EQUATORIAL GUINEA : ARBITRARY DETENTION OF TWO SOUTH AFRICAN NATIONALS

The International League Against Arbitrary Detention urges the Government of Equatorial Guinea to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 01/2024 concerning Peter Shane Huxham et Frederik Johannes Potgieter, asking the Government of Equatorial Guinea to immediately and unconditionally release Peter Shane Huxham et Frederik Johannes Potgieter and to accord them an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Peter Shane Huxham et Frederik Johannes Potgieter (Equatorial Guinea): Opinion No. 01/2024.

ARRESTED ON THE BASIS OF DRUG TRAFFICKING CHARGES

Peter Shane Huxham and Frederik Johannes Potgieter are South African nationals born respectively on 8 May 1968 and 10 January 1970. They are both employees of SBM Productions Contractors, a subsidiary of SBM Offshore, operating in Equatorial Guinea.

They were arrested on February 9, 2023 at their hotel, then taken to the police station for questioning without being told of any charges. During their interrogation and various court hearings, their arrest was justified on charges of drug possession and trafficking. Following a trial, Mr. Huxham and Mr. Potgieter were found guilty of trafficking and illegal possession of drugs, and were sentenced to 12 years in prison, as well as fines. At the time of the source's communication to the Working Group, Mr. Huxham and Mr. Potgieter were incarcerated in Oveng-Azem prison in Equatorial Guinea.

The source indicated that it is likely that Mr. Huxham and Mr. Potgieter are in fact political prisoners. Indeed, two days before their arrest, Equatorial Guinean property located on South African territory was seized by South Africa. The purpose of their arrest was to put pressure on the South African government to return the property. Furthermore, the source indicated that this type of political detention had already been used in the past by the Government of Equatorial Guinea to put pressure on other countries with which it had differences.

Although given the opportunity, the government of Equatorial Guinea has not responded to the Working Group's requests to respond to these allegations.

ILLEGALLY ARRESTED AND DETAINED WITHOUT REASON

First of all, the source submitted that although Mr. Huxham and Mr. Potgieter were arrested on February 9, 2023, they did not appear before the examining magistrate until four days later, on February 13, 2023. The Working Group considered that in these circumstances, Mr. Huxham and Mr. Potgieter had not been brought before a judge without undue delay, and that no alternative to their detention had been considered. Thus, the Working Group concluded that there had been a violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant, which guarantee the right not to be arbitrarily detained and therefore the right to liberty and security of person.

Furthermore, the source asserted that given the political dimension of these arrests, the situation of Mr. Huxham and Mr. Potgieter corresponded to a form of hostage-taking. While considering this information, the Working Group felt that it lacked sufficient information to be able to give an opinion on this subject.

In view of the foregoing, the Working Group concluded that the detentions of Mr. Huxham and Mr. Potgieter were arbitrary under category I.

MULTIPLE VIOLATIONS OF THE RIGHT TO A FAIR TRIAL

Following their arrests, Mr. Huxham and Mr. Potgieter were interrogated on film and broadcasted on national television. In particular, these images showed the two detainees being interrogated with their faces uncovered and in the presence of sachets of white powder which appeared to be narcotics. The Working Group considered that these images had infringed Mr. Huxham's and Mr. Potgieter's right to a fair trial, particularly in relation to their right to the presumption of innocence. Thus, the Working Group established that articles 11(1) of the Universal Declaration of Human Rights and 14(2) of the Covenant had been violated.

In addition, Mr. Huxham's and Mr. Potgieter's lawyers were not notified of the trial until two days before it was due to take place. Thus, given the time required to organize testimony, which is approximately three months, it was impossible for the defense to find and organize the appearance of witnesses on their behalf. As for witnesses for the prosecution, the defense was not allowed to question the prosecution's expert witness, nor to establish an independent expert opinion on the substances considered to be narcotics. In these circumstances, the Working Group considered that articles 14(3)(e) of the Covenant and 11 of the Universal Declaration of Human Rights had been violated.

In addition, Mr. Huxham and Mr. Potgieter were sentenced to twelve years of imprisonment and a fine of around 5 million dollars. However, national law only provides for a maximum penalty of three years' imprisonment and a fine of around $82,700 for the offences they were found guilty of. Thus, the Working Group concluded that articles 14 and 15 of the Covenant and 11(2) of the Universal Declaration of Human Rights had been violated, thus breaching Mr. Huxham's and Mr. Potgieter's right to a fair trial.

Furthermore, throughout the trial, Mr. Huxham and Mr. Potgieter were unable to communicate adequately with their lawyers, as the latter did not speak English. Moreover, these communications were severely restricted, both in terms of frequency and duration, and could not be held in complete confidentiality. Consequently, the Working Group considered that article 14(3)(b) and (d) of the Covenant and article 11 of the Universal Declaration of Human Rights had been violated.

In view of the foregoing, the Working Group concluded that Mr. Huxham and Mr. Potgieter were arbitrarily detained within the meaning of category III.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detentions of Peter Shane Huxham et Frederik Johannes Potgieter were arbitrary and fell under categories I and III because their deprivation of liberty were in contravention of articles 3, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 9, 14 and 15 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Equatorial Guinea take the steps necessary to remedy the situation of Peter Shane Huxham et Frederik Johannes Potgieter without delay and bring it into conformity with the relevant international norms. The Working group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law. The Working Group also urged the Government of Equatorial Guinea to conduct a full and independent investigation of the circumstances and to take the appropriate measures against those responsible.