103. Generally, this Commission has stated in its jurisprudence that the role of the State in relation to the
right to property is "to respect and protect this right against any form of encroachment, and to regulate the
exercise of this right in order for it to be accessible to everyone.18 One way of fulfilling Charter obligation on
the right to property is therefore to adopt legislation which recognises the principle of ownership and
peaceful enjoyment of property. The inclusion of the right to property in the Angolan Constitution is
therefore in compliance with the Respondent State's Charter duty.
104. With regards to the general question whether a "people" can be bearers of the right to property under
the African Charter, this Commission has previously answered in the affirmative in relation to indigenous
peoples in Africa.19 The African Commission reaffirms that a collective or communal right to property exists
as a component of the right to property in Article 14 of the African Charter. Similar to the individual right to
property, the communal right to property entails a state duty to recognise and protect peaceful enjoyment of
ownership by a group or people subject to limitation by a state in the interest of public need or in the
general interest and in accordance with the provisions of appropriate laws.
105. The Commission has also expressed the opinion that natural resources located in land owned or
occupied by a people can be the subject of ownership in the context of the right to property under the
African Charter.20 In the Commission's view, protection of communal property rights to natural resources as
a component of land right enjoyed by indigenous peoples is not alien to the African Charter or to
international human rights generally.21 One justification for the protection of this aspect of the right is the
strong traditional attachment to their cultural land that indigenous peoples hold on to such that their survival
depends on the resources they traditionally extract from the land.22
106. The Commission notes that the Complainant does not claim that the people of Cabinda are indigenous
peoples with strong attachment to their land and their culture. The basis of the Complainant's claim is that
Cabinda existed as a distinct Portuguese protectorate prior to 1975 when it was declared to be part of an
independent Angola without the consent of the people of Cabinda. The Commission does not believe that
distinct pre-colonial history on its own currently suffices to sustain a claim for special protection of a
distinctive overriding communal right to property under the Charter.
107. In the absence of evidence that land in Cabinda is communally owned in a traditional context and that
the people of Cabinda had and continue to hold on to strong attachment to their land as part of a distinct
culture which requires dependence on land and its resources for the survival of the people of Cabinda, the
right to property can be validly limited by the State in the overall public interest of the entire state and in
accordance with appropriate laws.
108. In line with its obligation under International law, the African Charter and its domestic laws generally,
the Respondent State can only limit the right to property under certain laid down conditions. The
Complainant has not claimed or adduced evidence to show that the limitation of the right in relation to the
people of Cabinda was not done in the public interest and according to appropriate laws.
109. The Commission recalls the Complainant's argument that an incident of the right to property under the
Charter is that the people of Cabinda are entitled to be the main beneficiaries of the natural resources and
that the Respondent State cannot unilaterally dispose of the natural resources of the people of Cabinda
without their involvement in decisions on such disposal. The Commission agrees with the Complainant that
as an aspect of the right to property under the Charter, the people of Cabinda are entitled to benefit from
the natural resource found in their lands. However, the Commission believes that the enjoyment of that
aspect of the right should not be to the detriment of other communities and groups in the State. The
Commission notes further that the Respondent State's submission that the people of Cabinda (along with
the province of Zaire23 ) enjoy a fair and equitable share of the proceeds of the petroleum resources of the
State has not been challenged despite the Complainant's claim that the people of Cabinda are entitled to
an additional 50% of proceeds from natural resources.
110. The Commission finds that the Complainant has failed to show that the people of Cabinda have a
strong and profound cultural or ancestral attachment to their land and the natural resources under the land
such that their survival depends on its protection. The Complainant has also failed to show that the
Respondent State has denied the people of Cabinda a right to share equitably in the benefits accruing from
their natural resources. Accordingly, the African Commission finds no violation in relation to Article 14 of the
African Charter.
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