AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
Commission Africaine des Droits de
l’Homme & des Peuples
African Commission on Human &
Peoples’ Rights
31 Bijilo Annex Layout, Kombo North District, Western Region, P. O. Box 673, Banjul, The Gambia
Tel: (220) 4410505 / 4410506; Fax: (220) 4410504
E-mail: achpr@achpr.org; Web www.achpr.org
REPORT OF THE HUMAN RIGHTS PROMOTION MISSION
TO THE DEMOCRATIC REPUBLIC OF CONGO
6-12 August 2016
1
ACKNOWLEDGEMENTS
The African Commission on Human and Peoples' Rights (the Commission) is
grateful to the Government of the Democratic Republic of Congo for agreeing to
receive a human rights promotion mission undertaken by a delegation of the
Commission (the delegation) on from 6 to 12 August 2016.
The Commission expresses its sincere gratitude to the highest authorities of the
country for providing the delegation with the necessary facilities and personnel for
the smooth conduct of the mission.
The Commission also expresses its special appreciation to His Excellency Mr Alexis
Thambwe Mwamba, Minister of Justice and Human Rights, Keeper of the Seals of
the Democratic Republic of Congo who contributed greatly to the success of the
mission through his personal involvement in the organization of the various
meetings.
Finally, the Commission thanks the support staff placed at the disposal of the
delegation for its assistance throughout its stay and for facilitating the organization
of the various activities of this mission.
2
Acronyms and abbreviations
AIDS: Acquired immune deficiency syndrome
CSAC: Conseil Supérieur de l’Audiovisuel et de la Communication / High
Audiovisual and Communication Council
CENI/INEC: Independent National Electoral Commission
AU:
African Union
INDH / NHRI: National Human Rights Institution
DRC: Democratic Republic of Congo.
INTERPOL: International Criminal Police Organization
EU:
European Union
HIV: Human Immunodeficiency Virus
NGO: Non-Governmental Organization
CNDH: - National Human Rights Commission; UNO United Nations Organisation
UNDP: United Nations Development Programme
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PART ONE:
I.
INTRODUCTION
1.
The African Charter on Human and Peoples Rights (African Charter), adopted on 21
June 1981 by the Assembly of Heads of State and Government in Nairobi, Kenya,
became effective on 21 October 1986. Article 30 establishes the African Commission
on Human and Peoples Rights (the Commission) thereby making it the main organ
of the African Union (AU) for the promotion of human rights. The Democratic
Republic of Congo (DRC) ratified the African Charter on 20 July 1987.
2.
Pursuant to article 45 of the African Charter, the Commission is mandated to
promote human rights and fundamental freedoms enshrined in the African Charter,
ensure their protection and the monitoring of their implementation, interpret its
provisions and provide legal advice at the request of the Assembly of the Heads of
State and Government. Moreover, the Commission is tasked with collecting
documents, undertaking studies and researching on African problems in the area of
human and peoples' rights, organizing seminars, symposia and conferences,
disseminating information, encouraging national and local institutions dealing with
human and peoples' rights and, where appropriate, giving advice or making
recommendations to Governments.
3.
Within the context of the implementation of the Commission's human rights
promotion mandate, Commissioner Pansy Tlakula, Chairperson of the Commission
and Special Rapporteur on the Freedom of Expression and Access to Information in
Africa, led a delegation on a human rights promotion mission in the DRC from 6 to
12 August 2016.
4
4.
In addition to the Chairperson of the Commission, the delegation comprised the
Vice Chairperson of the Commission, Commissioner Soyata Maiga, Chairperson of
the Working Group on Indigenous Populations/Communities in Africa, and
Commissioner Reine Alapini Gansou, Commissioner in charge of monitoring
human rights promotion and protection in DRC and Special Rapporteur on the
Situation of Human Rights Defenders in Africa.
5.
During the mission, the delegation collected specific information on the human
rights situation in DRC, distributed the African Union conventions and other
documents of the Commission. The delegation also enhanced the Commission’s
visibility and raised the awareness of all State and non-State stakeholders about its
work and of its subsidiary mechanisms.
II.
TERMS OF REFERENCE
6.
The objectives of the mission were as follows:
▪
Promote the African Charter and all other international and regional human
rights instruments;
▪
Follow the recommendations issued by the Commission in its Conclusive and
Final Observations on the Combined Periodic Report of the DRC (8th, 9th and
10th) covering the period from July 2003 to July 2007, presented in 2009, and
those contained in the report of the Commission's mission to DRC in 2011;
▪
Strengthen the relations between the Commission and the authorities of the
Democratic Republic of Congo (DRC) in relation to the promotion and
protection of human rights guaranteed by the African Charter and other
relevant international and regional legal instruments;
▪
Engage dialogue with the Government of DRC with regard to legislative and
other measures taken to give full effect to the provisions of the African
Charter, and other duly ratified instruments;
5
▪
Exchange views and share experiences on strategies to improve the
enjoyment of these rights with the Government and with other stakeholders
working on human rights in the country;
▪
Gather relevant information on the situation of the rights of women, children,
asylum
seekers,
refugees,
migrants,
the
indigenous
populations/communities, elderly persons and persons with disabilities and
other categories of vulnerable persons living in DRC;
▪
Identify good practices and positive measures, and where relevant, note the
enduring challenges.
▪
Assess the level of enjoyment of economic, social and cultural rights by the
populations as well as the measures taken by the Government to implement
these rights;
▪
Gather information on the situation of human rights defenders in DRC and
urge the various stakeholders to understand the issues impeding the effective
enjoyment of human rights, if any;
▪
Exchange views and gather information on the extractive industry sector and
assess the impact of extractive industries on the life of the populations and on
the environment;
▪
Gather information on HIV/AIDS and inquire about measures and policies
implemented by the Government to prevent this pandemic and protect the
rights of people living with HIV as well as those at risk, those vulnerable to
and affected by the disease;
▪
Meet with all stakeholders involved in the realm of human rights to discuss
their programmes, the human rights situation in the country as well as the
challenges encountered;
▪
III.
Visit prisons and other detention facilities to find out about prison conditions.
PROFILE OF THE DEMOCRATIC REPUBLIC OF CONGO
A.
Geographical Position and Administrative Profile
6
7.
The DRC has a surface area of 2 345 409 km2 and is the largest country of subSaharan Africa. It occupies the greater part of the Congo River basin which covers a
surface area of almost a million square kilometres. The country's only outlet to the
Atlantic Ocean is a narrow strip of land on the north bank of the Congo River. DRC
is bordered by nine countries: in the East by Burundi, Uganda, Rwanda and
Tanzania, in the North by the Central African Republic, in the North East by the
Republic of South Sudan, in the West by the Republic of Congo, in the South-West
by Angola, on the South-East by Zambia.
8.
The DRC extends on both sides of the Equator, with a third of the country located in
the North and two-thirds in the South. The climate is hot and wet in the river basin
and cool and dry in the Southern highlands. South of the Equator, the rainy season
lasts from October to May and north of the Equator, from April to November. Along
the Equator, rainfall is fairly regular throughout the year. During the wet season,
thunderstorms are often violent but rarely last more than a few hours. The average
annual rainfall for the entire country is about 107 centimetres.
9.
The DRC is endowed with an extensive hydrographic network composed of the
Congo River and its numerous tributaries, and many lakes. The River Congo, which
is 4700 km long is the second in the world after the Amazon River in terms of flow,
and is navigable over most of its length. It crosses the country from southeast to
west before emptying into the Atlantic Ocean.
10.
The DRC whose capital is the vast city of Kinshasa is divided into 261 provinces
with the creation of 15 new provinces since June 2015, in addition of the 11 which
existed before.
1 The provinces are Bas-Uele, Equator, Haut-Katanga, Haut-Lomani, Haut-Uele, Ituri, Kasaï, Central
Kasaï, Eastern Kasaï, Kinshasa, Central Kongo, Kwango, Kwilu, Lomani, Lualaba, Mai-Ndombe,
Maniema, Mongala, North-Kivu, South-Ubangi, Sankuru, South-Kivu, South-Ubangi, Tanganyika,
Tshopo and Tshuapa.
7
11.
Congolese territory is therefore subdivided into provinces, territories, communities
(sectors or cheffery) and groupings for administrative purposes.
B.
Historical background
12.
Known as the Republic of Congo at its independence from Belgium on 30 June 1960,
the country became the Democratic Republic of Congo, following the overthrow of
Marshal Mobutu (in power for 37 years) by Laurent-Desired Kabila, on 17 May 1997.
Ex-Zaire under Mobutu, it has since been at the heart of the Great Lakes crisis, with
developments that intensify discords like the assassination of Laurent Désiré Kabila
in 2001, his succession by his son, the current outgoing President Joseph Kabila
who, after a transition that lasted up to 2006 and the adoption of a new constitution
on 18 February 2006, successively won two highly controversial presidential
elections, in October 2006 and December 2011 respectively.
13.
While this mission was taking place, there was heightened tension due to the
conflicting positions of political actors about the presidential elections, with the
expiry of the presidential term and the uncertainties both with regard to election
resources and the actors of these elections.
14.
The result is that for the umpteenth time, the international community including the
African Union and United Nations Organization are actively assisting the country to
prevent unrest, with consequences that might not be restricted to the DRC borders
alone but will extend far beyond and drag the sub-region already in an uncertain
security context, into a deep security crisis with unimaginable consequences on
human rights.
C.
Political organization
8
15.
The Constitution of 18 February 2006 institutes a semi-presidential political system
based on the separation of powers and organizes power on the basis of a division of
competence between the central institutions, provincial institutions and those of the
decentralized territorial entities. It was revised by a law adopted on 20 January 2011
and promulgated on 1 February 2011. This revision concerns 8 of the 229 articles of
the Constitution.
16.
The latter provides for the organization and exercise of power as follows:
•
The President of the Republic is henceforth elected, in a single round, by a
simple majority of votes cast for a 5-year term, renewable only once. He shall
promulgate the laws and take decisions by means of an order. He may
dissolve the National Assembly in the event of persistent crisis between the
Government and Parliament. He may also dissolve a provincial parliament or
remove a Provincial Governor from office in the event of serious and
persistent crisis threatening the regular functioning of the provincial
institutions. The President is the supreme commander of the Armed Forces.
He may initiative constitutional amendments.
•
Parliament with the two Assemblies whose members are elected for 5 years,
one by direct suffrage (National Parliament) and the other by indirect
suffrage (Senate). The Parliament may pass a vote of no confidence against
the Government; in the event of absolute majority, the government shall
resign within 48 hours.
•
The Government: the Prime Minister is appointed by the President of the
Republic from among the parliamentary majority. He shall head the
Government and conduct national policy in consultation with the President.
The President shall no longer have exclusive powers over foreign affairs,
defense and security.
•
Courts and Tribunals: the independence of the judiciary is affirmed; the
constitution also provides that no emergency court may be established.
9
D.
Economic situation
17.
The DRC has a great potential in terms of natural resources and minerals. To date,
the country has untapped raw material deposits estimated at several billions of
dollars. DRC’s economy, which is based on these natural, mineral (copper, cobalt,
diamond, and gold managed by government companies: Gécamines, Miba, Okimo,
Sominki…) and energy resources, declined in the 1980s. The Congolese economy
also depends on subsistence farming and forest products, which represent more
than 60% of the total surface area. There is also a large informal sector in DRC.
18.
This immense economic potential contrasts with the inequalities and poverty among
the populations, making this country one of the poorest in the world with over 87
percent of the population living below the poverty line, and ranked 176th place in
the 2015 classification of countries based on the Human Development Index created
by the United Nations Development Programme.
19.
The DRC’s official currency is the Congolese Franc whose exchange rate against
international currencies fluctuates and it is common to find the latter in the most
benign daily transactions and exchanges.
E.
Social context
20.
DRC’s population was estimated at over 85 million inhabitants in 2015. Eighty per
cent of the population is of the Bantu-type and there are hundreds of ethnic groups
in DRC. Even though the data on religions composition in the country are not
reliable, it is a known fact that the Congolese population is mainly Christian
(Catholics and Protestants), with Islam as the second religion in terms of number of
worshipers. A small percentage of the population are animists. The standard of
living of the majority of DRC's populations is characterized by major failures and
multiple shortages in socio-economic services and infrastructure, like education,
10
health, housing, communication and other elements required to enjoy an adequate
standard of living.
21.
The past, riddled with wars and conflicts with political and ethnic undertones
which continue, in some way, to threaten the stability of the country and the subregion, has a negative impact on the security conditions in the country and for this
reason, the DRC has, for years, been at the heart of the international community’s
concerns with regard to countries in crisis. One of the symbolic manifestations of
this precarious security situation is the use of rape as a weapon of war by the
protagonists in the various conflicts going on in the country.
22.
The grievances related to the political context of the presidential, senatorial and
parliamentary elections postponed on several occasions, aggravate the unstable
security situation prevailing in this country during the mission.
F.
Legal framework
for
the
promotion and protection
of
human
rights
23.
At the completion of the Commission's promotion mission, the DRC was party to
the following major human rights instruments:
African legal instruments
•
AU Constitutive Act;
•
African Charter on Human and Peoples' Rights;
•
Organization of African Unity Convention Governing the Specific Aspects of
Refugee Problems in Africa;
•
African Charter on the Rights and Welfare of the Child;
•
Protocol to the African Charter of Human and Peoples' Rights, on the Rights
of Women;
International legal instruments
•
International Convention on Civil and Political Rights;
•
Optional Protocol to the International Covenant on Civil and Political Rights;
11
•
Second Optional Protocol referring to the International Convention on Civil
and Political Rights, aimed at Abolishing the Death Penalty.
•
International Convention on Economic, Social and Cultural Rights;
•
International Convention on the Elimination of All Forms of Racial
Discrimination;
•
Convention on the Elimination of All Forms of Discrimination against
Women;
•
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
•
Convention on the Rights of the Child;
•
Optional Protocol with the Convention on the Rights of the Child on thei
nvolvement of children in armed conflicts ;
•
Optional Protocol to the Convention on the sale of children, child prostitution
and child pornography.
•
International Convention on the protection of the rights of all migrant
workers and members of their family;
•
Convention on the Rights of Persons with Disabilities.
•
Rome Statute;
•
Geneva Conventions of 1949 and their two additional protocols;
National legal framework for the promotion and protection of human rights
24. The Constitution of 18 February 2006 and a certain number of other laws and
policies constitute the national legal framework for the promotion and protection
of human rights in DRC.
-
12
PART TWO:
I.
METHODOLOGY AND CONDUCT OF THE MISSION
25.
The promotion mission to DRC took the form of interactions and meetings with the
highest authorities and the various stakeholders involved in the promotion and
protection of human rights. The delegation also visited the central prison of Makala.
26.
At each of these meetings, the delegation made a brief presentation of the
Commission, outlining its organization, composition, mandate, and functioning and
subsidiary mechanisms. It further presented the objectives of the mission and
underscored the sharing of best practices in the areas of interest to the mission.
27.
Thus, the interactions and discussions between the delegation and the various
authorities and stakeholders were centered on the human rights situation in DRC.
28.
At the end of the meetings, the delegation distributed publications and documents
of the Commission to the authorities and other stakeholders it met. Specific
Publications were distributed to authorities and stakeholders according to their
specific areas of intervention.
13
29.
Stakeholders who could not be physically present provided the delegation with
documentation on their analysis of the human rights situation in the country. This
documentation is also taken into account in the conclusions of the Commission on
this promotion mission.
II.
MEETINGS HELD BY THE DELEGATION OF THE COMMISSION
1.
Meetings with State entities
A.
Meetings with ministerial authorities
i.
Meeting with the Minister of Justice, Keeper of the Seals and Human
Rights/Acting Minister of Foreign Affairs and International Cooperation
30.
The mission started with the delegation's courtesy call to the Minister of Justice,
Keeper of the Seals and Human Rights. The latter was also acting for the Minister of
Foreign Affairs and International Cooperation.
31.
The delegation seized the opportunity to thank the Minister for his personal
involvement in the preparation for this mission, following the discussions he had
had with the Bureau of the Commission alongside the African Union Summit in July
2016.
32.
Thus, after exchanging the habitual civilities, the Minister listened to the
delegation's outline of the framework and scope of the mission as mentioned in the
terms of reference submitted prior to the delegation's arrival in DRC.
33.
The Minister indicated the concrete measures taken to enable the delegation to hold
the widest possible consultation in order to conduct an objective assessment of the
human rights situation in DRC and make recommendations that would help the
country improve the situation, where necessary.
14
34.
The delegation noted the sound collaboration between the DRC and the
Commission as reflected in the continued presence of the Vice Minister in charge of
Human Rights in the sessions of the Commission. It was also an opportunity to
invite the Minister to take part in the 59th Ordinary Session, which will mark the
climax of the celebrations of the year 2016 declared African Year of Human Rights
with special focus on women's rights. The Minister accepted the invitation and
promised to personally honour the meeting with his presence, if possible, or be
represented.
35.
Discussing the various meetings scheduled during the mission, the Minister insisted
that the one with the Independent National Electoral Commission was very
important since it would enable the delegation to understand the political context
prevailing at the time of the mission.
36.
After taking leave of the Minister who worked actively to organize a meeting
between the delegation and the panel of Ministers and authorities representing the
ministries and other sectors of interest for the mission, the delegation had a brief
discussion on some other logistic and practical aspects of the mission with the Vice
Minister2 in charge of human rights. The latter informed the delegation that the
DRC is working actively to finalize and submit its periodic report, under article 62
of the African Charter.
ii.
Joint meeting with Ministries and other key governmental structures in the
promotion and protection of human and peoples' rights
37.
The meeting was attended by the Minister of Justice, the Minister of
Communication, the Minister of Arts and Culture, the Minister for Women, the
Family and Children, the Deputy Minister of the Interior, the Deputy Minister of
Youth and Sports, the Deputy Minister of Foreign Affairs, the Commissioner2 Mr Christophe Mboso N'Kodia Pwanga.
15
General of Kinshasa Police, and the General Administrator of the National
Intelligence Agency.
38.
After setting the context of its mission and, more specifically, of this very important
meeting, the delegation asked a certain number of questions, made observations to
which the authorities taking part in the meeting reacted. The substance of their
answers and interventions are covered below:
The Government's political will to concretely give effect to human rights
39.
The DRC is committed to a new policy to change the negative image that many
international stakeholders have of it. Thus, the country set up a Human Rights
Ministry or a Department within the Ministry of Justice specifically responsible for
human rights. The delegation observed during the visit that, thanks to the
reorganization of the Ministry of Justice, one of its three Secretariats is specifically in
entrusted with human rights and there is a unit specialized in human rights
defenders.
The fight against impunity
40.
The DRC is committed to putting an end to impunity. This can be illustrated in
many ways, namely:
✓ the creation, in collaboration with the United Nations Human Rights
Commission, of a system through which all cases of human rights violation
can be reported to the competent authorities;
✓ the imprisonment of members of the security forces, irrespective of their
rank, guilty of acts constituting human rights violations like the breach of
rules and sexual violence3;
3 Some 1700 police officers are said to be in detention within the framework
impunity.
16
of the fight against
✓ elements of the DRC security forces having served under U.N. mandate in
Central African Republic were tried before the courts in DRC for human
rights violation during their deployment to the U.N. troops;
✓ the Joint United Nations Office was asked to denounce the cases of human
rights violations by DRC security forces and all these cases are tried within
three days when they are brought before the competent authorities;
✓ the Minister of Justice addressed a circular to the prosecutors prohibiting
them from granting parole to the authors of sexual violence;
✓ the prosecutors are instructed to seek the maximum penalty applicable for
such cases (20 years imprisonment) when it concerns sexual violences;
✓ according to international statistics, cases of sexual violence have dropped
by 25 percent and this applies to the security forces as well;
✓ resorting to the Rome Statute in June 2016 to ensure that parliamentary
immunity does not obstruct a person’s arrest for sexually abusing a minor;
etc.
✓ 41. All these efforts earned the DRC a congratulatory letter for the work
accomplished in the area of human rights, addressed to it by the United
Nations Human Rights Commission following a recent mission in the
country.
On the death penalty
42 The death penalty exists in the Criminal Code of the DRC but simply as a
deterrent because there are no more executions.
Progress and challenges in prison matters
43
The overcrowding of prisons is a reality of which the DRC authorities are aware.
The number of prisoners in Makala central prison is slightly less than eight
thousand and these are criminals; hence conditional discharge is used at the
moment to ease congestion in this prison.
17
44
Also, three orders granting collective pardons were proposed at the independence
celebration. These measures are aimed at women, persons with disabilities and all
children, provided that they have not been sentenced for blood crimes. Thousands
of prisoners will be granted pardon and the Public Prosecutors were working on
this matter during the Commission's mission.
45
The ongoing rehabilitation and reopening of prisons with the assistance of the
European Union also constitute a solution. By rehabilitating the prisons, the DRC
aims specifically to not only ease the congestion, but to separate civil prisoners from
imprisoned members of the security forces and to fight against torture4 by
providing a ward for those under police custody.
Freedom of expression and press
46
The DRC has pursued a free speech culture since the National Conference held
under former President Mobutu.
47
The media is free because even those whose contents are “disrespectful” towards
the authorities are freely circulated.
48
The law on access to information supported by the Government is being considered
by the Senate and Parliament. However, even though the Government deplores its
delayed adoption by these two institutions, it does not interfere with their schedules
because of the separation of powers and it is hoped that this law will be adopted as
quickly as possible and promulgated by the President of the Republic.
4 Acts of torture are allegedly committed in police stations during police custody.
18
49
It is possible that journalists were in detention in DRC at the time of the
Commission's visit, but their detention would certainly not be due to the exercise of
journalism.
50
Abuses are reported in areas outside the capital, Kinshasa and the ministries of
justice and communication are working together to maintain the situation at ‘zero
journalist imprisoned because of his profession’.
51
It is the responsibility of the Ministry of Communication to enforce the legislation
on the matter and the Ministry cooperates with the CSAC and professional
associations of the media sector to enforce the said legislation.
52
The Ministry takes precautionary measures in the event of threat to national security
and then immediately entrusts the issue to the CSAC and the self-regulatory bodies.
53
There is no overlapping of sanctions and if the CSAC claims the opposite, it is
because it is composed of different tendencies and might intentionally give the
impression that this is the situation.
54
There are 101 radios or televisions in Kinshasa, 541 audio-visual media companies
in DRC and 150 daily newspapers.
55
Four cases of precautionary measures taken against a commercial radio and 3
community radios, which were closed by the Ministry of Communication. The
reasons behind these closures are the dissemination of information that could
demoralize the security forces in the East of the country where there are conflicts.
Their licenses to operate are not withdrawn and these cases are referred to the
courts and the CSAC.
56
In the event one of these structures decides in favour of these media, they will no
longer require the intervention of the Ministry of Communication to start operating
again.
19
57
There are also 3 cases of precautionary measures against private radios and
televisions for administrative reasons. The Government of DRC is of the view that
the interpretation of these various precautionary measures are exaggerated with
respect to their scope, especially by non-African partners.
The child soldier phenomenon
58 The army was formally trained to ensure that the phenomenon of children used
as luggage carriers is wiped out. Thus, the DRC armies would no longer have
child soldiers and the phenomenon has sharply declined in non-governmental
troops.
Ratification of international and regional human rights instruments.
59 An Inventory is being conducted to identify the international human rights
treaties awaiting ratification by the DRC and instructions have been given to
accelerate the processes already initiated for some of these treaties.
Rights of the indigenous populations
60 The neighbouring indigenous populations living in the parks are involved in
the protection of these parks and fully participate in their management. They
take part in tourism-related activities and work as tourist guides or park
wardens. Up to 30 percent of earnings and products from the tourism activity
on these parks are invested in local development.
61 The DRC has 10 national parks, the last of which was created 3 months before
the Commission's visit. The other parks were created over 10 years ago. These
parks cover 13 percent of national territory.
20
62 The creation of the 10th national park followed a process comprising several
stages including preliminary investigations on the effects of the creation of the
park on the populations and the environment. The delimitation of the park also
took the populations' needs into account.
63 The DRC faces challenges in the old parks because of the difficult coexistence
with the populations, particularly in the East of the country. These populations
depend on the parks, using their resources and cultivating the land. Thus, the
populations who often live on the parks exert a lot of pressure on the State.
64 To address these challenges, there are plans to organize a forum with traditional
chiefs, parliamentarians and other stakeholders to discuss the preservation of
parks and the needs of the neighbouring indigenous populations.
65 The full respect of international law applicable in the present case is the
compass that guides the DRC in all its actions concerning the indigenous
populations.
DRC's policy on the youths and the challenges they face
66 The DRC adopted a youth policy in 2009 and an inter-ministerial committee to
oversee the steering of this policy is already in place.
67 The DRC is concerned about the “manipulation of young people by foreign
agencies to destabilize African regimes” and participated in a conference held in
Bamako on this issue.
68 The DRC is also concerned that most of the authors of terrorist acts are young
people. Youth employment is a cross-cutting issue and it was only after the
21
consultation with the Minister of Labour that the Commission was provided
with statistics in this regard. The DRC maintains the view that, within the
framework of the electoral calendar, the off-age minors must be registered to
avoid violating their human rights.
69 It is in this spirit that the President of the Republic initiated sensitization for the
registration of young people and the Ministry of Youth intends to follow suit as
from 12 August 2016, on the occasion of the celebration of Youth Day.
The gender issue and the protection of women's rights in DRC
70 The DRC Government is firmly committed to the issue of gender equality and
the fight against sexual violence.
71 The most prominent legal documents confirming this commitment are the laws
of 2011 on the organization of the army, on the constitution of the army, the
police force, the law of 15 August 2015 on parity which is the legal resultant of
article 14 of the Constitution that provides for parity. These and other legal texts
mainstream gender and give it a more prominent place than in the past.
72 The Family Code was also revised in 2016 and several articles that discriminate
against women were amended and the said Code harmonized to make it more
consistent with the International Convention of 18 December 1979 on the
Elimination of all Forms of Discrimination against Women.
73 At the time of the Commission's visit, the DRC was preparing its report on the
implementation of the Maputo Protocol.
74 The sensitization of stakeholders including traditional chiefs is a prominent tool
adopted by DRC to fight against early marriages.
22
75 The country has projects for the empowerment of women and three provinces
have already been targeted to take action on the ground to empower wome
76 In DRC, the Ministry of Gender, the Family and Children is confined primarily
to sensitization on HIV-AIDS because it has a unit dealing with this pandemic.5
Political freedoms
77 There are 515 political parties in DRC and this proves that the country’s political
space has become much more open.
The issue of human rights defenders
78 The law on human rights defenders is a priority for the Government, which
intends to adopt it as soon as possible and the President of the National
Assembly told to the delegation of the United Nations Human Rights
Commission recently on mission in the DRC that this law will be given priority
at the session scheduled in September 2016.
Discharging the policing mission and its human rights challenges
79 The police in DRC is in the throes of reform with a component concerning
training, which takes into account the issue of human rights in the discharge of
policing missions with respect to assemblies, demonstrations, gender issues and
sexual violence.
80 The Police has a strategy to mainstream gender in the fight against genderbased violence. Women's representation in the Police Force has increased
significantly and this is reflected in their presence in peacekeeping missions and
5
National Multisector Programme to combat AIDS
23
within the INTERPOL. Besides, a woman was recently appointment to the rank
of general.
81 These efforts are acknowledged at international level by actors like the UN, the
Southern Africa Development Community and the Economic Community of
Central African States all of which addressed formal congratulatory messages to
the country for its performance in this respect.
82 The Government provides the Police with equipment to facilitate the policing of
demonstrations during the election period. However, there are problems when
youths are manipulated by opposition politicians to resort to violence against
the Police.
83 Policemen are also entitled to human rights and the Commission must also deal
with the said rights when, despite the utmost restraint exercised by the police,
the latter is violently confronted with young drugged demonstrators.
84 The norm in DRC is that the Police must place all law violators at the disposal
of the judiciary, to ensure that they are punished.
85 The tendency in this election period is to intentionally attack the symbols of the
State and then claim that human rights are violated, when the forces responsible
for preventing these acts are simply doing their work.
86 The DRC requests the Commission to send observers on the ground to see how
the Police supervise the demonstration.
B.
Meetings with independent or autonomous State institutions
i.
Meeting with the President of the Independent National Electoral Commission
24
87
At the start of the meeting, the delegation presented its condolences for the death of
the former president of the Independent National Electoral Commission (CENI)
before saying what it expected from the scheduled discussions; in particular, the
delegation sought to be informed about the arrangements made by the CENI to
fulfill its mandate in this election year, while scrupulously complying with
international standards on the matter and which affect human rights.
88
In his intervention, CENI Chairman, Mr Corneille Nangaa Yobeluo, indicated that
the mandate of his institution emanates from the Constitution and that the CENI is
currently operating in an election year and an environment of “absolute mistrust,
permanent suspicion…” He added that the CENI also bears the brunt of this
situation and all its actions, interventions or positions are seen as an intention to
favour one party or the other, among the protagonists of the current political
process in DRC. This is an immense challenge for his institution.
89
In this regard, he criticized the role of the International Community in the
radicalization of the said parties' positions and urged all International Community
actors to model their actions in support of the successful resolution of the crisis in
DRC on the African approach used by the African Union through Mr Edem Kodjo's
mediation.
90
Getting down to the bone of contention between the protagonists in the current
tense political situation in DRC, with the uncertainty about whether the outgoing
President of the Republic intends to present his candidature or not, the CENI
Chairman personally hoped that the President will not run, adding that this option
would dissipate the tension.
91
He moreover informed the delegation that the CENI is in charge of validating the
candidatures for the elections and fixing the election dates. He added that on the
basis of the current Constitution, the candidacy of the outgoing President of the
Republic cannot be retained.
25
92
The CENI Chairman further indicated that, according to the Constitution, the
electorate should be convened by CENI on 20 September 2016. However, this may
not be possible because the voter registry is not ready and will not be ready within
the set time limit, before 20 September 2016. The current voter registry dates back to
2011 and all the parties agree that it should, on no account, be used in its present
state for any election in DRC. Indeed, this position expressed by parties is based on
a report of the Francophonie, which reveals the existence of 12 million off-age
minors in DRC. In addition, there are cases of voter card fraud in Rwanda and
elsewhere, as well as the new constituency boundaries, which increased the
provinces from 15 to 26. Notwithstanding all these challenges, the voter registration
started in July 2016.
93
The CENI Chairman pointed out that the difficult position of his institution in the
current context is also due to the conflicting provisions of the Constitution which,
on the one hand, imposes on CENI to convene the electorate at a specific time and,
on the other hand, requires this same institution of register all citizens of voting age.
94
To address this situation, the CENI will have to choose from one of two scenarios. It
will either convene the electorate during the period set by the Constitution and
thereafter request the Constitutional Court to find that off-age minors have not been
registered and draw the relevant conclusions; or refrain from convening the entire
electorate, in accordance with the Constitution and thus leave any interested party
with the initiative to take legal action against CENI’s inaction or failure to comply.
95
The CENI Chairman and the delegation also reviewed other structural, human and
material challenges6 that makes CENI's role very complex in this difficult election
year and concluded that the involvement of all stakeholders and serene discussions
will lead to a successful resolution of this crisis.
6 With regard to these challenges, the delegation and the CENI Chairman agreed not to mention them
by name in public including in this report because this could further aggravate the current situation.
26
ii.
Meeting with the National Human Rights Commission
96
At the meeting between the delegation and the National Human Rights
Commission (CNDH) of DRC, Mr Mwamba Mushikonke Mwamus, Chairman of
the said institution presented the latter's mandate, activities and challenges.
97
He explained that the mandate derives from article 5 of the text establishing the
CNDH, in particular Organic Law N° 13/011 of 21 March 2013 on the establishment,
organization and functioning of the CNDH. This article provides that “the CNDH is
a technical and advisory body in charge of human rights promotion and protection.
It ensures respect for human rights and mechanisms that guarantee fundamental
freedoms.” Article 5 further establishes the independence of the CNDH which is
answerable only to the authority of the law in the discharge of its mission.
98
With regard to its activities, it is worth noting that since the swearing-in of its
members on 23 July 2015 and its subsequent operationalization, the CNDH has
undertaken a certain number of activities, in accordance with its mission and its 20
attributions as stipulated by article 6 of its constitutive act. These activities include
the implementation of the CNDH preliminary draft on human rights defenders,
through seminars on human rights for parliamentarians and senators; visit to
prisons; surveys; the constant monitoring of the human rights situation in the
country and, especially during this election period when it intensified its
collaboration with the CENI through a formal agreement on the sharing of
responsibilities between the two institutions; meetings with stakeholders before any
public events to raise awareness on the need to respect rights during these events;
monitoring legal proceedings relating to cases of violence against women, etc.
Simply put, the CNDH acts on the basis of a strategic plan which seeks to cover all
human rights problems and issues specific to the context in DRC, including sexual
violence, child soldiers and indigenous peoples, etc.
27
99
The CNDH also stated that it was in the process of preparing its activity report at
the time of the delegation's visit. This report, according to the text establishing the
CNDH, must be transmitted to the President of the Republic, the Senate, the
Government, the Constitutional Court, the Court of Cassation, the Council of State,
the Military High Court and the Offices of Public Prosecutor within their
jurisdictions. It is also sent to the National Assembly where it is discussed.
100
Still according to the CNDH Chairman, the challenges facing the institution
primarily relate to lack of financial and human resources to discharge its mission. In
this regard, he indicted that the national budget for 2015 did not take the CNDH
into account, and that the 2016 budget did without providing the institution with
the budget as adopted by the CNDH plenary. Thus, this budget, which provides for
the operationalization of the CNDH in 10 provinces, will definitely not suffice
because the country now has 26 provinces and the text establishing the CNDH
compels it to have offices in all provinces of the country.
101
The delegation pointed out that one of the major challenges of such institutions was
its independence and to address this issue, standards referred to as the Paris
Principles, have been set on the matter for National Human Rights Institutions
(INDH). In fact, there was some discussion about whether the CNDH as it stands
was in keeping with the Paris Principles.
102
The CNDH Chairman responded positively to this question and referred the
delegation to the text establishing the institution before insisting on its diverse
membership as a guarantee of its independence. He further noted that the principle
of establishing a National Human Rights Institution (NHRI) has a constitutional
basis in DRC, even though it was effectively created by law.
28
103
The CNDH Chairman, reacting to the delegation’s concerns about the need for his
institution to be part of the international platforms and networks of similar
institutions in order to optimize its effectiveness, indicated that the CNDH is a
member of the African Network of National Human Rights Institutions and
member of the French-Speaking Association of National Human Rights
Commissions, and works closely with the INDH of Burundi, Morocco where some
of its members were on mission during the delegation's visit.
104
The delegation finally urged the CNDH to initiate the process of obtaining the
affiliate status with the Commission.
iii.
Meeting with the Supreme Audiovisual and Communication Council
105
The Chairman of the Supreme Audiovisual and Communication Council (CSAC),
Mr Christophe Tito Ndombi indicated, at the start of the meeting, that the CSAC is
an institution in support of democracy, mandated to guarantee freedom of
expression and press as well as the observance of the Code of Ethics and
Professional Conduct. Its legal base is the Constitution which, in its article 212
materialized by Organic Law N° 11/001 of 10 January 10, 2011 fixes the
composition, attributions and functioning of the CSAC.
106
According to CSAC Chairman, its institution receives administrative records
relating to applications to set up media services. Its favourable opinion is a
necessary condition for obtaining a licence from the Ministry of Posts and
Telecommunications. Applicants have to receive the CSAC’s endorsement to obtain
a license from the Ministry of Posts and Telecommunications. This license allows
them to obtain a frequency for audiovisual media services from the Post and
Telecommunications Regulatory Authority in Congo which has jurisdiction over the
matter and which is answerable to the Office of the President.
107
The sanctions mechanism in the CSAC ethics code was also explained to the
delegation. Indeed, a complaint can be lodged with the institution, which can also
29
take up a case on its own initiative, following the close monitoring by its services, of
media activity in DRC. Thus, a sanction such as suspension cannot exceed 3 months
and can be imposed only after presentation of the defense evidence by the alleged
offender, except in cases of flagrante delicto. In addition, the sanctions may be
reviewed by the CSAC and appeals against appellate decisions are brought before
the Administrative Chamber of the Constitutional Court.
108
The delegation was informed about the existence of the self-regulatory system
within the media in DRC and the media organizations:
the Congolese Press
Observatory and the Press Union are in charge of the said mechanism.
109
When the delegation brought up the issue of the media that were closed during its
visit in DRC, the CSAC Chairman indicated that the decisions for such closures
were not issued by his institution, even though under the law it is the only body
authorized to close down the media. He further explained that the line ministry
should not close down a medium because of its contents (it is the role of the CSAC)
and should be confined to dealing only with administrative issues concerning the
media.
110
The CSAC Chairman also pointed out that these challenges and gaps in the
regulation of the sector are due to the coexistence of conflicting laws, and the
solution would be to speedily finalize the new law on the media.
111
He also indicated that an initiative to decriminalize press offences is at an advanced
stage and the bill on the issue is before Parliament.
112
Finally, following the delegation's question about how the CSAC specifically copes
with a period as sensitive as the election period with regard to the media, the CSAC
Chairman indicated that his institution is preparing regulatory texts to mark each
period of the electoral calendar.
30
2.
Meeting with non-State entities/stakeholders
113
The non-State stakeholders met during the mission are the AU Facilitator, H.E. Mr
Edem Kodjo and a group of ONGs working in the human rights field in DRC.
i.
Meeting with the Facilitator H.E. Mr Edem Kodjo
114
Thanks to the meeting with the AU Facilitator designated to help resolve the crisis
in the DRC, the delegation was able to obtain a snapshot of the situation and the
political context prevailing during the mission, from a third party. In his view, the
parties involved in the crisis must admit that it is impossible to practically hold
elections within the constitutionally mandated time frame and, on that basis, there is
need to explore an alternative while dialoguing. It is in the best interest of the
Congolese and the stability of the whole of Africa, which might drift into instability
if the DRC itself is plunged into chaos.
115
The Facilitator also noted the difficulties of his task which does not, in any way,
dampen his determination to succeed his mission which is to prevent an umpteenth
serious crisis in DRC, which will still have detrimental consequences for the
populations.
ii.
Meeting with the Civil Society
116
The meeting with the civil society provided the delegation with the opportunity to
present the Commission’s mandate, its achievements as well as the mechanisms
through which it interacts with ONGs. The delegation also specifically exposed its
expectations with regard to this meeting. 7
The list of participants attached to this report gives the names of those who took part in this
meeting, their titles or functions as well as the organizations or structures they represent at this
meeting with the Commission during its mission.
7
31
117
The delegation asked questions to NGO representatives about the human rights
situation in general
and themes covered by the special mechanisms of the
Commission, in particular. The NGOs gave their assessments and made the
following comments and suggestions:
Political crisis and elections
➢
It seems that the Commission is always invited by the Government of
the DRC during the election period and this borders on a ploy by the
Government in pursuit of concealed designs. In addition, the meeting with the
civil society should have taken place prior to the delegation's different
interactions with State stakeholders to compare the civil society’s analysis of
the human rights situation in the country with that of the Government or, at
the very least, have elements for verification with the governmental side.
Moreover, in preparing for this meeting, the civil society would have wanted to
have all the recommendations made to the DRC by the Commission and which
this mission was supposed to follow-up;
➢
Initiatives were taken for the observance of human rights during the
election period, specifically aimed at going after all the crimes committed in the
context of the electoral process;
➢
The election period has serious consequences on the right to life since
by purely political motives, dubious movements are set up which threaten the
lives of the populations in the East of the country.
➢
The AU, through its Facilitator who is currently in the country,
encourages human rights violations because some of the latter's declarations
and positions lead to the organization of demonstrations by the populations,
which are repressed by the Police. The Facilitator also has a non-inclusive
approach, which does not involve the civil society and he is seen as taking sides
when he is supposed to be neutral. His disqualification by some stakeholders is
certainly not without reason;
➢
The delay in the constitutionally set electoral time frame is a violation
of the civil and political rights of the populations by the country's leadership;
32
➢
Justice is instrumentalized by the ruling majority so that anyone who
expresses an ideological disagreement with the said majority is arrested and
imprisoned;
➢
The Police systematically represses demonstrations and its units or
branches, namely the l’Agence Nationale de Renseignements and Détection
Militaire des Activités Anti-Patrie (DEMIAP) have been identified as the most
repressive;
➢
The civil society is politicized and this hinders its actions for the
protection and promotion of human rights in DRC;
The civil society observes that court rulings on cases of human rights violation are
not enforced and would like to have a law on the compensation of victims of human
rights violations and a fund to repair damages.
Cooperation with the Commission
➢
The Commission must establish a mechanism for permanent
communication with the civil society and receive the latter's parallel reports on
the human rights situation;
Prisons, Access to justice and its administration
➢
The delegation needs to be applauded for its visit to the Makala central
prison, but the detention facilities that are less complaint with international
standards on the matter were not visited: these are the cells in police stations
and other secret detention centres allegedly existing across the country;
➢
The conditions of arrest are disregarded and human rights defenders
in DRC are being tracked down;
Family , Women and Children
33
➢
The reform of the Family Code was possible with the contribution of
the civil society and a noteworthy progress is the repression of adultery which
is henceforth established;
➢
There is conflict between the law on women's rights and the
implementation of parity because the above-mentioned law refers to the
electoral code which, according to the civil society analysis, unfortunately calls
off the targeted achievements;
➢
The Maputo Protocol was ratified by the DRC but, according to the
civil society, because it was not published in the country's Official Gazette, it is
not invoked in the country's courts and tribunals;
➢
Women civil servants face discrimination in their work place where
they are marginalized by the heads of administration. Also, the promise by the
President of the Republic to have 30 percent women representation is not
implemented. Women civil servants are forced to attend demonstrations
organized by the ruling party under threat of repression within the work place;
Indigelous Populations
➢
The Pygmy populations are marginalized and recommendations
concerning them made at the end of the Universal Periodic Review are not
implemented by the DRC. They do not have access to justice and the crimes
committed against them are very often left unpunished. They do not fully enjoy
the right of ownership. They continue to be subjected to human rights
violations arising from the master-subject type relationship, which is a social
reality in DRC in the relations between Pygmies and the other populations of
the country. Female Pygmies are abused by the Bantu populations and the
children born of such relations are not recognized by their fathers. A bill on the
indigenous populations has been proposed but is blocked at level of Parliament
and the civil society would like the Commission to intervene to accelerate its
adoption. Since 9 August has been declared Indigenous Populations Day, the
celebrations of this day should be focused on drawing the authorities' attention
to the problems of the indigenous peoples in DRC;
34
People with Disablilities
➢
The Constitution, in its article 49, protects people with disabilities and
in 2015 the DRC ratified the Convention on the Rights of the Disabled.
However, the organic law on people with disabilities is still blocked in
Parliament. People with disabilities in DRC are confronted with manifold
challenges which include the issue of their accessibility to public buildings;
Economic, social and cultural rights
➢
The right to property is violated in DRC because of the eviction of
traders established in certain places. This has been regular practice in the last
five years and has caused a lot of damages and material losses among the
populations evicted by the police on the State’s instruction;
➢
With regard to the youth, the free primary and secondary education
policy is not complied with. They are confronted with unemployment and their
right to health is violated. The majority of those arrested, imprisoned or beaten
by the police during demonstrations are young people;
➢
The right that the DRC populations should have to live in dignity is
disregarded because unemployment is rising, workers receive inconsequential
salaries and informal sector activities mainly carried out by women are
precarious because of certain Government actions such as repetitive evictions.
3.
Visit to the Makala Central Prison
118
The delegation visited the Makala Central Prison and was able to observe that the
prison conditions are lower than the international standards on the matter. The
elements, which were of particular concern to the delegation, concern the
overpopulation of the prison, the substandard and inadequate food served to
prisoners and their difficult access to health care.
35
4.
Press Conference
119
At the end of the mission, the delegation of the Commission held a press conference
to share with the public, the first conclusions of the promotion mission undertaken
in the country from 6 to 12 August 2016.
36
PART THREE
OBSERVATIONS AND ANALYSIS OF THE HUMAN RIGHTS SITUATION IN DRC
120
The meetings and working sessions with stakeholders involved in human rights
promotion and protection helped the Commission to identify the positive
developments in the human rights situation in the country. The mission also noted
the issues on which there is need for improvement.
I.
POSITIVE DEVELOPMENTS
In general terms
121
The Commission congratulates the Government of the DRC for its political will and
efforts to promote and protect the human rights of the Congolese people guaranteed
by the African Charter and other regional and international human rights
instruments.
122
This resulted in the effective implementation of a number of recommendations
which the Commission made in its Conclusive and Final Observation on the
Combined Periodic Report of the DRC (8th, 9th and 10th) covering the period from
July 2003 to July 2007, presented in 2009, and those contained in the report of the
Commission's mission in DRC in 2011.
123
The implementation of the aforesaid recommendations is reflected in the adoption
by the DRC of several legislative and institutional measures and the creation of
bodies to implement the relevant policies, plans and programmes with a positive
impact on the rights contained in the African Charter and other international
instruments ratified by the country.
In specific terms
124
Thus, among the progress made, the Commission noted:
37
✓
Adoption in 2013 of a law establishing the National Human Rights
Commission which was effectively set up in 2015;
Family, Women and Children
✓
Adoption, on 15 Augusr 2015, of the Law on Parity;
✓
Review of the Family Code I accordance with the Convention on the
Elimination of All Forms of Discrimination Against Women;
✓
Projects implemented to enhance women’s empowerment;
✓
Combatting impunity in parallel with the fight against gender-based
violence and sexual violence have resulted in the sentencing to unconditional
imprisonment terms, of thousands of elements of the defense and security
forces found guilty of these wrongful acts;
✓
The significant decline of sexual violence (by about 30%) according to
several reports;
✓
The promotion and mainstreaming of gender in all national policies
and, in particular, in public services such as the police force which, according
to information received by the delegation, is a sub-regional model of the
accelerated gender promotion process;
✓
The fight against harmful practices like child marriages through the
implementation of programmes to sensitize the traditional chiefs about the
dangers of this practice;
✓
The end of the child soldier phenomenon in the ranks of the DRC's
regular defence and security forces;
Freedom of association, expression and access to information
✓
The bill on the protection of Human Rights Defenders ;
✓
The diversity of the media and political landscape with 541 audio-
visual media companies, 150 daily newspapers, and more than 500 political
parties, according to statistics provided by the authorities;
✓
The government's efforts to provide the forces responsible for crowd
control during demonstrations, with the equipment necessary to perform their
mission in accordance with international standards;
38
✓
The efforts made to update the voter registry have resulted in the
effective start of voter registration, in particular of the 14 million off-age
minors;
✓
The call for dialogue between stakeholders of national politics to
discuss issues likely to undermine national unity, peace and security and
adversely affect human rights;
✓
Efforts of the Independent National Electoral Commission to draw up
a consensual and precise calendar for the electoral process set forth by the
constitution;
Indigenous populations
✓
The involvement, according to the authorities, of the indigenous and
neighbouring populations in the management and protection of forests and
natural settings vital to their survival and the preservation of their identity;
Prisons, Access to justice and its administration
✓
The rehabilitation centres and plans to build others in order to relieve
the congestion of the existing ones and improve the living conditions in prison ;
✓
Sensitization efforts aimed at eradicating the HIV-AIDS pandemic, in
particular among the young people and the fight against mother-child
transmission;
II.
AREAS OF CONCERN
125
Despite these positive aspects, the Commission takes note of issues that require
further efforts by the Government and all other stakeholders to ensure that the
populations enjoy their human rights without constraint.
39
126
Indeed, the Commission observes the non implementation of some of the
recommendations contained in its Conclusive and Final Observation on the
Combined Periodic Report of the DRC (8th, 9th and 10th) covering the period from
July 2003 to July 2007, presented in 2009, and those contained in the report of the
Commission's mission in DRC in 2011. Moreover, the Commission notes setbacks on
certain points, which had registered progress in the area of human rights during its
last assessment of the situation.
127
The Commission notes with concern the current tense political context and the
antagonism due to the differences in interpretation and understanding of the basic
texts on the elections. This reality causes a lot of human rights violation. According
to information received by the Commission, these violations include arbitrary
arrests and detention, the legal harassment of political actors of the opposition and
human rights defenders, cases of torture and ill-treatment, cases of violent
repression of demonstrations which are themselves often violent.
128
In the same vein, the delegation is concerned about:
Political crisis and elections
The radicalization of positions of the opposition and the ruling
majority;
Lack of political and financial support for the electoral process
conducted by the Independent National Electoral Commission;
The continuing deadly violence in some parts of the country and
which, beyond the human and material damages caused, obstruct the
successful conduct of the electoral process;
The violence of some demonstrators and the attacks on law
enforcement agents;
Prisons, Access to justice and its administration
129
The Commission is also concerned about:
The overpopulated prisons like that of Makala which exceeds its
reception capacity by over 400%;
40
The abnormal extended periods of pretrial detention which results in
an excessive number people awaiting trial. This concerns up to 70% of
detainees in some prisons;
Family, Women and Children
The persistence of sexual and gender-based violence in parts of the
country that are still prey to the law of armed groups;
Freedom of association, expression and access to information
The non existence of a clear legal framework on the regulation of the
media, which results in cases of violation of freedom of the press and
information, such as the abusive closure of news agencies, in particular, the
closures by the Line Ministry even though this competence lies with the CSAG;
The delay in the process of adopting the bill on the decriminalization of
press offences, which is still pending before Parliament;
Establishing a legal framework conducive to human rights
The delay in the process of ratifying International Conventions signed
by the DRC, in particular the African Charter on Democracy, Elections and
Governance, signed in 2008;
Delay in the process of adoption by the Senate and Parliament of
important laws such as the bill on access to information, the bill on the media,
the bill on the rights of the indigenous Pygmy population, the law on human
rights defenders, etc.
Non operationalization of the CNDH in the provinces due to lack of
financial means and the non existence of an appropriate legal framework;
Cooperation with the Commission
41
The DRC Government’s lack of involvement in the Commission's
dispute mechanism, reflected in the fact that the country has still not submitted
its arguments on all the Communications pending before the Commission;
PART IV
I.
RECOMMENDATIONS
130
Following the mission and taking into account the challenges identified, the
Commission makes the following recommendations:
TO THE GOVERNMENT OF THE DRC
▪
With regard to the political context and the elections:
-
The Commission urges all stakeholders, in particular the government and
opposition political parties to sincerely and unconditionally engage in the
process of dialogue backed by the international community under the aegis
of the African Union, which sent its Facilitator Mr Edem Kodjo to DRC;
-
The Commission urges all stakeholders to support the efforts of the
Independent National Electoral Commission to draw up a consensual
electoral calendar and a reliable and updated voter registry including all offage minors and others;
-
The Commission requests the Government to provide the Independent
National Electoral Commission with all the financial, human, technical and
logistics means necessary for the discharge of its mission; and also urges
international partners to assist the Government in this regard;
▪
On the other issues, the Commission calls on the Government to:
▪
Prisons, Access to justice and its administration
42
-
Ensure that the pretrial detention periods comply with the international
obligations of the DRC and to take all the necessary measures to align the
conditions of detention to international standards; in particular by pursuing
its efforts to relieve the congestion in prisons;
Family, Women and Children
-
Ensure that the efforts to fight against impunity, sexual violence, genderbased violence, early marriages, the child soldier phenomenon and others are
pursued and supported up to the complete eradication of such practices
which seriously undermine human rights;
-
Establish mechanisms to rehabilitate and compensate the victims of sexual
violence, torture, gender-based violence or any other serious human rights
violation;
Freedom of association, expression and access to information
-
Guarantee that press freedom, the right to information and freedom of
association are protected from any illegal and illegitimate interference;
-
Sensitize the defense and security forces to respect human rights in the
discharge of their missions and provide them with more equipment required
for the performance of their duties, in compliance with international
standards, especially during the election period;
Establish a legal framework conducive to human rights
-
Accelerate the adoption and promulgation of all bills aimed at improving the
enjoyment by the entire population, of all their human rights including the
bill on access to information, the bill on the media, the bill on the rights of the
indigenous Pygmy population, the law on human rights defenders, etc;
Economic, social and cultural rights
43
-
Make more efforts to fight against the HIV-AIDS pandemic;
-
Increase its efforts to fight against youth unemployment;
-
Provide the National Human Rights Commission with the financial means
required to make it operational throughout the country;
Cooperation with the Commission
-
Be actively involved in the Commission's dispute mechanism by submitting
the arguments relating to all Communications filed against it and pending
before the Commission, on the basis of the adversarial principle;
-
Take all the necessary measures to update its periodic report in accordance
with article 62 of the African Charter, and ensuring that the latter respects the
format and contents specified by the Commission; in particular to include
measures taken to implement the Protocol to the African Charter on Human
and Peoples' Rights on the Rights of Women in Africa, etc.
TO CIVIL SOCIETY ORGANIZATIONS
▪
Work closely with the existing networks in order to ensure the promotion and
protection of human rights in DRC;
▪
Increase the level of information and experience sharing by creating thematic
networks;
▪
Contribute to the popularization of human rights promotion and protection
instruments through the sensitization, information and training of the citizenry;
▪
Systematically submit to the Commission alternative reports on the human
rights situation in DRC;
▪
For those that have not yet done so, take the necessary measures to obtain the
observer status at the Commission, and for NGOs with the said status, comply
with the rights and obligations arising therefrom.
44
TO THE MEDIA
▪
Conduct sensitization and human rights culture activities through media
campaigns;
▪
Demonstrate professionalism in the discharge of their duties and contribute to
restoring a climate of peace and confidence among the populations through
media contents prepared accordingly ;
TO UNITED NATIONS AGENCIES AND THE INTERNATIONAL COMMUNITY
▪
The Commission finally requests the international community and the various
international partners to continue to support the efforts made by the
Government to guarantee the promotion and protection of human rights in DRC.
131
In conclusion, we call on the government to take all the necessary measures to
implement the recommendations contained in this report.
45
ANNEX
I.
List
of
NGO
representatives
46
met
in
Kinshasa