The state of emergency started in Angola at 00.00 am on 27 March, enacted through Presidential Decree no. 81/20, of 25 March. Having been extended for three times through Presidential Decrees no. 97/20, of 9 April 2020, 120/20, of 24 April 2020 and Decree no. 128/20, of 8 May 2020, the state of emergency was in place until 11:59 pm on 25 May, having been terminated thereafter.

From then on, the state of public calamity became effective, enacted by the President of the Republic through the Presidential Decree no. 142/20, of 25 May.

We have laid down hereunder a short summary of the legal regime of the state of public calamity and the state of emergency.

 

State of public calamity

 

What is a state of calamity and when can it be declared?

The situation of public calamity is provided for by the Law of Civil Protection, enacted by Law no. 28/03, of 7 November, and recently amended by Law no. 14/20, of 22 May.

The state of calamity can only be declared when, in light of occurrence or danger of a serious accident, catastrophe or public calamity (as defined by law), it is deemed necessary to adopt derogatory measures to prevent, react or restore normality.

The declaration of a situation of Public Calamity is enacted through act of the Holder of the Executive Power (the President of the Republic), which must specify its nature, measures and territorial scope, being in force for as long as the situation on which it was based persists or there are significant changes certified by the competent authorities of the State (articles 5/2 and 11 of the Law of Civil Protection).

 

What are the potential impacts?

The declaration of the situation of calamity may provide for the adoption of administrative measures, which may impact (i) the functioning of the Direct and Indirect Administration Bodies of the State; (ii) the exercise of commercial and industrial activity and access to goods and services; (iii) the functioning of markets; (iv) activities involving the massive participation of citizens, as long as there is a risk of contagion or insecurity of citizens; (v) the protection of citizens in a situation of vulnerability; (vi) the functioning of public transport; (vii) the functioning of kindergartens, nurseries, educational institutions, retirement homes and foster homes; (viii) the operation of road, air, sea, river and rail traffic; (ix) the provision of health services; (x) the holding of shows, sporting, cultural and leisure activities; (xi) the operation of places of worship, as long as there is a risk of contagion or insecurity for citizens; (xii) the mobilisation of volunteers; (xiii) the defence and control of borders; (xiv) the compulsory provision of individual health care, with or without internment, in the interests of public health; (xv) the definition of health cordons (Article 4 of the Law of Civil Protection).

Furthermore, among other effects and consequences, the declaration of the state of calamity:

(i) enables the temporary occupation of immovable or movable property, as well as civil requisition (Article 4/5).

(ii) enables the summoning of Defence, Security and Internal Order Bodies, as civil protection agents, to support citizens and guarantee compliance with the measures taken (Article 5/6).

The measures to be adopted in the context of the state of public calamity must respect the principle of proportionality of public action, that is, they must be necessary and appropriate to the threat that they aim to address or prevent, and under no circumstances may they jeopardize citizens' rights, freedoms and guarantees, as well as Article 58 of the Constitution of the Republic of Angola (Article 4/3 and 7).

Additionally, articles 5 and 19 of the National Sanitary Regulation, enacted by Law 5/87, of 23 February, complemented by International Sanitary Regulation-2005, accommodated in the Angolan Legal Order by the National Assembly, through Resolution 32/08, of 1 September, legitimize the adoption of additional measures that are indispensable to safeguard the health and safety of the population. 

 

What concrete measures have been adopted with the declaration of the State of Calamity?

Through Presidential Decree no. 142/20, of May 25, the President of the Republic declared a situation of public calamity in all national territory from 00.00am on 26 May 2020, for as long as the risk of massive spread of the SARS-COV-2 Virus and the COVID-19 Pandemic remains.

Without prejudice to the comments on each specific aspect, the aforementioned regime annexed to the Presidential Decree establishes, in particular, the obligation of confinement of COVID-19 patients and those under active surveillance, as well as the obligation to notification to the health authorities (point 9 of the General and Cross-Sectional Rules provided for in the Annex to Presidential Decree No. 142/20).

Moreover, a civic duty of home collection is imposed (article 7), all citizens being recommended to remain at their homes and refrain from travelling on public and similar spaces and streets, except for necessary and unavoidable displacements.

It is further stipulated that the borders of the Republic of Angola shall remain closed, except in exceptional situations, with the entry and exit of the national territory being subject to health control defined by the competent authorities, in accordance with the International Health Regulation and the National Health Regulation (Article 8).

Certain establishments such as health units and vocational training centres are expected to reopen. Indicative dates for the reopening are also provided for (i) educational establishments; (ii) sports competitions and training; and (iii) restaurants and similar establishments (Articles 14, 18, 19 and 22).

 

State of emergency

 

What is a state of emergency?

After hearing the Government and obtaining the National Assembly's authorization, the President of the Republic is entitled to declare a state of emergency, which determines or allows for the determination of partial suspension of citizens’ rights, freedoms and guarantees based on the occurrence (or threat) of a public disaster.

A state of emergency can only be declared if a public disaster occurs or is threatened to occur.
The state of emergency legal framework is laid down in Articles 57, 58, 119(p), 125.3, 161(h) and 204 of the Constitution of the Angolan Republic, and in Law 17/91, of 11 May 1991.

 

What are the potential impacts?

In practical terms, the declaration of a state of emergency may involve the partial suspension of certain rights, freedoms and guarantees, as ordered: e.g. a ban on travel or on the performance of certain personal or business activities.
If necessary, civil administrative authorities can have their powers reinforced and be supported by the Armed Forces.

The declaration of a state of emergency grants public authorities powers to adopt the necessary and adequate measures, exempting them from complying with certain formalities in doing so (e.g., the Ministry of Health’s power to requisite human or material resources from private-law businesses).

As a rule, the declaration of a state of emergency must abide by the principle of proportionality and be limited, in particular regarding its scope and duration and the resources used, to what is strictly necessary in view of the specific circumstances.

 

Can the State adopt just any measure?

The state of emergency cannot affect rights of superior constitutional dignity identified in the law and the Constitution. In particular, the declaration must abide by the principle of equality and non-discrimination as well as some elementary guarantees linked with the criminal procedural (e.g., against illegal arrests and detention) and access to courts. Moreover, it may not impose prior censorship of the media or prevent meetings of the statutory bodies of political parties, trade unions and professional associations.

The declaration of a state of emergency may not, under any circumstance, affect or undermine the constitutional rules regarding the competence and functioning of the sovereign bodies, the rights and immunities of the members of those bodies, the rights to life, personal integrity, personal identity, civil capacity and citizenship, freedom of conscience and religion,  the non-retroactivity of criminal law and the defendants' right of defense.

As for its content, the declaration must specify which rights, freedoms and guarantees are suspended.

In the present case, with the enactment of Presidential Decree 128/20 the following rights are suspended in full or partially:

(a) Inviolability of the home;
(b) Private property;
(c) Private enterprise;
(d) Freedom of belief, in its collective dimension;
(e) Right of residency, circulation and migration;
(f) Right of assembly and protest
(g) Right to inviolability of correspondence and communications;
(h) Right to strike and other workers’ rights;

 

Can measures be imposed to just some parts of the territory?

A state of emergency may be declared with regard to the entire or a mere part of the national territory and must only be declared regarding such area or territory where the measures are deemed required to ensure or restore normality. Among others, measures can be adopted to restrict circulation or impose forced quarantine in certain areas.

In the present case, the declaration applies to the entire national territory.

 

How long can a state of emergency last?

A state of emergency shall only last for as long as strictly required to protect the envisaged rights and interests and to restore normality.

Maximum duration is 90 days, without prejudice to any renewal for one or more identical periods if the cause determining it, should subsist.

In the case at hand, the state of emergency was extended 4 times for 15 days periods and terminated at 11.59 pm on 25 May 2020 (Article 1 of the Presidential Decree 128/20).

 

What are the consequences of breaching the measures ordered by the authorities during a state of emergency?

Any person breaching the provisions in Law 17/91 and in the declaration of a state of emergency (or in its implementation) may incur in criminal liability, notwithstanding any other form of disciplinary or civil liability which may also arise.

 

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This information is being updated on a regular basis.

The information provided and the opinions expressed herein have been prepared with the help of VdA Legal Partners and are of a general nature. They are not in lieu of appropriate legal advice in connection with specific cases.