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BEFORE THE AFRICAN COMMISSION ON HUMAN & PEOPLES’ RIGHTS

FLEC (Front for the Liberation of the Enclave of Cabinda)

Cabinda

vs.

The Republic of Angola

Communication 328/2006

SUBMISSION ON THE MERITS

For the Complainant-FLEC:

Dr. Jonathan Levy, PhD International Criminal Bar/ Barreau Pénal No. 100465 Attorney for Complainant-FLEC 37 Royal Pointe Dr. Hilton Head Island, SC USA 29926 Tel/Fax 001 202-318-2406 Email jonlevy@hargray.com

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INTRODUCTION

Economic self determination has been maligned as a “poor cousin” to political self determination. Yet in Africa especially, this is not the situation. The old struggle against imperialism and colonialism has been superseded by neocolonialism and post colonialism. The wealth and resources of Africa still enrich powerful outside interests while the people of Africa languish. The protectorate of Cabinda was born of the European scramble for colonies, today the oil of Cabinda drives the economies of Europe and North America, enriches the shareholders of Chevron, and makes it possible for the government of Angola to maintain itself. The majority of Cabindans are impoverished and unemployed. Cabinda is a metaphor for Africa and Cabinda’s economic self determination matters to all who oppose injustice.

1. Communication 328/2006 concerns itself with economic self

determination in the territory of Cabinda and in particular the disposition and exploitation of onshore oil, mineral, and natural resources.

2. This submission on the merits makes the case that the Commission

should find cause to grant FLEC’s request and appoint a Special Rapporteur on the issue of Cabinda’s economic self determination and the disposition of onshore resources.

3. FLEC contends that neutral fact finding is urgently needed as the

situation within Cabinda remains unstable and volatile as set forth in the update to the facts infra.

4. The Complainant alleges that the Respondent State has violated the

applicable Articles 14, 19, 20, 21, 22 and 24 of the African Charter in regards to its administration of the natural resources patrimony of Cabinda:

5. Article 14

“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”

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6.

Article 19

All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

7. Article 20

1. All peoples shall have the right to existence. They shall have the

unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonized or oppressed peoples shall have the right to free themselves

from the bonds of domination by resorting to any means recognized by the international community.

3. All peoples shall have the right to the assistance of the States parties to the

present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

8. Article 21

1. All peoples shall freely dispose of their wealth and natural resources. This

right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

2. In case of spoliation the dispossessed people shall have the right to the

lawful recovery of its property as well as to an adequate compensation.

3. The free disposal of wealth and natural resources shall be exercised

without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

4. States parties to the present Charter shall individually and collectively

exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

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5.

States parties to the present Charter shall undertake to eliminate all forms

of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national

9. Article 22

1. All peoples shall have the right to their economic, social and cultural

development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

2. States shall have the duty, individually or collectively, to ensure the

exercise of the right to duty, individually or collectively, to ensure the exercise of the right to development.

10. Article 24

All peoples shall have the right to a general satisfactory environment favorable to their development.

11. FLEC does not seek a finding on the issue of political self determination

and confines itself to the issues of economic self determination, communal property rights, and development.

12. FLEC requests the appointment of a Special Rapporteur for Cabinda to

investigate and make findings on the above issues. Thus the Commission should:

(a) Appoint a Special Rapporteur to investigate the matter of economic self determination in Cabinda and makes recommendations after consulting with all involved parties including the people of Cabinda, FLEC, the Government of Angola, civil society, multinational corporations, the Roman Catholic Church, NGOs and IGOs.

(b) Make the Good Offices of the Commission available in resolving this matter in an amicable way.

SUBMMISSION ON THE MERITS

A. Procedure

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13. On 29 September 2006, the Secretariat of the African Commission on Human and PeoplesRights (the Secretariat) received a Complaint from Front for the Liberation of the State of Cabinda – FLEC.

14. On August 15, 2007, the Complainant amended/supplemented their

facts and submitted a brief on admissibility.

15. Additional supplementary information and correspondence has also

been submitted during the pendency of this proceeding.

16. At the 10 th Extra-Ordinary Session of the Commission, this

Communication was found to be admissible.

B. Supplemental Information and Clarifications

17. The Complainant is FLEC, the Front for the Liberation of the State of

Cabinda with members and functionaries in Cabinda, Pointe Noire, Republic

of the Congo, and France. FLEC is a member of the UNPO (Unrepresented Nations & Peoples Organization) and OEAS (Organization of Emerging African States). 1 FLEC’s chief officers are Afonso Massago (President), Stephane Barros (General Secretary), and Dr. Joel Batila (Chancellor). 2

18. FLEC considers itself to be the historic and accepted representative of

the people of Cabinda who are the real parties in interest. In Cabinda it is widely held that: “Todo o Cabinda é FLEC” – all Cabindans are FLEC.” FLEC is banned from participation in the Angolan “democracy” because it advocates self determination.

19. In preparation of this submission, the Complainant has consulted and/or

solicited information from ordinary Cabindans, Cabindans affiliated with non FLEC organizations, non government organizations, international government organizations, the media, representatives of the Catholic Church, the international community and representatives of the oil and mining industries. All of the above have expressed support for neutral fact finding by the ACHPR.

1 www.unpo; www.oeas.info.

2 Also referred to recently as FLEK, Front for the Liberation of the State of Kabinda.

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20.

The Complainant has also provided information on this pending matter

to the African Union Secretariat, UN agencies, the International Criminal Court, NGOs and various sovereign states.

21. The respondent state Angola has not discussed this matter with FLEC,

directly or indirectly. Likewise the respondent state has not participated in this proceeding.

C. Supplemental Information Regarding Onshore Resources.

22. This Complaint excludes the matter of offshore resource allocation from

its initial Communication although FLEC has no objection to the Commission broadening the scope of any enquiry. The offshore resources regime differs materially from the onshore regime in that the extraction of petroleum products is ongoing and dates from at least 1954 while Cabinda was a colonial protectorate of Portugal.

23. Onshore resource extraction is largely dormant or in the exploratory

stage owing large part due to the opposition of FLEC forces which prevent or restrict operations.

24. FLEC does not recognize grants of resource licenses or concessions by

Angola and reserves the right to make its own arrangements with resource companies to vest upon decolonization of Cabinda.

25. FLEC has on numerous occasions provided notice to foreign contractors

that their safety cannot be assured in the onshore conflict.

26. As a result of the conflict over resources, since 2006, FLEC and the

Angolan Armed Forces (FAA) have clashed numerous times in the past year in northern Cabinda with FAA incursions into the Republic of the Congo including murder and kidnapping of FLEC officers.

C. The January 8, 2010 Incident

27. On January 8, 2010, members of the Togolese football team on en route

to the Africa Cup in Cabinda were killed and wounded just inside the Cabinda border.

28. FLEC and Angola differ over the responsibility for the incident. A

January 8 Commission Report authorized by the then FLEC Secretary

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General Dr. Joel Batila found that FLEC forces did not carry out the attack and raised serious questions about involvement by Angola. Angola holds FLEC responsible. Attached as EXHIBIT ONE.

29. In December 2011, the French government released from custody the self confessed mastermind of the attacks apparently because his claims were not credible. 3 FLEC also reached the same conclusion. A French inquiry continues.

30. The position of FLEC is that the January 8 incident was a provocation by an element of the Angolan government to classify FLEC as a terrorist organization. FLEC has called for an international investigation. Angola has used the incident to justify summary executions, torture, and kidnapping of alleged FLEC members and non FLEC civil opposition inside Cabinda and the Congo.

D. The Corruption and Murder of FLEC Officials

31. Subsequent to the January 8 incident, Angola incongruently welcomed

the defection of several high ranking FLEC officials, the same officials who logically would have been responsible for the attacks. These included the Vice President of Cabinda’s civil administration, FLEC’s military

commander, and Cabinda’s Minister of Security. None of these individuals were arrested or charged with terrorism by the Angola government. 4

32. Following the defection, at least six FLEC military commanders were

assassinated in 2010-2011 at or near Pointe Noire, Congo or inside Cabinda including FLEC Chief of Staff, Comandante Sabata. 5

33. Angola further has arrested or issued warrants for at least 23 Cabindans

abroad that logically and factually could have had nothing to with the January 8 incident including the leadership of FLEC and former members of

Mpalabanda. Several individuals on this list have been murdered or have defected. 6

E. Current Situation

3 http://www.voanews.com/portuguese/news/01_25_12_Angola_Cabinda-138062653.html

4 http://www.irinnews.org/report.aspx?reportid=89930

5 http://www.ibinda.com/noticias.php?noticia=1000091

6 http://www.ibinda.com/noticias.php?noticia=1000379

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34.

The Angolan national oil company has announced that in 2013

commercial extraction of oil will commence in southern Cabinda, “Argentina's Pluspetrol, Sonangol, Force Petroleum and Cuba's state-owned Cupet plan to begin production at the onshore Castanha block in Cabinda in

2012. This will be the first time there has been commercial production of

oil onshore. 7 ” It has long been speculated that onshore Cabinda’s oil reserves may rival offshore reserves. If true, the onshore reserves may be one of the largest untapped sources of oil in Africa.

35. FLEC contends that the current hostilities and corruption are

symptomatic of an official policy of Angola to foster confusion within FLEC in order to prevent disruption of the anticipated onshore oil extraction. By deliberately creating chaos in Cabinda, Angola justifies its military

occupation and may sweep aside any criticism by Cabindans of its resources policies.

36. The Angolan government has instituted a policy of paying off opportunists who “defect” in exchange for cash. This in turn creates a situation where violence is actually encouraged and pay offs made to armed pressure groupsare made rather than a comprehensive economic solution implemented – a so called “Niger Delta syndrome.”

37. As a result of increased violence, Cabindans will see increased

repression and the security situation will deteriorate for ordinary citizens in

2012.

F. The Political Position of FLEC

38. FLEC is a legitimate representative of the Cabindans and has been

recognized as such since at least 1974. See EXHIBIT TWO. The Angolan MPLA tacitly recognizes this fact, by entering into piecemeal negotiations and pay offs with renegade FLEC commanders and politicians who trade on

the name FLEC for personal profit. The sham 2006 Cabinda Peace Accord was also premised on FLEC’s standing even though FLEC did not participate and repudiated the agreement. 8

39. FLEC’s stance is that the political fate of Cabinda can only be decided

by the people of Cabinda in an internationally supervised referendum. The

7 http://www.theafricareport.com/index.php/sectors/more-fuel-for-the-engine-51708618.html

8 http://www.irinnews.org/report.aspx?reportid=61248

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only acceptable negotiated settlement is one that results in a democratic election to legitimize the successor status to the Portuguese protectorate. FLEC’s position is that it represents the party of total independence for Cabinda and does not support autonomy or federal union with Angola. Independence is the reason for the existence for the Front for the Liberation of the State of Cabinda.

G. Current Analysis of Human Rights

40. The deplorable human rights situation is intertwined with issue of

resources in Cabinda. Cabinda recommends the report by Human Rights Watch to the Commission as an accurate reflection of the current situation. Attached as EXHIBIT THREE.

H. Violations of African Charter Article 14

41. FLEC contends that the natural resources of Cabinda must be

administered largely for the benefit of the people of Cabinda. Cabinda is an exclave of no strategic or military value to Angola however it is estimated to provide at least half of Angola’s oil revenues. There is an economic incentive for Angola to prevent any devolvement of Cabinda from Angola.

42. While a state can certainly grant resource rights in the name of its

people, it is less settled if such grants are legitimate in the case of one people dominating another or a grant being made or administered in an irresponsible manner. For example the African Union and United Nations

have supported the claims of the Saharawi people to the resources of Western Sahara even though the occupying power, Morocco, has been able to exploit these resources with foreign partners. It is desirable that when a conflict of this type arises over stewardship of economic resources that an understanding be reached before the resources are depleted.

43. Cabindans maintain that they are a separate people with a historical

legacy tied to the Congo and Portugal rather than the modern state of Angola. The cornerstone of this claim is the 1885 Treaty of Simulambuco which created a Portuguese colonial protectorate over Cabinda, the so called Portuguese Congo. The Cabindans have always maintained a separate identity reinforced by the geography of Cabinda which is non-contiguous to Angola. Linguistically, Cabindans speak their own language and many speak French due to being surrounded by Francophone countries. The Cabindans were never consulted regarding the unilateral termination of the Portuguese

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colonial protectorate and have never ratified the Angolan occupation. Since 1974, FLEC has continuously maintained a civil government inside portions of Cabinda, primarily in non urban areas. The FLEC zone of control has changed in configuration since 1974 on several occasions. Many of the areas of resource extraction are in or near the FLEC zone.

44. The hasty and ill prepared exit by the Portuguese from Cabinda has

contributed to the deaths of tens of thousands. The OAU, Zaire, and Gabon all at one time or another recognized the aspirations of the Cabindan people; these hopes were dashed by the 1974 Alvor Conference which awarded the Cabinda protectorate to Angola. Regardless of the political expedience, as a separate people Cabindans do not consider themselves Angolans and consider the Angolan government to be a temporary occupier until such time the status of Cabinda is decided by referendum. Cabindans who serve the Angolan regime are known by the derisive term “Cabingolas.”

I. Violations of African Charter Article 19

45. FLEC contends that the revenues from onshore resource extraction will flow to Luanda just as offshore revenues do now. The sham 2006 “ Cabinda peace accord” with Bento Bembe allegedly promised a 50% return of oil revenues to Cabinda, this promise has not been realized or audited. Only a small percent, perhaps 10%, or less will return to Cabinda. FLEC bases this estimate on the current allocations of offshore revenues. It is unclear if this 10% also includes the FAA budget which does not benefit the Cabindan people. Any attempts to question this allocation has resulted in summary imprisonment as in the case of Global Witness investigatory Sarah Wykes who was arrested by Angolan police and charged with espionage after meeting with local representatives of civil society in Cabinda. 9

46. Despite the presence of offshore oil in abundance, unemployment in

Cabinda is very high. Poverty, infant mortality and disease are also higher than most areas of Angola proper.

47. Cabinda’s dependable offshore oil revenue has subsidized the

government of Angola and amounts to 50% of its oil revenue; onshore revenues should therefore be reserved for the people of Cabinda.

9 http://www.globalwitness.org/library/angola-anti-corruption-campaigner-still-unable-leave-cabinda- angola

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48.

An unequal return to Cabinda of revenue streams from both onshore and

offshore oil revenues is predatory neocolonialism. The Angolan administration of Cabinda can be deemed predatory in that it has little concern for providing public goods and incentives to facilitate investment in

welfare-enhancing improvements for the population at large. The Angola government abuses its political power to maximize natural resource revenues in order to increase its own wealth and that of its MPLA supporters, resulting in corruption and economic collapse in Cabinda.

J. Violations of African Charter Article 20

49. The Cabindans are a geographically, politically, linguistically and culturally distinct people from the Angolans. The only link between Cabinda and Angola were acts by the former colonial power Portugal which conjoined the administrations of Angola and the colonial protectorate of Cabinda beginning in 1954 and without legitimate authority ceded Cabinda to the Republic of Angola at the Alvor Conference. Angola has since attempted to assimilate Cabinda without success.

50. The Cabindans have the right to social and economic development.

They are currently unable to exercise this right because organizations that espouse a uniquely Cabindan point of view such as FLEC and Mpalabanda (Cabinda Civil Society) have been banned by the Angolan government.

51. Cabindans who campaign for economic self determination are routinely arrested as FLEC sympathizers. Foreigners who have identified economic corruption in Cabinda have been jailed.

K. Violations of African Charter Article 21

52. On shore oil and mineral rights offerings have been made by the Angolan government without input from the Cabindans. All decisions and awards of contracts and licenses are made from Luanda. Licensing fees and royalties are paid in return to Luanda.

53. All management of Cabindan onshore resources are managed from

Luanda or by foreign corporations.

54. The Cabindan people and their representatives such as FLEC have not

been adequately consulted about the management of their onshore resources.

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55.

Oil and mineral exploration activities are carried out under security

arrangements with the FAA. Cabindans are systematically removed from the proximity of drilling projects.

56. FLEC disputes legally the right of Angola to dispose of and exploit

onshore resources and considers such activities to be spoliation redressable

by legal means against both Angola and its licensees in courts of competent jurisdiction outside Angola.

L. Violations of African Charter Article 22

57. The people of Cabinda are a distinct people with a right to economic

and social development.

58. The current policy of the government of Angola is one of Angolization

of Cabinda. Individuals and groups that claim a Cabindan identity are systematically discriminated against and/or arrested.

M. Violations of African Charter Article 24

59. The current environment is not conducive to the development of

Cabinda. FLEC does not seek an ideal environment only one that permits some measure of equity for the people of Cabinda. The current regime permits corporations like Chevron to degrade the environment without fear of civil monitoring or redress by the people of Cabinda as explained below.

N. The Chevron Example

60. Chevron subsidiary Cabinda Gulf Oil (CABGOC) has been active in

Cabinda since the days of the Portuguese colonial protectorate in 1954. While those operations are not the subject of this Complaint, they are relevant because they offer an indication of past and current economic practices in Cabinda that violate the African Charter section invoked above.

61. Chevron offers in its official corporate responsibilities report some

examples of its largesse to the Cabindan people. These projects however are miniscule in comparison to the oil and gas extracted from the offshore wells and does little to mitigate the wrongs visited upon the Cabindan people since the Portuguese betrayal of the protectorate ion 1974.

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62.

The government of Angola stations approximately 40,000 troops and

additional gendarmes in Cabinda to secure the resource rich territory and its revenues. Chevron has paid billions of dollars to government of Angola which in turn perpetuates this occupation and the attendant human rights

violations. FLEC receives no oil revenues and has no external sponsors of note.

63. Chevron’s oil exploration and production activities—including seismic

tests, drilling, offshore disposal of drill cuttings and produced water, fracturing and water flooding activities, pipeline leaks, accidental oil spills, and use of chemicals such as dispersant devastate human and environmental health. Similar or worse environmental degradation can be expected from onshore activities under the control of Angola, not necessarily because oil

companies will not comply with environmental rules but because Angola has little or no interest in sacrificing production revenues at the expense of the environment in Cabinda. The lack of civil society, FLEC and Mpalabanda in Cabinda prevents effective monitoring of oil company activities. The state of repression in Cabinda also makes it difficult, futile, or impossible for ordinary Cabindans to press compensation claims against Chevron or other oil companies.

64. Chevron has shifted many nonoperational jobs to Luanda crippling the

development of the local economy. The Chevron compound at Malongo has private security and all the comforts of Western society for the lucky expatriates and Cabindans who live there but just outside Malongo, Cabindans lack basic services such as clean water, indoor plumbing and electricity. See “Chevron in Angola” extracted from the True Costs of Chevron 2009 & 2010 Alternative Annual Reports, EXHIBIT FOUR also at www.truecostofchevron.com

O. The Protectorate

65. In 1885 Portugal and local rulers of Cabinda signed the Treaty of

Simulambuco establishing a colonial protectorate over the region. The circumstances of Portuguese administration are very well documented. Cabinda was administered separately from Angola and never was considered part of Angola. Portugal unilaterally violated the protectorate by transferring Cabinda to Angola at the Alvor Conference. Until such time as an internationally recognized and supervised referendum is held in Cabinda,

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66. Angola must be considered under international law to be a constructive

trustee of the protectorate of Cabinda for the people of Cabinda. The Portuguese transferred Cabinda to Angola without consulting the Cabindans. Angola stands in the shoes of Portugal even though their title to Cabinda is

illegitimate. Nonetheless, the role of trustee must be imputed to Angola. Angola therefore may not abuse its duty to preserve and protect the resources of Cabinda for benefit of the Cabindan people.

P. Mpalabanda

67. Amnesty International released a statement forcefully condemning the

ban on Mpalabanda, stating, “Amnesty International considers

[Mpalabanda’s] members to be human rights defenders

Its closure will

leave Cabinda, an area rife with egregious violations of human rights, without a human rights organisation to monitor and record violations of human rights.” See EXHIBIT FIVE.

Q.

Retaliation by Angola

68.

FLEC is considered to be a terrorist organization by the government of

Angola. Cabindans risk their life and liberty by being publicly associated with FLEC. FLEC is aware that many Cabindans desire to give their input on the issues discussed herein but cannot do so for fear of retaliation.

Further, FLEC will not endanger Cabindans by providing their testimony herein even when it has been freely offered.

Q.

Conclusion

69.

Under the Portuguese colonial protectorate of Cabinda, the self

determination of Cabinda was not realized yet the colonialism of the Portuguese was beneficent in comparison to the human rights violations and corruption of Angola. Cabinda is a small entity in both population and geography yet of vast economic importance due to oil. The economic disparities describe supra are attributed by FLEC to neocolonialism by Angola. Cabinda unlike other provinces of Angola has a singular political existence as a colonial protectorate. Such colonial protectorates have often gone on to achieve statehood as in the case of Swaziland, the Gambia, and Botswana. Angola absent the freely given consent of the people of Cabinda cannot abrogate the protectorate status which was unilaterally abandoned by Portugal and de facto assumed by Angola. Until such time as Cabindans

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ratify the Angolan annexation, the Angolan government is the constructive trustee for Cabinda but not its legitimate ruler.

70. The relief requested by FLEC does not require a specific finding of fault by the Commission against Angola. FLEC instead desires the Commission take the proactive stance of neutral fact finding by a Special Rapporteur. FLEC’s reasoning is as follows:

1. A quasi judicial finding will have little effect on Angola which will

ignore any perceived criticism. This in turn erodes the value of the finding

and the prestige of the African Charter process and ultimately the Commission. The precedential value likewise is limited.

2. Appointment of a Special Rapporteur is a more inclusive remdy. This

process permits input from other segments of Cabinda society besides FLEC

that are unable or unwilling to risk retaliation from the MPLA and government of Angola by being associated with FLEC.

3. The rights described herein and violations herein fall within the type

taken up in The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria (155/96) and are therefore suitable for action by the Commission.

R. Request to call Witnesses

71. If the Commission believes it would be helpful, the leadership of FLEC would make itself available for examination and request the Commission to guarantee their safe passage, secure travel and accommodations.

S. Request for Relief

1. Appointment of a Special Rapporteur to find facts and make

recommendations on the matters discussed herein.

2. The availability of the good offices of the Commission if deemed useful

to assist in the matters discussed herein.

3. Legal fees and costs in the amount of US$50,000 to be paid by the

government of Angola to FLEC’s legal representative.

4. Such other relief or findings as required by the Commission.

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Respectfully submitted this 15fr day of February 2012:

Dr. Jonathan Levy

Legal Representative for Complainant

FLEC

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Page 1 of 9 Republic of Kabinda January 8, 2010 Committee Report on the Togolese Incident

Republic of Kabinda January 8, 2010 Committee Report on the Togolese Incident

Executive Summary

By order of Premier Joel Batila of the Republic of Kabinda, the January 8 Commission was formed to investigate the January 8, 2010 fatal attack on the Togolese football team en route to Cabinda from the Congo by bus.

The members of the Commission are:

Committee Member - Gabriel Homem: Republique du Kabinda, Minister of Internal Security

Committee Member - Barrister Clement Chigbo Republique du Kabinda Special Prosecutor

Committee Chair Dr. Jonathan Levy, Attorney for Republique du Kabinda and FLEC.

Scope of Investigation: Events leading up to, during, and following the events of January 8, 2010.

Question to be answered:

1. How did the events of January 8, 2010 transpire?

2. Who was responsible for the fatal outcome?

3. Why did elements of FLEC initially assume responsibility and then change

their positions?

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5. Findings & Recommendations

Who is FLEC

FLEC is the Front for the Liberation of the State of Cabinda. There is only one FLEC.

Many individuals and groups including Angolan agents have used the name FLEC as part of their disinformation campaign.

An ongoing disinformation campaign traced to the Angolan government claims FLEC is weak and divided. This has not been the case. FLEC is strong and unified and has cells and youth brigades in every city, town and village in Cabinda.

The press has been deceived by false front virtual FLECs and impersonators visible on the Internet but unknown inside Cabinda. Of these Angolan dupes, CommandanteLopes, Rodrigues Mingas and Rui Gabirro also known as Mangovo Ngoyastand out as the worst offenders.

“Commandante” Lopes does not command anything other than a long stagnant website - cabinda.org. It is alleged that Lopes has been involved in immigration and asylum fraud in France by issuing so called Cabinda identity cards of his own devising and manufacture. His website serves to deceive the public and “squats” upon the legitimate rights of FLEC to that Internet domain.

“The Rt Hon Mangovo Ngoyo Mwana Kabinda, so called, Secretary for Foreign Affairs of the Republic of Cabinda and Member of the Regency of Cabinda,is Rui Gabirro, a Portuguese citizen, son of Portuguese colonialists. Gabirro also styles himself by the delusional title “Duke of Cabinda” and has set up a fantasy operation called the Federation of Free African States, a fraudulent so called bank and a fake university.

His Federal Republic of Cabinda “government” includes Rodrigues Mingas. Gabirro also sells passports, coins and stamps that are the lawful property of FLEC. Gabirro also infiltrated anti MPLA Angolan youth groups earlier this year and interjected himself as their spokesman following the Mingas example. Several anti Santos were then arrested in Luanda.

Unfortunately, Lopes and Gabirro have cyber squatted on the two top level domains, Cabinda.org and Cabinda.net discrediting the cause of FLEC in the eyes of the press and public.

FLEC is a stable organization with bases of operations in France and in the vicinity of Pointe Noire, Congo. FLEC is universally acclaimed within Cabinda as

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the only credible force for self determination. FLEC has self defense forces, cells, and youth brigades throughout Cabinda.

FLEC and the struggle for Cabindan self determination has been the most sustained and long standing African self determination movement since 1963 and against all odds has fended off oil company mercenaries, Cubans, Portuguese, South Africans, MPLA, FNLN, and UNITA forces. Now FLEC stresses non violent conflict resolution and has a pending case with the African Union Commission regarding onshore oil and mineral resources. FLEC and Republic of Kabinda leadership does not want to see Cabinda turned into a bloody battleground as occurred during the Angolan civil war between UNITA and the MPLA.

Even though FLEC has the ability to call for general strike and rebellion, it has deliberately refrained from doing so in order to spare the civilian population which barely survives under the Angolan neocolonial regime. FLEC’s current emphasis is on conflict resolution through international organizations, international law, refugee relief and education. FLEC is not a terrorist organization and condemns terrorism including the events of January 8.

Events leading up to January 8

The build up to the African Cup Tournament was given little attention by FLEC. The testimony of Congolese Colonel Cosmas Nzaou indicates that unknown operatives at the Congo-Cabinda border crossing distributed leaflets prior to the January 8, 2010 warning of attacks. FLEC however was unaware of this and the Colonel indicates that the source of the leaflets may have been the Angolan secret police rather than FLEC.

Africa Cup officials also warned all groups about using the border crossings yet the Togolese team bus nonetheless was routed through the border crossing by the Angolan authorities directly into an ambush.

While FLEC does operate along the northern Congolese border, FLEC commandos usually stay clear of the heavily fortified border crossing. Clashes between FLEC and the FAA (Angolan Army) have taken place in remote regions of Cabinda during the past five years and not at heavily garrisoned towns in part to avoid civilian causalities. Almost all operations by FLEC since 2006 have targeted neocolonial activities involving resource extraction by the MPLA and its foreign contractors. Such incidents have been short and not sustained.

Debriefing of FLEC leadership indicates there was no campaign to target the African Cup and that any leafleting campaign was not originated by FLEC. FLEC operations typically target MPLA FAA forces outside civilian areas. Aside from targeting the FAA, FLEC has also disrupted mineral and petroleum exploration after giving notice that such operations were illegal and would not be tolerated.

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The Events of January 8, 2010

African Cup organizers claim that participants were warned not to enter Cabinda by land crossings however but the existence of an Angolan FAA escort indicates the bus was coordinated and known to the FAA.

The village of Tchikamba is an open area in the midst of FAA garrisons. A FAA mortar position is nearby. It is an extremely unlikely place for a FLEC operation.

According to eyewitness accounts as the bus entered it was ambushed by armed men. A fire fight ensued with the FAA escort and the bus passengers suffered casualties before the attackers withdrew.

After the attack there was apparently no effective FAA pursuit despite the alleged warnings distributed previously and apparent high state of alert existing in the area.

It is undisputed that some well prepared armed group attacked the convoy which consisted of several military vehicles, the team bus, and outriders. At least three people were killed and eight were wounded.

Aftermath of January 8

Within hours of the attack a relatively unknown individual, Rodrigues Mingas, took responsibility for the attack. Mingas in numerous well coordinated phone calls to the international press from a cell phone registered in France claimed to head something called FLEC Position Military or FLEC-PM. Mingas gave phone interviews and for a time placed material on the Internet including his own picture in a military uniform. The press by and large accepted Mingas as a legitimate representative of FLEC.

There is no evidence, anecdotal or otherwise, that Mingas’ organization existed prior to the events of January 8 though Mingas claimed FLEC PM had been founded in 2003. Mingas had in fact been barred for several years from FLEC due to the MPLA association of his family in Angola. It is inconceivable that Mingas operating from France or even more implausibly from Angola on his own could have recruited and trained a military cadre in one of the most militarized sectors of Cabinda.

Mingas claimed the attack was incidental in that “his forces” had no idea the bus was carrying the Togolese team and had thought this was a FAA convoy.

Page 5 of 9

Mingas gave the impression his group was patrolling the border region, saw a convoy in their binoculars and decided to attack it on the spot. Mingas then threatened further attacks during the Africa Cup Games.

Mingas said his group had written two month prior to the attack to Issa Hayatou, the head of the CAF African Football Federation, to warn of impending trouble. There is no confirmation such a letter ever existed.

FLEC PM was also unknown to former General Boma of the FLEC armed forces as well as the Commander of the Northern Front, Sabata, later betrayed and murdered at the hands of the Angolan FAA. Mingas and FLEC PM were also unknown to FLEC leadership abroad. Mingas however claimed to be the Secretary General of FLEC in his communiqués. Nothing more has ever been heard of FLEC PM.

In January 2011 Mingas was arrested by French authorities on suspicion of terrorism, he was however released on January 18, 2012 after apparently being cleared of charges despite his public admissions. The French government came to the conclusion that is was factually impossible for Mingas to commit the acts he confessed to doing. Mingas has now been adjudged a poseur.

Strange & Confused Claims by FLEC

On January 10, 2011, former General Boma of FLEC announced an attitude of non violence during the remainder of the African Cup. He did not however clarify responsibility for the events of January 8 nor denounce Mingas.

Following on the heels of Mingas’ provocation to the press, the grandson of the Chair made completely unauthorized statements to the press on behalf of FLEC. He stated that FLEC not Mingas was responsible for the attack. On or about January 12, 2011in a statement to the international press, Jean Claude Nzita denounced Mingas as an opportunist and claimed responsibility for the attack on behalf of FLEC.

Jean Claude Nzita was not an official of FLEC and was not authorized to make statements on FLEC’s behalf. His sole connection to FLEC was his familial relation to FLEC’s long serving Chairman. Jean Claude Nzita is a resident of Switzerland and has little if any dealing with FLEC in recent years. It is unknown what may have prompted his statement and impersonation of a FLEC official spokesman. Nonetheless, the international press reported his statements as credible.

Coincidental with his grandson’s statement, the Chairman of FLEC claimed responsibility for the attacks. FLEC Secretary General Joel Batila however denied any responsibility by FLEC. The Chair however overrode Batila and claimed Batila was not fully informed. Batila did not however change his position.

Page 6 of 9

As if on signal, Rui Gabirro announced formation of a Republic of Cabinda government with himself and Mingas as ministers. Adding to the confusion, an unknown individual claiming to be the Minister of Defense of the Republic of Cabinda, Tiburcio Tati Tchingobo, denied responsibility but blamed other FLEC groups in Cabinda. All of this was aired in the international press. The press reported Tchingobo was part of the Federal Republic of Cabinda.

An internal FLEC dispute arose and the Chair recanted any involvement by FLEC on January 14, 2011. The communiqué indicated that Mingas was a known Angolan agent and that FLEC PM was a pure fabrication. The communication however did not explain the obvious contradictions of such a statement.

FLEC then indicated in a letter authorized by Batila that it would render all cooperation possible to FIFA in an investigation the incident. FIFA forwarded the offer to the African Football Federation which however did not respond further.

Angolan Reaction

The Angolan reaction has been significant and sustained arrests and detentions of Cabindese within Cabinda and the Congo. The arrests began almost immediately after the incident and have continued unabated. The January 8 incident was a mere pretext for the arrests since many of the individuals arrested were not even associated with FLEC and were not in the vicinity of the attack nor plausibly could have any connection with it. Their only crime was alleged opposition to Angolan rule in Cabinda.

Angola has also issued a so called “wish list” of FLEC leadership it deemed responsible for January 8 and wants them arrested as terrorists.

Attempted coup d'état"

In July 2010, FLEC's military chief of staff, Stanislas Boma, vice president Alexandre Tati, security chief Carlos Luembe, and foreign affairs minister Luis Veras without any apparent authority traveled to Luanda and subsequently declared the armed struggle at an end. The Chair repudiated the event after the fact however no explanation has ever been provided how the top four frontline FLEC officials were corrupted or authorized to go to Luanda. The renegade FLEC leadership was curiously not charged with any crimes in connection with January 8 raising even more questions. Nonetheless, these four individuals would logically have been responsible for the January 8 events if they had been committed by FLEC as Angola has alleged. The defection of course compromised all FLEC operations in Cabinda and its environs.

Page 7 of 9

Assassination of the FLEC Commanders

FLEC Military Chief of Staff Pirilampo was kidnapped from the Congo, tortured, and murdered by the Angolans in March 2011. It is very likely he was betrayed by individuals within FLEC.

This blow was followed by kidnapping, torture and murder of Northern Front Commandeer Sabato two weeks later under similar circumstances.

The faction of Bomo and Tati in Luanda apparently had knowledge of the event.

Since July 2011, at least a half dozen other FLEC officers have been kidnapped, murdered, or ambushed by Angolan forces including Vinagre, Buna Roi, Damas Makunda, Larry, Dominique Makoumbou and Razao. Treachery is suspected in all these cases as well.

These cross border assassinations have been justified by Angola on grounds of the January 8 incident and a response to alleged terrorism by FLEC.

Findings

1. The events of January 8 implicate the Angolan police and possibly the Congo

DTC. The exact identities of the triggermen are unknown but they were not

acting on orders from FLEC.

2. Mingas, Jean Claude Nzita and Gabirro did the bidding of the MPLA after

January 8 by spreading disinformation and posing as legitimate represents of FLEC in a plot to implicate FLEC as a terrorist organization and justify the resulting Angolan rampage of murder and unlawful detention. These individuals have done great harm to FLEC and are indirectly responsible for the summary executions carried out by the MPLA post January 8, 2010.

3. The Tati and Boma faction have committed treachery against FLEC by

defecting to the MPLA. The deaths of FLEC’s military commanders rest on their heads.

4. The position of the Chair indicates at best a fatal breakdown in

communication at a crucial time and an inability to contain a major crisis.

Recommendations

1. If FLEC is to survive it must institute strong internal security measures, it is

unacceptable that its front line commanders are assassinated seemingly at will by the Angolans on the pretext of January 8.

Page 8 of 9

2. False FLECs must be rooted out and legally destroyed Gabirro, Mingas,

Lopes, and Nzita Mbemba Antonio must be prevented from falsely using the name of FLEC to provide disinformation, for profit and to collaborate with the MPLA.

3. So called ongoing negotiations with Luanda must cease while front line FLEC

commanders are killed at will in violation of international law.

4. FLEC must act to repudiate the chain of unfortunate events spawned on

January 8 by vocally drawing attention to the Angolan involvement in the deaths

of innocent sportsmen to further the FAA campaign against FLEC.

5. Individuals implicated in this report should be called upon to explain their

actions. If FLEC or former FLEC members collaborated with the Angolans on January 8 they must be exposed and brought to justice as well.

6. The events of January 8 should be investigated by an international

organization. FLEC brings a charge of state sponsored terrorism against the government of Angola. The victims are Togolese, Cabindese and members of FLEC.

7. FLEC submits this report to the Peace and Security Commission of the

African Union, Confederation of African Football, and the South African Development Community Organ on Defense and Security for further investigation and action.

Submitted to Premier Batila:

Levy

Homem

Chigbo

January 20, 2012

Defense and Security for further investigation and action. Submitted to Premier Batila: Levy Homem Chigbo January

Page 9 of 9

Copies for action to:

Mr. MARTIN A. EWI ANTI-TERRORISM ANALYST PEACE AND SECURITY DEPARTMENT COMMISSION OF THE AFRICAN UNION P.O. BOX 3243 ADDIS ABABA, ETHIOPIA

Confederation of African Football Executive Committee 3 Abdel Khalek Sarwat Street El Hay El Motamayez, P.O. Box 23, 6th October City Egypt

South African Development Community Organ on Defense and Security PO Box 0095 Gaborone, Botswana

A n g o l a “They Put Me in the Hole” Military Detention, Torture

A n g o l a

“They Put Me in the Hole”

Military Detention, Torture and Lack of Due Process in Cabinda

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“They Put Me in the Hole” Military Detention, Torture, and Lack of Due Process in

“They Put Me in the Hole”

Military Detention, Torture, and Lack of Due Process in Cabinda

Copyright © 2009 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 1-56432-503-2 Cover design by Rafael Jimenez

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June 2009

June 2009 1-56432-503-2 “They Put Me in the Hole” Military Detention, Torture, and Lack of Due

1-56432-503-2

“They Put Me in the Hole”

Military Detention, Torture, and Lack of Due Process in Cabinda

I. Glossary of Acronyms

1

II. Summary

2

III. Recommendations

4

To the President and Government of Angola

4

IV. Methodology

5

V. Background

6

VI. Individuals Arrested for Security Crimes since September 2007

8

 

1. Fernando Lelo and co-accused FAA members

9

2. Persons Arrested in Rural Areas

10

3. Former FLEC Members Arrested in the DRC and Cabinda

10

VII. Abuses by the Angolan Armed Forces

12

Arbitrary Arrests

12

Incommunicado Detention

13

Torture in Military Custody

14

VIII. Treatment in Civilian Prisons

20

IX.

Violations of Due Process Rights

21

Acknowledgements

25

Annex: Persons Held for Security Charges at Yabi Prison

26

Current Detainees

26

Previous Known Detainees

27

I. Glossary of Acronyms

ANR

Congolese National Intelligence Service (Agence Nationale de Renseignement)

DRC

Democratic Republic of Congo

FAA

Angolan Armed Forces (Forças Armadas Angolanas)

FCD

Cabindan Forum for Dialogue (Fórum Cabindês do Diálogo)

FLEC

Liberation Front of the Enclave of Cabinda (Frente de Libertação do Enclave de Cabinda)

FLEC-FAC

Liberation Front of the Enclave of Cabinda – Cabindan Armed Forces (Frente de Libertação do Enclave de Cabinda – Forças Armadas Cabindesas)

GOI

Operative Intelligence Group (Grupo Operativo de Inteligência)

ICCPR

International Covenant on Civil and Political Rights

MPLA

Popular Liberation Movement of Angola (Movimento Popular de Libertação de Angola)

OAA

Angolan Bar Association (Ordem dos Advogados de Angola)

UNITA

National Union for the Total Independence of Angola (União Nacional para a Independência Total de Angola)

VOA

Voice of America

II. Summary

At least 38 people who have been arrested by Angolan military and intelligence officials in Cabinda, Angola’s oil-rich enclave, from September 2007 to March 2009 have been subjected to torture and cruel or inhumane treatment in military custody and been denied basic due process rights as well as the right to a fair trial. The detainees are accused by the authorities of involvement in armed opposition in Cabinda in the context of a separatist insurgency.

The intensity of the armed conflict in Cabinda has declined as a result of large-scale counterinsurgency operations in 2002-2003, and the government publicly claims that the Cabinda conflict came to a close in 2006, when a peace agreement was signed with a faction of the rebel Liberation Front for the Independence of the Enclave of Cabinda (FLEC). But the campaign for independence remains unresolved, and sporadic guerrilla attacks have been ongoing.

Despite its insistence that the insurgency is no longer active, the military’s systematic arbitrary detention and torture of people in Cabinda suggests that the government has resorted to unlawful means to retaliate against people with perceived sympathy for the FLEC’s armed independence campaign. Angolan military and intelligence services have a widespread presence in the small territory, and they have intimidated and harassed people with perceived dissident views.

Human Rights Watch has previously reported on government intimidation in Cabinda. In a February 2009 report on the parliamentary elections of September 2008, Human Rights Watch showed how the government has continued to use security concerns in Cabinda to justify restrictions on freedom of expression, association, and movement, as well as arbitrary arrests and unfair trials. In December 2008, Human Rights Watch called attention to the Angolan government’s use of torture and unfair trials in state security cases, in connection with 14 civilians who were arbitrarily detained and tortured in military custody in Cabinda.

This report extends that work with new first-hand, field-based information and shows a disturbing pattern of human rights violations during pre-trial detention of persons accused of state security crimes in Cabinda. In most of the 38 cases that Human Rights Watch investigated, those accused of security crimes endured arbitrary arrests, lengthy

incommunicado detention, and interrogations under torture in military custody. All 38 detainees were eventually brought to the judicial authorities and a civilian detention facility. But trial records in several cases show that due process rights were violated.

In addition to providing further detail on the high-profile case of Fernando Lelo, a former Voice of America correspondent who was convicted of national security crimes in September 2008, this report also draws attention to those cases that have attracted much less public attention and risk being overlooked.

The Angolan government should immediately adopt all necessary measures to ensure that the Angolan Armed Forces (FAA) act in accordance with Angola’s obligations under international human rights and humanitarian law. In particular, the government should ensure, in accordance with Angolan law, that the armed forces promptly transfer individuals detained for security crimes to the competent civilian authorities, hold them according to international standards for pre-trial detention, and provide a prompt and fair trial.

The Angolan courts should also promptly review the proceedings against detainees currently or previously held for state security offenses, and then release unconditionally or fairly retry individuals convicted in trials that violated basic fair trial standards. The Angolan government should investigate allegations of serious human rights violations by members of the military and intelligence services, and prosecute alleged perpetrators.

In order to prevent further abuses, the Angolan government should set up an independent and impartial inquiry into human rights violations allegedly committed by the Angolan Armed Forces and branches of intelligence in Cabinda and establish mechanisms to compensate victims of torture and arbitrary detention.

III. Recommendations

To the President and Government of Angola

Take all necessary measures to ensure that the Angolan Armed Forces act in accordance with Angola’s obligations under international human rights and humanitarian law.

Ensure that persons taken into custody are promptly brought before an independent officer authorized by law to exercise judicial power, and held only in official places of detention; that all detainees are provided with immediate and regular access to family members and legal counsel, and that criminal proceedings are in accordance with international fair trial standards.

Ensure that coerced confessions, particularly those made under torture, are not admitted as evidence against persons at trial and that prosecutors and judges have the independence to investigate torture and illegal detention by any branch of the military and domestic intelligence services, free from obstruction or interference.

Release prisoners that have been convicted in unfair trials or appropriately retry them in accordance with international fair trial standards.

Provide adequate remedies, including compensation, for persons arbitrarily arrested or tortured or otherwise mistreated in detention.

Ensure that military and intelligence officers committing torture or other human rights violations against persons in their custody are appropriately disciplined or prosecuted.

Allow independent scrutiny of detention facilities where detainees allege having been held illegally and tortured by security forces, including the detention center at the headquarters of the second regional command of the Angolan Armed Forces and all military garrisons.

Set up an independent and impartial inquiry into human rights violations committed by the Angolan Armed Forces and branches of intelligence services, including the arbitrary detention of persons in military custody.

Ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol and allow visits by the Protocol’s Subcommittee on Prevention of Torture.

IV. Methodology

Between March 2008 and March 2009, a Human Rights Watch researcher visited the Angolan enclave province of Cabinda (capital and municipality of Cacongo) three times and conducted interviews there, in Luanda, and elsewhere. The researcher interviewed 60 persons, in person, by phone, or email, including lawyers, members of religious groups and civil society organizations, activists, journalists, diplomats and officials of the government, military, police, and the judiciary. In March 2009, the researcher also conducted in-person group and individual interviews with 20 persons detained at Yabi prison in Cabinda who had been charged with “crimes against the security of the State” and related crimes. Interviews with detainees were conducted freely, without interference or the presence of government officials. Yet, provincial government, military, and police officials were less open for Human Rights Watch interviews in March 2009 than previously. In response to official meeting requests, most claimed being unavailable. The researcher also consulted legal documents referring to the cases. The initials of detainees whose accounts were quoted have been changed to protect their security.

V. Background

The Angolan enclave province of Cabinda, with an estimated population of 300,000, is separated from the country’s other 17 provinces by a strip of the Democratic Republic of the Congo (DRC). It produces half of Angola’s oil.

The armed separatist FLEC movement, founded in 1963, first fought for independence from Portugal, Angola’s colonial rulers, and then from Angola itself when Angola became independent in 1975. Following the end of a civil war in Angola in 2002 between the government, dominated by the Popular Liberation Movement of Angola (MPLA), and the main opposition movement, National Union for the Total Independence of Angola (UNITA), the Angolan Armed Forces (FAA) re-deployed some 30,000 government soldiers to Cabinda to wipe out the remaining separatist insurgency. These military efforts led to the destruction of FLEC’s main bases in the interior and considerably weakened the guerrilla’s military capacity.

In 2004, Human Rights Watch documented human rights violations against civilians in Cabinda in the course of these counter-insurgency operations, including extrajudicial killings, arbitrary detention, torture, and excessive restrictions on freedom of movement. According to that research, most of the human rights violations were committed by the Angolan Armed Forces with impunity. 1 In 2004, the government claimed that the war in Cabinda was over, but dialogue would continue. However, successive attempts to reach a formal peace agreement with several wings of the FLEC remained unsuccessful, and sporadic insurgent attacks continued.

In 2006, a Memorandum of Understanding (MOU) signed by the Angolan government and António Bento Bembe, the former leader of the FLEC Renovada wing and president of the Cabindan Forum for Dialogue (FCD), sought to formally end the armed conflict. The FCD had been established in 2004 as a joint commission including representatives of the two main FLEC factions—FLEC Renovada and FLEC-FAC—as well as members of civil society and the churches, to facilitate peace negotiations with the government. The MOU included an

1 Human Rights Watch, Angola: Between War and Peace in Cabinda, briefing paper, December 2004, http://www.hrw.org/en/news/2004/12/22/angola-oil-rich-cabinda-army-abuses-civilians. Local civil society, including the civic association of Cabinda, Mpalabanda, and the Catholic Church’s Justice and Peace Commission also issued several human rights reports detailing abuses in Cabinda, most of them by the FAA.

amnesty, a demobilization and reintegration plan for former FLEC combatants, and the allocation of a number of government posts to a range of former FLEC officials. 2

The peace agreement, however, has enjoyed little credibility in Cabinda, because the most active FLEC wing, FLEC-FAC, as well as other members of the FCD, had been excluded from the talks, and no political concessions were made to the separatists. The armed insurgency has continued, but since 2006 the government has claimed the war ended in Cabinda and has attributed continuing sporadic attacks to “bandits.” FLEC-FAC has claimed responsibility for a number of armed attacks targeting government forces and expatriate workers of private companies. The intensity of the armed conflict and the level of serious human rights violations have decreased since 2004, but the FAA presence is proportionately higher in Cabinda than elsewhere in Angola today, suggesting the government’s continuing concern about the separatist movement.

Despite the peace agreement in 2006, freedom of expression and association remains restricted in Cabinda. The government has used state security concerns to crack down on peaceful opposition and scrutiny. In late 2006 and early 2007, two high-profile civil society activists were arrested for alleged state security crimes in Cabinda and were later released, following local and international public pressure, without having been formally charged. 3 In July 2006, the provincial court banned the civic association of Cabinda, Mpalabanda, founded in 2003, and alleged that the organization had incited violence and acted as a political party campaigning for Cabinda’s independence. The new bishop who took office in June 2006 temporarily dissolved the Catholic Justice and Peace Commission, which had been essential to documenting human rights violations since 2002. As a result, local and international organizations have struggled to obtain independent information from the interior to corroborate allegations of human rights abuses committed by both the FAA and FLEC since 2006.

2 The Memorandum of Understanding for Peace and Reconciliation in the Province of Cabinda was signed on August 1, 2006 and approved by the Angolan parliament on August 16, 2006. See Resolution 27-B/06 of August 16, 2006, published in the state gazette (Diário da República) on August 16, 2006.

3 Raul Danda, then spokesperson of the civic association Mpalabanda, was arrested under state security charges on September 29, 2006 in Cabinda, allegedly for carrying newspaper articles that expressed criticism of the government’s policy in Cabinda. He was released on November 3, 2006 and later formally pardoned under the amnesty law, despite never having been charged. Sarah Wykes, a campaigner for the international organization Global Witness, was arrested in Cabinda on February 18, 2007 under alleged charges of espionage, and was later released and allowed to leave the country in March 2007.

VI. Individuals Arrested for Security Crimes since September 2007

Officially, since the MOU in 2006, the Angolan government has denied the continued existence of an armed FLEC guerrilla movement. Senior FAA and police officials explained to Human Rights Watch in March 2008 that those people who were arrested for national security crimes were “bandits who oppose development,” 4 or “people who still identify with FLEC, seeking to call attention to compromise the government’s cooperation with countries and companies.” 5 Bento Bembe—former FLEC Renovada and FCD leader and current minister without portfolio—explained to Human Rights Watch in March 2009 that “those people cannot be from the FLEC, because I represent the guerrillas.” 6 However, the cases documented in this report clearly contradict this claim, as many of the charges in the cases refer to alleged involvement in concrete acts of armed insurgency. Court records also often explicitly refer to alleged cooperation with FLEC-FAC.

Between September 2007 and March 2009, at least 38 persons, including six members of the Angolan Armed Forces, (see list in Annex) were arrested by military and intelligence agents for alleged “crimes against the security of the State,” including armed rebellion and sabotage, and other crimes relating to the armed FLEC insurgency in Cabinda, such as homicide, illegal possession of arms, and desertion. The Angolan law on crimes against the security of the state from 1978, which allows for up to 215 days pre-trial detention, 7 includes an overly broad and ambiguous range of offenses: “Every and any act, not provided for by

law, that endangers or may endanger the security of the State

8

All 38 detainees were initially held in military custody for long periods—from 26 days to six months—before being transferred to the civilian prison at Yabi in Cabinda and brought either before a prosecutor or to be formally charged or before a judge. 9 So far, two trials have taken place, as a result of which seven persons were convicted and four were acquitted.

4 Human Rights Watch interview with Miguel José Luís Muhonga, provincial first superintendent and second commander of the National Police, Cabinda, March 26, 2008.

5 Human Rights Watch interview with Colonel Antonino Pessala, spokesperson of the second regional command of the FAA, Cabinda, March 27, 2008.

6 Human Rights Watch interview with General Bento Bembe, Luanda, March 26, 2009.

7 Law on Pre-trial detention (18-A/92) (Lei da prisão preventiva em instrução preparatória), arts. 25-26, allows 90 days pre- trial detention in cases of crimes against the security of the state, which can be extended three times for 45, 45 and 35 days.

8 Law on crimes against the security of the State (Law 17/78 of May 26, 1978), art. 26.

9 The International Covenant on Civil and Political Rights (ICCPR) in article 9 requires that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him” and

The 38 individuals targeted, arrested and charged can roughly be grouped into three categories:

1. Fernando Lelo and co-accused FAA members

The Angolan Armed Forces in September 2007 arrested six FAA personnel: António Santos Nguimbi (soldier), Lourenço Ila Dembe (soldier), Alberto Suami (1 st sergeant), Alberto João Chimbinda (soldier), Basílio Muanda (1 st corporal), and Custódio Nguimbi Sumbo (1 st sergeant). Their arrests led to the November 15, 2007 arrest of former Voice of America (VOA) journalist José Fernando Lelo by the Angolan military at his workplace in the oil compound of Malongo.

All of these men were eventually charged with having organized or carried out three armed attacks between December 2006 and July 2007; the FAA members were additionally charged with having committed military crimes such as desertion. 10 Lelo and the six were put on trial before the Cabinda military court from May 5 to June 11, 2008 and convicted on September 16, 2008. Lelo was sentenced to 12 years of imprisonment. Five of the co-accused were sentenced to 13 years of imprisonment. Custódio Nguimbi Sumbo was acquitted. Lelo and the five convicted military personnel are currently prisoners at Yabi prison in Cabinda, which Human Rights Watch visited, while an appeal against their conviction to the Supreme Military Court is pending.

Human Rights Watch and other organizations believe that Lelo was primarily targeted for arrest and conviction as a result of opinions he expressed as a VOA journalist until December 2006, which were perceived to be critical of the Angolan government and the 2006 Memorandum of Understanding. 11

that “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.”

10 The Cabinda military prosecutor’s accusation quoted the following attacks: On December 29, 2006 against a military vehicle in Buco Zau, killing three and injuring two soldiers; on July 27, 2007 against military guarding a cell phone antenna in Buco Zau, killing one soldier and injuring another; and on September 13, 2007 against a military vehicle, killing two soldiers and seriously injuring five. Cópia do Despacho da Pronúncia, Procuradoria Militar da Segunda Região, Cabinda, March 5, 2008.

11 Human Rights Watch, “Angola–End Torture and Unfair Trials in Cabinda”, Human Rights Watch news release, December 10, 2008, http://www.hrw.org/en/news/2008/12/05/angola-end-torture-and-unfair-trials-cabinda ; see also Amnesty International, “Angola: Unfair Trial of Fernando Lelo”, AFR 12/008/2008, September 22, 2008, http://www.amnesty.org/en/library/info/AFR12/008/2008/en (accessed June 5, 2009).

2.

Persons Arrested in Rural Areas

Most of those who were arrested and charged with security crimes between January 2008 and March 2009 were residents of villages in the interior of Cabinda. The majority were arrested in groups during military raids, which followed armed attacks attributed to the FLEC separatist guerrilla movement in the municipalities of Buco Zau and Cacongo. 12

So far, only five of those arrested—João Mateus Luemba, Elias Menos, Garcia David António, António Zau, and Natalício Mbatchi—were tried by the provincial civil court from March 24 to April 22, 2009. On May 7, the judge acquitted four of the accused for lack of evidence, while sentencing Mbatchi to 18 months in prison for illegal possession of arms. All five had been arrested in January 2008, over a year previously, and charged with “crimes against the security of the State” and related crimes. At that time, all were released from custody, including Mbatchi, who had already spent 17 months in pre-trial detention.

Local human rights activists told Human Rights Watch that more people have been arrested during such military raids and were later released from military custody without having been charged and presented to the public prosecutor. 13

3. Former FLEC Members Arrested in the DRC and Cabinda

Seven detainees at Yabi prison interviewed by Human Rights Watch confirmed that they previously were FLEC members. Five had been living in the Democratic Republic of Congo (DRC) since 2005 and 2006. They said that they had not been FLEC members since. They were arrested in different places in the DRC in October 2008 by the Congolese Agence Nationale de Renseignement (ANR) and later transferred to Angola. Two former FLEC members were also arrested in Cabinda in Dinge (Cacongo) and in Cabinda city in the same month. They alleged not having yet been formally charged with any crime.

12 Five men were arrested in January 2008 in the village of Sevo da Vula, Buco Zau, following an attack on December 29, 2007 against border police, killing one. Five men were arrested in January 2008 in the village of Tando Malele, Buco Zau, after an attack against the oil company Grant on December 29, 2007, which killed a Brazilian worker. Five men were arrested in April 2008 in Micuma I, Buco Zau, following an attack against staff of the private company Emcica on December 31, 2008, which killed two workers. One man was arrested in January 2009 in Cossuenda, Buco Zau, after the assassination of a traditional leader on December 30, 2008. Three men were arrested in the village of Sassa Zau Velho, Buco Zau, on the day of an attack against a military vehicle on January 7, 2009. Five men were arrested in the village of Liamba-Lione, Cacongo, on the day of an attack against a vehicle, which killed one Chinese worker and seriously injured two on March 26, 2009.

13 Local human rights activists documented 11 such cases between June 2007 and January 2008. This includes the case of José Gabriel Puati, who was allegedly killed by FAA soldiers upon his arrest on December 29, 2007. Human Rights Watch interviews with three human rights activists (names withheld) in Cabinda, March 2008 and March 2009.

Human Rights Watch also interviewed two registered refugees from Cabinda, including one former FLEC member now in Lisbon, Portugal, and the current Voice of America correspondent in Kinshasa, both of whom allege having been threatened with arrest and transfer to Angola in early 2008 and early 2009, respectively. 14 These firsthand accounts and secondary reports received by Human Rights Watch suggest a wider pattern of arrests of Cabindans in the DRC at the request of the Angolan authorities.

14 Human Rights Watch phone interviews with VOA correspondent in Kinshasa, February 11, 2009, and with José Luis Luemba Veras, in Lisbon, April 6, 2009. Human Rights Watch also had access to a letter of complaint written by Mr. Veras to the regional UNHRC delegation in Kinshasa from March 24, 2008, describing the threats he was subjected to, which led him to seek refuge in Portugal in July 2008.

VII. Abuses by the Angolan Armed Forces

This chapter details key human rights violations committed by the Angolan Armed Forces against persons detained under the charge of “crimes against the security of the state” and related crimes since September 2007.

Arbitrary Arrests

The 20 detainees interviewed at Yabi prison and lawyers of those and other detainees told Human Rights Watch that all were arrested without warrants, most of them by the military. Arrests without a warrant are permitted under Angolan law when the persons are caught in the act of which they are accused, but the arrests need to be validated by the public prosecutor on the same day, or within five days maximum, when a public prosecutor cannot be reached immediately. 15 This time limit is often exceeded in Angola, as even the Cabinda public prosecutor conceded to Human Rights Watch. 16

According to the detainees, lawyers, and legal counsel, none of those arrested was apprehended in combat situations or with arms alleged to have been used in guerrilla attacks, nor were the detainees presented to any authorized magistrate immediately following their arrest, as required by law. Lelo was presented with an arrest warrant, with no issuing authority, at his work place in Cabinda and was taken in handcuffs to the military section of São Paulo prison in Luanda, where he was held for more than three months before being transferred back to Cabinda on March 30, 2008. Most of the detainees arrested in villages said they were arrested following a guerrilla attack that had taken place close to their village or several villages away. In addition, several detainees told Human Rights Watch that they were arrested when they presented themselves to the authorities, either because they had heard a military commander was looking for them at their homes, were seeking information about an arrested relative, or, as in the case of three former FLEC members in the DRC, because they formally announced to the Congolese authorities their intention to return to Cabinda.

15 Law on Pre-trial detention (18-A/92) (Lei da prisão preventiva em instrução preparatória), art. 9 and 14.

16 Human Rights Watch interview with António Nito, public prosecutor, Cabinda, March 18, 2009. See also: United Nations General Assembly, Human Rights Council: Report of the Working Group on Arbitrary Detention, Addendum–Mission to Angola, A/HRC/7/4/Add. 4, February 29, 2008; Human Rights Watch interview with Fernando Macedo, member of the Angolan human rights organization Association Justice Peace and Democracy (Associação Justiça Paz e Democracia or AJPD) in Luanda, March 20, 2009.

Incommunicado Detention

All detainees told Human Rights Watch that they were held incommunicado in military custody for long periods of time—in several cases, for more than 35 days and in some cases for up to 50 days—before being presented to an authorized magistrate (the public prosecutor) and the criminal investigation police and eventually brought to the civilian prison of Yabi. During military custody, they were unable to contact legal counsel or family members. Only Fernando Lelo had access to a lawyer five days after his arrest.

FAA members co-accused with Lelo (but arrested before him) were held incommunicado in military custody for up to six months in Cabinda and Luanda, without access to a legal counsel, until they were transferred to Cabinda on March 30, 2008, brought to the prison at Yabi, and presented to the Cabinda public prosecutor. 17

Those detainees who were arrested in rural areas told Human Rights Watch that they first were held in different military garrisons and in the FAA headquarters in Cabinda, before eventually being brought to the prison at Yabi and presented to the public prosecutor. 18

Detainees arrested in the DRC by Congolese intelligence agents said they were first sent to and held in unknown places in the capital, Luanda, before being directly transferred to the FAA headquarters in Cabinda, where they were held for more than three weeks before being presented to the public prosecutor and finally brought to the prison at Yabi. 19

According to Angolan law, incommunicado detention is allowed until the public prosecutor interrogates the detainee. This must occur on the same day, or within five days maximum. Incommunicado detention can be extended after the first interrogation—for national security crimes for up to 10 days—but only if authorized by the public prosecutor. 20

Extended incommunicado detention violates the fundamental human rights to humane treatment and access to counsel, as provided under the International Covenant on Civil and

17 Their legal counsel, Arão Tempo, spoke with his clients for the first time on April 7, 2008. Human Rights Watch phone interview with Arão Tempo, May 30, 2009.

18 Human Rights Watch interviews with detainees at Yabi prison, Cabinda, March 16, 2009.

19 Human Rights Watch interviews with detainees arrested in the DRC at Yabi prison, Cabinda, March 16, 2009.

20 Law on Pre-trial detention (18-A/92) (Lei da prisão preventiva em instrução preparatória), art. 3. Angolan human rights activists of the Association Justice Peace and Democracy (AJPD) challenge this provision. See Pedro Romão and Fernando Macedo, Anotações à Lei da Prisão Preventiva e Legislação Complementar, Coimbra, May 2008, p. 18.

Political Rights (ICCPR), which Angola ratified in 1992. 21 The UN Commission on Human Rights has repeatedly said that incommunicado detention should be prohibited. 22 In addition, Angola’s practice is contrary to the minimum international standards of detention as set out in the UN Standard Minimal Rules for the Treatment of Prisoners. 23

Torture in Military Custody

Many detainees told Human Rights Watch that military officers and soldiers under their command tortured them to force them to incriminate themselves and others. Others said they were threatened that they would be killed unless they “say the truth.” Some were forced to sign written confessions at gunpoint in local military garrisons, before they were transferred to the FAA headquarters in Cabinda city.

All detainees interviewed by Human Rights Watch were specific about where and how they were tortured. Several practices of torture and degrading treatment described to Human Rights Watch in March 2009 are consistent with practices documented by Human Rights Watch in 2003—a period when the armed conflict in Cabinda was more intense. 24 A Human Rights Watch researcher saw that most of the detainees had visible scars on their arms near their elbows, consistent with their accounts of having been tied up with cords across their back.

One of the legal counsel of the FAA members convicted along with Lelo in 2008 told Human Rights Watch that his clients were subjected to torture and inhumane treatment—including mock executions, severe injuries with firearms, beatings with various objects, and public humiliation of relatives—in several FAA garrisons. One soldier lost a leg as a result of injuries suffered in military custody. 25 Lelo was the only detainee interviewed by Human Rights Watch who said he had not been physically mistreated.

21 See ICCPR, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, arts. 10 (1), and 14 (3).

22 See, e.g. UN Commission on Human Rights, Resolution 2003/32, para 11.

23 United Nations Minimal Rules for the Treatment of Prisoners, adopted 1955, U.N. Doc A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (n° 1) at 11, U.N. Doc E/3048 (1957), amended E.S.C. res. 2076, 62. U.N. ESCOR Supp. (n° 1) at 35, U.N. Doc. E/5988 (1977).

24 These practices include, for example, tying detainees’ elbows together at the back or holding detainees in pits dug into the ground. See Human Rights Watch, Between War and Peace in Cabinda, p. 16f.

25 See “Angola–End Torture and Unfair Trials in Cabinda”, Human Rights Watch news release, December 10, 2008,

http://www.hrw.org/en/news/2008/12/05/angola-end-torture-and-unfair-trials-cabinda.

Three other detainees described to Human Rights Watch their treatment by the military as follows:

I slept at the police post, and the morning after, the FAA came to fetch me, and a military security commander took me to the military garrison at Loma. There soldiers tied me up with cords across my back and beat me, shouting ‘because you are FLEC’, ‘because you attacked a car of a company and killed a worker’, ‘You are the head of the group’. I bled a lot. They took me—tied up—to the military garrison at Caio and put me in a hole full of water. I stayed there for 19 days, after which they took me back to Loma where I was presented to a group of senior military. I insisted I was innocent. Then they put me again in the ‘hole’ in Caio where I stayed for another nine days. 26

They beat me, squeezed my testicles and my tongue with a pincer, telling me to ‘say the truth.’ I cried in pain. They called a nurse to give me an injection. Commander Lacrau then asked, ‘Tell us how many arms the coordinator gave you to attack this car.’ 27

In the village, the military tied our arms up with bootlaces, stripped our shirts, and beat us. I vomited blood. They searched the village for arms and ammunition but didn’t find any. We were taken to the next military garrison in Necuto where they stripped us naked and tied my testicles to a mortar. Then they took us to the military unit at Loma, Buco Zau. There, the military commander, Lacrau, accused me of having taken arms to the village from the city. He gave a guard a weapon and a bucket and told him to dig a grave and execute me. Then he fired a shot in the air and told the guard to lock me in the latrine and tell the others arrested with me that I was dead and the same would happen to them if they didn’t tell the truth… throughout the night military counter-intelligence operatives came to beat us. They threatened us with pistols and knives ‘to tell the truth.’ At some stage we said anything. The beatings were too much. Later we were taken by state security agents and two military in a civilian Land Cruiser to the military garrison at Dinge. There

26 According to the detainee A.B.C. (fictitious abbreviation), these abuses took place in April 2008. Human Rights Watch interview at Yabi prison, Cabinda, March 16, 2009.

27 According to the detainee D.E.F. (fictitious abbreviation), these abuses took place in April 2008. Human Rights Watch interview at Yabi prison, Cabinda, March 16, 2009.

they shouted at us, ‘You are FLEC.’ They beat us with whips and rifle butts and burned our testicles with cigarettes. 28

Detainees told Human Rights Watch that they were eventually held for varying periods of time under inhumane conditions at the FAA headquarters in Cabinda in a dark, dirty cellar without windows and sanitation facilities, which floods when it rains. This detention facility is commonly known and feared as “the hole.” The FAA spokesperson in Cabinda in March 2008 denied to Human Rights Watch the existence of such a prison. 29 Some detainees said they met military personnel who were being held there for internal disciplinary offenses. Most who had been detained there complained that they were prevented from washing for up to 17 days and defecating for up to five days. A lawyer acting as defense counsel for the six FAA members co-accused with Lelo told Human Rights Watch that the detained FAA members were handcuffed for three months in the “hole,” where they were beaten and often denied food. 30 Another defense lawyer told Human Rights Watch his client was beaten at the FAA headquarters with whips until he fell unconscious. 31

Former FLEC members arrested in October 2008 in the DRC and transferred to Angola told Human Rights Watch that they were held in the “hole” for long periods of time—between 25 and 30 days—where they were threatened with execution, beaten, and kicked by officials identified only by aliases—“Colonel Walter,” “Major Cafundinho”—and several unidentified military, including military police officers from the FAA headquarters. As a former FLEC member arrested in Cabinda described:

Members of the military police who arrested me threatened to shoot me, tied me up with bootlaces, and took me to the headquarters of the second regional command of the FAA. There, “Major Kafumbira” beat me with metal sticks and rifle butts and shouted “Take off your clothes! We will kill you!” They took my money and ordered me to tell them the names of all the people

28 Human Rights Watch interview with G.H. (fictitious abbreviation), at Yabi prison, Cabinda, March 16, 2009.

29 Human Rights Watch interview with Colonel Antonino Pessala, FAA spokesperson and head of the department for patriotic education, Cabinda, March 27, 2008. See “Angola–End Torture and Unfair Trials in Cabinda”, Human Rights Watch news release, December 10, 2008, http://www.hrw.org/en/news/2008/12/05/angola-end-torture-and-unfair-trials-cabinda. In March 2009, the office of the second regional FAA command in Cabinda declined a meeting with the Human Rights Watch researcher by referring to an outstanding authorization from the head of the general chief of staff of the FAA in Luanda.

30 Human Rights Watch email interview with Arão Tempo, November 25, 2008. See also “Angola–End Torture and Unfair Trials in Cabinda”, Human Rights Watch news release, December 10, 2008.

31 Human Rights Watch interview with Francisco Luemba in Cabinda, March 25, 2008; Objection to the Judges Counselors of the Chamber for Crimes against the Security of the State of the Supreme Court, presented by Francisco Luemba regarding the process 490-C/08of the public prosecutor against Luís Geraldo Barros and others, Cabinda, January 31, 2009.

I work with, whether I knew guerrilla members in the forest, and why I came to the city. Blood poured out of my ears. 32

The local representative of the Angolan Bar Association (OAA) told Human Rights Watch that 10 people arrested on March 26, 2009 in the village Liambo-Lione (Cacongo municipality) alleged that they were severely beaten by military personnel inside the FAA headquarters. Only five of the men—after 26 days of incommunicado detention—were eventually presented to the public prosecutor. The other five, including the wife of one detainee, were released directly from military custody after five days. 33

According to Angolan law, only the public prosecutor has the power to interrogate detainees. 34 However, detainees and lawyers interviewed by Human Rights Watch said that, in all cases, military intelligence officers carried out interrogations. In addition, military officials in command of interrogation sessions that involved torture, in which some participated actively, never formally identified themselves, either by name or affiliation. Thus, soldiers and commanding officers involved in the torture of detainees are only known by aliases, or noms de guerre, the most quoted being “Colonel Fuchi,” “Colonel Walter,” 35 and “Major Cafundinho.” Some detainees, lawyers, and others told Human Rights Watch that the officers belong to a unit called the Operative Intelligence Group (Grupo Operativo de Inteligência or GOI), created some years ago to coordinate the counter-insurgency activities of Angola’s domestic and military intelligence services in Cabinda. 36 Human Rights Watch could only identify the full name of one well-known senior military officer, Col. António José da Conceição Kambanda, alias “Lacrau,” commander of the Third Infantry Regiment of the FAA, who oversaw the torture of detainees in Buco Zau. Several detainees told Human Rights Watch that some local administrators and military commanders as well as senior military officials tried to intervene on behalf of detainees they perceived to be innocent, but were overruled by Colonel “Lacrau.”

The provincial public prosecutor and former military prosecutor, António Nito, denied having “any knowledge” of unofficial military detention places, as well as interrogations under torture in military custody, and questioned the credibility and accuracy of detainees’

32 Human Rights Watch interview with I.J. (fictitious abbreviation), detainee at Yabi prison, Cabinda, March 16, 2009.

33 Human Rights Watch phone interview with Arão Tempo, Cabinda, May 4, 2009.

34 Law on Pre-trial detention (18-A/92) (Lei da prisão preventiva em instrução preparatória), art. 4.

35 Former detainees interviewed by Human Rights Watch in Cabinda in 2004 had referred to an officer called “Walter” as head of the intelligence. See Human Rights Watch, Between War and Peace in Cabinda, p. 18.

36 Human Rights Watch interviews with a local lawyer and journalist (names withheld) in Cabinda, March 2009 and follow-up email and phone interviews in May 2009.

accounts. He told Human Rights Watch: “They would say anything, but this is not sufficient. They have to present evidence and file a legal complaint.” 37 Nevertheless, the accounts collected by Human Rights Watch are remarkably consistent and suggest a systematic pattern of abuse by the Angolan military and intelligence services.

The prohibition on torture is a fundamental principle of international human rights law; torture is prohibited at all times and under all circumstances. Angola has yet to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which obliges states to prevent and sanction acts of torture and other mistreatment. The Angolan government has on several occasions promised to ratify the convention and its optional protocol, which allows international monitoring of detention facilities. It reiterated this promise in its voluntary pledges submitted to the UN General Assembly in May 2007 38 before being elected as a member of the Human Rights Council for 2007-2010.

As a member of the United Nations, Angola has agreed to abide by the Universal Declaration of Human Rights, which bans all use of torture and other mistreatment. 39 Angola is party to the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights, both of which prohibit arbitrary detention and outlaw the use of torture and cruel, inhuman, or degrading treatment. 40 In addition, Angola is bound by international humanitarian law, the laws of war. Common article 3 of the 1949 Geneva Conventions, which applies during internal armed conflicts, protects captured combatants and detained civilians against torture and cruel, humiliating, and degrading treatment.

In addition, Angola’s constitution, which is currently under review in parliament, states that “Constitutional and legal norms related to fundamental rights shall be interpreted and integrated harmoniously with the UN Universal Declaration of Human Rights, the African Charter on Human and People’s Rights and other international instruments to which Angola is party,” and that “In the assessment of disputes by Angolan courts, those international instruments shall apply even when not invoked by parties.” 41 These international

37 Human Rights Watch interview with António Nito, public prosecutor, Cabinda, March 18, 2009.

38 Angola’s voluntary pledges to promote human rights, Annex to the letter dated 3 May 2007 from the Permanent Representative of Angola to the United Nations addressed to the President of the General Assembly, http://daccessdds.un.org/doc/UNDOC/GEN/N07/331/59/PDF/N0733159.pdf?OpenElement (accessed May 12, 2009).

39 Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 5.

40 ICCPR, art. 7; The African Charter on Human and People’s Rights, adopted on June 27, 1981, entered into force on October 21, 1986, ratified by Angola in 1990, art. 5.

41 Lei Constiticional (1992), art. 21. See also comments by the UN Working Group on Arbitrary Detention: United Nations General Assembly, Human Rights Council: Report of the Working Group on Arbitrary Detention, Addendum - Mission to Angola, A/HRC/7/4/Add. 4, February 29, 2008, p. 11, para 32.

instruments place a legal obligation on Angola to end its arbitrary detention, torture, and mistreatment of detainees in Cabinda.

VIII. Treatment in Civilian Prisons

Detainees at Yabi prison told Human Rights Watch that detention conditions at the newly built prison facility, where all were eventually brought, were generally good. That was less true for the former VOA journalist Fernando Lelo, who told Human Rights Watch that he was only allowed to leave his cell for the prison yard after several months. “My detention conditions are not determined by the prison director, but by orders from his superiors,” he said. “It’s as if I was in a private prison here.” 42

However, several detainees at Yabi prison told Human Rights Watch that after finally being presented to the public prosecutor and criminal investigation police, they were first shuttled back and forth to different cells of the “Cadeia Civil,” a transit detention center for military and civilian detainees, including illegal migrants. 43 Some detainees told Human Rights Watch they were “forced under the seats” of the cars by officials shuttling them to and from the Cadeia Civil. 44

Others described to Human Rights Watch the inhumane conditions at that jail:

We stayed 17 days in the ‘dark cell’ of the Cadeia Civil. We had to do everything there—urinate, defecate, eat—but they didn’t beat us. After being presented to the public prosecutor, we were taken back to the military headquarters, where we stayed for seven days. Then they took us back to the Cadeia Civil, to the civilian part, for another four days. 45

One detainee described his stay in the Cadeia Civil as “cramped into a cell of four square meters maximum together with 17 other people.” 46

42 Human Rights Watch interview with Fernando Lelo at Yabi prison in Cabinda, March 16, 2009.

43 An official request by Human Rights Watch to visit the Cadeia Civil in March 2009 was not responded to.

44 Human Rights Watch interview with K.L., M.N., O.P. (fictitious abbreviations), detainees at Yabi prison, Cabinda, March 16,

2009.

45 Human Rights Watch interview with K.L. (fictitious abbreviation), detainee at Yabi prison, Cabinda, March 16, 2009.

46 Human Rights Watch interview with Q.R. (fictitious abbreviation),detainee at Yabi prison, Cabinda, March 16, 2009.

IX. Violations of Due Process Rights

Human Rights Watch’s research into the criminal proceedings and trial of Fernando Lelo and the co-accused FAA members found that their treatment fell far short of international due process standards.

The six FAA members were arrested in September 2007 without a warrant and were held incommunicado in military custody for up to six months, during which time they were forced to confess and incriminate Lelo and themselves under torture and degrading and inhumane treatment.

Lelo and the six co-accused FAA members were formally charged by the military prosecutor of Cabinda in March 2008 with crimes against the security of the state and military crimes. They were tried by a military court in hearings lasting from May 5 to June 11, 2008. This was in violation of Angolan law, because crimes against the security of the State and cases against civilians, like Lelo, should be tried in civilian courts. 47

No credible evidence, either during the criminal investigation or at the trial, was presented against any of the detainees, while evidence in defense of the accused was not taken into account. The military prosecutor and military judge dismissed all objections regarding arbitrary arrest, evidence obtained under torture, and the jurisdiction of military courts. 48

Lelo was accused of having “undertaken a vast recruitment” of former FLEC soldiers integrated into the FAA, with the aim of carrying out armed attacks against the FAA in order to influence national and international opinion that the separatist insurgency in Cabinda continues to be active. 49 However, the co-accused FAA members had not identified Lelo during two lineups. They allege that they were tortured to incriminate themselves and Lelo.

47 Law on Military Crimes (4/94 of January 28). See also United Nations General Assembly, Human Rights Council: Report of the Working Group on Arbitrary Detention, Addendum–Mission to Angola, A/HRC/7/4/Add. 4, February 29, 2008, p. 11, para

28.

48 See: Objection to the President Judge of the Military Court of the 2 nd Region presented by defense counselors Francisco Luemba and Arão Tempo regarding the process 19/2008 of the military prosecutor against Alberto João Chimbinda and others, Cabinda, May 5, 2008. According to the Angolan Criminal Procedure Code–currently under review–defense lawyers may only challenge an accusation alleging procedural irregularities after the criminal investigation is completed. The UN Working Group on Arbitrary Detention expressed concern with the fact that a detention cannot be effectively challenged during the investigation phase and judges are not involved before trial in Angola. See: United Nations General Assembly, Human Rights Council: Report of the Working Group on Arbitrary Detention, Addendum–Mission to Angola, A/HRC/7/4/Add. 4, February 29, 2008, para 40-45 and 75-77.

49 Cópia do Despacho da Pronúncia, Procuradoria Militar da Segunda Região, Cabinda, March 5, 2008.

No other evidence was presented to suggest that Lelo had met the FAA soldiers whom he was accused of paying and instructing to carry out armed attacks. 50

The trial was further tainted by government statements that infringed upon judicial independence and Lelo’s right to a fair trial. Long before the start of the trial, Attorney General João Maria de Sousa, stated repeatedly in the state media that there were “strong indications” of Lelo’s guilt. 51 Such statements were widely viewed as intended to exert pressure on the judge to hand down a conviction.

In addition, according to Angolan law and international human rights standards, trials are to be public. 52 However, several trial observers told Human Rights Watch that public access to the hearings, including for family members and the privately owned press, was restricted, while a large number of domestic and military intelligence and police agents occupied the courtroom. 53 Lelo himself described the atmosphere during the trial to Human Rights Watch:

Almost every day they suspended the trial. We spent two hours maximum there a day. Every time I was shuttled from the prison to court, escorted by a motorcade of several cars with armed agents of the Public Order Police, the Rapid Intervention Police, and the FAA. The car I was in didn’t have windows. This spectacle served to present me to the public as a highly dangerous criminal and to intimidate the population watching the scene. At court, the military prosecutor dominated the trial, despite not being familiar with the legal process. 54

On September 16—almost three months after the trial—five FAA members were sentenced to 13 years of imprisonment for military crimes (violence against a superior and subordinate and desertion) and crimes against the security of the state, including armed rebellion. One FAA member was acquitted. Fernando Lelo was sentenced to 12 years of imprisonment for inciting the co-accused to commit the crimes.

50 According to the defense lawyer Martinho Nombo, a former municipal police commander whose testimony was quoted by the accusation, denied at court having ever seen Lelo at the village in Buco Zau where he allegedly met the co-accused soldiers on July 12, 2007 , while Lelo’s employer confirmed he had been working within the Malongo compound on the same day. Human Rights Watch interviews with Martinho Nombo, Cabinda, March 2009.

51 For example: “Detention of journalist Lelo is not arbitrary, says Attorney-General” (Detenção do jornalista Fernando Lelo não é arbitrária, diz PGR), Rádio Nacional de Angola/ Angop, January 7, 2008.

52 ICCPR, art 14 (1).

53 Human Rights Watch interviews with local journalists (names withheld), March 2009.

54 Human Rights Watch interview with Fernando Lelo at Yabi prison, Cabinda, March 16, 2009.

Human Rights Watch has argued that the court’s verdict was delayed until after Angola’s parliamentary elections on September 5-6, 2008, in order to avoid potential damage to the ruling party MPLA’s electoral campaign in Cabinda. 55

While Lelo and the FAA soldiers convicted along with him were tried before a military court, current detainees charged with state security crimes in Cabinda have had their cases signed by the civilian prosecutor and so will be brought before a civilian court. This is a step forward. Nevertheless, Human Rights Watch research found that other current detainees have been denied basic due process rights, even when transferred after varying periods in military custody, to the civilian prison of Yabi and presented to the criminal investigation police and the public prosecutor.

Human Rights Watch has documented a number of procedural irregularities in the judicial proceedings against two groups of detainees, both arrested in January 2008. According to international human rights standards, evidence obtained under duress, such as interrogations under torture, must be considered inadmissible in judicial proceedings. 56 However, in both cases, records of the criminal proceedings show that lawyers were denied access to military and intelligence interrogation files quoted by the prosecution as evidence. In one case, interrogation files were classified as “secret,” according to the Law on the Secret of the State. 57 By withholding essential information to the defense and failing to dismiss evidence alleged to have been obtained by coercion and torture, the prosecutor violated international principles guaranteeing a fair hearing. 58 In addition, military intelligence officers who were called for questioning during the investigation by the defense failed to show up during the criminal investigation and at court. 59 In one case, the defense objected to the public prosecutor’s conclusion that there were “strong indications of a

55 Human Right Watch, “Angola–End Torture and Unfair Trials in Cabinda”, Human Rights Watch news release, December 10, 2008, http://www.hrw.org/en/news/2008/12/05/angola-end-torture-and-unfair-trials-cabinda.

56 Human Rights Committee General Comment 20, para 12.

57 Law on the Secret of the State (10/02) from August 16. See Objection to the Judges Counselors of the Chamber for Crimes against the Security of the State of the Supreme Court, regarding the process 490-C/08 of the public prosecutor against Luís Geraldo Barros and others, presented by lawyer Francisco Luemba, Cabinda, January 31, 2009.

58 Human Rights Committee General Comment 13, para 15.

59 Objection to the Judges Counselors of the Chamber for Crimes against the Security of the State of the Supreme Court, regarding the process 490-C/08 of the public prosecutor against Luís Geraldo Barros and others, presented by lawyer Francisco Luemba, Cabinda, January 31, 2009; Objection to the Honorable Judge of the Common Crimes Chamber of the provincial court in Cabinda regarding the process 0470-C/08 of the public prosecutor against Natalício Mbatchi and others, Cabinda, presented by lawyer Arão Tempo, Cabinda, March 27, 2009.

linkage between the accused and the FLEC FAC guerrillas,” simply because several known guerrilla members “have relatives in that particular village.” 60

The Cabinda public prosecutor and two of the three judges in the civil judiciary previously served as military magistrates in other provinces before being appointed in Cabinda in 2006. It is not uncommon in Angola for military magistrates to occupy posts in the civilian judiciary—the Attorney-General himself is a former military magistrate. But rights advocates credibly fear that, in national security cases, these judges will not show sufficient independence from the government to provide fair trials. Indeed, a senior military official told Human Rights Watch that previous civilian magistrates in Cabinda had been replaced in 2006 because they “never managed to convict anybody” for crimes against the security of the state. 61

There are some cautious grounds for hope for fairer trials in national security cases. A judge in Cabinda on May 7, 2009 cited lack of evidence and the principle of in dubio pro reo to acquit four men on national security charges, while sentencing one man for a minor offense. 62 The public prosecutor challenged the judge’s sentence at the Supreme Court, which has not yet issued a ruling. Lawyers have expressed hope that the verdict, if upheld by the Supreme Court, may reflect a willingness by judges to act independently and impartially in national security cases. 63 However, with more upcoming trials of the remaining detainees—all with a far lower public profile than Fernando Lelo—and as-yet unconfirmed reports that more arrests for national security crimes have occurred in April 2009, concerns about the due process rights of detainees in national security cases in Cabinda remain.

60 Objection to the Judges Counselors of the Chamber for Crimes against the Security of the State of the Supreme Court, regarding the process 490-C/08 of the public prosecutor against Luís Geraldo Barros and others, presented by lawyer Francisco Luemba, Cabinda, January 31, 2009.

61 Human Rights Watch interview with senior military official (name withheld) in Cabinda, March 17, 2009.

62 See Verdict of the Provincial Court of Cabinda, Cabinda, May 7, 2009.

63 Human Rights Watch phone interview with Arão Tempo, May 7, 2009, and email correspondence with Francisco Luemba, May 8, 2009.

Acknowledgements

The report was researched and written by a Human Rights Watch researcher. It was edited by Jon Elliott, advocacy director of the Africa Division; Rona Peligal, deputy director of the Africa Division; Iain Levine, program director; and James Ross, legal and policy director. Jeffrey Severson, associate of the Africa Division, provided production assistance.

Human Rights Watch acknowledges with gratitude the contribution provided by lawyers, journalists, human rights activists, members of churches, national and international organizations, officials of the government, military, police and judiciary, and detainees who agreed to be interviewed for this report. We own special gratitude to those individuals who gave us invaluable and unfailing support during our research on the ground and follow-up. We also thank NOVIB for the funding that made this research possible.

Annex: Persons Held for Security Charges at Yabi Prison

Current Detainees

António Santos Nguimbi–soldier in the Angolan Armed Forces (FAA), arrested on September 9, 2007 in Buco Zau. Sentenced by the provincial military court on September 16, 2008 to 13 years prison.

Lourenço Ila Dembe–FAA soldier, arrested in Buco Zau on September 17, 2007. Sentenced by the provincial military court on September 16, 2008 to 13 years in prison.

Alberto Suami–1 st sergeant in the FAA, arrested on September 18, 2007 in Cabassango (Buco Zau municipality). Sentenced by the provincial military court on September 16, 2008 to 13 years in prison.

Alberto João Chimbinda–FAA soldier, arrested in Cabassango (Buco Zau) in September 2007. Sentenced by the provincial military court on September 16, 2008 to 13 years in prison.

Basílio Muanda–1 st corporal in the FAA, arrested in Buco Zau on September 22, 2007. Sentenced by the provincial military court on September 16, 2008 to 13 years in prison.

José Fernando Lelo–employee of Algoa and former VOA journalist, arrested at the Cabinda Gulf Oil Company compound Malongo on November 11, 2007. Sentenced by the provincial military court on September 16, 2008 to 12 years in prison.

Sebastião Sambo–catechist, arrested in Tando Malele (Inhuca commune, Buco Zau) on January 24, 2008.

Carlos José Sambo–arrested in Tando Malele on January 24, 2008.

João Domingos Mabete–traditional leader and deputy village coordinator, arrested in Tando Malele on January 24, 2008.

Paulo Simão–arrested in Tando Malele on January 24, 2008.

Luís Geraldo Barros–traditional leader, arrested in the village of Conde (Inhuca commune, Buco Zau) on January 29, 2008.

João Paulo Mombo–teacher and coordinator of Micuma I (Buco Zau), arrested in the village of Micuma I on April 2, 2008.

Joao Baptista Maeia–employee of Encica, arrested in Micuma I on April 2, 2008.

Zacarias João Zau–arrested in Micuma I on April 2, 2008.

Marcos Lúbuca Malila Tovo–arrested in Micuma I on April 2, 2008.

Joaquim Valentim Culebi–arrested in Micuma I on April 2, 2008.

Armando Muabi–arrested by the Agence Nationale de Renseignement (ANR) in Buendi Kassanfu, Democratic Republic of Congo (DRC), on October 7, 2008.

Próspero Bianga–arrested by the ANR in Buendi Kassanfu, DRC, on October 7, 2008.

João Alfredo Dumbi–arrested by the ANR in Buendi Kassanfu, DRC, on October 7, 2008.

João de Deus Deu Muanda–arrested by the ANR in Tshela, DRC, on October 14, 2008.

César Déneri Dunge–arrested by the ANR in Kimbadi Kuimba, DRC, on October 19, 2008.

José Fernandes Jorge–arrested in Dinge (Cacongo) on October 20, 2008.

Cornélio Mabiala–arrested in his home in Cabinda city on October 28, 2008.

Clemente João Mavungo–coordinator of Cossuenda, arrested in Necuto (Buco Zau) on January 2, 2009.

Paulo Mavungo–teacher, arrested in Sassa Zau Velho (Buco Zau) on January 7, 2009.

Rafael Futi–arrested in Sassa Zau Velho on January 7, 2009.

Alexandre Fundo–arrested in Sassa Zau Velho on January 7, 2009.

Massota Vunda–arrested in Liambo-Lione (Cacongo) on March 26, 2009.

Alexandre António Fortunato–arrested in Liambo-Lione on March 26, 2009.

Francisco Linda Luemba Panzo–arrested in Liambo-Lione on March 26, 2009.

Luís Massiti Gomes–arrested in Liambo-Lione on March 26, 2009.

João Baptista Puati–village coordinator, teacher and pastor, arrested in Liambo-Lione on March 26, 2009.

Previous Known Detainees

Custódio Nguimbi Sumbo–1 st sergeant in the Angolan Armed Forces, arrested in Buco Zau in September 2007. Acquitted by the provincial military court on September 16, 2008.

Natalicio Mbatchi–arrested in Sevo da Vula (Necuto, Buco Zau) on January 16, 2008. Sentenced on May 7, 2009 by the provincial court to one year and six months in prison, and released.

João Mateus Luemba–nurse, arrested in Sevo da Vula on January 16, 2008. Acquitted by the provincial court on May 7, 2009.

Elias Menos–arrested in Sevo da Vula on January 16, 2008. Acquitted by the provincial court on May 7, 2009.

Garcia David António–arrested in Sevo da Vula on January 16, 2008. Acquitted by the provincial court on May 7, 2009.

António Zau–arrested in Sevo da Vula on January 16, 2008. Acquitted by the provincial court on May 7, 2009.

HUMAN RIGHTS WATCH 350 Fifth Avenue, 34 th Floor New York, NY 10118-3299

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“They Put Me in the Hole”

Military Detention, Torture and Lack of Due Process in Cabinda

While the intensity of armed conflict in Angola’s oil-rich Cabinda enclave has declined since 2004, sporadic separatist guerrilla attacks have continued, despite a peace agreement signed by the government and a faction of the armed opposition in 2006. This report gives new first hand, field-based information on a disturbing pattern of official abuse—arbitrary arrest, lengthy incommunicado detention, and torture in military custody—of people suspected of involvement in rebel attacks.

Between September 2007 and March 2009, at least 38 persons were arrested by Angolan military and intelligence officials in Cabinda and eventually charged with state security crimes. While all were eventually brought to a civilian prison, most were initially subjected to torture and other ill-treatment in military custody and denied basic due-process rights. The report provides further detail on the high profile case of Fernando Lelo, a former Voice of America correspondent convicted of national security crimes in September 2008, but also draws attention to several other cases that have attracted much less public attention.

In this report Human Rights Watch urges the Angolan government to adopt all necessary measures to ensure that the armed forces act in accordance with Angola’s obligations under international human rights and humanitarian law. The government should review proceedings against detainees currently or previously held for state security crimes, investigate allegations of human rights violations, and prosecute alleged perpetrators. The government should also set up an independent and impartial inquiry into human rights violations committed by the Angolan armed forces and intelligence services in Cabinda.

Sentencing of Fernando Lelo and six soldiers, Cabinda, September 16, 2008.

© 2008 Cristóvão Luemba

services in Cabinda. Sentencing of Fernando Lelo and six soldiers, Cabinda, September 16, 2008. © 2008

PAUL CAULFIELD (©IGNEA.ORG)

III. Around the World

CHEVRON IN ANGOLA

CHEVRON HAS BEEN IN ANGOLA since the 1930s, when Texaco began marketing there. In 1958 Cabinda Gulf

Oil Co., Chevron’s Angolan subsidiary, drilled its first well. The company has dominated oil production in Angola ever since. Today, Chevron has four Angolan concessions, the most important of which are the massive offshore Benguela Belize–Lobito Tomboco and the $3.8 billion Tombua-Landana projects. Also in 2008, construction began on a 5.2 million-metric-ton- per-year liquefied natural gas plant. Angola is the second-largest oil producer in sub-Saharan Africa and the world’s seventh-largest supplier to the United States. Yet its health indicators are some of the worst in sub-Saharan Africa, sixty eight percent of the population lives below the poverty line, and 28% live in extreme poverty. 114 Chevron operated in Angola when it was a Portuguese colony, through a bloody 14-year armed struggle to independence in 1975, and through a 27-year brutal civil war ending in 2002, which left as many as one million Angolans dead, 4.5 million internally displaced, and another 450,000 as refugees. Since the end of the Civil War the government has remained

rife with corruption, such that Transparency International ranks

it as one of the most corrupt governments in the world, and Amnesty International describes its human rights record as “poor” and “plagued” by serious problems. Cabinda is the heart of Angola’s oil production. The twenty-four-hour oil operations there are, as lawyer and journalist Daphne Eviatar writes, “what financed the

government’s army during a civil war

obvious sign of the West’s relentless tentacles reaching into Angola today.” 115 In 2006, the Angolan government banned Mpalabanda (Associação Cívica de Cabinda), the only human rights organization operating in Cabinda. The group focused not only on abuses by the government, but also by the oil companies.

Agostinho Chicaia is the president of Mpalabanda. Amnesty International released a statement forcefully condemning the

ban, stating, “Amnesty International considers [Mpalabanda’s]

members to be human rights defenders

Cabinda, an area rife with egregious violations of human rights, without a human rights organisation to monitor and record violations of human rights.” 116 An international outcry followed, universally acknowledging the peaceful and vital work of Mpalabanda.

Its closure will leave

and vital work of Mpalabanda. Its closure will leave Luanda, Angola 2006 CHEVRON IN CABINDA (ANGOLA)

Luanda, Angola 2006

CHEVRON IN CABINDA (ANGOLA)

Statement by Agostinho Chicaia, Extinta Mpalabanda Associação Cívica de Cabinda (MACC), Cabinda, Angola

Labor Policies

Discrimination is rampant in the treatment given to Cabindan vs Luandan—or the remainder of Angolan employees. We believe that in the last two years, Chevron has required the compulsory transfer of many Cabinda-based administrative personnel to Luanda. Angola’s General Labour Law requires that employees be compensated for expenses related to transfers, including “expenses related to the employee himself or the family members for whom the employee is responsible.” We believe that Chevron has adhered to this law only in the case of non-Cabinda employees. This transfer process to Luanda is extremely precarious. It has been dividing and destroying families, as the Cabindan transferred employees’ earnings are not enough to cover the costs incurred for their families.

Human Rights

There have been murmurs and claims all over: we hear shouts of indignation and revolt from employees or members of the communities against Chevron’s way of doing things.

And they’re the most

Employees’ rights are simply violated, ignored, and denied; there is discrimination in the workplace, particularly over wages. The employees’ Trade Unions encounter a number of difficulties in exercising their role, as Chevron does not allow it. Collective bargaining is not welcomed. Many times employees are unfairly terminated, in total violation of their rights. Furthermore, there is no distinction between human rights and politics, so talking about human rights is considered a provocation to the government. Standing up for your rights is considered being ungrateful or lacking respect. Dialogue does not exist, and when they talk about “dialogue,” it is to simply communicate decisions already made or to seek pretexts to take actions, because anything you say may be used against you.

Environment

The local communities do not derive any real benefits from activities undertaken in their geographical areas. The communities’ quality of life and living standards continue to deteriorate. The environment has been increasingly degraded. The impact of the pollution has been trivialized by Chevron, particularly with the successive oil spills in Cabinda. No independent environmental impact study has been produced to evaluate the present state of our beaches, the deteriorated mangroves areas, the affected ecosystems in the sea, on the earth, and the transfer to rivers. In a rare government action in 2002, Chevron was fined $2 million by Angola’s Ministry of Fisheries and the Environment for oil spills from its platform that polluted beaches and damaged the local fishing industry. A government investigation found that leaks from poorly maintained pipes used to transport crude oil from the platform were the cause of the spills. With most oil spills, however, we find that Chevron will deny responsibility and accuse operators in neighbouring countries. On the few occasions when Chevron has accepted responsibility, we have found the number of barrels of oil spilled was generally below 50 in order to avoid being penalized under Angolan law. To indemnify the fishermen, the main victims, Chevron dictates the indemnification value without proper serious and transparent negotiation.

What Chevron Says

Lately, Chevron has carried out some projects to benefit the communities. Chevron builds one school here, a medical

center there, but these projects are very far from the real problems, concerns, and needs of the communities. Chevron prospers and enriches itself, while the local communities get poorer and poorer, more and more miserable, more and more vulnerable. The very little that Chevron does that is not done unilaterally, without considering the opinions and the priorities of the communities. They don’t walk the talk, considering what they preach themselves. There is neither dialogue nor are there objective partnerships or common goals between themselves and the communities. Cabinda does not in any way reflect the oil-producing giant that generates scandalous amounts of money for the Angolan government as well as Chevron itself. Chevron says that it recently created a Social Responsibility team to mitigate daily criticisms and to create an internal forum to discuss issues related to social responsibility, environmental problems, health, and safety. But, thus far, these efforts are unproductive, and civil society monitoring capabilities are not yet up to the task.

What the Communities Want

We find that extractive industry practices in Cabinda only stress and deepen poverty levels, for Chevron pollutes and destroys the environment, accentuates social injustice, stops development, and sows frustration. As such, local communities and the Cabindan people demand more social, environmental, and economic responsibility on Chevron’s part and for themselves. Environmental organizations such as Gremio ABC specifically demand that Chevron finally replace its old leaking oil pipelines. Mpalabanda-Cabinda Civic Association, illegally abolished by the Cabinda Court of Justice as ordered by the Cabinda Provincial Government (and mandated by the Presidency of the Republic Military House), has always held that there was excessive pressure over the oil exploration in Cabinda, which prepared the ground for successive oil spills. It was absurd to deplete all the Cabinda reserves today only to inherit serious environmental problems tomorrow. Mpalabanda demanded the development of an independent environmental impact study to determine the marine resources contamination levels. It asked the Angolan Government to regulate the basic environmental laws and the capacity building of the local structures for a joint monitoring of the oil exploration activities in Cabinda with civil society.

“The solution? As a last resort, discontinue Chevron’s oil exploration in Cabinda, as it is the mother of our disgrace, bringing poverty, environmental problems, and armed conflict.”

22 Chevron Alternative 2008 Annual Report

—Agostinho Chicaia, Angola

“Chevron is the biggest polluter of the environment (seas, lakes, flora) in Cabinda Chevron has given very limited attention and provided minimal investment to protect and heal the environment in Cabinda.”

producer of Angolan oil. In 2010, it will extract 580,000 barrels of oil per day from offshore Blocks 0 and 14. 208 Producing 1.78 million barrels per day, Angola briefly eclipsed Nigeria as Sub-Saharan Africa’s largest oil producer in August 2009. 209 Angola supplies 31% of its crude to the U.S. and Chevron plays a major role in Angolan oil exports with a 39.2% interest in the Malongo Terminal Oil Export project. 210

Chevron’s wholly-owned subsidiary, Cabinda Gulf Oil Com- pany, pioneered exploration activitie s before Angola achieved independence from the Portuguese. Chevron boasts of con- ducting Angola’s first seismic operations in 1954, drilling its first onshore well in 1958, and discovering its first offshore oil and gas fields in 1966 and 1971, respectively. 211 Yet all of these activities occurred in Cabinda, a Portuguese protectorate dis- tinct from the Angolan colony. Many Cabindans claim Angola illegally annexed the oil-rich territory and they blame Chevron for financing the Angolan government’s repressive hold on Cabinda ever since. Oil revenues largely financed Angola’s bloody internation- alized civil war until 2002. Despite the ongoing war, Chevron steadily increased offshore production. In 1997, Chevron began developing Kuito, Angola’s first deepwater well. By 2009, Chevron introduced “one of the largest man-made structures on earth” designed for maximum daily production rates of 100,000 barrels per day in 2011. 212

Since Angola’s annexation of Cabinda in 1975, Cabindans have sought autonomy, some supporting militant movements for independence. Today, some 30-40,000 Angolan troops are sta- tioned in Cabinda, committing egregious human rights abuses against the civilian population of 400,000, including forced labor, rape, beatings, torture, summary executions and politi-

rape, beatings, torture, summary executions and politi- cal intimidation. 2 1 3 Journalist Lara Pawson

cal intimidation. 213 Journalist Lara Pawson reported that in 2008,“Cabinda appears more militarized than parts of Angola I visited during the height of the civil war.” 214 Security forces arbitrarily detain Cabindans “suspected of involvement in armed opposition.” Between September 2007 and March 2009, 38 such persons were subjected to torture and cruel or inhumane treatment, deprived of due process rights, and denied a fair trial. 215 Many detainees are human rights and environmental campaigners. A recent wave of “suspects” taken into custody in 2010 included human rights lawyer Francisco Luemba, Catholic priest Raúl Tati, and other members of the banned Mpalabanda Civic Association, which elucidated Chevron’s role in undermining human rights in Cabinda. The Angolan government uses military force in Cabinda to quash protest and secure resource-rich territory. Chevron is indirectly linked to Cabinda’s militarization by supplying billions of dollars in oil payments to a repressive and opaque government. Improved transparency could help channel oil monies to social services and poverty reduction, rather than corrupt elites or repression.

Chevron’s oil exploration and production activities—including seismic tests, drilling, offshore disposal of drill cuttings and produced water, fracturing and water flooding activities, pipeline leaks, accidental oil spills, and use of chemicals such as dispersants—devastate human and environmental health. 216

Oil Spills Oil spills are the most visible negative impact of Chev- ron’s operations offshore. Chevron reports 182 accidental spills between 1990 and 1998, releasing 5,984 barrels of oil into Cabinda’s artisanal fishing grounds. 217 According to one fisher, “The uncontrolled oil spill also poses a big threat for the survival of fishing communities who constantly see their liveli- hoods threatened with no work to do or means to adequately and decently sustain their families.”

Chevron delivers compensation in an uneven and opaque manner, favoring wealthier registered fishers over informal day laborers and entirely disregarding the wider affected population, including women fish traders. 218 A fisher recalled, “In 2000, when Chevron destroyed a fish- ing habitat and a lake near Landana, only 14 fishermen were compensated in a total population of about 2,500 people who directly and indirectly depended on fishing.” Overlooked community members sought indemnification in the courts. Yet, one claimant lamented, “The amounts are so little and insignificant compared to the losses that the communities have suffered. There are still court cases of some fishermen against Chevron which have never been resolved because a lot of people who have or are being affected by the spills and pollution have been delib- erately not considered.” When oil spills occur, Chevron often fails to alert communities. 219 Worse yet, some say Chevron relies on security forces to quell community demands—or uses

chemical dispersants to mask spills before fishers can make claims to compensation. As one fisher recalled, “This year, after another big spill occurred, the local com- munity tried to organize a demonstration against Chevron’s practices, but the security forces quickly prevented it. Chevron has been a bit more careful of informing the local communi- ties whenever an oil spill takes place and the cleaning of the seas is promptly assumed.” Unfortunately, the use of chemical dispersants in “cleaning” operations may be more dangerous to human and environmental health than oil alone. 220 The state of repression and underdevelopment in Cabinda may benefit Chevron by limiting liability and compensation claims. An anonymous Chevron official admitted, “Chevron is the biggest polluter of the environment (seas, lakes, flora) in Cabinda and because there are no independent bodies or civil society organizations capable and efficient to monitor [the company], most of the spills go unreported and unheard of with the exception of those detected by local fishermen. Chev- ron has given very limited attention and provided minimal investment to protect and heal the environment in Cabinda.” One resident of a community near Chevron’s operations agreed, “Though there is widespread discontentment in the community, there have never been any public complaints against Chevron [because] the majority of the population are illiterate or have low education and do not know their rights.” Cabinda’s artisanal fishers depend on the waters in Block 0 for their sustenance and livelihoods, but few recognize the dangers of oil production beyond oil spills—like eating fish that have bioaccumulated high levels of methylmercury from exposure to drilling wastes.

levels of methylmercury from exposure to drilling wastes. Angolan fields in 2008, 69% was flared or

Angolan fields in 2008, 69% was flared or vented, 23% was reinjected, and 8% went to domestic consumption. 222 Flaring abatement and gas reinjection are long overdue for environ- mental and human health.

In 2004, the Angolan government allowed Chevron to publicly disclose a $300 million payment for extension of the Block 0 concession. The transparent moment was short-lived; Angola still refuses to sign the Extractive Industries Transparency Ini- tiative (EITI). The challenge of EITI not only reflects Angola’s intransigence but also reveals Chevron’s lack of political will to promote transparency and become more accountable to the Angolan populace. The challenges are great: communities neighboring Chev- ron’s oil base at Malongo lack electricity and running water. Some residents acknowledged, “Chevron has some good social assistance programs for the population” and rattled off a few projects. Others criticized Chevron for prioritizing social initia- tives used as political propaganda by the government or ruling party and refusing funding to civil society organizations.

Chevron’s contributions to development and minor attempts at transparency do little to offset the direct harm the corporation has inflicted on human and environmental health in Cabinda or the indirect damage to human rights and democracy in An- gola. We implore Chevron to take the following actions:

Repair faulty, outdated infrastructure contributing to environmental degradation; Cease all flaring of associated gases at the wellhead; Educate communities on environmental and human health concerns associated with activities; Report all risks to environmental and human health (e.g., spills) to com- munities immediately; Distribute compensation to all affected parties in a transparent and equitable manner; Support basic human rights and the development of non-partisan civil society in Angola; Publish all payments to the Angolan government; Lobby for the U.S. Energy Security through Transparency Act of 2009 (S. 1700); and Implement fair practices to promote hiring of local personnel.

Chevron’s commitment to reducing flaring in Angola is most welcome. Chevron holds a 36.4% ownership interest in Angola Liquefied Natural Gas, a multi-billion joint venture to produce 5.4 million metric tons of exportable LNG. 221 In- creasing prices and rising demand for cleaner fuels in the U.S. encouraged Chevron to seek a profit on associated gases rather than burn them at the wellhead. Nevertheless, Chevron and other oil companies operating in Angola continue to flare most of the gas. Of the 355 billion cubic feet of gas produced from

AMNESTY INTERNATIONAL

Public Statement

AI Index:

AFR 12/006/2006

(Public)

News Service No:

203

4 August 2006

Angola: Human rights organization banned

Amnesty International is gravely concerned about the ban of Mpalabanda (Associação Cívica de Cabinda),

a human rights organization operating in Cabinda, Angola.

In a case instituted by the Angolan government against Mpalabanda, the Provincial Court of Cabinda ruled on Thursday 20 July that Mpalabanda should be banned. Mpalabanda is appealing against the decision, which was apparently based on the Law of Associations of May 1991 (Lei das Assosiações de Maio de 1991).

Mpalabanda is the only human rights organization operating in the province of Cabinda. Amnesty International considers its members to be human rights defenders. The organization has been involved in the documentation of human rights violations committed by both the government and members of the Front for the Liberation of the Cabindan Enclave (FLEC). Its closure will leave Cabinda, an area rife with egregious violations of human rights, without a human rights organisation to monitor and record violations of human rights.

Amnesty International is particularly concerned about the effect of the court ruling on Mpalabanda's and human rights defenders' freedoms of association and expression, and consequently, their ability to carry out human rights monitoring and evaluation. These freedoms are contained in the Constitution of Angola, the African Charter on Human and Peoples' Rights and the International Covenant on Civil and Political Rights, to which Angola is a party. Under international human rights law, no restrictions may be placed on the exercise of the right to freedom of association, other than those prescribed by law and strictly necessary in the interest of national security, public safety, public order, public health and morals or the protection of the rights and freedom of others.

While Amnesty International recognises the government's right to restrict the operations of organizations

in the circumstances mentioned above, the organization urges it to ensure that this is done only when

strictly necessary and in accordance with the Angolan national and international law.

Amnesty International calls upon the government to respect and protect the enjoyment of the right to freedom of association and expression.

In addition the organization urges the government to fulfil the principles contained in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. This Declaration recognizes the right of all, individually and in association with others, to promote and strive for the protection and realization of human rights and fundamental freedoms at the national and international level.

Background Mpalabanda was created in July 2003 in terms of the Law of Associations of May 1991 (Lei das Assosiações de Maio de 1991) and was officially registered in December 2003. In March 2004 the organization was allowed to hold its first meeting after two consecutive refusals by the provincial government to allow a meeting to take place. Since then it has been refused permission on several occasions to hold meetings and marches to commemorate Cabinda Day.

In 2004 FLEC, the Catholic Church, and Mpalabanda set up the Cabinda Forum for Dialogue (Forum Cabindese para o Dialogo, FDC) to enter into dialogue with the government for peace in Cabinda.

According to reports, on Monday 19 June 2006, Agostinho Chicaia the president of Mpalabanda was summoned to court (tribunal da comarca de Cabinda) where he was issued with a copy of a government application to ban Mpalabanda. The application alleged that Mpalabanda incited violence and hatred. It also accused Mpalabanda of carrying out political activities rather than being a civil society organization. The organization was given ten days to submit a responding affidavit, which it submitted within the given time.

On Thursday 20 July the Court decided to ban the organization. Mpalabanda was informed of this decision on Monday 24 July.

There is no mention in the judgement that Mpalabanda promoted violence and hatred. Nor were any of the cited witnesses called to give evidence to this effect.