São Tomé and Príncipe

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Background

São Tomé and Príncipe is a small island nation located in the Gulf of Guinea, off the western coast of Central Africa. It gained independence from Portugal on July 12, 1975, and is Africa’s second-smallest country by both area and population. Its capital, São Tomé, is situated on the main island of the same name, which, along with Príncipe, constitutes the archipelago.

The country has a population of approximately 223,000 people (2023 estimate), with most inhabitants being of African descent, descended from various ethnic groups including the Forros, Angolares, and descendants of freed slaves. Portuguese is the official language, and most people speak Forro (a creole dialect) as a lingua franca.

São Tomé and Príncipe has a mixed economy, heavily reliant on agriculture (notably cocoa production) and increasingly on tourism. Political stability has improved significantly in recent decades, but the country still faces economic challenges, including poverty and reliance on external aid.

The Legal system

São Tomé and Príncipe has a civil law system, rooted in Portuguese legal traditions. The country's legal framework is based on the 1975 Constitution, last amended in 2003, which establishes a multi-party democratic system with three branches of government:

1. Executive: Led by the President and the Prime Minister.
2. Legislative: A unicameral National Assembly.
3. Judiciary: Includes the Supreme Court of Justice, regional courts, and specialized courts.
   
   The judiciary operates independently and has jurisdiction over constitutional matters, criminal justice, and civil disputes.

Legal Aid

State-Sponsored Legal Aid in São Tomé and Príncipe
Article 44 of the Constitution of São Tomé and Príncipe guarantees the right to legal assistance for all citizens who cannot afford to hire a lawyer. This provision ensures that individuals facing criminal charges have access to free legal aid if they cannot bear the cost of hiring defense counsel. This is particularly significant given that many individuals in the country live below the poverty line.

The free legal assistance provided by the state is meant to ensure access to justice for those who cannot afford private counsel. The defense counsel assigned by the state must meet certain standards, including competence and independence. However, resources for legal aid remain limited, and the quality and availability of defense counsel can vary. There is no specific mention of an agency directly responsible for overseeing legal aid, but the Ministry of Justice is typically involved in coordinating these services. Legal aid is considered a right under the Constitution, but in practice, the effectiveness of the program is hindered by the limited number of lawyers and resources available to the government.

When a defendant claims an inability to pay for legal representation, they are asked to declare their financial status, including providing a list of assets. This procedure is similar to what is practiced in some other countries to assess the need for public funding of legal services.

Non-Governmental Organizations (NGOs) Providing Pro Bono Legal Aid
Although the state-sponsored legal aid system exists, it is not always fully effective due to the lack of sufficient resources, both financial and human. As a result, several non-governmental organizations (NGOs) provide pro bono legal aid to the population. These organizations often focus on marginalized groups such as women, children, and rural communities who are most vulnerable to human rights violations and lack access to justice.

A few examples of NGOs involved in providing legal aid include:

The São Tomé and Príncipe Bar Association (Ordem dos Advogados de São Tomé e Príncipe), which sometimes coordinates pro bono legal services in cooperation with international NGOs.

International Development Organizations, such as the United Nations Development Programme (UNDP), which have supported the development of legal aid mechanisms in the country.

Local Human Rights Organizations, which focus on issues such as gender-based violence and child protection, and offer legal services to victims of human rights violations.

These NGOs play a crucial role in bridging the gap in legal services, especially for those who cannot access the limited state-sponsored legal aid.

Number of Lawyers
As of recent data, the legal profession in São Tomé and Príncipe is small, with approximately 50 practicing lawyers in the country. This number is low compared to other nations and reflects the challenges in providing adequate legal services. Most lawyers are based in the capital, São Tomé, and work in both the civil and criminal fields, although the demand for legal services often exceeds the available legal workforce.

Prosecutors and Judges: In 2023, the country had approximately 40 prosecutors and around 70 judges, with a significant concentration of the judiciary in urban areas.

The small legal community poses challenges in ensuring that every defendant, particularly in rural areas, has access to competent legal counsel. Many lawyers may also work multiple roles within the legal system, further stretching the resources available to the public.

Challenges to Access to Justice
While the constitutional guarantee for free legal aid exists, its implementation faces challenges, including:

Limited Resources: Insufficient government funding for legal aid services and a lack of legal professionals available to provide assistance, especially outside of urban centres.

Awareness: There is a lack of widespread public knowledge regarding the availability of free legal assistance, which prevents many citizens from requesting help when they need it.

Capacity and Quality of Legal Aid: Even when free legal aid is available, the limited number of experienced and well-trained defence lawyers results in unequal access to justice, particularly for those accused of serious crimes or complex legal matters.

International Support and Partnerships
To address these issues, various international organisations, including the United Nations Development Programme (UNDP), have supported legal aid efforts in São Tomé and Príncipe, providing both funding and expertise. Additionally, partnerships with regional organizations have facilitated legal reform efforts aimed at enhancing the effectiveness of legal aid and improving the country's overall legal system.

In conclusion, while São Tomé and Príncipe has a legal framework that guarantees the right to legal aid, the actual provision of these services is constrained by limited resources, a small legal community, and logistical barriers. The role of NGOs and international partnerships remains critical in expanding access to justice for the country’s most vulnerable populations. These groups focus on raising awareness of legal rights, offering mediation services, and advocating for human rights protections.

Source of Defendants Rights

National Sources of Defendant’s rights:

• The Constitution (1975, as amended): Guarantees fundamental rights such as liberty, presumption of innocence, and access to counsel.
• The Penal Code (adapted from Portuguese law): Outlines criminal offences, penalties, and procedural rights.
• The Civil Procedure Code: Regulates the functioning of the judiciary and the administration of justice.

International Sources of defendant’s rights:
São Tomé and Príncipe is a party to several international treaties, including:

• The African Charter on Human and Peoples’ Rights
• The International Covenant on Civil and Political Rights (ICCPR)
• The Convention Against Torture (CAT)

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures, or Detention:
The Constitution of São Tomé and Príncipe (art. 36) ensures that no individual may be deprived of their liberty except in cases provided by law and always by decision or under the supervision of the appropriate court.
This provision safeguards individuals from arbitrary arrests and detentions.

Right Not to be Tortured or Ill-Treated:
The Constitution explicitly states that the moral and physical integrity of individuals is inviolable. It prohibits subjecting anyone to torture or to cruel, inhuman, or degrading treatment or punishment.

Right to Medical Care:
While the Constitution does not explicitly mention the right to medical care, it emphasizes the inviolability of personal integrity, which implies the necessity of access to medical services to maintain one's health and well-being.

Right to be Informed of Charges:
The Constitution mandates that criminal procedures must ensure all defense guarantees. This includes informing the accused of the charges against them, allowing for adequate preparation of their defense.

Right to Presumption of Innocence: Every accused person is presumed innocent until proven guilty. The Constitution requires that trials be conducted in the shortest time compatible with defence guarantees, upholding the principle of presumed innocence.

Right Against Self-Incrimination:
The Constitution ensures that all evidence obtained through torture, coercion, or offenses to the physical or moral integrity of a person is null and void. This provision protects individuals from being compelled to incriminate themselves.

Right to Counsel and Effective Assistance:
The accused has the right to choose defense counsel and to be assisted by them in all acts of the trial. The law specifies instances where such assistance is obligatory, ensuring effective legal representation.

Right to Fair Trial and Due Process:
Criminal procedures are designed to assure all defense guarantees, including the right to a fair and public trial. The Constitution emphasizes that no case may be removed from the court whose competence has been established by prior law, ensuring due process.

Right to Bail:
While the Constitution does not explicitly mention the right to bail, it provides that no one may be deprived of freedom except in cases provided for by law and always by decision or with the review of the appropriate court. This implies that legal provisions exist regarding detention and possible release conditions.

Right Against Ex Post Facto Prosecution:
The Constitution (art. 37) stipulates that no one may be sentenced criminally except by virtue of prior law that declares punishable the action or omission. However, penal laws are applied retroactively when their content is more favorable to the accused or sentenced.

Right Against Double Jeopardy:
The Constitution does not explicitly mention protection against double jeopardy. However, the general principles of criminal law and procedural guarantees aim to protect individuals from being tried or punished more than once for the same offense.

Right to Language Interpretation:
While the Constitution does not explicitly provide a right to language interpretation, the assurance of all defense guarantees in criminal procedures implies that the accused should understand the proceedings. This would necessitate interpretation services when needed.

Rights of Counsel

Right of Access to the Client and Confidential Communication
Defense attorneys are entitled to meet with their clients in private, without interference, to prepare a robust defense.

Right to Information
Lawyers must be granted access to evidence and case files to ensure transparency and adequate preparation.

Means of Protecting and Enforcing Rights

Exclusionary Rule:

Nullity of Procedure:

Civil Actions:

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws:

Interrogation:

Court Procedures

Pre-Trial:

Sentencing:

Appeals:

Rights in Prison

Right to Humane Conditions of Confinement:

Right to Medical Care in Prison:

Right to Mental Health Care:

Restriction of rights:

Rights of Special Populations:

• Women:
• Juveniles:

Resources