São Tomé and Príncipe: Legal System and Research

By Kevashinee Pillay and Nélia Daniel Dias

Kevashinee Pillay is an attorney in the Republic of South Africa with approximately ten years of experience in the field of human rights at national, regional and international level. She is also an author, an academic, and she writes and specializes in the areas of international law, international human rights law and international law of the sea. She holds a Bachelor of Laws degree from the University of Kwazulu Natal Durban (KwaZulu-Natal, South Africa) and a Master of Laws degree from the University of Pretoria (Gauteng, South Africa) focusing on human rights and democratization in Africa. She is currently working towards a doctoral degree focusing on the rights of small-scale fisheries fishing for food at the Nelson Mandela University in Port Elizabeth (Eastern Cape, South Africa).

Nélia Daniel Dias is a law lecturer in Angola and a licensed lawyer in both Angola and Portugal. Ms. Nelia also worked for Chevron in Luanda as a senior counsel in oil and gas and currently works for Baker Hughes, a General Electric Company as Senior Counsel with responsibilities in countries like Angola, Mozambique, Namibia, Ethiopia, South Africa and Equatorial Guinea. She has published 21 books including compilations of law and has written articles about domestic and international legal issues in Angola, Portugal, Brazil, England and the Unites States. She has been teaching at the Angola Catholic University since 2007 and at the Lusíada de Angola University since 2008. She earned her law degree in civil law from the Lusíada University of Lisbon in 1995 and her master’s degree in civil law (contracts) in 2000. She is currently studying Global Business at Oxford University at Saïd Business School. Since 1995, Ms. Daniel Dias has given lectures and acted as a facilitator in Angola and Portugal. She was a trainer at the Portuguese Bar Association (2005-2006) and Angola Bar Association (2007-2015). She is the daughter of Nuno Xavier Daniel Dias, President of the first National Assembly of São Tomé e Principe who, in that capacity, signed the independence act on 12 July 1975.

Published October 2018
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1. Country Profile

1.1. São Tomé and Príncipe in General

In our view, and time will subscribe our understanding, in the next 50 years there will be only a few countries that can be described with the natural beauty and potential that São Tome and Príncipe has. The twin main exuberant and rich green islands of São Tomé and Príncipe[1] that are situated in the Gulf of Guinea were discovered in 1470. There are other small islands that compound this African archipelago[2]. Production was based on extensive culture of sugarcane, cocoa,[3] and coffee,[4] where the roças,[5] (rural farms) played an essential role in the economy and society. Their nearest country neighbors are Cameroon, Gabon, Nigeria, and Equatorial Guinea. São Tomé, that was the name given to the biggest island and the city capital, lies approximately 180 miles from the coast of Gabon and is crossed by the Equator at its southern tip. Príncipe (Prince) island (and its ilheus) is an autonomous region with a specific administrative-political statute and is 160 miles from the coast of Equatorial Guinea. Principe island capital is called Santo António and has a specific organ which is the regional Government and Assembly. São Tomé has a land area of 330 square miles and Príncipe has a land area of only 42 square miles. São Tomé is organized territorially into two Provinces (São Tomé and Príncipe island) and, further, into municipalities. It is subdivided in seven administrative districts, namely Água Grande (São Tomé), Cantagalo (Santana), Caué (São João de Angolares), Lemba (Neves), Lobata (Guadalupe), Me-zóchi (Trindade) and Paguê (Santo António in Príncipe). The islands are volcanic in origin and rise to a height of 6,639 feet above sea level. As at 2016, the World Bank recorded a population of 199,910,[6] mostly catholic. The majority creoles are known as Forros and Angolares both descendants of African slaves. The native language is forro and official language is Portuguese. Local currency is Dobra. The country has the potential to be one of Africa's largest oil producers or reserve and unique tourism stop. São Tomé is in the center of the Gulf of Guinea, where several major oil discoveries have been made over the last 10 years and potentially others to be made.[7]

1.2 São Tomé and Príncipe’s Recent History

São Tomé and Principe is the smallest African country colonized by the Portuguese for five centuries. In the XIX Century São Tome started producing cacao and coffee reaching to according to information made available to be number one world exporter of cacao. It is statistically proved and referred in the book of MARIA DAS NEVES (2017, p. 97) “statistical data available reveal that São Tomé & Principe has been highlighted in the world-wide scene of countries that produce cacao being considered the biggest cocoa producer of the world in 1905 when he reached 25.379 tones meaning 17% or world production producing more than countries like Brazil and Ecuador…” Following a long struggle against Portuguese domination for the independence of their territory, the Liberation Movement of São Tomé and Principe (M.L.S.T.P) that was created in 1972 through their Political Bureau was victorious in their intents in 12 July 1975 with the proclamation of national independence,[8] made by the MLSTP charismatic Portuguese Air Force Capitan and Aeronautic Engineer Nuno Xavier Daniel Dias elected President of the Sao Tomean First National Assembly.[9] After, the First Constitution was set with the political background of a single party with a socialist. This First Republic from 1975-1990 was followed by a second one that started in 1990 until current times that includes multiparty scenario.

1.3 São Tomé and Principe Economy

São Tomé is a small country formed by seven different shades of green referring to the invigorating vegetation as some would describe gifted with a wealth of diverse important natural resources. Besides other economic areas[10] that can be explored like services including tourism and hospitality, trading, agriculture, cattle raising and fisheries sectors, the industry presents one of the greatest economic potentials in Africa despite the sharp fall in oil prices and net investment inflows that the country has witnessed lately. Human resources should be the major asset in a country that has a small population that is skilled and have the right competencies to be able to work in a competitive environment in oil and gas, services or tourism.

Nonetheless, the country faces currently some governance and political challenges and destabilizations. It is also a place where sometimes it is not easy to do business.

1.4. São Tomé as a Regional Gateway & Platform

São Tomé is a member of the United Nations (UN), the Southern African Development Community (SADC), the African Union (AU), the Economic Community of Central African States (CEEAC), and the Community of Portuguese speaking countries (CPLP). Its privileged geographic location in the center of Guinea Gulf lets it act strategically as a gateway[11] region, namely to Angola, Cameroon, Central Africa, Republic of Congo, Democratic Republic of Congo, Gabon, Equatorial Guinea, Chad, Nigeria. It is almost 3-hours away by plane to the main cities of Central Africa and 48 hours by sea of the main ports in this region. In a broader picture it can be seen also a strategic podium between other Regions of the world.

2. Introduction to São Tomé and Príncipe’s Legal System

2.1. The Legal Institutions

After its independence, Decree-law 26/79, dated 16 May, created the Organic Law on Justice Ministry that included the draft of the Santomean judiciary institutions. On a mere curiosity, note it used revolutionary language when defining the courts as having the responsibility to “repress the violation of the revolutionary legality and to elevate the legal and social conscience.” This diploma also announced the level of jurisdiction being the Supreme Court having the highest jurisdiction of the common judicial organization after the first and second level of common courts. Three months later, Law 1/79, dated 11 July,[12] shaped the Judiciary Organization that still had an explicit vision to what regard to courts embodied in the new period the country was in at that time. This new Law referred that the Courts were subordinated to the National Assembly and that the Supreme Court had to present an annual report to the National Assembly to provide statuses related to the judiciary’s work. After Law 2/83, dated 12 December, was published in the Official Gazette, a new law fashioning the Superior Court of Appeals comprised of Administrative, Tax and Customs jurisdictions including an Audit Court. Then came Law 8/91, dated 11 November, which was the base law for the judicial system that instigated a new-fangled legal and judicial system fine-tuning to the novel constitutional context including legal institutions like the Public Attorney and High Council of the Judicial Bench that had the disciplinary action power against judges. There were only two tiers of jurisdiction: the Supreme Justice Court and first level courts.

Presently the innovative judiciary legal organization rules are reflected in Law 7/2007 that formed 3 judiciary regions specifically in the Água Grande Region that embraces Me-Zóchi, Lobata, Cantagalo and Caué, Lemba Region and the self-governing Príncipe region. This Law upheld the two levels of jurisdiction. In 2018 it is experiencing a civil movement requesting Justice System reform.

Under the constitution in Article 20, every person has the right to access the courts referred in Articles 120 to 128 of that Fundamental Law in case any right is violated or for a legal recognition of their rights regardless of their economic situation.

2.2. São Tomé’s Legal System

Overall, the São Tomé legal system belongs to the so-called civil law tradition. Talking about internal sources of law (see underneath more comprehensive in 2.2.1), it is grounded on São Tomé customary laws and fundamentally Portuguese formal civil law based on the Napoleonic Code of 1804 and codified regulations. In colonial times, Portuguese law applied in São Tomé although the traditional customary laws were, in some cases, tolerated or implicitly accepted. The Formal Constitution echoed in Law 1/2003 is the fundamental law of the country and all laws and regulations must not contradict the principles and laws there incorporated. Sections 1, 2 and 3 of Article 13 of the Constitution approved by Law 1/2003 enumerates the sources of international law, international custom, general principles of international law, and treaty law. The “rules and principles of general or common international law” produce legal effects in the Santomean legal order automatically, without being required any type of incorporation.

2.2.1. Internal Sources of Santomean Law

Formal legislation molded in diverse ways, namely as Laws, Decreed Law, Decrees, regulations, regional decrees and executive regional decrees are the primary internal source of law in São Tomé. Besides legislation, there are often general legal principles that rule in the different areas of the law. Customary Laws also have a role in certain matters if to explain or going beyond if and whenever not contradicting with the formal laws (secundum legis).

Draft laws formed by the National Assembly members, parliamentary groups, or the Government are sent to the President of the National Assembly, collected with thorough motivation. As provided in Article 70 of the Constitution, acts of parliament can take various external forms and names depending on the source and other legal criteria’s, e.g. constitutional revision laws, organic laws, basic laws, authorizations to legislate on a matter, resolutions, laws concerning matters within the competence of the National Assembly.

After independence, São Tomé rushed to rescind the old colonial laws. However, to prevent a legal void and disturbances it was guaranteed that Portuguese laws and rules at the time would endure valid until expressly revoked or revised and insofar as they did not go against the new São Tomé Constitution and the revolutionary process then under way.

We can then conclude that the São Tomé lawmakers have been taking the Portuguese legal system as a model when shaping its own. But, despite the significant likenesses, today’s Portuguese and São Tomé legal systems are not the same.

In the Portuguese Civil Code (approved by Decree Law No 47344/66) dated 25 November 1966, that partly applies to São Tomé, we can find the principle of contractual freedom, bona fides and civil liability for damages caused by the non-fulfillment of the agreement. The ruling Law related to the Civil Procedures Law is still the Portuguese Civil Procedure Code specified in Decree Law 44 129, 28 December and other extravagant or not codified Legislation.[13]

The Administrative Law comprises diverse principles namely the rule of law, prosecution of the public interest, proportionality, impartiality, probity and respect for the public wealth.

The Criminal Law Code and Criminal Procedure Law Code mention the Nullum Crimen Sine Lege, (presumption of innocence), In Dubio Pro Reo, no retroactive application of criminal law, the principle of non-incrimination and no penalty without proven guilt.

2.2.2. General Constitutional Provisions

The Fundamental Law of 1975 approved by the common meeting of the MLSTP Political Bureau and National Assembly,[14] was amended in 1980,[15] 1982, and 1987 and in 1990 to usher multi-party democracy. It was subsequently amended in 2003 by Law 1/2003.

Let’s see a few essential articles from the Constitution. Article 1 of the Constitution establishes Sao Tome and Principe as a sovereign and independent State, pledged to the building of a free, just and interdependent society, to the defense of the Rights of Man and to the active solidarity among all men and all peoples.

By Article 3, Sao Tomean citizens are all those born within national territory, the children of a Sao Tomean father or mother as well as those who may be considered such by law. Article 4 provides for what constitutes “national territory.”

Article 5 clearly states that the State of São Tome and Príncipe is a unitary state, without prejudice to the existence of local governments as stated in Articles 138 to 143. By Article 6, this unitary state is founded on democratic Law and fundamental rights of the human being. Article 7 clarifies that the State of democratic Law implies the safeguard of justice and legality as fundamental values of collective life. Article 8 enshrines the separation of State from religion. According to the Constitution the State of São Tome and Principe proclaims its adherence to the Universal Declaration of the Rights of Man and to its principles as well as to the objectives of the African Union and the United Nations.

The Constitution protects the rights and integrity of foreigners. Foreigners and displaced persons who reside or find themselves in Sao Tome and Principe enjoy the same rights and are subject to the same obligations as the Sao Tomean citizen, except insofar as are concerned political rights, the exercise of public office and other rights and obligations expressly reserved by law for the national citizen.

2.2.3. Socio-Economic Rights and Duties under the Constitution

Generally human rights in São Tome and Principe are a relative success story.[16] The 2017 Freedom of the World report ranks Sao Tome and Principe at 2 on a scale of 1 (free) to 7 (not free).[17] The nation’s aggregate score was an 81, just 8 points lower than the US one.[18] By comparison, the Netherlands sits atop the report with an aggregate score of 99, while Equatorial Guinea, (Sao Tome and Principe’s closest neighbor) received an aggregate score of just 8 points and an overall score of 7 (not free).[19]

The Constitution also provides for social rights and economic, social and cultural order. Article 42 states that all workers have rights to form labor unions as a mechanism of enhancing their unity and defending their legitimate rights and protecting their interests. Workers also have the right to strike within set limits of the applicable laws. Article 46 guarantees the right to private property as well as the right to transfer it during life or through death. This right extends to all—citizens and foreigners. One unique aspect of the Constitution is that it requires the State to take special measures to protect children and does not place any undue emphasis on the parents vis-a-vis the State regarding the upbringing and development of children.[20] The Constitution states that, “The youth especially young workers enjoy special protection in order to render effective their economic, social and cultural rights.”[21]Interpreted broadly, this provision imposes a duty on the State not only to project a wide range of socio economic rights of children, but also in a manner that displays preferential treatment to children in order to accord wider protection to children’s socio economic rights.[22]

Article 47 reinforces the notion of responsible entrepreneurship by providing state oversight for the respect of the law by private enterprises and protection of the economically and socially viable small and medium enterprises. In 1985 the country started to be more open to the Economy.

2.3. The Judiciary Organization

The judiciary organization is referred in the Constitution (Articles 120-133) and detailed in the current Judiciary Organization Law (Law 7/2007).

2.3.1. The Constitutional Court

The Constitutional Court (Tribunal Constitutional Articles 131-134 Constitution) is in the upper position in the Judiciary Pyramid. It is responsible for the administration of justice in legal and constitutional matters, in terms of the Constitution and the law. It comprises 5 judges. Constitutional Court judges are nominated by the President and elected by the National Assembly for five-year terms.[23]

2.3.2. The Supreme Justice Court

This Court[24] (Supremo Tribunal de Justiça Article 126, section 1 item a) and 127 is the highest court of general jurisdiction and is responsible for jurisprudential harmony. Based in São Tomé city, its jurisdiction extends all over the national territory. It consists of 8 judges, three in each section, being one the inspector, and the President, as per Law 7/2007. There are a Civil, Criminal, Administrative and Tax sections. Fact is that the Supreme Court exercises original jurisdiction in several matters and appellate jurisdiction in appeals emanating from first instance court decision in general in civil, family, labor, administrative, criminal, tax, customs matters.[25] The president is Manuel Silva Cravid.

2.3.3. The Ordinary Courts

Common courts play a pivotal role in the administration of justice. As mentioned in the Constitution in Article 120, Courts are independent sovereign bodies who administer justice on behalf of the people and provide decisions. They are responsible for “ensuring the defense of rights and interests of the citizens protected by law, ruling on conflicts of public or private interests, and repressing any violations of the rule of laws”. Courts shall be independent and impartial, and subject only to the Constitution and the law. Courts are comprised of of judges[26] with the responsibility to fittingly apply laws and regulations.[27] There are numerous matters that will indicate which court will judge the case namely criminal courts that appreciate criminal matters based on the Criminal Code,[28] civil courts that are responsible for judging civil matters based on Civil Code, among other courts. Law 7/2007 recognized the possibility of creating the criminal instruction court, family and minors, labor, commerce, maritime and sentenced execution courts. Pronouncements of these courts are largely subject to appeal to the Supreme Court if within precise legal criteria clearly specified in the procedure laws effective in country.

2.3.4. The High Council of the Judicial Bench

The High Council of the Judicial Bench (Conselho Superior de Magistratura) is the supreme body responsible for managing and disciplining judges. The Council is largely instrumental in the appointment and evaluation of judges. More specifically, it is responsible for evaluating the professional ability of judges and taking disciplinary action against them; and ordering investigations, inspections and inquiries.

2.3.5. The Ombudsman

The Ombudsman (Provedor de Justiça)[29] is an independent public body whose mandate is to defend the rights the interests of the State and its assets. Currently is being substituted by the Attorney General.

2.3.6. The Court of Auditors

The Court of Auditors (Tribunal de Contas Article 126, section 1 item b) is the supreme body accountable for supervising the legality of public finances and auditing public accounts submitted to it. See its legislation namely Law 3/99, 6 May changed by Law 1/2002, December 2002, Law 499, 20 August changed by Law 9/03, 9 August, Law 599, 6 May, Law 6/99, Law 7/99, 8 May and Law 8/99, 8 May. Current President is José António Monte Cristo.

São Tomé is part of the New York Convention since 18 February 2013, ICSID Convention since 19 June 2013[30] and has an arbitration Law (Arbitration Law n° 9/2006).

2.3.7. The Office of the Attorney General

The main duty of the Office of the Attorney General (Procuradoria-Geral da Republica) is to represent the State, in steering criminal prosecutions as referred in Law 9/91. It is supported by the Criminal Investigation Police (Polícia de Investigação Criminal) and Police of Public Security (Polícia de Segurança Pública). The Office of the Attorney General also must defend the legality of the exercise of judicial functions, oversee procedural regularity in courts, and defend the rights of individuals and corporations. Frederique Samba holds the office of the Attorney General of São Tomé.

2.3.8. The Public Prosecutor’s Office

The Public Prosecutor’s Office performs the judicial function of the State, and, as such, it is an essential body of the Office of the Attorney General.[31] The Prosecutor’s Office is responsible for representing the State, children, the absent and the incapable (Article 3°, n° 1, Law 9/91). Deputy Attorneys General are in turn responsible for representing the Public Prosecutor’s Office before the Supreme Court. The Prosecutor’s Office is required by the Constitution and Law to be accountable and autonomous, dictated by the principles of legality and objectivity.

2.3.9. The Judicial Council of the Public Prosecutor’s Office

The Judicial Council of the Public Prosecutor’s Office (Conselho Superior da Magistratura do Ministério Público) superintends the management and regulation of Public Prosecutors. The Council assesses, appoints, transfers and promotes Public Prosecutors. Another responsibility of the Council consists in taking disciplinary measures against Public Prosecutors guilty of misconduct.

2.3.10. Lawyers

There is a regulation that states the legal regime for those that are interested in submitting their application to the São Tomean Bar Association,[32] as a practitioner lawyer and other regulations associated to this legal profession.

3. The Separation of Powers

3.1. The President

Constitution states that the President is Head of State, which exercises executive power, and acts as Commander-in-Chief of the Sao Tomean Armed Forces. The President elected serves a five-year term and may be eligible for a second consecutive term.[33] [34] The last Presidential election was held in 2016 wherein President Evaristo Carvalho overwhelmed incumbent Manuel Pinto da Costa.[35] The President is Head of State,[36] while the Prime Minister is Head of Government, as referenced in Article 109, section 2 from the Constitution. Power remains highly centralized in the President as the Constitution grants robust appointing powers in the President. Presidential powers are set out in Articles 80-82 of the Constitution.[37] The President also has the power to appoint and dismiss the Attorney-General of the Republic on proposal of the Government.[38]

3.2. The Executive

3.2.1 Council of the Republic

The President has a counselling body named Conselho da República (Council of the Republic), at which he presides. This body guides the President in detailed situations. (Articles 88 to 91 of the Constitution).

3.2.2. The Prime Minister and Council of Ministers

He or she is responsible to the President and regarding political responsibility of the Government is also responsible to the National Assembly. The Prime Minister is appointed by the by the President after the parties being heard at the National Assembly and as per the electoral results.[39]

The Cabinet (Ministers and Deputy Ministers) is called Conselho de Ministros (Council of Ministers).[40] The structure, composition and activities of the Council of Ministers are provided for in the Constitution.[41] The Council is composed of the Vice-President, Ministers of State, and Ministers.[42]

3.3. Legislative Branch

3.3.1. National Assembly

The National Assembly[43] (Assembleia Nacional) is a unicameral parliament with 55 seats. Of this total they are elected from closed lists by proportional representation of the 7 districts. Members are elected to serve four-year terms. The next legislative elections are slated for October 2018. The National Assembly is Sao Tome’s legislative body, having the power to approve laws on all matters (except those reserved by the Constitution to the Government) and the highest organ that represents the State as referred in Article 92 from the Constitution).[44] Each legislature comprises four legislative sessions of twelve months, starting on 15 October each year.[45] National Assembly members, parliamentary groups and the Government hold the power to put forward all draft legislation.

3.3.2. The Legislative Powers of the Government

The Government also has legislative powers. These are straight and unambiguously set in the Constitution or they may result from delegation by the National Assembly. The President promulgates laws approved by the Assembly and signs Government decrees.

4. Investment Laws & Regulations of São Tomé

It is known that investors tend to invest more in a country that has a friendly legal regime. The government of São Toméhas adopted two regulations that are intended to improve and attract foreign direct investment to the country.[46] These are:

4.1. The Tax Benefits Code

The Tax Benefits Code provides for incentives that have been authorized in accordance with the Investment Code. Certain incentives are conferred mechanically while others require further action by the relevant investor and the impacted authorities. The Tax Benefits Code makes a division between general and special benefits. Wide-ranging incentives are:

Special tax incentives apply for investment in the agriculture, agro-constructional, cattle raising and fisheries sectors. These include a 50% reduction of the corporate income tax rate for the first seven years of the implementation of the project, a reduced stamp duty tax on banking operations regarding the import of foreign capital and an exemption on income tax on the application of capital.

The tourism and hotel sector are also eligible to benefit from special incentives. These focus on the restoration, construction, expansion or modernization of hotels and related establishments and the development of rural and eco-tourism.

The Code further provides that investments in enterprises that are active in local and international trading are exempt from import duties or goods and equipment if they cannot be sourced in São Tomé. The enterprises that are active in local trading can benefit during the first five years of their activities from a 50% reduction on the corporate or personal income tax rate. Enterprises involved in cross-border trading are subject to a flat income tax rate of 5%.[47]

4.2. The Investment Code

Pursuant to the Investment Code, the Government of São Tomémust outline and promote private investment policies for the sustainable development of São Tomé and the economic, social and cultural well-being of the nation’s population.[48]

The Investment Code applies to all investments,[49] in São Toméwith a value of at least EUR 50,000. Such investments will then also be eligible to incentives under the Tax Benefits Code. The types of investment that are subject to the Investment Code are broadly defined. They should relate to economic activities that are developed by companies that are organized under the laws of São Tomé or that are registered within the jurisdiction. It applies to investment by domestic as well as foreign investors and provides for the usual guarantees for the protection of private investment.

In accordance with the Investment Code, an investment can be affected in one or more of the following ways:

The Investment Code provides for three investment regimes:

The simplified regime applies to investments with a value ranging from EUR 50,000 to EUR 249,999. The general regime, on the other hand, applies to investments with a value between EUR 250,000 and EUR 4,999,999 while the special regime applies to investments of EUR 5,000,000 and above. These distinctions can be relevant for the application and approval procedures regarding the investment as well as the incentives that are available under the Tax Benefits Code.[50]

The Investment Code provides that investments can benefit from the tax incentives set out in the Tax Benefits Code if the following conditions are met:

The Government can grant privileged treatment to certain types of investments, based on the economic sectors in which such investments are made. This applies to special economic zones. This privileged treatment is addressed in the Tax Benefits Code.

The Investment Code provides for investment protection and a plethora of rights and duties for the investor. It permits the repatriation of profits, royalties and liquidation proceeds, subject to compliance with applicable tax and foreign exchange obligations. It also provides that all private investment projects are subject to administrative law and sets out the process for conclusion of such an agreement and the information that the investor needs to provide. This process is managed by a specialized government agency. This agency is also charged with the responsibility to monitor compliance by the investor with the relevant investment conditions. It also has the power to enforce action in case of a breach.

In terms of dispute resolution, the Investment Code provides that disputes in relation to the Code and its subsidiary regulations must be submitted to the domestic courts of Sao Tome and Principe unless international treaties that are binding on São Toméstipulate otherwise. Disputes in relation to foreign investments in São Tomé shall, in the absence of any agreement to the contrary, be submitted to arbitration, with the following alternatives:

4.3. Brief Recent History of Oil Exploration in São Tomé

Different to what happened in Angola or Nigeria exploration of oil in São Toméoffshore territories started in the late 1990s. The leaders initially signed some of the most lopsided petroleum contracts in history. Bribes were allegedly offered and pocketed. Today, São Tome is making strides in bringing its extractive industry in line with international standards. The Extractive Industry Transparency Initiative (EITI) Board on 8 March 2017 validated São Tomé’s overall efforts to implement the 2016 EITI Standard.[52] [53]

In 1997, a tiny Houston-based company called Environmental Remediation Holding Corporation (ERHC), which had no history of oil finds or production, decided São Tomé might have its own deep-water deposits. In return for near-exclusive mineral exploration and exploitation rights for 25 years and a half share of profits, ERHC offered São Tomé $5m and its marketing services. At the time, São Tomé was heavily indebted and reliant on donors to fund most of its $30m budget. The deal was signed. Industry watchers such as Mohamed Yahya, of the UK-based peacebuilding NGO International Alert, would later describe the contract as "one of the worst in the history of oil". And ERHC's gamble paid off. Seismic data showed there could be up to 11bn barrels of oil under the sea around the islands. The most promising area was north of Príncipe, in waters also claimed by Nigeria.[54]

In 2001, São Toméand Nigeria signed a bilateral investment treaty (BIT) Nigeria, with decades of oil experience, agreed to establish a joint authority over the oil zone, but insisted the profits be split 60:40. This is the first of the two different zones under which São Toméis exploring for oil. It is known as the Joint Development Zone (JDZ) with a total area about 34,450m2.[55] The two salient features of the JDZ are:

The treaty is to last for 45 years with review after 30 years. The JDZ is administered by the Joint Development Authority (JDA) that reports to a Joint Ministerial Council. Decisions are taken by the board of JDA with ratification from both Counsel of Ministers of both countries called JMC. There is no appeal to the States to try to segregate the decisions from any political interference. The second zone where exploration is taking place is within the jurisdiction of São Toméin its Exclusive Economic Zone (EEZ). The EEZ is overseen by the Agência Nacional do Petróleo (ANP) (National Petroleum Agency), which manages the granting of licenses on behalf of the government.[56]

When São Tomé's former President, Fradique de Menezes, was elected in 2001 he threatened to have ERHC's contract torn up, but by then the US company had been bought by Chrome, a Nigerian firm headed by a businessman with strong ties to Nigeria's ruling regime. Though the contract would be renegotiated twice, pressure from Nigeria ensured ERHC's deal remained vastly disadvantageous for São Tomé.

Meanwhile, the potential oil reserves were causing excitement abroad. After the 9/11 attacks, the US government was seeking ways to reduce reliance on oil from the Middle East. Democratic, largely stable, and with a US-friendly President, São Tomé seemed ideal.

Several top US lawyers soon arrived to help in managing the oil contracts. A team from Columbia University's Earth Institute helped draft model legislation that would ensure transparency and hold back some of the oil revenues for future generations.

The best blocks in the joint São Tomé-Nigeria oil zone had been put up for auction in 2003. In the first round, only one consortium, led by Chevron and ExxonMobil, emerged with a successful bid. According to PRAZERES (2014), in Block 1, Chevron was an operator from 2004 to 2009. Other partners were ADDAX (42,4%), DEER (9%).[57]

São Tomé's share of the fee was $49m - a lot to a tiny country, but far less than expected. Late in 2004, more than two dozen companies competed for the remaining blocks. Many were Nigerian-linked firms with no experience of oil production.

A report by São Tomé's Attorney General a year later concluded the auction had lacked transparency, was subject to "serious procedural deficiencies and political manipulation” and had resulted in winning bids from unqualified firms. ERHC's preferential rights had discouraged the more reputable companies from bidding, and cost São Tomé up to $60m in fees, it said. Even more damning, to São Tomeans, were allegations in the report that their politicians had been bribed. One of the former President's top advisers was revealed to own a stake in ERHC, while a company controlled by former President Menezes was found to have accepted $100,000 from Chrome. Menezes and Chrome said the payment was a legitimate election contribution.

Public anger was followed by disappointment at the oil drilling results. When Chevron tested its deep-water block in 2006, it struck oil but not in commercial quantities. Recently Kosmos Energy and Galp Energia initiated the seismic research in order to locate oil in blocks 5,6, 11 and 12 in the Economic Exclusive Zone as per the sharing agreements executed.

There is still very limited oil expertise on the islands and no considerable local expertise or skills. And given the alleged corruption, many local people have serious doubts that oil revenues could be managed properly, regardless of the good laws in place. São Tomé's institutions remain among the weakest in Africa if looking at FUKUYAMA categorization[58] requiring a reform and a clear development strategy.[59]

The EITI is helping to inform the dialogue on rethinking how both the EEZ and the JDZ could attract investment while being managed in line with international best practice. Under the EITI, firms are obligated to disclose to the public revenues received for the purposes of audit and monitoring as well as publish payments made to governments.[60] The EITI monitors and reconciles company payments and government revenues. Each signatory country owns the process, which is overseen by participants drawn from the government, private companies and civil society organizations.[61] For investors,[62] it is essential to understand the full context of Sao Tome before deciding to invest in the country.

“One of the key concerns is that African governments that are major producers of fossil fuels (and other minerals) do not receive sufficiently large rents or revenues from the production of these extractive products. This is attributable to a number of reasons, including contracts and regimes that are not designed to extract maximum rents,” noted the African Development Bank (AfDB) and the African Union (AU) in a joint study entitled “Oil and Gas in Africa.”[63] [64]

The Adding Share Value[65] concept created by PORTER in oil and gas, which entails going beyond profit and corporate social responsibility, assuming an existence of economic value to both the foreign investor company and to the communities where companies operate or have an impact is a trial but reachable in São Tomé since it is off-shore activities meaning that it won’t guarantee direct employment or training to locals unless if properly planned or secured by law.

4.4. Legal Framework Governing Oil and Gas

The principal Act regulating the oil and gas sector in São Tomé is the Law of Petroleum Operations of 2009 which establishes that all hydrocarbon resources in the country are the property of the central government and confers upon the Executive the right to sign exploratory licenses and petroleum contracts in the form of Production Sharing Agreements (PSA’s) with interested companies, provided that the applying companies adhere to international best practices. Companies applying for PSA agreements must, under the law, prove both financial and technical capability to undertake the agreed works in the prospect areas, as well as demonstrate a good track record of principles of good corporate governance.[66]

In Southern Africa, local content and localization strategies have raised some questions in terms of effectiveness. Local Content[67] or Content First as we like to see it should be envisaging both as local strategy from the Governments and a global strategy from the foreign investors supported locally in a sustainable, visible and measured way in São Tomé.

4.5. The Power Sector

The Ministry of Public Works and Infrastructure, Natural Resources and the Environment is responsible for overseeing the state-owned national electricity company Empresa de Água e Electricidade de São Tomé(EMAE). At present, EMAE is the sole distributor of electricity and water in the country. The World Bank estimates that in 2012 60% of the population had access to the power grid. In 2014, the Sao Tomean government announced the construction of a new power plant in São ToméTome by an Angolan consortium. The plant should be capable of completely eradicating the island’s intractable power shortages.[68]

4.6. Other Areas of Interest for Investment

São Tomé economy is essentially based on agriculture, fishing,[69] and services (tourism and telecommunications). Other ranges are open to expansion like maritime sports, oil and gas services, air and sea transportation, telecommunications, construction and investment in ZEE. So, tourism, free zone and the see are three strategic areas for investors to pay attention for.[70]Manufacturing industry for oils to food (fish oil) and to cosmetics (coconut oil).

4.7. Fishing & Cattle/Livestock

In ZDC and ZEE there are significant business opportunities including for services, foreign investment with building a cannery (conserva), seafood or exportation for Nigeria or Europe.

5. Education and Universities

It is essential to adopt discipline and education at all levels as a priority in any Government when looking at the need to have the right local capabilities and competencies when needed. Government should consider making sure that foreign investors also contribute in the need to properly train local workforce to generate sustainable value in the population and increase their wellbeing and therefore in the country. One way could be besides the mandatory on job training, to create and maintain technical courses in key areas, to establish Key performance indicators to expats making compulsory the know how transfer including successions plans requiring the replacement overtime of expats by locals.

There are three Universities in São Tomé:

6. Conclusion

Like the constitutional regimes of most African states, executive power in São Toméis reposed in the President. However, the amendments to the Constitution had the effect of reducing the powers of that office. The National Assembly and Prime Minister also have considerable powers. The nation of São Tomé is formally well on its path towards true democracy.

São Tomé is a small country has an invigorating vegetation gifted with a wealth of diverse important natural resources. Besides other economic areas[71] that can be explored like services including tourism and hotel sector, trading, agriculture, cattle raising and fisheries sectors, it presents one of the greatest economic potentials in Africa despite the sharp fall in oil prices and net investment inflows that the country has witnessed lately. Since human resources should be the major asset a country has there is only a few populations that is skilled and have the right competencies to be able to work in a competitive environment in oil and gas, services or tourism.

Nonetheless, the country faces currently some governance and political challenges and destabilizations. It is also a place where sometimes it is not easy to do business. Sao Tomean Government should consider attracting oil and gas investors that are technology driven to create and reform the Sao Tomean legal and regulatory system, with the right fiscal regime and transparent licensing systems. The purpose is to ensure that investors properly exercise corporate diplomacy regarding the deal in a competitive and transparent way and to in a visible and measurable way to beneficiate the population adding an economic and sustainable value. Essential also to ddevelop sustainable and collaborative local alliances that imply the transference of knowledge and not the transference of wealth to a few.

Five steps are essential namely an appropriate and innovative Sao Tomean legal framework that establishes all project proposals, an institutional set-up to ensure the independence of the project evaluation process, capacity building at different levels that focuses on enhancing the technical capacity of teams in charge, integrate all projects so that contributes to enhanced transparency and more effective knowledge management, and evaluation the projects that are sustainable and this evaluation should focus initially on measuring and interpreting indicators.

Since the discovery of oil in the country’s territory its successive governments have been signing lopsided contracts with foreign investors, much to the detriment of the local people. Its economy remains dependent on oil and external funding. However, with the improvement in its assessment by the EITI São Toméis beginning to move towards being a hub for oil exploration as new sites are being discovered.

Tremendous progress has been made to curb corruption in the oil sector. The territories controlled by the Sao Tomean state may soon be a center of interest to investors. There is also tremendous hope in the future of this nation and it is now in a point that can make the difference with the political stabilization. It has improved its internet speed and corruption perceptions are on the decline. In 2016, it was ranked as the 62nd least corrupt nation out of 175 countries as reported by Transparency International.[72] Question remains on whether oil should be complementary to other areas of development implying a diversification of the economy and a reserve in a way to use the lessons learnt of other African countries and get it right with the right partners when starting the exploration phase. Essential to timely engage local communities protecting the human rights. Purpose is going beyond the profit driven way and corporate social responsibility creating a true economic value based on an added shared value concept where everyone wins. Looking at the challenges enumerated namely the current regional and global context and time to market, the current demand and supply dynamics, the liquidity constraints; at the opportunities to growth and strength based on the political stabilization, stable regulatory framework and strategic location in the region now is São Tomé time to properly develop in sustainable and visible way.

7. References


[1] Hereafter referred only as São Tomé for simplification.

[2] Namely Rolas Ilheu, Cabras Ilheu, Bombom, Bone Jockey, Pedras Tinhosas and other small ilheus.

[3] Where in 1913 achieved the ranking of the major country in cocoa exportation.

[4] Regarding the economy cycle we vividly recommend reading the recent Ph Thesis of MARIA DAS NEVES, former Prime Minister between October 2002 and September 2004, called Tomé and Príncipe as a Regional Gateway (Strategies for a Sustainable development) - (São Tomé e Príncipe como um Gateway Regional” Estratégia para um Desenvolvimento Sustentável), unpublished, ISCPS, Superior Institute of Social Studies of Lisbon University, Nova University of Lisbon, Portugal, 2017, specially pages p. 91 to 121.

[5] About the roças (rural farms) consider reading The farms in São Tomé and Príncipe – As Roças de São Tomé and Príncipe, from Duarte Pape And Rodrigo Rebelo De Andrade, Publisher Tinta da China, Portugal, August 2015.

[6] World Bank Group [US] (Accessed 17 October 2017).

[7] Central Intelligence Agency ‘World Factbook 2017’ (Accessed 16 October 2017).

[8] See historic explanation and context included in the Preamble of Law 1/2003 that approved the Formal Constitution.

[9] That suddenly died in 8 June 1976 after in a mysterious military helicopter crash occurred in Praia do Salgueiros, located in the North of Portugal, while he was a São Tomean Minister.

[10] See Article 9 of Constitution that refers to São Tomé as being a Mixed Economy State.

[11] DAS NEVES, MARIA, Tomé and Príncipe as a Regional Gateway (Strategies for a Sustainable development) - (São Tomé e Príncipe como um Gateway Regional” Estratégia para um Desenvolvimento Sustentável), unpublished, ISCPS, Superior Institute of Social Studies of Lisbon University, Nova University of Lisbon, 2017, p. 126 to 184 refers in detail to this concept and what it implies.

[12] This Law was regulated by Law 4/80 dated 8 October.

[13] Family Law (Law 2/77 dated 16 September).

[14] LOUREIRO BASTOS, FERNANDO, Introduction to the Constitution of the Democratic Republic of São Tomé and Príncipe, 18 October 2013.

[15] In 7 February 1980 was the first amendment, in 31 December 1980 was the second amendment, in 31 December 1987 was the third amendment, in 20 September 1990 was the fourth amendment and the fifth in 29 January 2003.

[16] Brandon White, Human Rights in Sao Tome and Principe, Borgen Magazine (Sept. 30, 2017).

[17] As above.

[18] See in 23 above.

[19] As above.

[20] ACHILIHU SN, Do African Children Have Rights?: A Comparative and Legal Analysis of the United Nations Convention on the Rights of the Child, 2010, Universal Publishers, p. 198.

[21] Article 52 of the Constitution of Sao Tome and Principe 1975 with amendments through 1990. (accessed 5 April 2018).

[22] See in 27 above.

[23] São Tomé and Príncipe Judicial Branch: https://www.indexmundi.com/sao_tome_and_principe/judicial_branch.html( accessed in 14 March 2018).

[24] Initially created by Law 8/91 dated 27 December that abolish the previous legal regime related to the First Republic adjusting the law to the new constitution. See also Law 2/83, dated 5 December, Law 9/90, dated 28 September (that created the Superior Court of Appeal), Law 2/92, dated 27 March related to the Judiciary Superior Council. See Constitution in Articles 156 and 157 related to the accumulation between the Supreme Court of Justice judges and Constitutional court.

[25] Also has responsibilities on electoral matters as per Law 11/90, dated 26 November (Electoral Law).

[26] Judges have a statute based on Law 10/91, dated 6 June.

[27] One special court that was created by Decree-Law 32/75, dated 30 December, that brought some public controversy. This was the special court created to decide on counterrevolutionary acts including political crimes and disobedience. Law 1/89, dated 15 February, extinguished these “special courts”.

[28] Decree-Law 23/82, dated 26 May was revoked by Law 6/2000, dated 2 October.

[29] Established as per Art° 5, n° 2. Responsibilities stated in Art. °6 of Law 2/83 dated 12 December. Also see Law 1/88, dated 20 April.

[30] With no ICSID cases concluding or pending.

[31] Organic Law n.° 9/91 dated 6 June (Law 9/91). Regarding its role and autonomy see KELVE NOBRE DE CARVALHO, Review of São Tomé e Príncipe Law- Revista Anuário de Direito de São Tomé e Príncipe, 2015, IDILP, Instituto de Direito de Lingua Portuguesa, São Tomé e Príncipe, p. 181 to 185.

[32] Regulation of registration and application of Lawyers (Regulation 1/2008, dated 12 February), guidance issued in 31 May 2008, deliberation dated 2010 related to the Professional Dress Code and the Law that rules the Statutory Rules of the Bar Association, as per Law 10/2006.

[33] Article 75 of the São Tomé and Príncipe's Constitution of 1975 with Amendments through 1990.

[34] Section 1, Article 79 of the Constitution.

[35] BBC ‘Sao Tome and Principe country profile’ (Accessed 17 October 2017).

[36] Article 77 of the Constitution.

[37] Bastos, Fernando Loureiro, Introduction to the Constitution of the Republic of Sao Tome and Principe (2013) (Accessed 17 October 2017).

[38] Article 81 of the São Tomean Constitution.

[39] Central Intelligence Agency [US] (Accessed 16 October 2017).

[40] Article 100 the São Tomé and Príncipe's Constitution of 1975 with Amendments through 1990.

[41] As above.

[42] As above.

[43] Law 3/2001, dated 12 September constitutes the Organic Law of the National Assembly.

[44] For further details refer to HILÁRIO GARRIDO, Legal Reflections (Law & Politics) – Reflexões Jurídicas (Direito e Política), Chiado Editora, 2014, p. 17 to 21.

[45] Article 91 of the São Tomé and Príncipe's Constitution of 1975 with Amendments through 1990.

[46] Van Welzen, Pieter, Sao Tome e Principe: New investment regulations, 24th January 2017. (Accessed 14 September 2017).

[47] Ibid.

[48] Wells, Louis, And Eric Gleason Is Foreign Infrastructure Investment Still Risky?, Harvard Business Review, From the September–October 1995, 47.

[49] Porter, Michael E., January 2008, The Five Competitive Forces That Share The Strategy, Hrb, P. 6. Khama, Tarun, Palepu, Krishna & Jayant Sinha, June 2005, Strategies that Fit Emerging Markets, HBR, p. 5.

[50] Pieter van Welzen (note 7 above).

[51] Pieter Van Welzen (note 7 above).

[52] Extractive Industries Transparency Initiative (2017) (Accessed 10 October 2017)

[53] See Janet Murdock, Natural Resources Governance in São Tomé & Príncipe: Study Case on Supervision and Transparency in the Profit Oil- Governação de Recursos Naturais em São Tomé e Príncipe: Um Estudo de Caso sobre a Supervisão e Transparência das Receitas Petrolíferas, November 2009.

[54] Ibid.

[55] Situated at 150km and 90km from the nearest points from Nigeria and São Tomé respectively with a water depth profile: 1500m - 4200, according to the presentation elaborated by ARZEMIRO DOS PRAZERES, Hydrocarbons and fishery resources in the JDZ Nigeria- São Tomé & Príncipe (Recursos hidrocarbonetos e halieuticos na JDZ Nigeria- São Tomé e Príncipe), Exposition for the Economists Forum, 23 June 2014.

[56] Centurion Law Group (Accessed 15 October 2017).

[57] Dos Prazeres, Arzemiro, Hydrocarbons And Fishery Resources In The Jdz Nigeria- São Tomé & Príncipe (Recursos Hidrocarbonetos E Halieuticos Na Jdz Nigeria- São Tomé E Príncipe), 23 June 2014 Provided Details Regarding Blocks 1 To 5.

[58]Fukuyama, Francis, The Missing Dimensions Of Stateness, Chapter 1, State Building: Governance And World Order In The Twenty-First Century, Profile Books, 2006, P. 6 And 21-22.

[59] See The Proposal Of Zeferino Dos Santos Ceita, Sectors With An Opportunity For Investment ( Sectores Com Oportunidade De Investimento).

[60] Allan Akombo ‘Prepare For Tough Negotiations: Investment Guide—East Africa’ Forbes Africa February 2017

[61] Allan Akombo ‘Prepare For Tough Negotiations’ Investment Guide—East Africa Forbes Africa February 2017 Edition Page 88

[62] Ghemawat, Pankaj, 2007, Global Value Creation: The Adding Value Scorecard, Excerpt From Reedifying Global Strategy: Crossing Borders In A World Where Differences Still Matter, Harvard Business School Press, Boston, Massachusetts, P. 11.

[63] Akombo, Allan, ‘Prepare For Tough Negotiations’ Investment Guide—East Africa Forbes Africa February 2017 Edition Page 88.

[64] Joint Study By The African Development Bank And The African Union, Oil And Gas In Africa, Oxford University Press, 2009.

[65] Porter, Michael E. And Kramer, Mark R., January-February 2011, Creating Shared Value, Hbr, P. 4.

[66] Centurion Law Group (note 13 above).

[67] Deloitte, Localisation In Africa’s Oil And Gas Industry, October 2015, P. 9.

[68] Ibid.

[69] Prazeres, Arzemiro Dos, Hydrocarbons And Fishery Resources In The Jdz Nigeria- São Tomé & Príncipe (Recursos Hidrocarbonetos E Halieuticos Na Jdz Nigeria- São Tomé E Príncipe), 23 June 2014 said that fishery represents 6% of GDP and employs more than 600 fishermen and that there is no fishery private sector.

[70] Neves, Maria Das ,Former Prime Minister Between October 2002 And September 2004, Called Tomé And Príncipe As A Regional Gateway (Strategies For A Sustainable Development) - (São Tomé E Príncipe Como Um Gateway Regional” Estratégia Para Um Desenvolvimento Sustentável), unpublished, ISCPS, Superior Institute of Social Studies of Lisbon University, Nova University of Lisbon, 2017, p. 201 to 229.

[71] See Article 9 of Constitution that refers to São Tomé as being a Mixed Economy State.

[72] Sao Tome and Principe Corruption Rank (Last accessed 30 October 2017).