Translated from Portuguese. The Portuguese version prevails. Ler em português
The Benguela Provincial Council of the Angolan Bar Association held, on Tuesday, 16 September 2025, in that Province, a Conference on the Extraordinary Appeal on Grounds of Unconstitutionality, attended by the President of the Constitutional Court, Justice Laurinda Prazeres.
Taking the floor, the judge provided a detailed exploration of the intricacies of this important instrument of judicial protection.
Read the full address by the President of the Constitutional Court.
THE CONSTITUTIONAL AND HUMANIST DIMENSION OF THE EXTRAORDINARY APPEAL ON GROUNDS OF UNCONSTITUTIONALITY
The REI – the Angolan extraordinary appeal on grounds of unconstitutionality (recurso extraordinário de inconstitucionalidade) – as an instrument of judicial protection essential to the protection of fundamental rights, freedoms and guarantees, ensures the supremacy of the Constitution and characterises a mixed system of review of constitutionality. As an instrument of judicial protection of constitutionally enshrined personal rights, freedoms and guarantees, it demonstrates a strong commitment to universal human rights.
In this address, which is intended to be brief, we shall consider the issues surrounding the constitutional framework of the REI, the essential nature of the principles of the supremacy of the Constitution, of constitutionality, of the dignity of the human person, of legal certainty and of access to law and effective judicial protection, as well as the vicissitudes of the principle of exhaustion of the chain of appeals, and, finally, make a brief reference to the challenges of the effectiveness of the decisions of the Constitutional Court.
The delimitation of the theme “The Constitutional and Humanist Dimension of our REI” is related to the fact that, within the framework of the judicial guarantees of Fundamental Rights, the REI is accorded the sublime importance of ensuring, within the constitutional legal order, the defence of citizens' fundamental rights, freedoms and guarantees against unconstitutionalities resulting from the actions of the Public Administration and of the Judiciary.
THE CONSTITUTIONAL DIMENSION
The CRA (2010)
The 2010 Constitution of the Republic of Angola (CRA) strengthened the foundations of the Angolan State, anchored in the principles of the democratic State based on the rule of law, in respect for the dignity of the human person and in the will of the people, with the fundamental objective of building a free, just and democratic society based on solidarity, peace, equality and social progress.
It also strengthened the guarantees and limited the powers of the bodies that make up the Angolan judicial system, with emphasis on the Constitutional Court (cf. Article 181 of the CRA) which, in the meantime, had been institutionalised two years earlier, that is, in 2008.
Consequently, within the Angolan judiciary, the Constitutional Court became the judicial body that acts as guarantor of the Constitution. And in this respect, guarantees of the Constitution therefore means, as Kelsen teaches, guarantees of the rules and acts subordinate to the Constitution, all the more so because, as a rule, all fundamental rights, considered as a whole, are in the nature of principles, that is, they are strong legal guarantees.
Indeed, with the entry into force of the LOTC and the LPC, the Constitutional Court, as regards appeals, began to hear the ordinary appeal on grounds of unconstitutionality – ROI and the extraordinary appeal on grounds of unconstitutionality – REI, both of them legal mechanisms for the concrete review of constitutionality.
Structuring Principles of the REI
The protection of fundamental rights and the guarantee of the supremacy of the CRA are of great importance since, as asserted by Jorge Novais, “(..) in a world – that of fundamental rights – under great pressure from ductility, from the flexibility imposed by the necessary reconciliation of values and interests pointing in divergent directions, and from subjectivism of assessment – all of which, ultimately, presses in the direction of judicial deference to the choices of the democratic legislator – all the elements and instances that can be subjectively shared, such as the structures and parameters of review provided by the structuring principles, end up acquiring decisive relevance”.
▪ The Supremacy of the Constitution proclaimed in Article 6 of the CRA.
The supremacy of the Constitution is the primary foundation of the extraordinary appeal on grounds of unconstitutionality, thus constituting the basis for the decisions of the Constitutional Court.
▪ Principle of Constitutionality
The CRA, as the supreme law of the State, created a set of shields that function as guarantees, that is, as mechanisms for the defence of its values. One of these shields is the principle of constitutionality, which means that all acts, whether of public or of private powers, are only valid if they are in conformity with the Constitution and that, otherwise, they must be subject to scrutiny before the Constitutional Court, under Articles 6 and 226, both of the CRA.
▪ Access to Law and to Effective Judicial Protection
Article 29(1) of the CRA provides that “everyone shall be guaranteed access to law and to the courts to defend their legally protected rights and interests, and justice may not be denied for lack of financial means”.
Paragraph 5 of the same Article states that “in defence of personal rights, freedoms and guarantees, the law shall provide citizens with judicial procedures characterised by speed and priority, so as to obtain effective and timely protection against threats to or violation of those rights”.
In this regard, attention is also drawn to the provisions of the Universal Declaration of Human Rights (UDHR) and the African Charter on Human and Peoples' Rights (ACHPR), to which the system of integration and interpretation of the constitutional system of fundamental rights refers us through the open clause provided for in Article 26(2) of the CRA.
The spirit of the provisions in question points towards an interpretation and the creation of legal mechanisms that, in practice, translate into genuine and effective protection, which requires the existence of a procedural system of protection without gaps, also known as the principle of the completeness of procedural remedies. In other words, the CRA sets as a compass for the ordinary legislator, in designing procedural remedies, the practical effect of effective protection, it being for the law to determine which judicial mechanisms are, in practice, the most effective in achieving that aim.
What Article 29(5) of the CRA provides, in terms of legal force, is that the legislator may not impose procedural limitations, but must rather broaden the procedural means and procedures that facilitate citizens' access to the courts, with a view to effective judicial protection.
Moreover, we share the view of Ana Preto, who argues that the principle of effective judicial protection should be understood as a relationship between substantive rights and procedural rights, between fundamental rights and organisation and procedure. In other words, while it is recognised that the right is not sufficient to achieve effective protection, this enshrinement is binding, first and foremost, on the legislator, who must take it into account in the organisation of the courts and in the procedural instruments.
In view of the above, we are prompted to pose the following question: can mechanisms for strengthening the review of constitutionality, built for that purpose, be considered unconstitutional merely because the formal Constitution does not give them a name of their own? It seems to us that they cannot! Indeed, “constitutional norms are not the statements of the Constitution. The linguistic formulation constitutes the outer limit for any variations in meaning. The binding content of the constitutional norm is the semantic content of its statements”. Therefore, the problem is not the legal name, but rather what follows from the content of the statement of the constitutional norms.
▪ Principle of Legal Certainty
The Constitutional Court being the body competent to administer justice in matters of a legal and constitutional nature, its decisions are binding on all public or private entities and prevail over those of the other courts and of any authorities, including the Supreme Court, as provided for in Article 6 of the Organic Law of the Constitutional Court.
As Canotilho stresses, the principle of legal certainty is not merely an essential element of the principle of the rule of law in relation to normative acts. The author maintains that the principle of legal certainty is connected with the subjective elements of the legal order – the guarantee of legal stability, certainty of orientation and realisation of the law.
In short, the Angolan constitutional system is characterised by a strong constitutional jurisdiction, since the decisions of the Constitutional Court have mandatory binding force, affirming the exercise of its authority in the functions of constitutional review and protection of citizens' fundamental rights.
HUMANIST DIMENSION
With reference to the reality of Angolan constitutional jurisdiction, Article 1 of the Constitution of the Republic provides: “Angola is a sovereign and independent Republic, based on the dignity of the human person (...).” There is, therefore, in this principle the recognition of the homo noumenon, that is, of the individual as the limit and foundation of the political dominion of the Republic.
The foundational norm referred to above, both in the strict latitude of Law and in the latitude of a fundamental Institution prior to Law itself, offers us different perspectives on the dignity of the human person, the constitutional and humanist view being the one that interests us for the purposes of this address.
Thus, in a legal and constitutional dimension, the dignity of the human person constitutes the foundational principle of the Angolan legal order, presenting itself not only as a fundamental value but as a true norma normarum of the constitutional system.
This principle also guides judicial decisions, essentially in the context of the REI, and reflects the commitment to justice, equality and respect for humanity, functioning, likewise, as a true legitimising clause of the whole subsequent legal order. It is also, therefore, the criterion for the foundation of Law, based on the characteristics of (i) freedom and (ii) rationality of the person, (iii) anthropologically sustained by social integration, guaranteeing his or her (iv) personal development.
The principle of the dignity of the human person, enshrined as a fundamental value of the legal order, signals, according to Alexandrino, various fundamental-rights functions, namely: (i) a symbolic function; (ii) an instrumental function (in the guise of a parameter for the interpretation and integration of norms, as well as of reinforcement and of grounds for reducing the effects of protection); and (iii) a protective function (whether as a possible criterion of last resort or as the basis for special duties of protection and promotion).
In summary, every human being is endowed with an intrinsic value that must be respected and promoted by the State and by society.
The principle of the dignity of the human person plays a fundamental role in the interpretation and integration of the other fundamental rights. Fundamental Rights and Human Rights are intrinsically related, which is why our Constitution of the Republic provides, in Article 26(2), that the constitutional and legal precepts relating to fundamental rights must be interpreted and integrated in harmony with the Universal Declaration of Human Rights, the African Charter on Human and Peoples' Rights and the international treaties on the matter ratified by Angola.
In the context of the extraordinary appeal on grounds of unconstitutionality, the guiding principles that stand out are in dubio pro libertate, interpretation in conformity with fundamental rights (Article 26(2) of the CRA) and the maximum effectiveness of fundamental rights.
Thus, from a humanist point of view, the dignity of the human person transcends its legal and political dimension, presenting itself as an intrinsic and inalienable value of the human being. From this perspective, we identify at least three fundamental pillars: (i) the recognition of individuality; (ii) respect for autonomy (self-determination); and (iii) the guarantee of personal fulfilment.
CONTEXTUALISING OUR REI
In the Angolan system of concrete or incidental review, ordinary and extraordinary appeals on grounds of unconstitutionality are the only mechanisms to which citizens can resort for the protection of their constitutionally enshrined rights.
In the ordinary appeal on grounds of unconstitutionality, the assessment focuses on a preliminary question, or rather, its object is always a norm (or its interpretation), unlike the extraordinary appeal, in which the Court rules on the merits of the matter.
REI – a mechanism for the protection of fundamental rights, freedoms and guarantees against judicial decisions that deviate from constitutional dictates (Article 49 of the LPC).
The adoption of a hybrid (diffuse and concentrated) review model, provided for in Article 177 of the CRA, means that the Constitutional Court does not have exclusivity in the defence of the Constitution and of fundamental rights when reviewing the effective compatibility of laws and normative acts with the Constitution, since that function is also assigned to the ordinary courts in the exercise of their judicial tasks.
▪ Object of Review in REI Proceedings
Under Article 49 of the LPC, the object of the REI is the judgments of the other courts that contain legal grounds and decisions contrary to constitutional principles, rights, freedoms and guarantees, and final and enforceable administrative acts that call into question constitutional principles, rights, freedoms and guarantees.
The Extraordinary Appeal on Grounds of Unconstitutionality, as a procedural mechanism of crucial importance for safeguarding fundamental rights, freedoms and guarantees, is an ultima ratio remedy for the protection of fundamental rights, intended to overcome a possible failure of their protection by the ordinary courts.
▪ The Parties and Procedural Standing
Representation by a lawyer is mandatory, except where the appeal is lodged by the Public Prosecution Service.
Active standing lies with those entitled to lodge an extraordinary appeal, namely: (i) the parties to the main case; (ii) the Public Prosecution Service; and (iii) legally interested third parties.
Passive standing lies with (i) the opposing parties in the original proceedings; (ii) the public entities responsible for the contested act; and (iii) any counter-interested parties.
▪ Lodging Stage
The time limit for lodging the appeal is 8 (eight) days for judicial decisions and 60 (sixty) days for administrative acts. The time limit for judicial decisions is counted from the date of notification of the decision under appeal, and the petition must be filed with the court a quo; the appeal has suspensive effect, goes up to the Constitutional Court in the case file itself and suspends the time limits for the other appeals provided for in the CPC (Code of Civil Procedure) (Article 51(1) of the LPC).
In turn, the time limit for lodging an appeal against administrative acts is counted from the date on which the challenged act became known (Article 51(2) of the LPC).
Exhaustion of the Chain of Appeals as a Requirement for Admissibility
The original version of the extraordinary appeal on grounds of unconstitutionality did not, in essence, impose as a requirement for admissibility the exhaustion of the chain of appeals in the ordinary courts or in any other jurisdiction from which the case originated – Article 49 of Law No. 3/08 of 17 June – Constitutional Procedure Law.
The amendment to the Angolan Constitutional Procedure Law took place, chronologically, after Judgments No. 121 and 122 of 2010 had been handed down (available at www.tribunalconstitucional.ao).
With the amendment made to the LPC, introducing the principle of exhaustion of the chain of appeals, access to the Constitutional Court was thereby transformed from a direct route into a supplementary one.
However, considering that the sole paragraph of Article 49 of the LPC results from an act of the ordinary legislator, subsequent to the normative provision of Article 29(5) of the CRA, increasingly heated debates have arisen, in academic circles and elsewhere, as to whether or not the “... exhaustion of the ordinary chain of appeals” calls into question paragraph 5 of the above-mentioned Article, which provides: “in defence of personal rights, freedoms and guarantees, the law shall provide citizens with judicial procedures characterised by speed and priority, so as to obtain effective and timely protection against threats to or violations of those rights”.
One school of academic opinion argues that, since the exhaustion of the chain of appeals was not introduced by virtue of the Constitution (of 2010) but by choice of the ordinary legislator, it conflicts with constitutional principles insofar as it calls into question the meaning/spirit intended by the constituent legislator with regard to the instruments and mechanisms for safeguarding the effective judicial protection of fundamental rights in general and of personal rights in particular.
Another school argues that the exhaustion of the chain of appeals has a constitutional basis in the system of review of constitutionality, insofar as it is crystal clear from Article 174(2) read in conjunction with Article 177(1) that all courts have the duty to guarantee and ensure the defence of the Constitution and of fundamental rights; in other words, the mechanism of exhausting the chain of appeals in other jurisdictions gives the other courts the opportunity to review compliance with the Constitution and to give effect to the fundamental rights by which they are bound.
In view of the system of review of constitutionality in force in the Angolan legal order, which is diffuse at the base and concentrated at the top, it is justified that citizens, before appealing to the Constitutional Court, should exhaust the chain of appeals of the jurisdiction in which the case originated; hence the Constitutional Court is the last bastion in the review of the constitutionality of judicial acts, since there is a hierarchy of courts of ordinary jurisdiction, on which the duty to observe the Constitution is imposed by the CRA.
In this regard, Rosa Guerra states that “by virtue of the diffuse component of the Angolan system of review of constitutionality (...) in the extraordinary appeal on grounds of unconstitutionality, the Constitutional Court is placed within this system to assume the role of final interpreter, of ultimate guarantor of the Constitution and of the fundamental rights enshrined therein”.
For our part, we consider that the prior exhaustion of the chain of appeals provided for in Article 49 of the LPC is not, per se, unconstitutional; however, it is true that, in the context of the protection of human rights, its literal application results, more often than not, in decisions that amount to a denial of justice. Consider the following: it is by no means rare for citizens to appeal to the Constitutional Court because of delays in the delivery of judicial decisions by the courts of ordinary jurisdiction. Therefore, as can be seen, the underlying issue is not the prior exhaustion of the chain of appeals, but rather the time it takes for decisions to be delivered so as to exhaust the chain, which reveals a truly ailing judicial system that is almost incapable of meeting the requirements of speed and priority, so as to obtain effective and timely protection, imposed by Article 29(5) of the CRA.
Considering that the first school bases its position on the above-cited norm, that is, on Article 29(5) of the CRA, we are certain that, although that norm embodies a fundamental right (effective judicial protection), it is not self-executing, and the norm therefore needs to be given concrete form by the ordinary legislator. And it seems to us that this is where the crux of the matter lies. Was the ordinary legislator sufficiently diligent with regard to the meaning and scope of Article 29(5) of the CRA when it laid down the terms of citizens' access to the Constitutional Court in REI proceedings?!!
In his lessons on the General Theory of Fundamental Rights, Jorge Silva teaches that “nowadays it is no longer fundamental rights that move within the scope of the law, but the law that must move within the scope of fundamental rights”.
The author clarifies: “as a matter of principle, rights, freedoms and guarantees apply – that is, they confer, where applicable, subjective legal positions that their holders may invoke before public authorities and enforce in court – independently of any ordinary implementing law, in the absence, inadequacy or insufficiency of the law and even against the very text of the law”.
To conclude...
Therefore, and with reference to the provisions of Article 29 of the CRA, we consider that the insertion of the sole paragraph of Article 49 of the LPC, effected by Law No. 25/10 of 3 December, in the absolute terms in which the obligation to exhaust the ordinary chain of appeals is framed, calls into question the essence of Article 29(5) of the CRA, constitutes a step backwards in relation to the gains achieved in the original version of the LPC, and undermines the constitutional prerequisites inherent in access to law and to the effective judicial protection of people's rights, freedoms and guarantees, especially in matters relating to the liberty of defendants.
Benguela, 16 September 2025.