The Political Trial of President Dos Santos
There is an enormous controversy among Angolan legal experts about the ways in which President José Eduardo dos Santos could intervene in the case of the 17 youths charged with plotting to overthrow the government and assassinate him.
Those ruling out a presidential intervention cite the principle of the separation of powers: the president is head of the executive and is not, therefore, able to instruct the judiciary.
This argument is not valid. The principle of the separation of powers has not been enshrined in the Angolan constitution; what exists is a separation of functions or duties. (Art. 105. No 3). These have to operate inter-dependently — that is, through the constitutional mechanisms of checks and balances. This means that the president has to respect the constitution, but he can also, within the stated limits, intervene in the different power centers. He also has the duty of always defending the main principles of the constitution, such as democracy, sovereignty, and the rule of law. In addition, the Office of the Attorney General is a state body which has autonomy but not independence; it receives direct orders from the President of the Republic (In accordance with the Law of the Office of the Attorney General). Therefore, the president can give direct orders to the attorney general.
It could be argued that while the President can give orders to the attorney general, he cannot not give instructions to judges. As the case of the 15 detainees is set to go on trial on November 16, it is the judges who can make key decisions. However, the Office of the Attorney General can receive instructions to not act in its capacity as the public prosecutor. By doing so, the judge would be convinced to dismiss the case.
In any case, it could be argued that since the courts are independent, the judge will always make the final decision, and cannot, therefore, receive instructions from the President of the Republic. However, the President has constitutional powers given to him under (article 119) to grant a pardon or reduce sentences. Though it is true that the pardoning and commuting has to do with sentences that have already been passed, this does not prevent the president from granting the pardon.
There is an historical precedent for granting a pardon in advance, when the American President Gerald Ford issued a pardon to Richard Nixon “for all the crimes he committed or could have committed between January 20, 1969 and August 9, 1974, against the United States”. The American President turned to the American constitution Article II, section 2, which gives the President the power to pardon. This is exactly the same as in the Angolan constitution.
Under these terms, nothing should prevent the Angolan president from exercising his constitutional powers by pardoning Luaty Beirão and the other youths, for crimes that could have been committed against the Angolan state between January and September 2015.
Finally, the National Assembly can also pass a decree stating an Amnesty or General Pardon based on (article 162, g) of the Angolan constitution.
Therefore, there are several legal formulas, within the powers of several Angolan political bodies that could be used to solve this situation.
It could be concluded that José Eduardo dos Santos can issue a pardon in advance: that is, forgiving the accused of all crimes that they committed or could have committed. This would end the case at once. As head of the largest party in the National Assembly, he could also give instructions for a general pardon or amnesty.
José Eduardo dos Santos has various legal and political mechanisms to end this imbroglio by issuing a pardon or, indirectly, through the National Assembly, have a general pardoning or Amnesty.
In any case, there is the issue of the incompetence of the attorney general, General João Maria de Sousa, which has led the president into a cul-de-sac.
This is why, what will be on trial next November 16 will not be Luaty Beirão and the other youths, but José Eduardo dos Santos himself. It is the president who will be in the dock, and, ironies of ironies, Luaty Beirão will be the attorney general. In the so-called Government of National Salvation, which was constituted as a kind of joke on Facebook by the lawyer Albano Pedro with contributions from his friends, Luaty Beirão was appointed attorney general. The authorities took this make-believe exercise on Facebook as proof that the youths intended to overthrow the president.
History has, therefore, reverted the roles in this case. The trial of José Eduardo dos Santos will start on November 16.