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. 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.

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 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.