Angola's government, which has faced mounting international criticism over the lengthy detention of dissidents, has rushed through a new law entitled the "Law on Precautionary Measures in Criminal Proceedings".
This sudden development legitimized the release under house arrest, in mid-December, of the 15 activists detained last June during a book club reading, and who are currently standing trial for rebellion but had been held in preventative custody for months.
That seemed a positive development, but does the new law really represent an advance in Angolan criminal legislation? Does it introduce more humane treatment of prisoners in line with the rights set out in the Angolan Constitution?
Observers note some positives in that the law is undoubtedly an improvement on its predecessor, the rigid 1929 Portuguese Penal Code. Efforts in 1992 to update the 1929 penal code took place in a climate of war and resulted in a patchwork quilt that has caused much confusion in the Angolan legal system. Some say it would have been better to draft an entirely new Penal code from scratch, better suited to peacetime.
Also worth noting is the introduction of the Principles of Necessity, Proportionality, Subsidiarity and Adequacy, in defining when the precautionary measures should be implemented. The principles are not just guidelines but have legal force. Magistrates and judges are required to abide by them and to explain in concrete terms how their judgements relate to each of the principles. This means that in the case of house arrest each judge has to explain why in the specific case, the measure was deemed necessary, proportional and adequate. The magistrate or judge must also provide justification that there was no other, less severe, alternative.
However, expert analysis suggests that the new law is worded in such a way as to justify the continued preventative detention of a citizen, by any unprincipled, arbitrary or dictatorial power, on spurious grounds.
A closer reading reveals the continuation of arbitrary and oppressive measures, such as in Articles 5 and 7 which allow the police or security forces the right to enter any property at any time, day or night, subject to a simple authorization by a public prosecutor.
By allowing the broadest possible interpretation of 'in flagrante delicto' (a crime in progress) as "a crime that is being committed, or has just been committed, or when the suspect is found with articles that show he or she may have committed a crime or participated in it", this could be construed as allowing any person in authority access to anyone's home at any time, as they would only need to show there were grounds for suspicion that there might be objects present that might link the suspect to a recent crime.
In effect, it removes the need for judicial intervention (such as the need to persuade a judge to issue a search warrant) as now they are only required to obtain authorization from the Attorney General's Office, a body that falls under the jurisdiction of the Office of the President of the Republic. We have here the first red flag.
Next, Article 11 permits a detained person to be held incommunicado for 48 hours. It is meant to ensure that the detainee does not speak to anyone save a family member or to engage the services of an attorney, before they are questioned for the first time. Theoretically, however, someone could be detained for 47 hours and only allowed to speak to s relative or lawyer in the final moments before interrogation. Jurists say the law could, or should, have specified that a detainee should have the right to contact a relative or lawyer immediately after being taken into custody.
Worse, although Article 12 states that the Attorney General's Office should interrogate the detainee within 48 hours, there is no sanction for failure to comply. It would simply be noted as a "procedural error". Procedural errors can be nullified all too easily under Article 100 of the Penal Code whereas it would have made more sense to sanction non-compliance by citing Article 98 to render the detention illegal, requiring the release of the detainee. At issue is the absence of any wording to prevent indefinite detention.
Similarly, while Article 39 requires the reasons for preventative detention to be re-examined every two months, once again any failure to comply will be deemed "procedural error" with no specific sanction.
Remarkably, the law transfers from the Judiciary to the Attorney General's Office, the right to order preventative detention (albeit that this depends on the way the case is structured under the Penal Code).
Equally odd is that Article 23 grants the power both to release a prisoner from preventative detention and to recall him to detention if the situation so demands. This could result in an individual being released by a judge but then detained again within days by the Attorney General's Office. It is linked to Article 42 which expressly allows a suspect to remain in custody when the period of preventative detention comes to an end, provided that a second process requires it.
In effect, all the authorities need to do to keep someone detained indefinitely is to have two simultaneous cases against the same suspect: when the detention period elapses for the first case, it can be continued by citing the second case, and so on and so forth.
The law establishes the notion of House Arrest, based on Articles 30 and 40, but it is unclear whether this could easily be set aside by reference to the aforementioned loopholes.
It could be said that Angola has engineered an absurd fusion of the old Portuguese legal system with an autocratic system and some Americanization. Initial comments suggest the new law cannot be taken as a positive development but rather that is legitimizes the means to hold someone indefinitely, if the State so desires. This is another red flag, and a huge one.
Was this what Angola's National Assembly intended? Did parliamentarians fail to foresee the potential consequences? Was this a technical failure? Or bad faith?
Ultimately, application of a Law's clauses for good or ill depends on judicial interpretation. The problem in Angola is that the ultimate judge is President José Eduardo dos Santos himself, who by dint of the absolute powers granted him under the Constitution, can intervene in matters that, elsewhere, would remain the preserve of the Judiciary, separate from the Executive.