Also available in Español.
Prepared by Juan E. Mendez, former United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and member of the Clooney Foundation for Justice’s TrialWatch Expert Panel, on behalf of the American Bar Association’s Center for Human Rights and as part of CFJ’s TrialWatch Project
The American Bar Association’s Center for Human Rights (CHR) is deeply concerned by the judgment issued by a trial court in Equatorial Guinea convicting 112[1] defendants of participation in an alleged coup d’état and assassination attempt against the President. The mass trial involved the prosecution of roughly 130 individuals, with approximately 55 defendants tried in absentia and approximately 20 defendants receiving sentences of over 70 years.[2] From the outset, the trial was marred by egregious procedural irregularities, including the President’s appointment of military judges and prosecutors by executive decree, and violated fair trial guarantees that are part of every State’s obligations under international human rights law. In light of the urgent need to publicize what transpired at trial, particularly given the grave consequences for those convicted and the significant risk of mistreatment, CHR is issuing this preliminary report in advance of the full TrialWatch Fairness Report on the proceedings.
Specifically, CHR calls upon the Equatoguinean authorities to drop charges against and immediately release the many defendants whose connection to the alleged coup was never proven. With respect to the other defendants, CHR urges the Equatoguinean authorities to review the sentences imposed and either institute proceedings that respect the due process of law or release defendants unconditionally.
The case stems from an alleged coup attempt that took place in December 2017. According to the prosecution’s arguments, the accused planned to overthrow the President of the Republic of Equatorial Guinea by murdering him and anyone who got in the way. The purported plan involved the recruitment of foreign mercenaries from countries such as Cameroon and Chad. In February 2019,[3] the public prosecutor charged roughly 130 defendants with the crimes of treason, crimes against the head of state, rebellion, possession and storage of weapons and ammunition, terrorism, and financing of terrorism. The charging document provided little to no factual basis for each individual’s criminal responsibility and all defendants were charged with the same offenses.[4] Out of the named defendants, approximately 55 were tried in absentia.
The Center for Human Rights (CHR) monitored the proceedings as part of the Clooney Foundation for Justice’s TrialWatch project. This report evaluates whether the trial complied with Equatorial Guinea’s human rights treaty obligations: namely, the International Covenant on Civil and Political Rights (ICCPR), which Equatorial Guinea acceded to in 1987, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Equatorial Guinea acceded to in 2002. CHR sent five TrialWatch international monitors to observe the trial, which began on March 22, 2019 before the Second Criminal Chamber of the Bata Provincial Court and proceeded steadily until the pronouncement of the judgment on May 31, 2019.
112 defendants were convicted and received sentences ranging from three years and one day to 97 years and two months.[5] Notably, 20 defendants received sentences of over 70 years. 21 defendants were acquitted. CHR monitors were able to access hearings throughout the trial. Due to minimal news coverage of the proceedings and the lack of other monitors in the courtroom, the following analysis is primarily based on monitors' observations at trial.
From the outset, the proceedings were blighted by severe pretrial violations. A significant number of defendants were arrested in December 2017 - near the date of the alleged coup - with others arrested throughout 2018. According to defense counsel, all defendants were held incommunicado. In violation of the guarantees established by the ICCPR, defendants were allegedly denied access to a lawyer until the beginning of the trial. Namely, on March 18, 2019, four days before trial, the secretary of the Bata court announced on state television that defense counsel would have 72 hours to meet with their imprisoned clients.
During their confinement, detainees were interrogated by members of the security forces who reportedly relied upon torture and other forms of coercion to extract confessions. In court, defendants testified about horrific treatment, including being beaten, tied up, subjected to electric shock, and denied bathroom facilities and medical services. Desiderio Ondong Abeso, the nephew of one of the alleged coup plotters, described being “tortured like a crocodile” with his arms pulled behind his back.[6] Two defendants died while in custody. On March 26, one of these defendants’ attorneys asked the court for confirmation of his client’s death. A judge opened the proceedings on March 28 by formally announcing his client’s death in custody.
Meanwhile, in contravention of ICCPR guarantees, defendants languished in prison without being adequately informed of the rationale behind their detention. Per defendants’ testimony in court,[7] some learned of the factual basis for the charges and supposed evidence on which such charges were based only after the trial began in March 2019 (depending on the defendant, several months to a year and a half after their initial arrests and detention).
In 2019, at which point many defendants had already been in detention for more than a year, the public prosecutor suddenly pushed forward with the proceedings. In January 2019, the state bar association finally appointed defense attorneys (just several months before trial). Each of the 17 defense lawyers was assigned between one to 14 defendants. These groupings appeared random, with no common thread of defendant (civilian/military, national/foreigner) or defense theory, making it even harder for counsel to develop their respective defenses.
Subsequently, defense lawyers received notice of the start of the trial only a few days in advance. On March 18, 2019, the secretary of the Bata court issued a public announcement that the trial would start on March 22 - a violation of the ICCPR right to adequate time and facilities to prepare a defense. Exacerbating problems with inadequate time for preparation, defense counsel relayed that the court refused to provide defense lawyers with access to the entire case file, claiming that the amount of paper required was excessive and placing counsel at a grave disadvantage as the proceedings commenced. As a result, the prosecutor’s office entered the trial with numerous evidentiary requests, whereas the defense - lacking information as to the basis of the case against their clients - had no evidentiary requests. Despite repeated objections in this regard during the trial, defense lawyers never received access to the entire file, contravening not only the right to preparation but also the principle of equality of arms.
At trial, violations of fair trial rights were equally stark, as evidenced by consistently arbitrary rulings against the defense, the insertion of military personnel into a civilian trial, the prosecutor’s reliance on tainted evidence, confusion over the linguistic interpretation of questioning and testimony, and the absence of proof with respect to the majority of defendants who took the stand. At one point, the panel permitted the near 80 defendants - with security services acting as a human barrier - to walk to the edge of the courtroom to greet family members whom they had not seen for months to a year. This moment reduced many in the courtroom to tears and highlighted the human cost of the case.
Over the course of the trial, it rapidly became apparent that the State had no evidence as to most defendants’ guilt. As mentioned above, all defendants were charged with the same offenses, without individualized, detailed explanation of their criminal responsibility for the alleged coup attempt.[8] At trial, the prosecution generally failed to provide further clarification, presenting evidence that was at best circumstantial and, at worst, an example of guilt by association: many defendants, for example, testified that they had only been prosecuted due to family ties to other defendants, a theory bolstered by the lack of evidence as to their culpability.[9] The questioning of Javiera Mbang Maye on April 9, 2019 exemplifies the issue of insufficient evidence. The prosecution - struggling to connect Maye to the coup - stated that Maye should help the prosecutor better understand her responsibility for the alleged offenses, as the prosecution “was not there.”[10] This manifest dearth of evidence - and the court’s conviction of defendants notwithstanding such deficiencies - violates the presumption of innocence.
Meanwhile, although numerous defendants testified that confessions introduced by the prosecution were the product of torture, the court failed to institute any one of the range of measures required under CAT and customary international law. Namely, the court neither ordered that allegedly torture-tainted confessions or statements against interest be excluded from evidence nor rejected pre-trial confessions recanted by defendants in court. The court further declined to take preliminary measures such as corroborating the truthfulness and voluntariness of confessions or establishing a voir dire proceeding within the trial to determine if such statements had been coerced. This violates the cardinal standard of the exclusionary rule: that torture-derived evidence shall not be relied upon in court. Moreover, the admission of torture-tainted evidence shatters the privilege against self-incrimination, an internationally recognized standard at the heart of fairness in criminal proceedings.
When defense lawyers broached the issue of torture, the court cut off all lines of argument and questioning, stating that the manner in which confessions had been obtained was irrelevant to the proceedings. For example, during the examination of former military official Patricio Micha Medang on March 28, a defense lawyer attempted to ask Medang about whether his statements during interrogation were coerced by torture. At this point, the judge intervened, precluding further questions and avowing: “this is not a trial about torture.”[11]
Over the course of the trial, defendants’ rights were repeatedly violated in other ways. According to the defense, defense lawyers were not given opportunities to confer with their clients in private, contravening the right to confidential communication with counsel. At times, the judge arbitrarily limited defense counsel’s interventions to just minutes, a constraint clearly detrimental to the mounting of a robust defense, to competent examination of witnesses, and to the presentation of cogent legal arguments based on the facts and evidence. During the questioning of former ambassador to Chad, Enrique Nzue Anguesema, for example, the majority of defense lawyers were subjected to a one-minute cap. When a lawyer attempted to ask a question about Mr. Anguesema’s responsibilities as ambassador, the judge interrupted him and stated: “Your minute is up.”[12]
Furthermore, the court repeatedly prevented defense counsel from making objections and, near the end of the proceedings, denied defense counsel the opportunity to question the prosecution’s expert witnesses.[13] These limitations - which violate the right to legal assistance and the right to call and examine witnesses - were all the more egregious because the court placed no such restrictions on prosecutors, a discriminatory action in contravention of the principle of equality of arms: a precept that should guide all judicial proceedings, but especially those of a criminal nature.
There were also multiple instances of prosecutorial misconduct. Under rule of law principles, prosecutors are entitled to employ aggressive tactics in seeking to prove the guilt of defendants beyond a reasonable doubt: prosecutors, however, are also public officials and are thus duty-bound to behave in a manner that upholds the integrity of the judicial process.[14] Pushing forward despite a clear lack of evidence and relying on torture-tainted evidence violated this duty, as did what transpired on May 20, 2019, when the prosecution introduced new charges, including the charge of negligence and inciting military sedition.[15] This addition of previously unmentioned offenses thoroughly sabotages the right to be informed of the charges and the right to prepare a defense. Due to the insertion of charges at such a late stage, counsel had no opportunity to call witnesses, present evidence, or formulate their arguments in response. Moreover, the prosecution refused to provide defense counsel with copies of the new charge sheet, preventing counsel from addressing the offenses in their own closing arguments.
Perhaps the most serious due process violation that occurred was the blatant lack of judicial impartiality and independence. In placing undue restrictions on the defense and adopting a permissive attitude towards prosecutorial misconduct, the judge demonstrated a strong bias against the defendants to the point of ignoring their presumption of innocence. Although acts of insurrection and attempted assassination are extremely serious, it is precisely because of their gravity that the trial should have been conducted with complete and visible impartiality at all stages before conviction as well as with absolute autonomy, absent any pressure or orders from other branches of government.
To the contrary, the President of Equatorial Guinea directly intervened in the trial. On April 1, 2019, with the proceedings already underway, it was announced on state television that the President had appointed two new magistrates from the military and two new prosecutors from the military via executive decree. Moreover, on April 8, a military official appeared in the audience to serve - according to local journalists - as an “observer.” Monitors noted that throughout the remainder of the proceedings, the official relayed messages to the prosecution and judges. The encroachment of Equatorial Guinea’s political masters was thus evident at trial.
While the court at one point alleged that defense lawyers were “making a spectacle” of the trial for their attempts to object to fair trial violations,[16] the real spectacle was the unrelenting debasement of defendants’ rights. CHR calls upon the Equatoguinean authorities to immediately drop the charges against and release the many defendants whom the prosecution failed to connect to the coup. With respect to the other defendants, CHR urges the Equatoguinean authorities to review the sentences imposed and either institute proceedings that respect the due process of law or release defendants unconditionally.
[1] This number was calculated by the monitor counting the number of convicted defendants as the judge read out the sentences in court. CHR will include information and analysis from the judgment in the full Fairness Report.
[2] There are multiple inconsistencies between the prosecutor’s various submissions listing the defendants, including submissions regarding the defendants tried in absentia, so all numbers are approximate. Confusion was exacerbated by the fact that some defendants died in detention and that the number of defendants in the courtroom changed throughout the proceedings.
[3] The initial criminal complaints were filed in the first half of 2018.
[4] Ministerio Fiscal, Escrito de Calificaciones Provisionales, February 22, 2019. In the prosecutor’s submissions, the distinctions drawn between defendants are largely based on broad categories: Equatoguinean civilians, Equatoguinean military members, and foreign nationals – and planners, recruiters, mercenaries, financiers, and so on. In the facts section of the charging document, over 60 defendants are not even mentioned.
[5] It is worth noting that in court, the judge referred to the sentence of 97 years and two months as 96 years and 14 months.
[6] Monitor’s Notes, March 28, 2019.
[7] Monitor’s Notes, April 26, 29, 30, 2019.
[8] Ministerio Fiscal, Escrito de Calificaciones Provisionales, February 22, 2019.
[9] Monitor’s Notes, March 27-28, 2019.
[10] Monitor’s Notes, April 9, 2019.
[11] Monitor’s Notes, March 28, 2019.
[12] Monitor’s Notes, March 28, 2019.
[13] Monitor’s Notes, May 7, 2019. The judge told the defense that counsel could address the testimony of the prosecution’s experts during closing arguments.
[14] See United Nations Human Rights Office of the High Commissioner, United Nations Guidelines on the Role of Prosecutors, 1990. Available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfProsecutors.aspx; International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, 1999. Available at https://www.iap-association.org/getattachment/Resources-Documentation/IAP-Standards-(1)/IAP_Standards_Oktober-2018_FINAL_20180210.pdf.aspx.
[15] Monitor’s Notes, May 20, 2019. The monitor also did not have the opportunity to obtain a copy of the new charge sheet.
[16] Monitor’s Notes, March 27, 2019.