crime, its trends and occurrences have recently been carried out. This being the case, it is difficult to formulate effective policies as objectives cannot be clearly defined, even though there is a general idea of the situation.

Legal system: Human component

Besides the fact that legislation has changed very little, the human component of the legal system, as is the case with the system as a whole, is not free of problems. The quality of work and the development of the system itself are dependent on this component. The educational level of human resources is a very important indicator when analysing the state of readiness in the fight against crime.

The current educational levels of members of the Angolan judicial system are linked to Angola’s history. Angolans were given access to the legal profession only after 1975. Until then, these positions were normally reserved for the Portuguese who, being the colonisers, were in the best position to hold such posts as the system favoured this state of affairs. Angolans did not live — they merely survived — and could not afford the high cost of educating their children.

Following independence and the exodus of the Portuguese, this sector suffered a huge vacuum. Minimum conditions had to be created to ensure, at least, that the justice system could respond to the demands that arose, even if inadequately. It was felt that the courts could not be shut down because of the lack of trained people, as the need for their services never stops. Given these deficiencies, maximum advantage was taken of those people who worked in the judicial system, even if in lower grade jobs, in order to keep the system operational (particularly the courts and the police force).

Today, the country has only one public law faculty which operates under great difficulty and sometimes haphazardly. Because of the low salaries, most of the graduates opt for careers other than a career in the justice system, which does not hold much attraction. Only approximately 40% of the magistrates have a tertiary education in law, which, in itself, is very significant.

The police academies do not have the facilities (material and curricular) to overcome the deficiencies in the quality that is expected of them. There is no special criminal investigation school, and this becomes clearly apparent when examining the work done by criminal investigators.

The lack of a better quality of human resources justifies, as a last analysis, the current state of affairs of the current criminal justice system.

It is with these human resources that the fight against crime is conducted in Angola. There is a department responsible for dealing with issues connected with organised crime, but miracles cannot be performed under these obviously difficult circumstances.

There is also the salary factor. Because salaries are so low, it is illogical to expect work of a high standard. Certain alleged cases of corruption have also come to the fore, which have been investigated as far as possible.

Structures

The Achilles heel of the Angolan legal system is the infrastructure or rather the lack of infrastructure.

Because of the war that broke out after independence, the country has lost much of its infrastructure. The majority of police stations and courts are in a bad state of repair, partly owing to the lack of maintenance and partly owing to the armed conflict. Their rehabilitation will require a tremendous effort on the part of the government.

The criminal investigation police do not have access to modern methods of investigation. Frequently, officers have to take recourse to foreign countries to conduct certain examinations, simply because they cannot be conducted in the country, or because the quality of the work in foreign countries and, by extension, the reliability of the examination are greater. However, this is an expensive exercise and constitutes an exception rather than the rule.

Combating organised crime is very difficult and the lack of adequate infrastructure (whether physical or even in terms of communication systems) is used to the advantage of those on the other side of the fence, who are normally well organised and equipped with the latest technology and huge financial resources. They are not subject to budgets and complicated bureaucratic procedures that result in delays before any action can be taken.

The criminal investigation services do not yet make use of computers, a tool that has increased efficiency in all fields of endeavour by almost 100%. These technological advances have not been made available to the justice system.

Although the country has not attained a high level of development, certain operations have revealed a considerable degree of organisation, which can only bode well, provided that the system’s state of preparedness can be improved.

Legislative and other procedures for the application of the UN Convention Against Transnational Organised Crime

Signing and ratification

For international agreements to be valid in Angola, these must be signed by the government and then submitted to the National Assembly for ratification. Such an international agreement is then incorporated into the country’s body of laws. This means that the provisions of the UN Convention will be binding on the Angolan state only after it has been ratified by the National Assembly. With concern to the additional protocols, the situation is exactly the same. However, the government has not as yet signed these. There is a possibility that parliament may refuse to agree to the ratification, but this is only in theory as the party in power holds the majority in parliament. Should this not be the case, it would have been easier not to sign the document and reject it from the start.

It is not envisaged that there will be any obstacles in the ratification of the Convention by the National Assembly. It covers a very current issue and its signing can only be of benefit to the signatories. It should be stressed that Angola followed the negotiations with great interest and was represented in all the meetings of the ad hoc committee by delegations who travelled from Angola even before they were entitled to the allowance which was accorded to underdeveloped countries.

Implementation

The greatest difficulties will be encountered in the post-ratification phase when Angola will be required to comply strictly with its obligations in terms of the Convention. The areas of greatest concern and doubt are concentrated on the implementation phase. The issue is one of capacity and strict compliance with undertakings agreed to — it has never been one of lack of will.

The Convention obliges all signatories to adopt a certain conduct that stands in direct opposition to the difficulties discussed above. In other words, the Convention requires from Angola a veritable revolution of its criminal procedure system. It is true that these changes are not only imposed by external factors — they are required fundamentally for the reasons already discussed. But now there is another thrust, given the provisions of the Convention. This may impel the government to prioritise the modernisation of the Angolan legal system, in which case the necessary resources may be made available to attain this objective. This would be of great benefit to the country.

There is some doubt about the capacity within the country to undertake the changes that are required with the desired effectiveness, given the well-known lack of financial resources.

The issues dealt with in the Convention are current and Angolan law does not cover most of them. This represents an opportunity to review the Angolan criminal legislation as a whole, which is currently based on a Penal Code dating back to 1886.

Besides legislative changes, other changes are also required, such as the establishment of certain bodies and organs to be responsible for initiating contact and co-operation with other states party to the Convention. In specific cases, this would also include other international organisations interested in certain issues which are regulated by the Convention. The improvement of the selection methods and training of officials is also required so that they can be in a position to deal with new challenges.

These changes are not impossible or even extremely difficult, provided the will exists. In this respect, it should be stressed that the signal received in contacts with the competent authorities is that they have no problem at this level. However, the expectation is that it will be difficult to put all the conditions required to attain the objectives in place, given the resources normally made available for this type of action.

The creation of legal mechanisms to deal with the globalisation, industrialisation and internationalisation of the economy

In modern society, development is closely linked to industrialisation and globalisation, with the effect that distances are shortened and the task of those responsible for preserving peace and stability is made all the more difficult.

Angola has no special legislation on money-laundering, corruption and the forfeiture of goods obtained from criminal acts, among other issues. The lack of such specific legislation renders the country vulnerable to the dangers caused by criminal practices. Many so-called foreign investors, of dubious origin, seem to be entering the country but the legal system, because of the lack of legislation, cannot certify the origin of their investment capital. It is impossible to establish whether it is in fact investment aimed at the development of the country, or whether these are cases of money-laundering.

Angola is also faced with the problem of corruption. Indications are that this type of behaviour is widespread in the public service, practically at all levels, and the level of acceptance by society as a whole is alarming. In certain cases, these practices are deemed to be absolutely normal and do not receive the expected disapproval from society. By the way things are going, it could be said that Angola is fast moving towards a culture of corruption and, unless urgent measures are taken, risks reaching this point. In the public service, for instance, it is said that officials "create difficulties to sell facilities." This clearly shows the danger which prevails in the country when referring to the phenomenon of corruption.

The reason normally given for this phenomenon is the low salaries of public offcials. It is also said that everything is possible with money.

A very interesting fact has come to the fore. There are almost no cases of corruption in the Angolan court rolls. This in itself reflects the low priority given to combating this type of crime.

There is a lack of policy directly aimed at this evil and a lack of modern legislation to stabilise the situation. There are, for example, no guarantees to protect people who report such crimes as, in terms of current legislation, a person forced to pay under any circumstances is also guilty of the crime of corruption. The Penal Code makes provision for an active and a passive party to a crime. Hence, no one will report this crime knowing the unpleasant consequences that they will have to face.

Because of the lack of legislation, this phenomenon is compounded and continues unabated. Corruption is an issue that often comes to the fore, particularly among senior officials. At times, there is proof of irregularities that have been committed and, at times, the criminal procedures are started but the people with knowledge of such acts almost always refuse to give evidence for fear (just and founded) of reprisals.

Apart from the lack of modern legislation, there seems to be a lack of a policy directed at this evil. There is no government anti-corruption programmes in place to examine the situation in detail and indicate the best way to reduce these practises to acceptable levels, at least as a start. The envisaged High Authority Against Corruption has yet to start functioning.

Conclusion

In conclusion, the Angolan penal system is a fertile ground for the continuation of all types of criminal action, owing to the fact that its laws are outdated, the lack of adequate training for the human resources component, the lack of proper structures and the lack of specific policies to deal with specific problems that arise. The Convention Against Transnational Organised Crime and the fact that Angola participated in the full process will unleash, in all probability, a chain of events that could lead to the review of the criminal legal system.

This process would be faster and would probably be more successful if research institutions were in place to examine the phenomenon of crime. This would most certainly contribute towards a greater and more effective awareness of the problem.