Supersonic Nepotism: Illegalities at the Speed of Light

Angola’s President, José Eduardo dos Santos, has just appointed his daughter Isabel dos Santos as Chairman of the Board of Directors of the state oil giant, Sonangol.  He had already appointed her half-brother, José Filomeno dos Santos, back in 2012 as Chairman of the Board of the Angolan Sovereign Wealth Fund.  This means that the country’s sovereign fund and the state’s main source of income are now both in the hands of children of the President.

In plain English, this is the very dictionary definition of nepotism: ‘the practice among those with power or influence of favouring relatives or friends, especially by giving them top jobs’.  No doubt there will be many analyses and critiques of Angola’s particular brand of nepotism but from the strictly legal point of view there is one indisputable conclusion to be drawn:  President dos Santos’s actions are unconstitutional and illegal.

Unconstitutional and illegal

The Angolan Constitution is clear. Article 165 specifies that “the National Assembly shall have relative competence for legislating on the basic elements of the scope and rules governing the basic elements of the status of public companies, institutions and associations”. Such matters include natural resource exploration concessions, the definition and regulation of public assets.

The President can only pass legislation on such matters if specific authorisation is granted under the terms of Article 170 of the Constitution, “defining the object, purpose, extent and duration of the authorisation”.

Incontrovertibly therefore, the President is not permitted to decree modifications as to how oil concessions are granted, or to restructure the state-owned public asset that is the Sonangol operation without the specific authorization of the National Assembly (the appropriate legislative authority). In the absence of such authorisation, he has no constitutionally-legitimate power to order changes to the organisational structure of the company handling the nation’s most valuable resource.

As the National Assembly has not passed any such law as required by Article 170 of the Constitution to confer legislative authority on the President in this matter, Presidential Decree no. 109/16, issued on May 26 to authorise the Restructuring and Reorganisation of the Oil Sector and the timetable for its implementation, along with Presidential Decree no. 110/16, to vary Sonangol’s statutes or articles of incorporation, are clearly unconstitutional and should have no effect.

In consequence, the decision naming Isabel dos Santos as the Chairman of the Board of Directors of Sonangol, is also unconstitutional, given that it derives from and is the application of, two organically-unconstitutional Presidential decrees.

It is a matter for the courts to deal with this manifest disregard of Articles 165 and 170 of the Constitution, potentially via an extraordinary appeal also citing the unconstitutionality of the administrative act of naming Isabel dos Santos, as this contravenes the principle of separation of powers, and the relative legislative competence provided for in the Constitution. Hence, it is possible to correct this clear abuse by recourse to the Supreme Court.

Additionally, there may also be a case to answer regarding a breach of the 2010 Administrative Probity Law.  Article 28 specifies that any ‘any person who exercises an authority, office, employment or function in a public entity’ (a category in which the President of the Republic can be included as head of the executive), is prevented from intervening in the preparation, decision making and execution of acts in which a relative has an interest. Any such intervention may result in political, disciplinary and/or criminal responsibility.

The fact that Isabel dos Santos’s appointment was announced via a minister with delegated powers does not deflect responsibility from her father, as in light of the doctrine of delegation of powers, the delegator remains responsible for the acts delegated). Thus, the President is again in full frontal contravention of the law.
With reference to Article 28, the President cannot, directly or indirectly, execute contracts or administrative acts with the entities referred therein (including progeny).

The President’s actions are therefore illegal under the 2010 Administrative Probity Law and also unconstitutional and it is now a matter for the courts to issue an injunction to prevent any harm from accruing from these unconstitutional and illegal acts and it is imperative that prompt action be taken.