"They Put Me in the Hole"

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

[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.

[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.

[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 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).

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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 2nd 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.

[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.

[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.

[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.

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