Angola: Felon Appointed As Supreme Court Justice of Angola

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Judge's gavel (file photo)
10 July 2023
Maka Angola (Luanda)
analysis By Rafael Marques de Morais

The unprecedented appointment of a convicted criminal to the Angolan Supreme Court - in blatant contravention of the law - has sparked a formal complaint to the country's Attorney-General to trigger a full investigation into the judicial appointment process as well as any improper interference by President João Lourenço.

The Honorable Attorney General of the Republic of Angola

Subject: Submission concerning the illegal acts perpetrated by the Superior Council of the Judiciary and the President of the Republic of Angola

Rafael Marques de Morais, an Angolan national citizen bearer of ID Number [redacted], residing at [redacted], Luanda, based on the following facts, informs the Attorney General of the Republic that the appointment of Carlos Alberto Cavuquila as Justice of the Supreme Court is illegal, a threat to the constitutional order and rule of law, and, therefore, should be annulled. Cavuquila's appointment is in clear violation of Article 41, paragraph 1, c) of the Statute of Judicial Magistrates (Law No. 7/94).

The appointment of Carlos Alberto Cavuquila as Justice of the Supreme Court

  1. On June 14, 2023, per Resolution 7/23, the Plenary of the Superior Council of the Judiciary selected Carlos Alberto Cavuquila to fill the vacancy of Supreme Court Justice.
  2. On June 16, 2023, the Presidency of the Republic confirmed the Superior Council of the Judiciary's selection of Carlos Alberto Cavuquila as a Supreme Court Justice.
  3. On June 19, 2023, the President of the Republic swore in Carlos Alberto Cavuquila as Supreme Court Justice.

The illegality of the appointment

Under Article 180, paragraph 2 of the Constitution, candidates for Supreme Court Justices are nominated by the Superior Council of the Judiciary following a competitive selection process chosen from a pool of judges, public prosecutors, and jurists of merit. Supreme Court Justice nominees are then appointed by the President of the Republic.

  1. Responsibility for the appointment of a Supreme Court Justice is thereby shared between two constitutional bodies: the President of the Republic (PR) and the Superior Council of the Judiciary (CSMJ in the Portuguese acronym). Neither has sole power to appoint a judge alone, there must be due process and consensus, and candidates must fulfil legal, moral, and ethical requirements.
  2. The PR was under no obligation to confirm the appointment of Carlos Alberto Cavuquila, even though he had been nominated by the CSMJ. As guarantor of the Constitution and the Law (per Article 108(5) of the Constitution), the PR must always ensure his acts are in compliance with the Constitution and the Law, when considering recommendations from another body.
  3. Legal Compliance was not observed in the nomination and appointment of Carlos Alberto Cavuquila since neither the CSMJ nor the PR respected the Statute of Judicial Magistrates

Violation of Article 40(1)(c) of the Statute of Judicial Magistrates

  1. Section 40(1)(c) of the Statute of Judicial Magistrates is clear in determining that moral and civic fitness is a requirement for admission to the judiciary. This provision applies to all Judicial Magistrates, be they of first instance or of the Supreme Court.
  2. The legally enshrined moral and civic fitness is also enshrined in the Bangalore principles for judicial conduct (the universal basis for the behaviour of judges). Good character and the appearance of integrity are essential to the performance of all the activities of a judge.
  3. Accordingly, in order to be appointed by the President of the Republic as a Justice of the Supreme Court, Carlos Cavuquila should be of moral and civic fitness.
  4. The test to assess whether a candidate would be suitable for this position compromises the person's ability to discharge his or her judicial responsibilities with integrity, impartiality, independence, and competence, or is likely to create -- in the mind of a reasonable observer -- a perception that his or her ability to discharge judicial responsibilities will thereby be impaired.
  5. It is clear that Carlos Alberto Cavuquila does not pass this test of civic and moral fitness in the eyes of the public or of a reasonable observer.
  6. A person, however many positive qualities he may have, who is faced with two judicial processes for misappropriation of public funds naturally creates a public perception of unfitness. First, on May 8, 2023, the Plenary Court of Auditors revealed that Cavuquila had been sentenced by that court to pay back 29 million kwanzas into the state coffers, the execution of which is pending before the Provincial Court of Luanda. Therefore, the Plenary held that Cavuquila was unfit to be selected as a new judge on the Superior Council of the Judiciary. The second case is currently before the Second Chamber of the Court of Auditors, where the prosecutor accuses Cavuquila of embezzling 1.519 billion kwanzas and argues that he must return the money to the state and face sanctions.
  7. Due to these two court cases, there is no doubt that Carlos Alberto Cavuquila does not meet the legal requirements to be a Supreme Court Justice, and therefore his appointment is illegal.

Role of the Attorney General's Office

  1. It is the constitutional obligation of the Attorney General's Office to defend democratic legality (Article 186 of the Constitution). Therefore, in the face of the violation referred to in a case of high constitutional relevance, it is the duty of the Attorney General to act through the appropriate jurisdictional means and annul the illegal acts.
  2. It is in this context that we present this petition, which constitutes civic and democratic participation. It is up to the Attorney General's Office to choose the appropriate mechanism to proceed with the annulment.

Conclusions

  1. The appointment of Carlos Alberto Cavuquila is illegal as he does not comply with the requirement of Article 40, paragraph 1 c) of the Statute of Judicial Magistrates, which requires civic and moral integrity.
  2. The said appointment should be annulled due to illegality.
  3. The Office of the Attorney General, as the constitutional defender of the democratic legal order, must initiate effective jurisdictional measures to restore the legal order, and to hold accountable those who violated the rule of law.

The future of the rule of law and democracy in Angola lies in legality and the efficient and coordinated operation of the judiciary.

With thanks for your consideration.

Yours sincerely,

Rafael Marques de Morais

Luanda, July 10 2023

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