“They Put Me in the Hole”

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

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Despite its insistence that the insurgency is no longer active, the military’s systematic arbitrary detention and torture of people in Cabinda suggests that the government has resorted to unlawful means to retaliate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 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.

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.

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 (1st sergeant), Alberto João Chimbinda (soldier), Basílio Muanda (1st corporal), and Custódio Nguimbi Sumbo (1st 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]

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.

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.

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.

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 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.

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 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 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’ 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 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]

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.

Acknowledgements

The report was researched and written by Lisa Rimli, 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–1st 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–1st 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–1st 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.