Communication 328/06 – Front for the Liberation of the State of Cabinda v

Republic of Angola

Summary of facts:

1. The Complaint is brought by the Front for the Liberation of the State of
Cabinda - FLEC (the Complainant) on behalf of the people of Cabinda
(Victims) against the Republic of Angola1 (the Respondent State or Angola).

2. The Complainant submits that Cabinda, formerly known as the Portuguese

Congo, consists of a territory of approximately 2800 square miles. The
Complainant further submits that in 1885 the independent rulers of Cabinda
city and its environs entered into a treaty, the Treaty of Simulambuco, with
the Government of the Kingdom of Portugal establishing a Protectorate over
much of present day Cabinda.

3. In 1975, the Complainant alleges, the Alvor Conference in Portugal, between

the colonial power and UNITA, MPLA, and FNLA (all of which were
liberation movements) declared the annexation of Cabinda by Angola without
any Cabindan participation. Following this event, Angola has exercised
sovereignty over Cabinda despite protestations by the people of Cabinda,
through groups dedicated to the idea of a distinct identity for the people of
Cabinda.

4. The Complainant alleges that since 2002, following attempts by groups in

Cabinda to stake a claim to autonomy for the people of Cabinda, the
Respondent State has undertaken a massive military campaign against
Cabinda and that when this failed, the state entered into ad hoc negotiations
with Cabindan factions in an attempt to confuse issues. These negotiations,
the Complainant alleges, excluded the Chairman of FLEC, Mr. Nzita Tiago –
“the only universally recognized Cabindan authority” – and resulted in a 2006
Peace Accord that was contested by both Cabinda and the democratic
opposition in Angola, the UNITA.

5. The Complainant further alleges that following the rejection of the 2006 Peace
Accord by the majority of Cabindans, fractions in Cabinda continued to
demand local autonomy over the wealth of Cabinda. The Complainant states
that the Respondent State has responded to the demands by maintaining a
large military force in Cabinda, which has committed numerous documented
human rights violations therein.2

6. The Complainant claims that in 2006 the Angolan Forces (FAA) committed
dozens of human rights and humanitarian violations such as: the

1 Angola ratified the African Charter on 2 March 1990.

2 The alleged violations include extrajudicial/summary executions, arbitrary arrests and
detention, sexual violence, denial of civilians’ freedom of movement, torture and other mistreatment.
 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

bombardment of civilian dwellings in the Mayombe (Piading) region;

summary execution of Cabinda patriots in Buco, Zao and beatings and torture
of Mpalabanda members in Caio Poba.

7. It is the Complainant further claim that in July 2006 Angola banned the only
independent human rights organization in Cabinda, Mpalabnda (Associacao
Civica de Cabinda) through the instrumentality of a court order, allegedly for
inciting violence and hatred, and carrying out political activities rather than
being a civil society organization.

8. Furthermore, the Complainant avers, Government of the Respondent State is

exercising economic exploitation of Cabindan resources since the people of
Cabinda are not allowed to have any say in the grant of licences and
concessions over their resources. The Complainant claims that the people of
Cabinda have been suffering comparatively higher unemployment, lack of
educational opportunities, disease and intense poverty since the Government
of the Respondent State took over Cabinda’s natural resources such as
offshore oil, onshore mineral and oil resources.

9. The Complainant further alleges that the Government of the Respondent State
has economically dominated the Cabindan people by denying them their
status as a people and by extracting more than ninety per cent (90%) of their
economic patrimony while returning less than ten per cent (10%) to Cabinda.
By this act, the Complainant alleges, the Respondent State has perpetrated
neo-colonialism.

10. The Complainant also contends that although Cabindans are culturally and
linguistically separate from Angola and have overwhelmingly identified
themselves as ‘Cabindans’, not Angolans, the people of Cabinda have been
denied their right to self-determination by Angola.

11. The Complainant submits that despite over 30 years of conflict over the status
of Cabinda, the Respondent State has refused to hold a referendum on the
issue of Cabindan question. The Complainant alleges that the Respondent
State does not permit Cabinda to determine its own economic and social
development. The Complainant states that all economic decisions are made in
Luanda, the capital city of the Respondent State and not in Cabinda, even
though Cabinda has maintained a government in exile since 1963 and has had
an active self-defence force and civil administration inside Cabinda since
1975.

Articles alleged to have been violated:

12. The Complainant alleges that in relation to the people of Cabinda, the
Respondent State has violated Articles 14, 19, 20, 21, 22 and 24 of the African
Charter.

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

Prayers of the Complainant

13. The Complainant requests the African Commission on Human and Peoples
Right (African Commission or Commission):
i. To appoint a Special Rapporteur to undertake fact finding and make
recommendations on the issues it has raised.
ii. Make its good offices available for further engagement on the issues
raised
iii. Award $US 50000 against the Respondent State to cover the
Complainant’s legal fees and costs.

Procedure:
14. This Communication was received at the Secretariat of the African
Commission on Human and Peoples’ Rights (the Secretariat) on 29 September
2006. The Secretariat acknowledged receipt by letter dated 2 October 2006,
informing the Complainant that the Communication would be scheduled for
consideration on seizure by the African Commission at its 40th Ordinary
Session held in November 2006 in Banjul, The Gambia.

15. At its 40th Ordinary Session, held from 15 to 29 November 2006, in Banjul, The
Gambia, the African Commission decided to be seized of the Communication.

16. On 8 January 2007, the African Commission further received a press

statement issued by FLEC on the current struggle for the control of petroleum
in Cabinda, alleging continuous violations of the African Charter by the
Angolan Government and other actors for which the State is responsible.

17. By a letter dated 8 February 2007 and Note Verbale dated 28 February 2007, the
Secretariat informed the Parties of the Commission’s decision on seizure and
requested the Parties to submit their arguments on the Admissibility of the
Communication within two months. A copy of the Complaint was also
transmitted to the Respondent State.

18. On 25 April 2007, the Secretariat sent reminders to the Parties to submit their
arguments on Admissibility by 10 May 2007 in time for the 41st Session of the
African Commission. At its 41st Ordinary Session in May 2007 in Accra,
Ghana, the Commission considered the Communication and deferred it
pending the receipt of Arguments on Admissibility from the Parties. The
Parties were notified accordingly on 20 June 2007.

19. On 15 August 2007, the Complainant’s brief with its Arguments on

Admissibility and an updated statement of facts was received at the
Secretariat. These were transmitted along with a Note Verbale to the
Respondent State on 20 August 2007 together with a request for the latter to
submit its response to the Complainant’s submission on Admissibility.

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

20. During its 42nd Ordinary Session in November 2007, the African Commission
considered the Communication and decided to give the Respondent State one
last chance to make its submissions on the Admissibility of the
Communication. The Parties were notified accordingly on 19 December 2007.

21. During its 43rd and 44th Ordinary Sessions, the African Commission deferred
the consideration of the Communication pending the submission on
Admissibility by the Respondent State, the parties were accordingly
informed.

22. On 27 April 2009 the Secretariat sent a reminder to the Respondent State to
make its submissions on Admissibility.

23. On 21 July 2009, the African Commission received supplementary

information to the Communication by the Complainant.

24. During its 45th and 46th Ordinary Sessions respectively, the African
Commission considered the Communication and deferred its decision on
Admissibility pending the Respondent State’s submission on Admissibility

25. On 12 January 2010, the Secretariat received a letter from the Complainant
urging the African Commission to take immediate action and to appoint a
Special Rapporteur for Cabinda.

26. During its 47th, 48th, 49th and 50th Ordinary Sessions, the African Commission
deferred the consideration of the Communication, and the Parties were
accordingly informed. At its 10th Extraordinary Session held in December
2011, the Commission considered the Communication and declared it
Admissible. The Parties were accordingly informed and invited to submit
their Arguments on the Merit.

27. Between January and March 2012, the Secretariat received submissions from
three different organisations representing different groups in Cabinda (joint
submission by the Front de Liberation de L’Etat du Cabinda (FLEC) et Union
Nationale de Liberation du Cabinda (UNLC), and individual submissions by
the “Original FLEC” and the Mouvement Pour Le Rassemblement Du Peuple
Cabindais et Pour Sa Souverainete “MRPCS). On 29 March 2012, the
Secretariat received a Submission on the Merit from Dr Jonathan Levy acting
in his capacity as legal representative of the Complainant.3 The Complainant’s
Submission on the Merit was accordingly transmitted to the Respondent
State.

3 By email to the Secretariat dated 17 Feb 2012, Dr Levy advised the Secretariat to consider submission
from Cabindan groups other himself as amicus briefs.

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

28. On 24 April 2012, the Respondent State’s Note Verbale forwarding the latter’s
Arguments on the Merit was received at the Secretariat and transmitted to
Complainant through its legal representative.

29. On 12 July 2012, the Complainant through its legal representative forwarded
its Supplementary Submission on the Merit. On 10, 12 and 28 September 2012,
the Secretariat received the same copy of an updated and amended
Submission on the Merit from the Respondent State.

30. On 18 June 2013, the Secretariat received additional Submissions from the
“Collectif des organisations cabindaises” also known as the “Original FLEC”.
This submission was followed by a letter protesting notification that the
submission has been made out of time and a request for reopening of the
procedure for submission of additional documents by both parties.

31. At its 54th Ordinary Session held in Banjul, The Gambia in October 2013, the
Commission considered the Communication on the Merit based on all the
documents submitted by the Parties and the various Amicus briefs.
The Law
Admissibility
Submission of the Complainant on Admissibility
32. Although the Complainant submitted its written arguments on the
admissibility of the Communication, the Respondent State failed to submit
any arguments on the admissibility of the Communication despite an
invitation and repeated reminders to do so. Accordingly, the Commission
addresses the question of Admissibility on the basis of the Complainant’s
arguments on Admissibility.

33. The Complainant submits that the Communication meets all the
Admissibility requirements set out in Article 56 of the African Charter.
Regarding Article 56 (1) of the African Charter, the Complainant avers that
the Communication is submitted by FLEC on behalf of the people of Cabinda.

34. Concerning Article 56 (2) of Charter, the Complainant submits that the
Respondent State has violated Articles 14, 19, 20, 21, 22 and 24 of the African
Charter. The Complainant further submits that although the Communication
alleges serious violations of the economic and peoples‟ rights of the people of
Cabinda by the Government of Angola, the Complainant does not request the
African Commission to take up any matter that would interfere with the
sovereignty of Angola or adjudication of Angolan territorial claims in
Cabinda. The Complainant states that they are mindful that the African
Commission must respect Articles 3(b) and 4(b) of the AU Constitutive Act
regarding territorial sovereignty and respecting existing borders.

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

35. With regards to Article 56 (3) of the African Charter, the Complainant avers
that the language used in the Communication is neutral legal language. In
relation to Article 56 (4) of the African Charter, the Complainant submits that
the Communication is not based exclusively on news disseminated through
the mass media, but rather on primary information provided by FLEC and
other organizations directly involved in the matter.

36. On the requirement of the exhaustion of local remedies under Article 56 (5) of
the African Charter, the Complainant requests the Commission to wave this
condition on the basis that exhaustion of domestic remedies is futile and
legally impossible on the grounds that there is unrest and armed conflict
involving the Parties and this creates difficulties for the commencement of
legal proceedings by the Complainant. The Complainant avers further that
the only independent civil society organisation which could have brought a
legal action on behalf of the Complainant has been disbanded and banned by
judicial order instigated by the Respondent State. It is also the Complainant’s
submission that it cannot pursue legal action in the Respondent State because
it (the Complainant) has been branded a terrorist organisation since the
signing of a 2006 Peace Accord between the Respondent States and elements
in Cabinda.

37. As to Article 56 (6) of the African Charter, the Complainants aver that the
Communication has been submitted in a timely manner. Lastly, the
Complainant submits that the Communication complies with the requirement
of Article 56 (7) of the African Charter because the Communication does not
deal with a case which has been settled by the Respondent State.

The Commission’s Analysis on Admissibility

38. Article 56 of the African Charter lists seven Admissibility requirements that
have to be cumulatively fulfilled for a Communication to be declared
Admissible. In the present Communication, while the Complainant has
clearly stated its arguments as to why the Communication meets each of the
seven requirements stipulated under Article 56, the Respondent State has not
made any submission to contest or refute those claims.

39. From the time when the African Commission was seized with the
Communication during its 40th Ordinary Session in November 2006 to date,
ten (10) reminders were sent to the Respondent State requesting the latter to
submit its arguments on Admissibility to no avail.4

4 Notes Verbale were sent to the Republic of Angola on 28 February 2007, 10 May 2007, 20
August 2007, 19 December 2007, 25 March 2009, 27 April 2009, 23 June 2010, 30 September 2010, 7
December 2010 and 11 August 2011.

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

40. As the African Commission has stated in the case of the Institute for Human
Rights and Development in Africa v. Republic of Angola5 “in the face of the state’s
failure to address itself to the complaint filed against it, the African
Commission has no option but to proceed with its consideration of the
Communication in accordance with its Rules of Procedure.” In the same
decision, the African Commission re-affirmed its position by ruling that “… it
would proceed to consider Communications on the basis of the submission of
the Complainants and information at its disposal, even if the State fails to
submit.”6

41. In the case at hand, the Complainant submits that the Communication
complies with all the seven requirements of Article 56 of the African Charter,
except the one relating to the exhaustion of local remedies under Article 56
(5), for which the Complainant asks for waiver.

42. In the absence of any submissions from the Respondent State to the contrary,
the African Commission has considered the Complainant’s Submission and is
convinced that all the requirements under Article 56, except Article 56(5) are
met. The Commission proceeds to consider the legitimacy of the request for
waiver based on Article 56(5) of the Charter and relevant jurisprudence.

43. Article 56(5) of the African Charter provides that Communications should be
“sent after exhausting local remedies, if any, unless it is obvious that this
procedure is unduly prolonged”. This requirement is based on the principle
that “the respondent state must first have an opportunity to redress by its
own means within the framework of its own domestic legal system, the
wrong alleged to have been done to the individual”.7

44. The Commission has stressed that the requirement of the exhaustion of local
remedies “does not mean that complainants are required to exhaust any local
remedy which is found to be, as a practical matter, unavailable or
ineffective.”8 The jurisprudence of the Commission, in determining
compliance with this requirement, sets out “[t]hree major criteria, that is: the
local remedy must be available, effective and sufficient.”9

5 Communication 292/04 - Institute for Human Rights and Development in Africa v. Republic
of Angola, para. 34
6 Ibid. The cases cited in this case are: Communication 155/96 Social and Economic Rights
Action Center, Center for Economic and Social Rights v. Federal Republic of Nigeria, and 159/96
Union Inter Africaine des Droits de l’Homme, Federation Internationale des Ligues des Droits de
l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de
l’Homme au Sénégal and Association Malienne des Droits de l'Homme v. Republic of Angola.
7 Communication 71/92 - Rencontre Africaine pour la Defence des Droits de l'Homme v. Zambia

8Ibid.
9See Jawara v The Gambia para 33, Communication 300/05 – SERAC and Socio Economic Rights and
Accountability Project v. Nigeria, para. 45

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

45. The initial burden is on the Complainant to prove that they have met the
requirement set in Article 56 (5) or that those remedies are unavailable in the
particular case. Thereafter, the burden shifts to the Respondent State if it
contests the allegations of the former.

46. In the present case, the Complainant avers that it has no legal standing under
Angolan law and its representatives would face arrest and possible execution
under Angolan national security laws if they try to pursue legal remedies in
Angola, adding that members of FLEC are considered terrorists in Angolan
territory and hence any attempt to take the case before Angolan courts would
be futile, if not impossible, and would subject members of the Complainant
organisation to arbitrary arrest, detention or execution as terrorists.

47. The Complainant also submits that the only independent human rights
organisation in Cabinda, Mpalabanda, that could have taken their case before
a court of law was banned on 20 July 2006 for allegedly inciting violence and
hatred, and being involved in political activities. Furthermore, the
Complainant argues that the principal members of FLEC (the Complainant)
are outside Angolan jurisdiction, thus they request for the waiver of the
requirement of exhaustion of local remedies.

48. These claims, which are not contested by the Respondent State, show the
apparent existence of fear of persecution on the part of the Complainant.

49. In a number of cases the African Commission has used the standard of
constructive exhaustion of local remedies to provide an exception to the rule.
Fear of persecution is one of the exceptions to the requirement of exhaustion
of local remedies. In Sir Dawda K Jawara v The Gambia10 the African
Commission reasoned that “the existence of a remedy must be sufficiently
certain, not only in theory but also in practice, failing which, it will lack the
requisite accessibility and effectiveness. Therefore, if the applicant cannot turn
to the judiciary of his country because of generalised fear for his life (or even
those of his relatives), local remedies would be considered to be unavailable
to him”.

50. In Rights International v Nigeria11 and John D Ouoko v Kenya12, the African
Commission reasoned that the existence of apparent fear of persecution on
the part of the victims, to return to their countries to exhaust local remedies
would make the remedies not available to such persons and hence exempt
them from the requirement to exhaust those remedies.
51. In the present Communication, the fact that the Complainant has no legal
standing before Angolan courts, that most of its members live abroad and are

10 Jawara v The Gambia, para. 35

11 Communication 215/98 – Rights International v Nigeria
12 Communication 232/99 – John d Ouoko v Kenya

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

considered terrorists by the Government, leads to the conclusion that the

chances of the Complainant exhausting local remedies have been practically
rendered impossible by fear of prosecution.
52. Therefore, the African Commission holds that local remedies were not
available to the Complainant and hence rules that the Communication is in
line with the requirement under Article 56(5) of the African Charter.

53. For the above reasons, the African Commission declares the Communication
admissible in accordance with Article 56 of the African Charter.

Consideration of the Merits

Summary of Complaint’s Submission

54. The Complainant emphasises that the present Communication concerns itself
strictly with a claim for economic self-determination of the people of Cabinda
and in particular with the disposition and exploitation of onshore oil, mineral
and natural resources.

55. The Complainant states further that the Communication excludes the matter
of offshore resource allocation and relates only to the extraction of onshore
resources which has remained dormant due largely to FLEC’s armed
opposition to any such exploitation. The Complainant contends that it does
not recognise grants of resource extraction licences and concessions made by
the Respondent State and asserts that it reserves the right to make its own
arrangements with resource extraction companies upon the “decolonisation”
of Cabinda.

56. Based on its contention that it has been recognised as the legitimate
representative of the Cabinda people since 1974, the Complainant requests
that the Commission to appoint a Special Rapporteur on the issue of
Cabinda’s economic self-determination on the grounds that the Respondent
State has violated Articles 14, 19, 20, 21, 22 and 24 of the African Charter.

57. The Complainant argues that as an incident of the right to property under
Article 14 of the African Charter, the natural resources of Cabinda remain the
property of the people of Cabinda and must be administered largely for the
benefit of the people of Cabinda. Accordingly, the grant of licences and
concession for the extraction of onshore natural resources by the Respondent
State is a violation of Article 14 of the African Charter.

58. It is the further contention of the Complainant that although a state can grant
resource extraction rights in the name of its people, a grant made in cases
where one people dominate another or a grant made or administered in an
irresponsible manner would be illegitimate. The Complainant argues that
historically, Cabinda has always maintained a separate identity, linguistically
and otherwise, and the people of Cabinda were neither consulted on the

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Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

‘unilateral termination of Portuguese colonial protectorate’ nor did they ratify

‘the Angolan occupation’ of Cabinda.
59. The Complainant states that since 1974 it has ‘maintained a civil government
inside portions of Cabinda’ and many of the areas of resource extraction ‘are
in or near the FLEC zone’. Further, that since the people of Cabinda are
distinct, the Respondent State is not entitled to unilaterally grant resource
extraction licences or concessions in violation of the right to property of the
people of Cabinda as contained in Article 14 of the African Charter.

60. In relation to the alleged violation of Article 19 of the African Charter, the
Complainant contends that ‘revenue from onshore resource extraction will
flow to Luanda just as offshore revenue does now’. The Complainant argues
that a 2006 Cabinda Peace Accord which promised a 50% return of oil
revenue to Cabinda ‘has not been realised or audited’ and only ‘10% or less
will return to Cabinda’. The Complainant alleges further that any attempt to
question the allocation of revenue has resulted in summary imprisonment ‘as
in the case of Global Witness Investigatory’ staff who was arrested and
charged by Angolan Police after meeting with local representatives of civil
society in Cabinda.

61. The Complainant alleges further that in spite of the abundant oil resources in
Cabinda unemployment is high and poverty, infant mortality and disease are
higher in Cabinda than in most areas of Angola. The Complainant adds that
Cabinda’s resources have ‘subsidised the government of Angola’ and the
‘Angolan administration has little concern for providing public goods and
incentives to facilitate investment in welfare enhancing improvements for the
population at large’. Thus, the Complainant alleges that the Respondent State
has violated Article 19 of the African Charter.

62. Regarding the alleged violation of Article 20 of the Charter, the Complainant
emphasises that the people of Cabinda are geographically, politically,
linguistically and culturally distinct from Angolans so that they are have a
right to social and economic development. The Complainant contends that
the people of Cabinda are unable to exercise this right because organisations
which ‘espouse a uniquely Cabindan point of view’ have been banned by the
government of Angola. Complainant alleges further that Cabindans who
campaign for economic self-determination are routinely arrested as ‘FLEC
sympathisers’ while foreigners who have identified corruption in Cabinda
have been sent to jail. Accordingly the Complainant claims that the
Respondent State has violated Article 20 of the African Charter.

63. On Article 21 of the African Charter, the Complainant contends that grants
and concessions (what it terms onshore oil and mineral rights offerings) have
been made by the Respondent State ‘without input from the Cabindans’ and
that all decisions regarding natural resources are made from Luanda, the
Capital of Angola. The Complainant contends that the Cabinda people and

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FLEC as the representative of the Cabinda people have not been adequately
consulted about the management of ‘their onshore resources. Rather,
exploration and exploitation activities have been undertaken under the watch
of the Angolan Armed Forces. Thus, the Complainant disputes the legal right
of the Respondent State to exploit and dispose onshore resources in Cabinda
and alleges that such activities amount to spoliation which is in violation of
Article 21 of the African Charter and therefore should be redressed by the
Respondent State.

64. On the alleged violation of Article 22 of the African Charter, the Complainant
asserts that the people of Cabinda are a distinct people with a right to
economic and social development and contends that the current policy of the
Respondent State is one of ‘Angolanisation of Cabinda’ involving
discriminating against and arresting individuals and groups that claim a
Cabindan identity. Accordingly, the Complainant alleges that the Respondent
State has violated Article 22 of the African Charter.

65. Regarding Article 24 of the African Charter, the Complainant alleges that the
environment in Cabinda is not conducive for the development of the people
of Cabinda. While it claims it does not seek an ideal environment, the
Complainant argues that it seeks an environment that permits ‘some measure
of equity for the people of Cabinda’. The Complainant contends that the
operations of companies such as Chevron take place in conditions that harm
human health and the environment because the Respondent State has failed
to enforce compliance with environmental rules.
66. The Complainant alleges further that the absence of viable civil society in
Cabinda following the ban on the Mpalabanda organisation ensures that the
activities of oil companies are not monitored and no compensation is paid in
the event of damage to the environment. The Complainant therefore argues
that the Respondent State has violated the right of the people of Cabinda to a
satisfactory environment as guaranteed in Article 24 of the African Charter.

67. In support of all its allegations, the Complaint has submitted five documents
as exhibits. They include a “Republic of Kabinda January 8 2010 Committee
Report on the Togolese Incident”; a 1974 joint communiqué between Popular
Movement for the Liberation of Angola MPLA) and the Complainant (FLEC);
a Human Rights Watch report titled “They Put me in the Hole –Military
Detention, Torture and Lack of Due Process in Cabinda”; a 2008 Chevron
Alternative Annual Report titled “Chevron in Angola” and an Amnesty
International Public Statement titled “Angola: Human rights organization
banned”. Also submitted in support of the Complainant's case are historical
accounts presented by different bodies acting on behalf of the peoples of
Cabinda.

Summary of Respondent State’s Submission

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 Communication 328/06 – Front for the Liberation of the State of Cabinda v Republic of Angola

68. In its submission on the merits, the Respondent State argues first that the
Communication should not have been declared admissible because that it
failed to meet the requirements for admissibility as set out in the African
Charter. The Respondent State argues that Article 57 of the African Charter
requires that prior to the consideration of a Communication on the merit, the
Chairperson of the Commission ought to present the Complaint before the
Respondent State, setting out procedural matters and indicating whether the
Complaint conforms to the provisions of the African Charter and other
African Union (AU) instruments relevant to the matter. The Respondent State
contends that this requirement had not been met with respect to the present
Communication.

69. The Respondent State argues further that the Communication is not
admissible for failure to comply with the requirements of Articles 50 and 56(5)
of the African Charter regarding exhaustion of local remedies. The
Respondent State also alleges that the Commission failed to comply with Rule
6 (3) of its own Rules of Procedure which prohibits "unrecognised National
Liberation Movements from submitting matters for inclusion in the agenda of
sessions of the Commission". The Respondent State insists that the
Complainant is not qualified to submit this Communication to the African
Commission’s Session as it is neither a State Party nor a party entitled to bring
“Other Communications” before the Commission.

70. Citing Articles 3(b)13 and 4(b)14 of the AU Constitutive Act, the Respondent
State argues that the present Communication cannot proceed as it challenges
the existing borders of an AU Member State and threatens the sovereignty
and territorial integrity of the Respondent State.

71. With respect to the merits of the Communication, the Respondent State
supplied its version of the history of Angola emphasising that both the Alvor
Accord of 1975 and the Constitution of Angola endow it with sovereignty
over the territory now known as Angola, including the Province of Cabinda.
The Respondent State argues therefore that the right to self-determination has
been exercised by the collective "peoples" of Angola and does not avail
minorities and ethnic groups because it can only be available to states
emerging from colonial boundaries in recognition of the principle of “uti
possidetis juris”.

72. Concerning the alleged violation of Article 14 of the African Charter, the
Respondent State contends that the right to property is also enshrined in
Articles 14 and 37 of its own Constitution. The Respondent State argues that
the right to property in its Constitution is guaranteed in the interest of

13 Art 3(b) of the AU Constitutive Act provides that one of the objectives of the Union shall be to
"defend the sovereignty, territorial integrity and independence of its Member States".
14 Art 4(b) of the Constitutive Act provides that the Union shall function in accordance with the

principle of "respect of borders existing on the achievement of independence".

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individuals, corporate bodies and local communities which “implies all the
people of Angola”

73. The Respondent State argues further that the Complainant has not
demonstrated that the government of Angola does not manage the resources
of Cabinda for the benefit of the people of Cabinda. The Respondent State
avers that the government administers all its natural resources in an equitable
and balanced manner as a common asset for the economic, social and cultural
development of the country and in the national interest.

74. The Respondent State insists that the government of the Province of Cabinda
receives a share of the Angolan State General Budget just like every other
provincial government in Angola. Further, that by Article 7 of the Angolan
State General Budget Act (no 26/10) the Provinces of Cabinda and Zaire
receive amounts equal to 10 percent of earnings from petroleum resources in
addition to other expenditures and costs for the construction of schools,
roads, bridges, harbours, hospitals and other socio-economic infrastructure.
Thus, the Respondent State contends that it has not violated Article 14 of the
African Charter since its affairs are run “in accordance with the provisions of
appropriate laws”.

75. As regards the alleged violation of Article 19 of the African Charter, the
Respondent State asserts that Article 21 of its own Constitution provides for
the principle of equality and that principle is implemented in all its 18
provinces. The Respondent State argues that as a result of its domestic
constitutional obligation it “cannot implement measures aimed at developing
the country based on the premise that revenue should be spent only in areas
where it is generated”. The Respondent State cites the example of its on-going
“Strategy to Fight Poverty” which aims to achieve a “50% reduction by 2015
in the number of people with less than USD1.00 per day”.

76. The Respondent State insists further that as compared to other provinces, the
Province of Cabinda enjoys a special status in view of its contribution towards
the Angolan State General Budget. The Respondent State also asserts that as
contained in recent United Nations Development Programme (UNDP) and
United Nations Children Emergency Fund (UNICEF) reports, there is an
overall improvement in areas such as child health care and health care
generally. Accordingly, the Respondent State contends, it has not violated
Article 19 of the African Charter as it relates to the Province of Cabinda.

77. As regards the alleged violation of Article 20 of the African Charter, the
Respondent State contends that the right has collectively been fulfilled by all
the Angolan people through the attainment of independence on 11 November
1975 and by the conduct of free democratic elections in 1992 and 2008
respectively. The Respondent State asserts that according to available records
a total of 7, 213, 281 voters representing 87.36% of the population of Angola

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went to the polls in the 2008 Legislative elections in Angola. Out of the 220
deputies elected in the 2008 Legislative elections, 5 came from Cabinda as
representatives of the Cabinda Province. Accordingly, the Respondent State
argues that the people of Cabinda are represented in the National Assembly
of the Republic of Angola by those deputies. In support of these assertions,
the Respondent State attaches reports of the 2008 and 2012 elections as
released by its National Electoral Commission.

78. Accordingly, the Respondent State contends that as with other of its
provinces, the Province of Cabinda has its own political and administrative
structures which are defined by law. The Respondent State argues that “like
most African peoples, Angola is a multicultural and multilingual society” and
Article 87 of its Constitution guarantees the right to respect, appreciation and
preservation of the cultural, linguistic and artistic identity of the Angolan
people. As such, the Respondent State concludes that it has not violated
Article 20 of the African Charter.

79. Concerning the alleged violation of Article 21 of the African Charter, the
Respondent State asserts that Articles 94 and 95 of its own Constitution create
and separate public and private domains of property rights. It asserts that
natural resources fall under the public domain and property in the public
domain is constitutionally intended to “serve national interests instead of
local interests alone” since it is expected to “benefit the Angolan people as a
whole, with no exception”. The Respondent State points out that the
Complainant itself agrees that some percentage of oil revenue is already set
aside specially for the Province of Cabinda.

80. The Respondent State contends further that Angola operates a unitary system
of government in which all provinces are on equal footing such that all public
resources should serve the entire population of the state but it was in spite of
this fact that the Province of Cabinda has been given special attention as a
result of its contribution to national oil production.

81. The Respondent State challenges the Complainant’s claim that it (FLEC) is
Cabinda’s representative and argues that the Complainant “lacks moral, legal
and any other form of legitimacy” therefore it cannot speak on behalf of the
people of Cabinda. The Respondent State insists that as a sovereign state,
Angola has the legitimacy and the right to explore the natural resources in its
territory, including those found in any of its 18 provinces. Thus, it argues that
it has not violated Article 21 of the African Charter.

82. In relation to the alleged violation of Article 22 of the African Charter, the
Respondent State argues that the Complainant has failed to produce any
evidence to sustain a claim that the rights of the people of Cabinda have been
violated. The Respondent State asserts that since Cabinda is part of a single,

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indivisible and inalienable territory (Angola) it finds no reason or basis to

defend a claim that Cabinda is being “Angolanised”.

83. The Respondent State contends that its citizens are Angolans by origin both
according to its domestic law and in international law. It being the case, that
there is no such thing as the State of Cabinda in Africa but a Cabinda that is a
province “which is an integral part of the Angolan State”, the Respondent
State argues that it retains a right to punish by law, “every deed, action or
attempt to divide the Angolan State”. The Respondent State therefore argues
that it has not violated Article 22 of the African Charter.

84. On the alleged violation of Article 24 of the African Charter, the Respondent
State asserts that it takes the characteristics of Cabinda’s oil fields and forests
into account and has taken measures with a view to preserving the
environment. The Respondent State cites the enactment of legislation at
national and local levels based on an entrenched right to a healthy and
unpolluted environment in Article 39 of its Constitution. The Respondent
State contends further that it has a Basic Environment Act in addition to a
number of other statutes and institutions such as a Multi-Sector Technical
Commission and the National Environment Authority which address the
issues arising from oil exploration.

85. The Respondent State claims further that by a Presidential Decree of 2011, oil
companies are required to account for any harm stemming from oil spills,
while paying greater attention to fishermen and their families. The
Respondent State admits that there have been oil spills in the Province of
Cabinda but that its Ministry of Environment’s National Environment
Surveillance Service has kept track of at least six of these spills, compelling oil
companies to compensate fishermen and to replace items that had been lost or
damaged.
86. The Respondent State asserts further that it has legislation which compels
concessionaires and their associates to take preventive and practical measures
to address environmental damage. Such measures include the generation of
evaluation studies and environment impact audits, landscape and structural
replenishment plans and standing contract mechanisms for environmental
management and auditing.

87. The Respondent State submits that following an accident in the Gulf of
Mexico, its Ministry of Environment has audited oil rigs in the Angolan sea
“with a view to preventing a repetition of what happened in … the Western
Hemisphere”. It also claims that its Ministry of Environment has “been
holding public consultation on environment impact evaluation in the Cabinda
South Block in terms of Decree No 51”. The Respondent State contends that
these measures are not restricted to the oil sector but are extended to other
resources. Thus, it argues that it has not violated Article 24 of the African
Charter.

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88. In proof of its assertion, the Respondent State attached the results of its 2008
and 2012 Legislative elections result but no other documents apart from a
“Memorandum of Understanding and Integration of FLEC Members” which
states that the Respondent State has spent huge sums of money to register
and demobilise former FLEC soldiers. The Respondent State concludes by
insisting that the Communication should be considered inadmissible “for
lacking a legal basis and probable cause”.

Complainant’s Supplementary Submission

89. In its supplementary submission in reply to the Respondent State’s arguments

on the merit, the Complainant reaffirmed and expanded on its version of the
history of Cabinda in order to show that the territory of Cabinda was
historically administered separately from mainland Angola and had a people
with distinct linguistic, cultural and political identity.

Amicus Submissions
90. Between January and March 2012 and again in June 2013, a number of
submissions were made by a number of organisations representing different
interests of the Cabinda people. With the consent of the legal representative of
the Complainant, those submissions are considered as amicus briefs. In all
their submissions, the different groups advance the Complainant's version of
historical facts and insist that the people of Cabinda are victims of unlawful,
aggressive and unilateral invasion by the government of the Respondent
State. The groups submit that as a result of these historical facts and
considering that the people of Cabinda were not consulted before their
territory was ceded to Angola, the actions of the Respondent State amount to
colonialism or neo-colonialism such that the people of Cabinda are entitled to
self-determination.

The Commission’s Analysis on the Merits

91. Although it did not submit its observations on the Admissibility of the
Communication despite the receipt of a formal invitation and reminders to
that effect from the Secretariat,15 the first part of the Respondent State's
submission on the Merit challenges the Admissibility of the Communication
and raises issues that amount to a preliminary objection to the consideration
of the Communication. Before analysing the merits of this Communication,
the Commission considers it necessary to address some of the concerns raised
by the Respondent State even though most of those issues ought to have been
raised at the admissibility stage.

15
See para 39 above where the Commission notes that ten reminders were sent to the Respondent State to
submit its observations on the Admissibility of the Communication.

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92. The Commission notes the Respondent State's argument that Article 57 of the
African Charter requires that a Communication to be considered by the
Commission should first be presented to the concerned State Party by the
Chairperson of the African Commission, setting out procedural matters and
indicating whether the Communication conforms to the provisions of the
African Charter and other AU instruments. Article 57 reads as follows:
Prior to any substantive consideration, all communications shall be brought to the
knowledge of the State concerned by the Chairman of the Commission

93. The Commission affirms that Article 57 of the Charter obligates it to notify a
State Party of the existence of a Complaint against such a State Party so that
the State Party can participate in the proceedings. The Commission recalls
that notice of this Communication was transmitted to the Respondent State by
Note Verbale dated 28 February 2007. As indicated in paragraphs 16 to 20 and
paragraphs 24 to 27 of the Admissibility decision, the Secretariat through
several subsequent correspondences transmitted to the Respondent State the
original Complaint and all other documents filed by the Complainant
regarding this Communication. Further, as noted in paragraph 39 above, at
least ten (10) reminders were sent to the Respondent State to respond to the
Admissibility arguments but these did not yield any response from the
Respondent State. Accordingly, the African Commission notes that it has
satisfied its duty to the Respondent State as required by Article 57 of the
African Charter.

94. The Respondent State further contends that the African Commission has
failed to comply with Rule 6(3) of its own Rules of Procedure. 16 The
Commission notes that the provisions cited by the Respondent State relating
to the Provisional Agenda of the Commission’s sessions are now contained in
Rule 32 of the Commission’s Rules of Procedure. The Commission recalls that
Rule 32(2) of its Rules of Procedure provides as follows:
The provisional Agenda shall include but not be limited to, items on
“Communications from States” and “Other Communications” in accordance with
the provisions of Articles 48, 49 and 55 of the Charter.

95. The Commission reaffirms that Rule 32(2) of its Rules of Procedure permits
"Other Communications"17 such as the one now being considered to be
included in the Agenda of the Commission’s Session. In line with that
provision, the present Communication is properly before the Commission as
it has duly been included in the Agenda of the Session.

96. The Respondent State contends further that the present Communication
ought to have been declared inadmissible because it fails to comply with
certain aspects of Article 56 of the African Charter. The Commission recalls
that the Respondent State was contacted at every stage and given ample
opportunity to present its position and arguments regarding the admissibility
16
See para 69 above.
17
That is Communications other than those Communications submitted by State Parties.

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of this Communication but the Respondent State did not take advantage of
the opportunity.
97. The Commission notes further that in the event that a State Party fails to
submit its observations on admissibility within 60 days from the receipt of the
Complainant's submission from the Secretariat as set out in Rule 105(2) of the
Commission’s Rules of Procedure, this Commission is authorised to proceed
to make a decision on the admissibility of the Communication. In such cases,
the Commission examines the admissibility submissions of the Complainant
against the provisions of Article 56 of the African Charter. The Commission
notes that in relation to the present Communication, this procedure has been
followed to the letter. Accordingly, the Commission cannot revisit its
admissibility decision in respect of the Communication.

98. Notwithstanding the fact that its Admissibility decision in respect of the
Communication will not be reviewed, the Commission notes the Respondent
State’s argument that the present Communication should have been declared
inadmissible on the grounds that it contradicts Articles 3(b) and 4(b) of the
AU Constitutive Act. In that regard, the Commission recalls the
Complainant's submission that the present Communication does not seek a
decision on political self-determination or a right to secede from the
Respondent State.
99. In its correspondences and submissions to the Secretariat, the Complainant
has maintained that its claim is strictly restricted to a request for a decision on
economic self-determination and a determination of the right of the people of
Cabinda to enjoy the use of natural resources located within the Province of
Cabinda. The Commission has also considered the prayers of the
Complainant and notes that the claims as formulated do not contradict the
provisions of Articles 3(b) and 4(b) of the AU Constitutive Act. The
Commission does not consider itself bound to pronounce on the amicus briefs
which seek to introduce secessionist dimensions to the Communication.
Accordingly, the Commission proceeds to determine the Communication
based on the submissions of the Parties.

Alleged violation of article 14

100. The Complainant alleges that the Respondent State has violated the right to
property of the people of Cabinda contrary to Article 14 of the African
Charter. Article 14 of the African Charter provides as follows:
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.

101. The Complainant contends that an incident of the right to property as

guaranteed in the African Charter is that the natural resources of Cabinda
must be administered largely for the benefit of the people of Cabinda since
the people of Cabinda claim a distinct identity from the rest of Angola. It is
also the Complainant’s argument that the Respondent State is not entitled to
unilaterally grant resource licences and concessions on Cabinda resources.

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102. The Respondent State submits that its Constitution provides for the right to
property and that the constitutional right is available to all the peoples of
Angola. However, the State argues that certain items are classified in its
Constitution as property in the public domain intended to serve the wider
national interest rather than the interest of a smaller unit within the state. The
Respondent State further challenges the Complainant's argument that the
Government of Angola has not managed natural resources for the benefit of
Cabinda people.

103. Generally, this Commission has stated in its jurisprudence that the role of
the State in relation to the right to property is “to respect and protect this right
against any form of encroachment, and to regulate the exercise of this right in
order for it to be accessible to everyone.18 One way of fulfilling Charter
obligation on the right to property is therefore to adopt legislation which
recognises the principle of ownership and peaceful enjoyment of property.
The inclusion of the right to property in the Angolan Constitution is therefore
in compliance with the Respondent State’s Charter duty.

104. With regards to the general question whether a “people” can be bearers of
the right to property under the African Charter, this Commission has
previously answered in the affirmative in relation to indigenous peoples in
Africa.19 The African Commission reaffirms that a collective or communal
right to property exists as a component of the right to property in Article 14 of
the African Charter. Similar to the individual right to property, the communal
right to property entails a state duty to recognise and protect peaceful
enjoyment of ownership by a group or people subject to limitation by a state
in the interest of public need or in the general interest and in accordance with
the provisions of appropriate laws.

105. The Commission has also expressed the opinion that natural resources
located in land owned or occupied by a people can be the subject of
ownership in the context of the right to property under the African Charter.20
In the Commission's view, protection of communal property rights to natural
resources as a component of land right enjoyed by indigenous peoples is not
alien to the African Charter or to international human rights generally.21 One
justification for the protection of this aspect of the right is the strong

18 Communication 279/03 - Sudan Human Rights Organisation & Centre on Housing Rights
and Evictions (COHRE) v Sudan (COHRE case) (2009) ACHPR para 192
19 Communication 155/96 - Social and Economic Rights Action Center and the Center for Economic
and Social Rights v Nigeria (SERAC case) (2001) ACHPR paras 59 – 61; 276/03 - Centre for Minority Rights
Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (Endoiros
Case) (2009) ACHPR paras 186 - 238
20 Endorois Case, paras 186 - 238
21 Relying on arts 60 and 61 of the African Charter, the Commission is also inspired by the
decision in the case of Saramaka People v Suriname (Saramaka case) (2007) IACtHR (Judgment of 28
November 2007) para 121.

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traditional attachment to their cultural land that indigenous peoples hold on

to such that their survival depends on the resources they traditionally extract
from the land.22

106. The Commission notes that the Complainant does not claim that the people
of Cabinda are indigenous peoples with strong attachment to their land and
their culture. The basis of the Complainant’s claim is that Cabinda existed as a
distinct Portuguese protectorate prior to 1975 when it was declared to be part
of an independent Angola without the consent of the people of Cabinda. The
Commission does not believe that distinct pre-colonial history on its own
currently suffices to sustain a claim for special protection of a distinctive
overriding communal right to property under the Charter.

107. In the absence of evidence that land in Cabinda is communally owned in a

traditional context and that the people of Cabinda had and continue to hold
on to strong attachment to their land as part of a distinct culture which
requires dependence on land and its resources for the survival of the people
of Cabinda, the right to property can be validly limited by the State in the
overall public interest of the entire state and in accordance with appropriate
laws.

108. In line with its obligation under International law, the African Charter and
its domestic laws generally, the Respondent State can only limit the right to
property under certain laid down conditions. The Complainant has not
claimed or adduced evidence to show that the limitation of the right in
relation to the people of Cabinda was not done in the public interest and
according to appropriate laws.

109. The Commission recalls the Complainant’s argument that an incident of

the right to property under the Charter is that the people of Cabinda are
entitled to be the main beneficiaries of the natural resources and that the
Respondent State cannot unilaterally dispose of the natural resources of the
people of Cabinda without their involvement in decisions on such disposal.
The Commission agrees with the Complainant that as an aspect of the right to
property under the Charter, the people of Cabinda are entitled to benefit from
the natural resource found in their lands. However, the Commission believes
that the enjoyment of that aspect of the right should not be to the detriment of
other communities and groups in the State. The Commission notes further
that the Respondent State's submission that the people of Cabinda (along with
the province of Zaire23) enjoy a fair and equitable share of the proceeds of the
petroleum resources of the State has not been challenged despite the

22
Ibid
23
The Respondent State submits that the Province of Zaire also contributes significantly to the natural resources
of Angola and accordingly, together with the Cabinda Province, enjoy certain privileges over and above other
provinces.

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Complainant’s claim that the people of Cabinda are entitled to an additional

50% of proceeds from natural resources.

110. The Commission finds that the Complainant has failed to show that the
people of Cabinda have a strong and profound cultural or ancestral
attachment to their land and the natural resources under the land such that
their survival depends on its protection. The Complainant has also failed to
show that the Respondent State has denied the people of Cabinda a right to
share equitably in the benefits accruing from their natural resources.
Accordingly, the African Commission finds no violation in relation to Article
14 of the African Charter.

Alleged violation of Article 19 of the African Charter

111. The Complainant contends that the Respondent State has violated Article
19 of the Charter because the people of Cabinda have not enjoyed the right to
equality as a people entitled to the same respect and rights as other peoples in
Angola. Article 19 provides that:
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

112. It is the Complainant’s submission that Article 19 of the Charter has been
violated in relation to the people of Cabinda because it anticipates that
revenue from onshore resource extraction will “flow to Luanda just as
offshore revenue does now”. The Complainant alleges further that despite the
resources extracted from Cabinda, unemployment is high and poverty, infant
mortality and disease are higher in Cabinda than in most other areas of
Angola. Thus, it claims the Respondent State has violated Article 19 of the
African Charter in relation to the people of Cabinda.

113. In response to the alleged violation of Article 19 of the Charter, the

Respondent State contends that its Constitution provides for the principle of
equality and this is implemented in all its 18 provinces. The Respondent State
argues further that ‘it cannot implement measures aimed at developing the
country based on the premise that revenue should only be spent in areas
where it is generated. The Respondent State submits that while it is
developing the entire country, the Province of Cabinda enjoys a “special
status in view of its contribution towards the Angolan State General Budget”.
Thus, it claims that it has not violated Article 19 of the African Charter in
relation to the people of Cabinda.

114. The Commission reaffirms its position that distinct and identifiable groups
of “peoples” and communities exist within the State Parties to the African
Charter and each set of “peoples” and communities is entitled to enjoy
internal legal equality vis-à-vis other “peoples” and communities within the
same state.24 The Commission notes that a claim of unequal treatment in

24 COHRE case, para 223

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violation of Article 19 of the Charter requires evidence that a given group or

set of peoples who is in a position similar to another group or set of people
has been or is being treated differently or that a given group or set of peoples
who is in a position different to another group or set of people is treated
similarly such that the “peoples” complaining suffer unfair and unjustifiable
disadvantage that amounts to discrimination.

115. In its submission, the Complainant contends that the bulk of the
anticipated revenue from the resources in Cabinda will “flow to Luanda while
only 10% or less will get to Cabinda". The Complainant does not elaborate to
show whether any single group of people in the Respondent State enjoys a
greater share of allocation than the People of Cabinda. The Complainant also
provides no documentary or other evidence in support of its claim. The
Complainant does not produce the 2006 Peace Accord which it refers to in its
submission. However, the Respondent State does not contest the claims but
admits them partially to the extent that the Respondent State submits that the
Province of Cabinda enjoys a special status since it receives up to 10% of oil
revenue.

116. The Commission notes the Respondent State’s submission that the 10%
special revenue that accrues to Cabinda is in addition to other infrastructural
costs that the Government funds in the Province of Cabinda. Although the
Respondent State has also failed to adduce any documentary or other
evidence in support of this claim, the Complainant has not contested the
Respondent State’s claim that only the Province of Cabinda (along with the
Province of Zaire) enjoy the “special status”. Accordingly, the Commission
will make its decision on the basis of the unchallenged submissions of the
Parties.

117. Generally, the Commission holds the view that real or substantive equality
requires that groups who have suffered previous disadvantages or continue
to suffer disadvantages within a state are entitled to some advantageous
treatment especially where such groups bear an unequal part of the burden
for the exploration of natural resources in that state.25 However, the
Commission also notes the Respondent State’s argument that it cannot
implement measures that aim at spending revenue only in areas where it is
generated.

118. The Commissions takes the view that the principle of equality requires the
striking of a balance between a group's claim to advantageous treatment or
affirmative action and the legitimate expectation of other groups within the
state to share in the resources of that state. Accordingly, the Commission
believes that a proper interpretation of equality in the present circumstance is
one which recognises the right of the people of Cabinda to receive some

25 This is consistent with international best practices. See for instance, the Samaraka decision,
para 103

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advantage without endangering the survival of other peoples within the state
or threatening the continued corporate existence of the Respondent State.

119. Although the Complainant contends that the people of Cabinda suffer
unequal treatment as compared to the rest of Angola in terms of
comparatively higher levels of unemployment, poverty, infant mortality and
disease, no tangible evidence or data has been adduced to support these
claims. As this Commission had previously observed, a Complainant that has
made general claims and allegations needs to substantiate such claims and
allegations with either documentary evidence or sworn affidavits or the
corroborating testimony of others.26 In the absence of evidence to support the
claim of unequal treatment, the Commission does not find a violation of
Article 19 of the Charter.

Alleged violation of Article 20 of the African Charter

120. Basing its argument on an acclaimed geographical, political, linguistic and
cultural distinction from the rest of Angola, the Complainant claims that the
Respondent State has violated the right of the people of Cabinda to social and
economic development as guaranteed in Article 20 of the African Charter. The
Complainant submits that the people of Cabinda are unable to exercise the
right because organisations that “espouse a uniquely Cabindan point of view”
are banned by the Government of Angola.

121. The Complainant alleges further that the enjoyment of the right to social
and economic development is restricted because people who campaign for
economic self-determination are routinely arrested. On these grounds, the
Complainant alleges that the right of the people of Cabinda to social and
economic development had been violated.

122. The Respondent State contends that it has not violated Article 20 of the
African Charter in relation to the people of Cabinda because the right to self-
determination had been collectively fulfilled by the entire people of Angola at
independence in 1975. The Respondent State submits further the periodic
democratic elections take place in Angola and as citizens of Angola, the
people of Cabinda have participated fully at such elections, producing 5 out
of 220 deputies elected to the Angolan Parliament.

123. It is the Respondent State's further contention that Cabinda also has its
own political and administrative structures defined by Angolan law. On these
grounds and in view of Article 87 of its Constitution which acknowledges that
Angola is a multicultural and multilingual society where the different
identities are to be appreciated and respected, the Respondent State contends
that it has not violated Article 20 of the African Charter in relation to the
people of Cabinda.

26 Communication 308/05 – Majuru v Zimbabwe (2008) ACHPR, para 92

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124. The Commission recalls that Article 20 of the Charter has a particular
historical context in the sense that it is one of the provisions of the Charter
that was aimed at addressing the situation of Africans who remained under
colonial domination at the time the Charter was drafted. Article 20 of the
Charter provides that :
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. Colonised or oppressed people shall have the right to free themselves from the
bonds of domination by resorting to any means recognised by the international
community.

3. All peoples shall have the right to the assistance of the State Parties to the present
Charter in their liberation struggle against foreign domination, be it political,
economic or cultural.

125. The Commission notes the argument of the Complainant regarding the
alleged violation of Article 20 of the Charter. In view of its opinion that the
right to self-determination, the right of colonised and oppressed people to
free themselves from domination and the right to assistance in liberation
struggle are reserved for colonised peoples, the Commission does not agree
with the Complainant that a distinct pre-colonial history by itself entitles the
people of Cabinda to unilaterally claim those rights contained vis-à-vis the
Respondent State.

126. As the Commission has noted in its earlier jurisprudence, in post-colonial

Africa, the right to self determination can be enjoyed within the existing
territories and with full respect for the sovereignty and territorial integrity of
State Parties to the Charter.27 The Commission also believes that the right to
pursue economic and social development is attainable within the framework
of an existing state insofar as different groups and communities are
represented in decision-making institutions of the given state. Accordingly,
the Commission does not find any violation of Article 20 of the Charter.

Alleged violation of Article 21 of the African Charter

127. In relation to Article 21, the Complainant alleges that the Respondent State
has violated the right of the people of Cabinda to freely dispose of their
wealth and natural resources because the Respondent State has made grants
and concessions on Cabinda’s onshore oil resources “without input from the
Cabindans”. The Complainant contends that the acts the Respondent State in
this regard amount to spoilation under Article 21 of the Charter and should
attract a right to lawful recovery and to an adequate compensation. Article 21
of the African Charter states as follows:

27
Communication 75/92 - Katangese Peoples' Congress v Zaire (1995) ACHPR para 4

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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 all cases of spoilation, the disposed 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. State 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.

5. State Parties to the present Charter shall undertake to eliminate all forms of foreign
exploitation particularly that practiced by all international monopolies so as to enable
their peoples to fully benefit from the advantages derived from their national
resources.

128. The Respondent State argues that by Articles 94 and 95 of its Constitution,
natural resources fall in the category of items classified as property in the
public domain which are reserved to serve national rather narrow local
interests. The Respondent State submits further the Province of Cabinda
already receives special attention for its contribution to oil revenues.
Asserting its sovereign authority and legitimacy to explore natural resources
in Angolan territory, the Respondent State challenges the authority and
legitimacy of the Complainant to speak on behalf of the people of Cabinda
with regards to the exploitation of natural resources.

129. The Commission recalls its jurisprudence which traces the origin of Article
21 to the colonial era when human and material resources in Africa were
exploited for the benefit of powers from outside the continent.28 However, the
Commission has also held that the rights in Article 21 of the Charter are still
applicable in post-colonial Africa in favour of groups within states to the
extent that it triggers an obligation on the part of the State Parties to protect
their citizens from exploitation by external economic powers29 and to ensure
that groups and communities, directly or through their representatives, are
involved in decisions relating to the disposal of their wealth.30 Nevertheless,
the Commission also recognises the right of State Parties to supervise the
disposal of wealth in the general interest of the state and its communities.31

28
Communication 155/96 - Social and Economic Rights Action Center (SERAC) & Center for Economic and
Social Rights (CESR) v Nigeria (SERAC v Nigeria) (200) para 56
29
SERAC v Nigeria, paras 57 - 58
30
Endorois v Kenya, para 268
31
Ibid.

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130. The Commission notes that in relation to Article 21 of the Charter, the
Complaint invokes a right of the people of Cabinda to dispose of their wealth
and natural resources as well as to receive compensation for resources already
exploited. In this regard, the Commission notes that the term “peoples” in
Article 21 of the Charter can mean either the entire peoples of a given state or
a “peoples” within the state. The Commission believes that in the first context,
Article 21 of the African Charter empowers a State Party to exercise the
guaranteed right free from interference from any other African or non-African
state. This has to be the explanation for sub-Articles 4 and 5 of Article 21
which speak to State Parties.

131. However, the Commission believes that a “peoples” within an existing

state can be beneficiaries of the right in Article 21 to the extent that it imposes
a duty on the Respondent State to ensure that resources are effectively
managed for the sole and equal benefit of the entire peoples of the state.
Accordingly, the African Commission is of the view that one aspect of the
right in Article 21 of the African Charter is the duty of the State to involve
representatives of its peoples in decisions concerning the management of
national wealth and natural resources.

132. The Respondent State has shown that elected representatives of the people
of Cabinda are in the Angolan Parliament which exercises oversight
supervision of the management of natural resources. As this Commission
noted in SERAC v Nigeria,32 the State has the right to exploit natural
resources in its territory. However, the Commission believes that Article 21 of
the African Charter presupposes that that right is held in trust for the people.
The Respondent State's submission that it effectively manages natural
resources for the benefit of all peoples in Angola has not been challenged. The
Commission therefore finds no violation of Article 21 of the Charter.

Alleged violation of Article 22 of the African Charter

133. The Complainant’s allegation that the Respondent State has violated
Article 22 of the African Charter with regards to the people of Cabinda is
based exclusively on the argument that the Respondent State pursues a policy
of “Angolanisation of Cabinda”. In the absence of any other argument or
evidence in support, the African Commission finds no violation.

Alleged violation of Article 24 of the African Charter

134. The Complainant alleges that the Respondent State has violated Article
24 of the African Charter in relation to the people of Cabinda because, as a
result of oil exploitation activities authorised by the State, the environment in
Cabinda is not conducive for the development of the people of Cabinda. The
Complainant argues further that the operations of companies such as
Chevron which are authorised by the Respondent State take place in
conditions that harm both human health and the environment and this has

32 Para 54

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happened because in the absence of viable civil society monitoring, the

Respondent State has failed to enforce compliance with environmental rules.

135. The Respondent State contends that it has not violated Article 24 of the
African Charter in relation to the people of Cabinda since it has taken
measures aimed at preserving the environment. The Respondent State cites
national legislations that it has adopted to address the challenge of
environmental pollution. The Respondent State submits further that it has
compelled oil companies operating in the area to account for harm occasioned
by oil spills, with emphasis on demanding compensation for fishermen and
their families. The Respondent also claims that it has set up a National
Environment Surveillance Service that has kept track of at least six oil spills in
the area while its Ministry of Environment has audited rigs in the Angolan
sea to prevent further spills. In effect, the Respondent State contends that it
has taken action to address the concerns of the Complainant.

136. The African Commission notes that apart from the fact that it did not
adduce any evidence in support of the general allegation that the right to a
satisfactory environment has been violated by the Respondent State, the
Complainant has not disputed or challenged the claims of the Respondent
State. In the absence of any evidence to support the alleged violation, the
African Commission finds no violation of Article 24 of the African Charter.

Decision of the African Commission

137. In view of the above, the African Commission finds no violations of

Articles 14, 19, 20, 21, 22 and 24 of the African Charter as alleged by the
Complainants.

Done in Banjul, the Gambia during the 54th Ordinary Session of the African
Commission on Human and Peoples Rights, 22 October to 5 November 2013.

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