UPDATE: São Tomé and Príncipe Legal System and Research

By Kevashinee Pillay and Nélia Daniel Dias

Update by Gerhard Seibert

Gerhard Seibert graduated in Cultural Anthropology from Utrecht University, Netherlands, in 1991, and earned a Ph.D. in Social Sciences at Leiden University, Netherlands, in 1999. Until 2008 he was post-doctorate fellow at the former Instituto de Investigação Científica Tropical (IICT), Lisbon, Portugal. From 2008-14 he was a researcher at the former African Studies Center at ISCTE – Instituto Universitário de Lisboa (CEA/ISCTE-IUL). From 2014-19 he was associate professor at Universidade da Integração Internacional da Lusofonia Afro-Brasileira (UNILAB), Campus dos Malês, São Francisco do Conde, Bahia, Brazil. He has conducted research in Mozambique, Cabo Verde, São Tomé and Príncipe and on Brazil – Africa relations. He authored book chapters, journal articles, and the book Comrades, Clients and Cousins. Colonialism, Socialism and Democratization in São Tomé and Príncipe (Leiden: Brill 2006), widely considered the definitive volume on the recent history of this African island state. He is co-editor of Brazil-Africa Relations. Historical Dimensions and Contemporary Engagements (Woodbridge: James Currey, 2019). Currently he collaborates with the postgraduate program PósAfro at the Centro de Estudos Afro-Orientais (CEAO), at Universidade Federal da Bahia (UFBA) in Salvador, Brazil, and is an associated researcher at the Centro de Estudos Internacionais (CEI), at ISCTE-IUL, Portugal.

Published January/February 202o

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1. Country Profile

1.1. São Tomé and Príncipe in General

The twin islands of São Tomé and Príncipe[1] situated in the Gulf of Guinea were discovered by the Portuguese in the 1470’s. There are other small islands that compound this African archipelago.[2] Local production was based on extensive culture of sugarcane, cocoa,[3] and coffee,[4] where the roças ( plantations) played an essential role in shaping the economy and society.[5] Their nearest country neighbors are Cameroon, Gabon, Nigeria, and Equatorial Guinea. São Tomé, the name given to the biggest island and the capital city, 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), located 160 miles from the coast of Equatorial Guinea, is an autonomous region with a specific administrative-political statute, including a Regional Government and Regional Assembly. Principe island’s capital is called Santo António. São Tomé has a land area of 330 square miles and Príncipe has a land area of only 42 square miles. São Tomé is divided into six administrative districts, namely Água Grande (capital is São Tomé city), Cantagalo (Santana), Caué (São João de Angolares), Lemba (Neves), Lobata (Guadalupe), and Me-Zóchi (Trindade).

The islands are volcanic in origin and rise to a height of 6,639 feet above sea level. In 2018, the total population was estimated to be 201,784, with a catholic majority.[6] The majority creoles known as Forros are descendants of early white settlers and manumitted African slaves of the 16th century. Angolares are descendants of African runaway slaves (maroons) of the 16th/17th centuries. Descendants of Cabo Verdean contract workers of the 20th century represent 8.5% of the population. The native majority creole language is forro, while angolar and lunguié (spoken in Príncipe) are other native creole languages spoken by 6.6% and 1.0% of the population, respectively. The official language is Portuguese. The local currency is called Dobra (STN), which is pegged to the Euro at a fixed rate of €1 = STN 24.50. São Tomé is located in the center of the Gulf of Guinea, where several major oil discoveries have been made over the last 10 years with potentially more to be made.[7] Since 1997, when São Tomé and Príncipe signed its first contract with a foreign oil company, it had been expected that the small country would become another African oil producer. However, so far, such hopes have been frustrated, since commercially viable oil deposits have not been discovered. In recent years, the development of tourism that in the mid-1990s replaced cocoa as principal revenue earner has been more successful. In 2018, the country received 33,424 foreign visitors.

1.2. São Tomé and Príncipe’s Recent History

São Tomé and Principe is the second smallest African country after the Seychelles and was colonized by the Portuguese for five centuries. In the 16th century, the Portuguese established in the archipelago the first plantation economy in the tropics, based on sugar monoculture and slave labor. In the second half of the 19th century São Tome started producing coffee and cacao. By the beginning of the 20th century cacao became the principal export crop, and during a few years before World War I the archipelago even was the number one exporter of cacao in the world. Following a political struggle against Portuguese domination for the independence of their territory from abroad, the Liberation Movement of São Tomé and Principe (MLSTP) that was created in 1972 in Malabo (Equatorial Guinea) was recognized as the sole political representative by the new Portuguese government after the Carnation Revolution of 25 April 1974. On 12 July 1975 the proclamation of national independence[8] was made by Nuno Xavier Daniel Dias, who had been elected president of the Constituent Assembly on the eve of independence.[9] Constitutionally, São Tomé and Príncipe became a socialist one-party state based on the Soviet model, ruled by the MLSTP. Party leader Manuel Pinto da Costa became the country’s first president. Due to political and economic failure, in 1990 the socialist regime was replaced by a multiparty democracy with a semi-presidential regime, modeled on the Portuguese example. Since 1991 legislative and presidential elections have been held regularly.

1.3. São Tomé and Principe Economy

São Tomé and Príncipe is a small impoverished country marked by abundant tropical vegetation, a beautiful mountainous landscape and a peaceful society. The plantation economy that dominated the islands for centuries ceased to exist in the 1990s when former plantation lands were distributed to small farmers. Agriculture and fishing constitute about 40% of the GDP and employ a majority of the workforce. Besides economic areas[10] that can be explored such as tourism, agriculture, and fisheries, the oil industry still presents one of the greatest economic potentials, despite the sharp fall in oil prices and the previous failure to discover oil. Only future exploration drillings can demonstrate the existence of the archipelago’s commercially exploitable offshore oil. As human resources should be the major asset in a country that has a small population, additional investments are necessary to improve the local people’s professional skills and competencies to be able to work in a competitive environment in oil and gas, services or tourism.

Nonetheless, the country faces additional challenges to modernize its bureaucracy and make its judiciary efficient to improve its business climate in an attempt to attract foreign private investments. So far, São Tomé and Príncipe 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 International Monetary Fund (IMF), the World Bank (WB), the African Development Bank (AfDB), the African Union (AU), the Economic Community of Central African States (CEEAC), the Gulf of Guinea Commission (GGC) and the Community of Portuguese-speaking countries (CPLP). Its privileged geographic location in the center of the Gulf of Guinea enables it to act strategically as a regional gateway to Angola, Cameroon, Central African Republic, Republic of Congo, Democratic Republic of Congo, Gabon, Equatorial Guinea, Chad, and Nigeria.[11] It is almost 3-hours away by plane to the main cities of Central Africa and 48 hours by sea to the main ports in this region. In a broader picture, it can be seen also a strategic platform between other regions of the world. São Tomé maintains a few air connections with neighboring African countries. Lisbon is its only regular intercontinental air connection.

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

2.1. The Legal Institutions

After independence, Decree-law 26/79, dated 16 May, created the Organic Law on the Justice Ministry that included the draft of the Santomean judiciary institutions. According to the socialist regime at the time, revolutionary language defined 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 which extent the courts embodied the new socialist period the country was experiencing at that time. This new law referred that the courts were subordinated to the Popular National Assembly and that the Supreme Court had to present an annual report to the Popular National Assembly to provide statuses related to the judiciary’s work. After Law 2/83, dated 12 December, was published in the Official Gazette (Diário da República), a new law fashioning the Superior Court of Appeal comprised of Administrative, Tax and Customs jurisdictions. Following the democratic transition, the National Assembly adopted 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 democratic constitutional context, including legal institutions like the Attorney General’s Office and Supreme Council of Judicial Magistrates that has competences of disciplinary action against judges who violated regulations. Currently there are the following court categories: the Constitutional Court, the Supreme Justice Court, the court of first instance, the regional and district courts, and the Audit Court.[13]

The judiciary legal organization rules are reflected in Law 7/2007 that formed 3 judiciary regions, especially in the Água Grande Region, including Me-Zóchi, Lobata, Cantagalo and Caué districts, Lemba Region and the Autonomous Region of Príncipe. This law upheld the two levels of jurisdiction. In 2018 the country experienced a civil movement requesting Justice System reform.

In Article 20 of the constitution, every person has the right to access the courts referred to in Articles 120 to 128 of the 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 civil law tradition. Internal sources of law (see 2.2.1 below for a more comprehensive overview) are grounded in São Tomé customary laws, Portuguese formal civil law based on the Napoleonic Code of 1804 and codified regulations. In colonial times, Portuguese law applied in São Tomé, although traditional customary laws were, in some cases, tolerated or implicitly accepted. The democratic 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 enumerate 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 Sãtomean Law

Formal legislation molded in diverse ways, namely as laws, law decrees, decrees, regulations, regional decrees and executive regional decrees are the primary internal sources 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 play a role in certain matters, mostly to explain or go beyond the plain meaning, but only if not in contradiction with the formal laws (secundum legis).

Draft laws drawn up by the National Assembly members, parliamentary groups, or the Government are sent to the President of the National Assembly. 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, 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 maintained many of the old colonial laws. In order to prevent disturbances and a legal void, it was guaranteed that Portuguese laws and rules at the time would remain valid until expressly revoked or revised, insofar as they did not go against the new São Tomé Constitution and the socialist principles applied at the time.

We can then conclude that the São Tomé lawmakers have been taking over 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 entirely 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.[14]

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. The Portuguese Criminal Law was applied from 1886-2012. Only in 2012 did São Tomé adopt its own Criminal Law.

2.2.2. General Constitutional Provisions

The Fundamental Law of 1975 approved by a joint meeting of the MLSTP Political Bureau and National Assembly,[15] and was amended in 1980,[16] 1982, 1987 and in 1990 to usher multi-party democracy. It was subsequently amended by Law 1/2003.[17]

There are a few essential articles from the Constitution. Article 1 of the Constitution establishes São Tomé and Príncipe 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, São Tomean citizens are all those born within the national territory, the children of a São Tomean father or mother, as well as those who may be considered such by law. Article 4 provides for what constitutes the “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 whose organization and competences are defined 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 rule of law implies the safeguard of justice and legality as fundamental values of collective life. Article 8 enshrines the separation of the State from religion. According to Article 12 of the Constitution, the Democratic Republic 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.

Article 17 of the Constitution protects the rights and integrity of foreigners. Foreigners and displaced persons who reside or stay in São Tomé and Príncipe enjoy the same rights and are subject to the same obligations as a São 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, since 1991, human rights in São Tome and Principe have been a relative success story.[18] The 2019 Freedom of the World report ranks São Tomé and Príncipe at 2 on a scale of 1 (free) to 7 (not free).[19] The nation’s aggregate score was 83 , just 3 points lower than the US.[20] By comparison, the Netherlands sits atop the report with an aggregate score of 99, while Equatorial Guinea, (São Tomé and Príncipe’s closest neighbor) received an aggregate score of just 6 points and an overall score of 7.0 (not free).[21]

The Constitution also provides for social rights and economic, social and cultural order. Article 43 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 47 guarantees the right to private property as well as the right to transfer it during life or through death. This right extends to all — national citizens and foreigners alike. One unique aspect of the Constitution (Article 52) 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.[22] Article 53 of the Constitution states that The youth especially young workers enjoy special protection in order to render effective their economic, social and cultural rights.”[23] Interpreted broadly, this provision imposes a duty on the State not only to project a wide range of socioeconomic rights of children, but also in a manner that displays preferential treatment to children in order to accord wider protection to children’s socioeconomic rights.[24]

Article 48 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. Instigated by the IMF, already in 1985 the country started to liberalize the then-nationalized economy, which was gradually privatized in the following years.

2.3. The Judiciary

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 of the 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. The Constitutional Court also approves the final election results (Constitution Article 133). It is comprised of 5 judges. Constitutional Court judges are nominated by the President and elected by the National Assembly for five-year terms.[25] Before January 2018 when the autonomous Constitutional Court was established, the Supreme Court with five judges also ruled on constitutional issues (Articles 156 & 157). The current president of the Constitutional Court is Pascoal Daio.

2.3.2. The Supreme Justice Court

This Court[26] (Supremo Tribunal de Justiça, see Articles 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 Civil, Criminal, Administrative and Tax sections. The fact is that the Supreme Court exercises original jurisdiction in several matters and jurisdiction over appeals emanating from first instance court decisions in general in civil, family, labor, administrative, criminal, tax, and customs matters.[27] The Supreme Court president is Manuel Silva Gomes 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 which 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 judges[28] with the responsibility to fittingly apply laws and regulations.[29] There are numerous matters that will indicate which court will judge which case, namely criminal courts that appreciate criminal matters based on the Criminal Code[30] and 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 Supreme Council of Judicial Magistrates

The Supreme Council of Judicial Magistrates (Conselho Superior de Magistrados Judiciais) 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. Its president is Manuel Silva Gomes Cravid

2.3.5. 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. See its legislation, especially 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. Only in 2003 was this court actually established. In February 2018, the Court of Auditors’ new building was inaugurated. Currently its President is Bernardino dos Ramos Araújo .

São Tomé has been a part of the New York Convention since 18 February 2013, ICSID Convention since 19 June 2013[31] and has an arbitration law (Arbitration Law n° 9/2006).

2.3.6. 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 Judiciária ) 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. Currently Inald Kelve Nobre de Carvalho is Attorney General of São Tomé.

2.3.7. The Public Prosecutor’s Office (Ministério Público)

The Public Prosecutor’s Office performs the judicial function of the State, and, as such, it is an essential body presided over by the Attorney General.[32] 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.

2.3.8. The Supreme Council of the Public Prosecutor’s Office

The Supreme Council of the Public Prosecutor’s Office (Conselho Superior 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.[33] The President of this council is Attorney General Inald Kelve Nobre de Carvalho.

2.3.9. 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 (OASTP, established in 2006),[34] as a practitioner lawyer and other regulations associated to this legal profession. The President of the Bar Association is Célia Pósser da Costa Pereira.

3. The Separation of Powers

3.1. The President

The Constitution states that the President of the Republic is the Head of State and Commander-in-Chief of the Armed Forces. The President is elected by universal suffrage and serves a five-year term, and may be eligible for a second consecutive term.[35] The last presidential election was held in 2016 when current President Evaristo Carvalho defeated the incumbent Manuel Pinto da Costa.[36] The President has the power to appoint and dismiss the Attorney-General of the Republic on proposal of the Government.[37]

Before the constitutional revision of 2003 that became effective in 2006, the president could easily dismiss the government and dissolve the National Assembly. However, this revision considerably reduced the President’s executive powers. Now he can only dismiss the government and dissolve the National Assembly in extreme situations and only with the approval of the newly created Council of State.[38]

The President of the Republic has an advisory body named Conselho de Estado (Council of State), over which he presides. It was created as part of the constitutional revision of 2003. The Council of State has 15 members, including the Prime Minister, the president of the National Assembly, and the three former presidents. This body guides the President in particular situations of political decision-making. (Articles 88 to 91 of the Constitution).

3.2. The Executive

According to the country’s semi-presidential system, the Prime Minister is the head of government. He is appointed by the President after having consulted the parties represented in the National Assembly and the election results. The government is responsible to both the President and the National Assembly. [39]

The Government Cabinet (Prime Minister and Ministers) is called Conselho de Ministros (Council of Ministers).[40] The government’s competences provided in the Constitution are exercised in the Council of Ministers.[41]

3.3. Legislative Branch

The National Assembly[42] (Assembleia Nacional) is a unicameral parliament with 55 seats. The parliamentarians are elected from closed lists by proportional representation of the 7 electoral districts. Members are elected to serve four-year terms. The last legislative elections were held in 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).[43] Each legislature comprises four legislative sessions of twelve months, starting on 15 October each year. National Assembly members, parliamentary groups and the Government hold the power to put forward all draft legislation.

The Government also has legislative powers, as far as law decrees, decrees and other normative acts are concerned.[44] These are straightly and unambiguously set in the Constitution or they may refer to law proposals submitted to the National Assembly. The President promulgates laws approved by the National Assembly and signs Government decrees.

4. Investment Laws & Regulations of São Tomé

In 2013, the government established the Agência de Promoção de Comércio e Investimento (APCI) to assist interested foreign investors. The agency’s president is Rafael Joaquim Branco. 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.[45] 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 sector is 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 country’s sustainable development 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 country’s domestic courts 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, development of oil in São Tomé’soffshore area started only in the late 1990s. The country’s 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]

In 1997, a tiny US-based company called Environmental Remediation Holding Corporation (ERHC), which at the time had no history of oil exploration or production, was convinced that São Tomé might have its own deep-water deposits. In return for near-exclusive hydrocarbon exploration and exploitation rights for 25 years and a half share of profits, ERHC offered São Tomé $5m and its marketing services. Already at the time, São Tomé was heavily indebted and reliant on foreign donors to fund most of its then $30m budget. Therefore, the deal which would later be described as "one of the worst in the history of oil" was signed. Seismic data showed there could allegedly be up to 11bn barrels of oil under the sea around the islands. The then-most promising area was north of Príncipe, in waters also claimed by Nigeria.[53] São Tomé and Nigeria failed to reach an agreement on the delineation of their common maritime border.

Consequently, in 2001, São Toméand Nigeria agreed to establish in the disputed waters a Joint Development Zone (JDZ) with a total area about 34,450km².[54] The two salient features of the JDZ are:

The treaty is to last for 45 years with a review after 30 years. The JDZ is administered by the Joint Development Authority (JDA) based in Abuja that reports to a Joint Ministerial Council (JMC) of both countries. Decisions are taken by the JDA board with ratification by the JMC. There is no appeal to the States to try to segregate the decisions from any political interference.

The second zone where São Tomé’s oil development is taking place is its own 125,891 km2-large Exclusive Economic Zone (EEZ). The EEZ is overseen by the Agência Nacional do Petróleo (ANP, National Petroleum Agency) established in 2004, which manages the granting of licenses on behalf of the government. Currently, the ANP’s director is Olegário Tiny.

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. This oil revenue management law was adopted in 2004.

After São Tomé had renegotiated and somewhat improved the terms of its first oil contracts, 9 blocks in the joint São Tomé-Nigeria oil zone were put in an auction in 2003. Twenty oil companies submitted 33 bids for 8 of the 9 blocks. However, finally the JDA only awarded Block 1 for a signature bonus of $125m jointly to ChevronTexaco (51%), ExxonMobil (40%) and Dangote Equity Energy Resources (9%),

São Tomé's share of the signature bonus was $49m - a lot to a tiny country, but far less than expected. Late in 2004, in a second licensing round of the JDZ, more than two dozen companies competed for the remaining blocks. Many were Nigerian-linked firms with no experience in oil production. Nevertheless, in April 2015, the JDA awarded 5 blocks to different oil consortiums. Over the years, the ownership in the 6 JDZ blocks changed repeatedly when the initial investors sold their stakes to other oil companies.

Between 2006 and 2012, several oil companies, including Chevron, Sinopec and Total carried out exploration drillings in 4 JDZ blocks. The results of all of the drillings were negative, since commercially viable oil was not discovered. Consequently, several oil companies abandoned the JDZ, while the remaining investors remained largely inactive. During several years the JDA failed to attracted new investors to the JDZ that became largely moribund. Only in March 2019 did the JDZ’s situation seem to improve when the JDA signed with Total a production-sharing contract for blocks 7, 8, and 11.

The development of the EEZ started in 2010 when the ANP held the first licensing round for 6 of the 19 blocks. The auction was a failure, since in the end only one of the blocks was adjudicated to a Nigerian oil company. The prospects of the EZZ improved from 2015 when the US company Kosmos Energy began to invest in the zone. Meanwhile, the ANP has signed production sharing contracts for 9 EEZ blocks. Kosmos has stakes in 6 of them. Exploration drillings have not yet been carried out in the EEZ. They are not expected before 2020/21.

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 state property 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.[55] Other relevant oil legislation is the Oil Revenue Management Law (Lei-quadro das Receitas Petrolíferas – Lei 8/2004) and the Oil Taxation Law (Lei de Tributação do Petróleo – Lei 15/2009).

4.5. The Power Sector

The Ministry of Public Works, Infrastructure, Natural Resources and the Environment is responsible for overseeing the state-owned national water and electricity company Empresa de Água e Electricidade (EMAE). At the time of this writing, EMAE is the sole distributor of electricity and water in the country. EMAE produces 90% of its electricity in thermic power stations. Power cuts due to broken generators and fuel shortages occur regularly. The AfDB estimates that in 2018, 70% of the population had access to the power grid. EMAE’s operational costs by far exceed its income. In addition, in 2017 EMAE had accumulated debts of $77m with the Empresa Nacional de Combustíveis e Óleos (ENCO, majority owned by Angola’s Sonangol) due to unpaid fuel supplies. The current government intends to increase renewable energy production.

4.6. Other Areas of Interest for Investment

Currently, São Tomé’s economy is essentially based on agriculture, artisanal fishing, and tourism. Other sectors open to expansion are maritime sports, oil and gas services, air and sea transportation, telecommunications, construction and investments in JDZ and EEZ. In 2018, the government launched a new Strategic and Marketing Plan for Tourism. The plan aimed at increasing the GDP share of tourism by 73.4% and international arrivals by 65.5% until 2025.

5. Education and Universities

97% of the population is literate. São Tomé’s government places an emphasis on education and professional skills, as that is believed to be the way to improve local talent and meet local needs. São Tomé’s government should consider making sure that foreign investors also contribute to the training of local workforce to generate sustainable value in the population and contribute to the overall wellbeing of local population. Besides the mandatory investments in job training, other obligations could include to create and maintain technical courses in key areas, to establish key performance indicators to expats making compulsory the know how transfer including plans requiring the replacement of expats’ overtime by locals.

There are three Universities in São Tomé:

6. Conclusion

Unlike the constitutional regimes of most African states, executive power in São Tomé’s semi-presidential system rests in the Prime Minister. Since the first democratic elections in 1991, the country has held legislative and presidential elections regularly and peacefully. However, due to power struggles between president and prime minister and weak coalition governments, until 2018 none of the governments reached the end of the four-year term. From 1991-2019 the country had 19 different governments. The consecutive government changes provoked political instability, which in turn affected the country’s socioeconomic development. In its 2019 report Freedom House classified São Tomé with a freedom rating of 2.0. The 2018 Ibrahim Index of African Governance (IIAG) ranked São Tomé 12th out of 54 countries, with a score of 59.2 out of 100.

São Tomé is a small insular country rich in natural resources. Aside from its established industries including tourism, transport, trading, agriculture, cattle raising and fisheries, its economic value could increase with the discovery of oil and the ability to exploit it.

In addition, the country faces political challenges of good governance, political stability and a functioning and impartial judiciary. It is also a place where sometimes it is not easy to do business. São Tomé’s Government should consider attracting oil and gas investors that are technology driven to create and reform the country’s legal and regulatory system, including the right fiscal regime and transparent licensing systems. The purpose is to ensure that foreign investors properly exercise corporate social responsibility in a competitive, transparent visible, and measurable way to benefit the population by adding an economic and sustainable value. Essential is also to develop sustainable and collaborative local alliances that imply transference of know-how rather than the transference of wealth to a few.

Five steps are essential in the process, namely an appropriate and innovative São 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, integration of all projects contributing to enhanced transparency and more effective knowledge management, and evaluation of the projects that are sustainable and this evaluation should focus initially on measuring and interpreting indicators.

Tremendous progress has been made to curb corruption in the emerging oil sector and elsewhere in the local economy and administration. The maritime zone controlled by the São Tomean state may soon be a center of interest to foreign investors. There is also tremendous hope in the future of this small African nation, and it is now at a point that can make the difference regarding good governance and political stability. São Tomé has improved its internet speed and corruption perceptions are on the decline. In 2018, it was ranked as the 64th least corrupt nation out of 180 countries as reported by Transparency International.[56] Once oil is actually discovered and produced, the question remains as to whether oil should be complementary to other areas of development, implying a diversification of the economy and a buildup of a financial reserve benefitting from the lessons learnt from other African countries. Essential in this context is also to quickly engage local communities in protecting the human rights. The purpose of this is going beyond the profit driven way and increase corporate social responsibility creating a true economic value, based on an added shared-value concept, where everyone wins. Looking at the many challenges facing the country, including the current regional and global context, the current demand and supply dynamics, the persistent liquidity constraints, and considering the opportunities for growth and sustainability based on political stability, a stable regulatory framework and strategic location in the region, now it is São Tomé’s chance to properly develop in a more sustainable and prosperous way than in the last decades.

7. References



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

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

[3] In 1913 São Tomé became the world’s major cocoa exporter.

[4] Regarding the country’s consecutive economy cycles we vividly recommend reading the recent unpublished Ph Thesis of MARIA DAS NEVES, former Prime Minister between October 2002 and September 2004, called São Tomé e Príncipe como um Gateway Regional” Estratégia para um Desenvolvimento Sustentável, Superior Institute of Social and Political Sciences (ISCSP) of Lisbon University, Portugal, 2017, specially pages p. 91 to 121.

[5] About the roças ( plantations)see As Roças de São Tomé and Príncipe, by Duarte Pape and Rodrigo Rebelo De Andrade, Lisbon: Tinta da China, 2015.

[6] Instituto Nacional de Estatística (Acessed 12 September 2019)

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

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

[9] He died on 8 June 1976 in a mysterious military helicopter crash occurred in Praia do Salgueiros, located in the North of Portugal, while he was a São Tomean Minister of Infrastructure and Environment.

[10] See Article 9 of the Constitution that refers to São Tomé as being a Mixed Economy State, including the coexistence of public, cooperative and private means of production.

[11] DAS NEVES, MARIA, São Tomé e Príncipe como um Gateway Regional” Estratégia para um Desenvolvimento Sustentável, unpublished PhD thesis, , Superior Institute of Social and Political Sciences Studies (ISCSP) of Lisbon University, , 2017, p. 126 to 184 refers in detail to this concept and what it implies.

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

[13] On the country’s legal system see Gerhard Seibert. São Tomé and Príncipe. In: C.Neal Tate (Ed.), Governments of the World. A Global Guide to Citizens’ Rights and Responsibilities, Vol. 4, pp. 81-83, Detroit: Thomson Gale 2005. Hilário Garrido. Reflexões Jurídicas. Direito e Política. Vol. I & II. São Tomé, 2016.

[14] Family Law (Law 2/77 of16 September).

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

[16] On 7 February 1980 was the first amendment, on 31 December 1980 was the second amendment, on 31 December 1987 was the third amendment, on 20 September 1990 was the fourth amendment and the fifth was adopted on 29 January 2003.

[17] On São Tomé and Príncipe’s Constitution in a lusophone context see Jorge Bacelar Gouveia. As Constituições dos Estados de Língua Portuguesa. Coimbra: Almedina, 2014.

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

[19] Freedom House. Freedom in the World 2019.

[20] Ibid.

[21] Ibid..

[22] 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.

[23] Article 52 of São Tomé’s Constitution of 1975 with amendments through 1990. (accessed 5 April 2018).

[24] See note 27 .

[25] São Tomé and Príncipe Judicial Branch (accessed 14 March 2018).

[26] Initially created by Law 8/91 dated 27 December that abolish the previous legal regime related to the socialist one-party regime of the First Republic (1975-90) 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 Supreme Council of Judicial Magistrates. See Constitution Articles 156 and 157 related to the accumulation between the Supreme Court of Justice judges and constitutional court issues before January 2018.

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

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

[29] One special court that was created during the socialist one-party regime by Decree-Law 32/75, dated 30 December, that provoked some public controversy. This was Special Court for Counter-Revolutionary Actions (TEACR) created to try counterrevolutionary acts including political crimes and disobedience. Law 1/89, dated 15 February, extinguished these “special courts”, already before the democratic transition.

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

[31] With no ICSID cases concluding or pending.

[32] Organic Law n.° 9/91 dated 6 June (Law 9/91). Regarding its role and autonomy see KELVE NOBRE DE CARVALHO, 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.

[33] Its competences are defined in Law 13/2008 of 7 November.

[34] 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.

[35] Articles 77-87 of São Tomé and Príncipe's Constitution of 2003.

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

[37] Article 81 of the São Tomean Constitution.

[38] See the Constitution, articles 81, 103, and 117.

[39] See the Constitution, articles 100-119.

[40] Article 112 of São Tomé and Príncipe's Constitution.

[41] Ibid.

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

[43] For further details refer to HILÁRIO GARRIDO, Reflexões Jurídicas (Direito e Política), vol I Lisbon: Chiado Editora, 2014, p. 17 to 21.

[44] See Article 111 of the Constitution.

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

[46] The full texts of the two laws and related regulations are available on the site of the APCI

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

[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 . APCI, Guia do Investidor, 2018

[51] Pieter Van Welzen ). APCI, Guia do Investidor, 2018

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

[53] Ibid.

[54] 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.

[55] Lei-Quadro das Operações Petrolíferas – Lei16/2009.

[56] Transparency International. Corruption Perception Index 2018 (accessed 19 September 2019).