It will be 272 years this year since Montesquieu, in his influential De l’esprit des lois, argued that the separation of powers, in particular the separation of the judicial from the executive, is the key to a healthy political system if it is to prevent the abuse of power.
Judicial independence is intended to safeguard peoples’ rights against legislative, and more often executive, invasion and abuse. Thus, imbalance between the three branches of the state powers – executive, legislative, and judicial – often throws an entire governance system out of kilter.
With the rule of law under threat throughout the world due to endurance of authoritarianism and rising populist movements, the beginning of this new decade is an apt time to review where justice stands.
Even in solid democracies like Spain and Japan, we have recently seen relevant cases of powerful people fleeing legal prosecution under the allegation that justice is not fair or independent from the executive. Mr Puigdemont (former regional president of Catalonia) and Mr Ghosn (former CEO of Nissan) are the most conspicuous cases. Puigdemont fled Spain hidden in the trunk of a car; Ghosn fled Japan in a huge box loaded as cargo in a private jet. Their allegations might be debatable, but the democratic nature of the justice systems they flee it is not.
On the opposite side of the spectrum of political freedom and fair and democratic justice systems are the cases of two petro-states in two different continents: Angola and Venezuela. It is no secret that the judiciary in autocracies is flawed and the use of anti-corruption campaigns for settling up internal power battles is something that is quite popular in China. But how corruption is impacting these two countries provides cause for alarm.
Last year, Angolan President Joao Lourenco accepted the resignation of Rui Ferreira, the Chief Judge of the Supreme Court. But Ferreira’s resignation was not voluntary. He was under relentless pressure to step down from what he called in his resignation letter as an “intense and cruel campaign of lies, misrepresentation of facts, intrigues, slander and insults.” He said the campaign damaged both his reputation and dignity, as well as accusing General Fernando García Miala, head of the intelligence services, of pressuring him to resign.
Ferreira’s resignation allowed a more pliant chief judge of the Supreme Court to take over just in time for Lourenço’s controversial ‘anti-corruption’ campaign.
Under the guise of this campaign, the rule of law has deteriorated significantly in Angola amid continued elite embezzlement, according to a briefing by Exx Africa Insight.
Last December, Luanda announced it had recovered some $5 billion in illegally withdrawn money as a result of a highly public, two-year anti-corruption investigation. $3 billion of this is said to have been recovered from funds embezzled from Angola’s sovereign wealth fund, which is funded by the country’s national oil giant, Sonangol.
The case revolved around former president Jose Eduardo dos Santos’ son José Filomeno dos Santos, also known as Zenu.
Zenu is being prosecuted for allegedly taking $500 million out of the sovereign wealth fund into foreign accounts, and is the first of his family to be investigated for corruption after his father stood down from office in 2017.
The case against Zenu is widely seen as the Lourenco government’s attempt to scapegoat the former president’s son, and indeed his entire family, for the economic crisis that has gripped the country since Lourenco took office.
With a raft of upcoming privatisations ordered by the IMF in exchange for financial aid, Luanda’s political elite look to make a killing
Zenu was already found not guilty of embezzlement by a UK High Court in August 2018. In its judgement, the British court also questioned whether $3 billion had been taken from the sovereign wealth fund at all, as no money had actually been removed.
As such, the case against Zenu, far from inspiring confidence among ordinary Angolans and foreign investors and is already being slammed as a show trial.
On 31 December 2019, Angolan authorities announced they were freezing the assets of the former president’s daughter, Isabel dos Santos, a private-sector entrepreneur and a brief head of Sonangol, under the anti-corruption campaign.
The timing of the announcement, when international news coverage was slow, raises suspicions that the announcement was made to garner the maximum possible news coverage, rather than to follow the due process. The details of which exact assets will be frozen are fuzzy, and Isabel dos Santos was unable to present her side of the story to Angolan authorities. Taken together with the timing of the decision, her case resembles Zenu’s as an act of showmanship rather than genuine desire to tackle corruption.
Local sources indicate that Ms dos Santos is being targeted so as to give up her share in important companies in the banking and telecoms sector in order to support foreign investors. In addition to wanting to be seen to be doing something by the public, Lourenço also wants to consolidate his power within the country’s ruling elite.
It is for this reason the corruption campaign has zeroed in on the former first family, while sparing other leading government figures. That is the case of former Vice President Manuel Vicente, who was previously accused of bribing Portuguese prosecutor Orlando Figueira with €760,000 ($850,000) to drop an inquiry into his luxury real estate dealings in Portugal. At the time of alleged bribery, Vicente was head of Sonangol, which he left in financial ruin after his tenure.
Last May, a Portuguese court ruled that former Angolan Vice President Manuel Vicente would be tried in Luanda, rather than Lisbon, on charges of corruption and money-laundering. The decision came after Lourenco’s loud protests about Angola’s sovereignty. But Vicente, who has since returned to Angola, enjoys judicial immunity as a former vice president. Far from being punished, he has returned with a vengeance to Angola’s ruling elite scene.
With a raft of upcoming privatisations ordered by the IMF in exchange for financial aid, Luanda’s political elite look to make a killing, with Vicente playing a key role through his complex web of offshore companies.
Regarding corruption crackdowns in Angola, US NGO Freedom House said: “Public officials are periodically prosecuted for corruption and other crimes. Often these instances are highly publicized and occur in conjunction with presidential announcements of a renewed assault on corruption, but such efforts are episodic rather than systematic.”
Freedom House wrote of Angola’s judiciary: “The judiciary is not independent in Angola. As one Angolan jurist put it, the judiciary is ―hostage to the executive.”
In 2017, Angolan courts threw out a case by the country’s opposition challenging the results of the 2017 election that Lourenço won; and then went one step further and said those who had brought the case had submitted forged documents to court. Since 2010, the president nominates all judges in the constitutional supreme, and audit courts.
“The judiciary is subject to political interference by the government, president, and other politically powerful individuals affiliated with the ruling party,” Freedom house continued. “The government has rewarded compliant judges with paid posts as chairs of committees. Some close to the system argue that sentences are frequently paid off, especially in civil cases. Political loyalty plays an important role in the system, and comparable cases are not necessarily treated equally, nor do they yield predictable outcomes. Bribery and influence peddling are commonplace in the courts.”
Freedom House releases an annual Freedom in the World report. In 2019, it ranked Angola as ‘Not Free,’ with a score of 31 out of 100 (0 being less free and 100 being most free). Furthermore, The World Justice Project, a US-based NGO, also releases an annual Rule of Law Index. In 2019, Angola ranked 111 out of 126 globally, and 24 out of 30 in its region.
In 2019, the International Commission of Jurists said that Venezuela’s “judiciary was taken over” and that “the government decided to completely trample on the principle of the rule of law really and separation of powers”
In Freedom House’s 2019 Freedom in the World report, Venezuela was ranked as ‘Not Free,’ with a score of 19 out of 100, 12 points down from Angola.
On Venezuela’s judiciary in its 2019 report, Freedom House wrote: “Politicization of the judicial branch increased dramatically under Chávez and has progressed further under Maduro. High courts generally do not rule against the government”.
The NGO said the ruling party had stacked the country’s supreme court with its own appointees, “solidifying the judiciary’s alignment with the executive branch.”
They also stated that, “according to Venezuelan human rights groups, at least 800 civilians have been tried in military court proceedings since 2017.”
The World Justice Projects’ 2019 Rule of Law Index ranked Venezuela 126 out of 126 globally, last place, and 30 out of 30 in its region, also last place.
Venezuela is undergoing a severe economic crisis sparked in part by the decline in global oil prices and the apprehension of the oil industry by inexperienced and corrupt military high officials. Yet Venezuelan President Nicolas Maduro has sought scapegoats under the guise of an anti-corruption crackdown.
In 2017, the New York Times reported that two of the top former officials at Venezuela’s state oil company were arrested. The officials, Nelson Martinez and Eulogio del Pino were part of a series of high-profile arrests. The arrests were lauded by the authorities as a strong blow against corruption, but critics saw it as a political play to consolidate the president’s power.
“Why is the focus on this so suddenly?” David Smilde, a political-science professor and Venezuela researcher at Tulane University, told the NYT. “There’s a need to find a scapegoat for the country’s economic crisis.”
Another case concerned Rafael Ramírez, the former oil minister between 2004 and 2014, and former UN ambassador between 2014 and 2017, when he was stripped of his post after criticizing Maduro.
In 2018, as part of Maduro’s anti-corruption campaign, both Ramírez and his cousin were accused of embezzling $4.8 billion of funds from state oil funds to Banca Privada d’Andorra (BPA), a bank based at the former tax heaven enclave in the Pyrenees.
That same year, a UN report said that the rule of law was “virtually absent” following reports of extrajudicial killings. In 2017, Maduro threatened to jail Supreme Court judges appointed by the National Assembly and freeze their assets, which was dominated by the opposition. In May that year the Prosecutor General, Luisa Ortega Díaz, a conspicuous Chavista who had been in the post for 10 years, was dismissed by Maduro for not abiding with the regime’s instructions amid a deep constitutional crisis that is lasting to the day. Ortega is now living in exile in Bogotá.
In 2019, the International Commission of Jurists, a Swiss-based NGO, said that Venezuela’s “judiciary was taken over” and that “the government decided to completely trample on the principle of the rule of law really and separation of powers.”
As an International Crisis Group briefing issued this week reports, how Maduro’s government made, on January 5, “a bold attempt to end its year-long standoff with opposition leader and chair of the National Assembly Juan Guaidó, whom dozens of countries – including the U.S. – recognise as Venezuela’s legitimate president. The government ordered the National Guard to obstruct opposition deputies’ access to parliament, allowing government supporters to prevail in a sham vote to impose a new Assembly chair.” ICG also recently said that the standoff between Venezuela’s government and opposition has reached a worrying juncture, with negotiations falling apart, side deals emerging and regional states rolling out new sanctions on Caracas.
Rule of law has gone down the sink very quickly in Angola and Venezuela. The current attempts to use a pretended fight against corruption to whitewash autocracy are also a way to secure ever more power no matter what.
Separation of powers does not go very well with petro-states, but now “l’esprit des lois” is nowhere to be seen anymore.