Activist Osvaldo Caholo, detained for nearly ten months since his arrest on 19 July 2025, was sentenced on 27 April 2026 to two years and six months in prison for the crime of public incitement to commit an offence. Initially, the Public Prosecutor's Office had also charged him with rebellion and public glorification of crime. Maka Angola examines the judgment.
Freedom of expression and freedom of assembly, protected under Angola's Constitution, are essential pillars of any democratic order. They cannot be treated as mere rhetorical ornaments to be activated or suspended by the State according to the political convenience of the moment.
The conviction of Osvaldo Caholo, handed down on 27 April by the judges of the 5th Section of the Ordinary Criminal Chamber of the Luanda District Court, sentencing him to an unsuspended prison term of two years and six months for public incitement to commit an offence, falls within a troubling pattern of institutional ambiguity. It shifts, in arbitrary fashion, the boundary between the legitimate exercise of fundamental rights and criminal liability.
This is not a case like those of "General Nilas" or "Prince Venâncio", where the proceedings or decisions appeared rushed, legally unsound, or poorly structured.
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In this case, the judgment is formally coherent, doctrinally grounded and well organised.
The problem is that it reveals an expansive and disproportionate interpretation of Article 293 of the Angolan Penal Code, which criminalises public incitement to commit an offence. The legitimate function of that provision is to prevent someone from using words as a direct instrument for unleashing real violence.
In this specific case, however, the judgment fails to show that Caholo's intervention had any effective capacity to mobilise third parties to commit crimes.
The central question that should have guided the judges' reasoning is simple: where is Osvaldo Caholo's real capacity to move people?
The offence of public incitement requires more than the public dissemination of a message. It also requires the existence of a concrete danger to public peace, expressed in the capacity of the conduct to influence the general public, or an indeterminate group of people, to commit unlawful acts.
It is not enough for words to be harsh, improper or morally reprehensible. They must possess an effective mobilising force, assessed according to objective criteria rather than the subjective perceptions of the judge.
The judgment, however, does not demonstrate that Caholo had any social leadership, command capacity, political influence or symbolic authority capable of transforming inflammatory remarks into collective action.
Caholo would have needed to possess at least some degree of ascendancy over the public. Otherwise, the offence is reduced to the punishment of mere words, which is incompatible with the principle that criminal law must remain an instrument of last resort.
Instead of demonstrating this capacity for mobilisation, the court merely stated that the remarks were made in a context of social tension, marked by the abrupt rise in fuel prices, and were therefore capable of inflaming public sentiment.
This reasoning reverses the logic of the offence. It is not the context that turns any words into a crime. Rather, the words themselves, by their own force, must reveal an ability to produce a concrete danger.
What happened was precisely the opposite: the court began with the context and used it to presume danger, without demonstrating the existence of a real and objective risk.
That presumption violates both the principle of legality and the principle of culpability. It transforms an offence requiring concrete danger into one of abstract danger, thereby unduly expanding the scope of Article 293.
Another critical point in the judgment lies in its analysis of intent.
The court held that Caholo acted with dolus eventualis -- that is, that he accepted the risk that his words might trigger unlawful acts.
This conclusion lacks foundation.
Dolus eventualis requires that the accused foresee the possible occurrence of the prohibited result and nevertheless act while accepting that possibility.
In this case, it was not shown that Caholo was aware that his words could mobilise third parties.
Indeed, Caholo's own admission that, in calmer circumstances, he would not have uttered the same words does not prove criminal intent. On the contrary, it points to the emotional and circumstantial nature of the remarks: a venting of anger, not an act of incitement.
By invoking the "ordinary layperson" test to interpret the words, the court replaced an analysis of intent with a moral reading of the speech. It confused indignation with instigation, and criticism with incitement. Even where accepted in Portuguese legal doctrine, the "ordinary layperson" test opens a dangerous door to demagogic arbitrariness.
Finally, the determination of the actual sentence for the offence of public incitement was wrong.
The statutory range provided by Article 293 of the Penal Code allows for imprisonment of up to three years or a fine of up to 360 days. This means that the offence sits at the lower end of the criminal scale.
That is not accidental. The legislature recognises that this is an endangerment offence, often associated with inflammatory speech, and that imprisonment should therefore be reserved for situations of genuine social dangerousness, real capacity for mobilisation and concrete risk to public peace.
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None of that was present in Osvaldo Caholo's case.
By imposing an unsuspended prison sentence of two years and six months, the court ignored the principle of preference for non-custodial penalties, recognised both in criminal law doctrine and in settled jurisprudence.
For a first-time defendant, with no criminal record, no history of violence, stable family and social ties, and no demonstrated risk of future dangerousness, imprisonment must always be the ultima ratio.
The law itself expressly provides that, where the statutory range allows for a fine, that penalty should be preferred whenever it is sufficient to meet the requirements of general and special prevention.
In Caholo's case, the court did not demonstrate that a fine would have been insufficient to censure the conduct or to prevent similar conduct in the future.
Osvaldo Caholo's conviction therefore does not withstand rigorous technical analysis. It ignores the fundamental question that should have guided the entire trial: where is Caholo's real capacity to move people?
Without an answer to that question, there is no crime.
What remains is the punishment of words. And when words begin to imprison, the rule of law itself is placed at risk.
