Communication 274/03 and 282/03 – Interights, ASADHO and Madam O. Disu v.
Democratic Republic of Congo
Rapporteur
54th Ordinary Session: Commissioner Soyata Maiga
Summary of the Facts
1. The Secretariat of the African Commission on Human and Peoples’ Rights
(the Secretariat) received two Complaints on 10 January and 23 September
2003, lodged by The International Centre for the Legal Protection of
Human Rights (Interights) and the Association Africaine de Défense des
Droits de l’Homme (ASADHO) on the one hand, and by Madam Odette
Disu et al, on the other, based on Article 55 of the African Charter on
Human and Peoples’ Rights (the African Charter).
2. The Communications were submitted on behalf of military officers and
other civilians, all of them Congolese nationals against the Democratic
Republic of Congo (State Party to the African Charter, hereinafter referred
to as the DRC).1
3. The Complainants submit that on 16 January 2001, Mr. Laurent-Desiré
Kabila, then President of the Democratic Republic of Congo, was
assassinated in his office, apparently by a non-commissioned officer in his
guard. In the days following this assassination, several persons were
arrested, both military and civilian, including officers and noncommissioned officers, State officials and ordinary citizens by military
intelligence officers without any judicial warrants.
4. According to the Complainants, these persons were then detained for two
months in a military cell called GLM, in Kinshasa, where they were
tortured and/or subjected to other forms of cruel and inhuman
treatments. On 1 March 2001, they were transferred to the Makala Central
prison in Kinshasa and handed over to the Public Prosecutor’s Office of
the Military Court.
5. The Complainants further submit that during the thirteen (13) months of
incarceration of the victims, they were secretly interrogated by military
magistrates and military intelligence officers. The homes of some of the
accused persons were visited in their absence by the same officers without
1 The Democratic Republic of Congo ratified the African Charter on 20 July 1987.
1
any warrants. Some of them had their property, furniture and buildings
confiscated. This is what happened, for instance, to houses belonging to
Madam Rose Kamuanya and Madam. Masumbuko Mwali, who were both
arrested instead of their husbands after the latter had escaped from prison
on 28 February 2001.
6. The Complainants aver that it was only after a year’s detention, that is 13
March 2002, that the public prosecutor at the military court announced
that 135 persons, both military and civilian, had been charged for plotting
to assassinate the Head of State, for breach of national security and
Republican institutions and for criminal conspiracy.
7. The Complainants allege that on 15 March 2002, the 135 accused persons
were for the first time brought before a military court. After ten 10 months
of trial, the Court delivered its judgment on 7 January 2003 condemning
thirty (30) of the accused to death, sixty (60) to terms of imprisonment
from six (6) months to life imprisonment while forty-five (45) others were
acquitted.
8. The Complainants state that the trial took place in a military court, a
special court established by Presidential Decree on 23 August 1997, the
organizational rules and functioning of which are not consistent with the
relevant provisions of the African Charter in relation to fair trial.
9. For instance, the Complainants point out that:
a. The members of the Military Court were selected by the Executive
branch. Its presiding judge, a military magistrate, was assisted by
four senior officers with no legal background appointed by the
President of the Republic.
b. The court can judge both civilians and military officers in line with
Article 5 of Decree-Law N° 19 establishing the aforementioned
court: « This Court shall be responsible for execution of sentences in
the existing Code of Military Justice, and wherever necessary, the
ordinary penal code. It shall enforce as much as possible, the rules
of procedure set forth by the Code of Military Justice. Its decisions
are neither subject to appeal nor opposition».
c. This provision was invoked by the Court during the trial to justify
all the shortcomings relating to fundamental safeguards of fair trial
2
set out by ordinary Congolese laws and international conventions
ratified by the DRC.
The Complaint
10. The Complainants allege that the Democratic Republic of Congo has
violated Articles 2, 5, 7 and 18 of the African Charter.
THE PROCEDURE
11. In a letter dated 10 January 2003, Interrights and ASADHO, NonGovernmental Organizations with observer status at the Commission
referred the first Complaint to the Secretariat. In the same correspondence,
the Complainants also asked the Chairperson of the Commission to
request the President of the Democratic Republic of Congo, in line with
the provisions of Rule 111(3) of the Rules of Procedure of the Commission,
to take all appropriate protective measures to stay the execution of the
death sentences handed down to the victims by the Military Court on 7
January 2003.
12. On 14 January 2003, the Secretariat sent a petition by the Commission to
the President of the Democratic Republic of Congo requesting the stay of
execution of the sentences delivered while waiting for the Complaint to be
considered.
13. The Secretariat further informed the Parties that the Complaint had been
lodged under reference Communication 274/03 Interights and ASADHO v.
DRC and it will be submitted to the Commission for seizure at the 33rd
Ordinary Session scheduled to take place in May 2003 in Niamey, Niger.
At the said Session, the Commission decided to defer the consideration of
the Complaint to its 34th Ordinary Session. The Secretariat consequently
informed the Parties of the said decision on 19 June 2003.
14. On 22 October 2003, the Secretariat received a second Complaint from
Madam Odette Disu et al and acknowledged receipt thereof. She informed
the Complainants that their petition had been registered and referenced
Communication 282/03 Madam Odette Disu et al v. DRC and will be
submitted to the Commission for seizure at the 34th Ordinary Session to be
held from 6 to 20 November 2003 in Banjul, The Gambia.
15. At its 34th Ordinary Session, the Commission considered the two
Complaints and decided to be seized of them. The Secretariat informed
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the Parties and requested the Parties to make their written submissions on
Admissibility for consideration at the 35th Ordinary Session.
16. On 2 and 7 December 2003, the Secretariat informed the Complainants
about the decision of the Commission and requested them to make their
submissions on admissibility. The Secretariat further requested them to
submit all their documents in relation to the Complaint, in particular the
disputed decisions delivered by the Military Court. On the same date, the
Secretariat also transmitted a copy of the Communication to the
Respondent State requesting the latter to present its memorandum within
three (3) months.
17. On 11 February 2004, the authors of Communication 282/03 forwarded to
the Secretariat, the Decree on the establishment of the Military Court and
indicated at the same time that the Court had not authorized them to
make a copy of the Decree in contention, on the grounds that « Reasons
have still not been assigned to the judgment ».
18. On 9 March 2004, the Secretariat sent a letter reminding the authors of
Communication 274/03 and the Respondent State to make their
submissions on admissibility. On 18 March 2004, the authors of
Communication 274/03 forwarded their submissions on admissibility.
The said submissions and the related documents were transmitted to the
Respondent State.
19. At the 35th Ordinary Session, the Commission decided to merge
Communications 274/03 Interights and ASADHO v. DRC and 282/03
Madam Odette Disu(Esq) et al v. DRC. The Commission justified its decision
by stating that the two Complaints touch on similar facts and concern the
same victims, i.e. the 135 persons tried by the Military Court as part of the
case referred to as the « Kabila Trial ».
20. At the same Session, the Commission granted hearing to the
Complainants and the Respondent State on admissibility and decided to
defer its decision while awaiting the written submissions of the Parties.
On 18 June 2004, the Secretariat informed the Parties about this decision.
21. On 16 September 2004, the Secretariat received the written submissions of
the Respondent State on admissibility. These submissions were
transmitted to the Complainants on 20 October 2004.
22. At its 36th Ordinary Session, the Commission considered the
Communication and deferred its decision on admissibility to the 37th
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Ordinary Session. On 23 December 2004, the Secretariat informed the
Parties about this decision.
23. At its 37th Ordinary Session, the Commission granted a hearing to the
Complainants, and after considering the Communication, declared it
admissible. On 28 June 2005, the Secretariat informed the Parties about the
decision and requested them to make their submissions on the merits
within three (3) months. A reminder was sent to the Parties on 10 October
2005.
24. At the 38th Ordinary Session, the Commission decided to defer its decision
on the merits to the 39th Ordinary Session. On 15 December 2005, the
Secretariat informed the Parties about the décision and reminded them to
make their submissions on the merits within three (3) months. A new
letter was sent as a reminder on 13 March 2006.
25. At the 39th Ordinary Session, the Commission considered the
Communication and decided to defer its decision on the merits to the 40th
Ordinary Session. On 30 October 2006, the Secretariat notified the Parties
about the above-mentioned decision and requested them once again to
present their memoranda on the merits in the shortest possible time.
26. Between its 40th Ordinary Session held between 15 and 29 November 2006
in Banjul, The Gambia, and 25 September 2012, the final date for the
submission of the memoranda, the Commission considered the
Communication at its successive sessions and deferred it at various times
for failure to receive the written submissions of the Parties on the merits.
27. During this period, on 17 July 2007, the Complainants appealed to the
Commission to intercede with the authorities of the Democratic Republic
of Congo for the latter to provide a copy of the judgment of the Military
Court as it was critical for the drafting of their submissions on the merits
of the case. In this regard, the Secretariat acted on the said request in a
Note Verbale, dated 17 September 2007. The Respondent State was
reminded to forward its submissions on the merits.
28. On 20 August 2012, the Complainants forwarded their submissions on the
merits to the Secretariat. On 25 September 2012, the Secretariat
acknowledged receipt of the said submissions and forwarded a copy to
the Respondent State by indicating a new deadline of sixty (60) days for
the submission of its reply and to transmit a copy of the Military Court’s
judgment.
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29. As no response was received from the Respondent State, the Secretariat
informed the Parties that the Commission had decided to give its decision
on the merits of the case based on the facts in its possession, in case the
Respondent State fails to send its response by 25 November 2012. On the
said date, the DRC had still not submitted its memorandum on the merits
of the Communication.
THE LAW
Admissibility
The Complainants’ submissions on Admissibility
30. The Complainants allege that the Communication satisfies all the
conditions set out in Article 56 of the African Charter. The submissions
touch in particular on meeting the requirement of exhausting local
remedies as laid down in Article 56 (5).
31. The Complainants submit that local remedies were exhausted, since under
the provisions of Article 5 of Decree-Law No 19 indicated in the facts
presented, the judgment of the Military Court « can neither be appealed
against nor opposed ».
32. While recognizing that the Supreme Court was an existing remedy, the
Complainants believe that such a remedy was not available at the time of
the case because the transitional Constitution which provided for it only
came into effect after the Commission was seized of the matter.
Furthermore, they are of the opinion that even if the case had been
referred to the Supreme Court, the latter could not have given a ruling on
the merits of the case, and thus the remedy would not have been effective.
33. In the same vein, the Complainants allege that the Presidential pardon is
not a legal remedy and therefore cannot become an obstacle to referring
the matter to the Commission.
The Respondent State’s submissions on Admissibility
34. In its written submissions, the Respondent State alleges that the
Complainants have not proved that they lodged an appeal against the
judgment in contention whereas this remedy was available pursuant to
Article 150, paragraph 3 of the Transitional Constitution of the Democratic
Republic of Congo.
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35. The State also submits that apart from the legal remedies, the Constitution
of the Democratic Republic of Congo, in its Article 79, provides for the
right of pardon to be exercised by the President of the Republic, since the
latter can suspend, commute or mitigate the punishments. According to
the State, though it is not a conventional legal remedy, the right to request
for pardon or the commutation thereof is an established right of any
person condemned to death by Article 6 (4) of the International Covenant
on Civil and Political Rights.
36. In this regard, the State argues that the Prosecution and the counsels for
the convicted persons immediately appealed for pardon by the President
of the Republic and that the said remedy was still under consideration at
the time the Commission was seized of the matter. The State therefore
concludes that the local remedies were not exhausted.
The Commission’s Analyses on Admissibility
37. This Communication was submitted in accordance with Article 55 of the
African Charter which gives competence to the Commission to receive
and consider « communications other than those from State Parties ». To
be deemed admissible, the said Communications, must meet the
requirements stipulated in Article 56 of the African Charter.
38. Considering the memoranda submitted by the Parties, it is obvious that
they cover all the admissibility requirements except the one relating to
exhaustion of local remedies. The Commission itself has noted that only
the requirement on exhaustion of local remedies set out in Article 56(5) of
the African Charter is the bone of contention. Under the terms of the
aforementioned Article, a communication can only be declared admissible
when the local remedies have been exhausted, unless it is obvious to the
Commission that the said remedies have been unduly prolonged.
39. In its judgment in Jawara v. Gambia,2 the Commission considered that
when they exist, the domestic remedies must be available, effective and
sufficient. A remedy is deemed to be available when it can be pursued by
the Complainant without any impediment; it is effective if it offers some
prospect of success and it is found sufficient if it is capable of remedying
the alleged violation.3
2 Sir Dawda K. Jawara v. Gambia Communication 147/95 and 149/96 (2000) RADH 107 (2000) para
31.
3 Jawara para 32. Emphases by the Commission.
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40. On the issue of exhausting local remedies, the Commission notes that the
judgment contested by the Complainants was delivered by the Military
Court of the DRC which is a court of last instance, as stipulated in Article
5 of the Decree establishing the afore-mentioned Court. Indeed, the
Commission notes that it was first seized of the matter on 10 January 2003,
i.e. three days after the sentences were delivered by the Military Court on
7 January 2003. It is undisputed that on this date, the Complainants had
no means whatsoever to initiate a domestic judicial remedy as in the
current case; the Decree did not contain any provisions for opposition nor
an appeal against the judgment delivered by the Court.
41. The Commission notes that on 18 November 2002, i.e. ten (10) months
after the conviction of the Complainants, the Respondent State passed a
new Law on the military judicial Code providing for appeal and
opposition against the judgments of the military court. However, the
passage of this law does not redeem the objection to appeal imposed on
the Complainants during the entire period of their preventive detention.
42. With regard to the possibility of appeal provided for by the transitional
Constitution, the Commission notes that the said Constitution only had
force of law on 1st April 2003, three months after this Communication was
submitted. This Constitution could not have applied to judgments
delivered in March 2002, much less to facts which date back to 2001.
Furthermore, as an Appeal Court, the Supreme Court was not an effective
remedy as it would only have considered compliance with the rules of
procedure and not the substantive issue of the case. Therefore, it was not
likely to remedy the alleged violations.
43. The Commission further notes that the Complainants could have pleaded
for pardon from the President of the Republic, and in any case, they had
filed such a related petition in January 2003. The Commission further
notes that on 14 January 2003, in accordance with Rule 111(3) of its Rules
of Procedure, it had requested the President of the Democratic Republic of
Congo to take all appropriate measures to stay the execution of the death
sentences pronounced by the military court.
44. In any case, the Commission adopts its jurisprudential position that the
remedies the Complainant is requested to exhaust are mainly of judicial
nature.4 The Presidential pardon is not judicial in nature and consequently
its exhaustion cannot be insisted upon by the Complainant.
4 Cudjoe v. Ghana Communication 221/98 (2000) AHRLR 127 (ACHPR 1999) para 13.
8
45. In the light of the foregoing, the Commission notes, generally, that in this
particular case, local remedies did not exist. Even assuming the
Complainants had the opportunity of seizing the Supreme Court of the
matter, this remedy would not have been effective. The Commission
therefore concludes that the local remedies were exhausted.
The Commission’s decision on Admissibility
46. In view of the above, the African Commission on Human and Peoples’
Rights declares this Communication Admissible in accordance with
Article 56 of the African Charter.
Merits
The Complainants’ submissions on the Merits
47. On the merits, the Complainants allege that some Articles in the
provisions of the African Charter were violated. Furthermore, they submit
that the Respondent State violated a number of provisions in respect of
other international instruments and the domestic law. The alleged
violations of the African Charter relate to 2, 5, 7 and 18.
48. Concerning Article 2 of the African Charter which protects the right to
non-discrimination, the Complainants allege that, the fact that the military
court declared a closed-door hearing by preventing the media from the
trial with the exception of the military press corps subservient to the
regime in power was an act of discrimination.
49. In its Article 5, the African Charter guarantees that every individual shall
have the right not to be subjected to torture, cruel, inhuman or degrading
treatments. To buttress the violation of this provision, the Complainants
allege that being subjected to whipping by State security officers while in
detention, and to sentences of life imprisonment, are acts of torture. In
addition, they aver that such acts of torture extend to failure to publish the
judgment on the sentences, since by this act some of them wallowed in the
corridors of death for more than two years. Furthermore, they allege that
depriving them of the right to get in touch with their families is an
inhuman treatment.
50. Regarding Article 7 of the African Charter, the Complainants allege that
several rights related to fair trial have been violated. Concerning Article
7(1) (a), the Complainants allege that their inability to question the legality
and the duration of their preventive detention before a court is a violation
9
of their right of access to justice. They submit that the same violation can
be observed in their being denied their right of appeal arising from the
provisions of Article 5 of the Decree-Law that established the military
court. To buttress this assertion, the Complainants cite an error of
judgment on the part of the military court and refusal of payment of
compensation for unlawful detention.
51. Concerning allegations of violation of Article 7(1) (b), the Complainants
contend that the non-compliance with rights protected under this
provision is noticeable by the flagrant contradiction between the judgment
of the military court and the judicial developments of the case. Thus, they
submit that the military court concluded on the guilt whereas several grey
areas persisted in the case of assassination of President Laurent Désiré
Kabila and that the principal witness had been convicted and discharged.
52. Furthermore, the Complainants submit that the Prosecutor at the military
court declared that the investigation of the case was on course. Even the
President of the afore-mentioned court is said to have commented on the
judgment in similar terms. Finally, the search warrants were said to have
been issued with clear instructions to clarify the same facts for which the
Complainants had been found guilty. The Complainants allege that all
these facts prove that presumption of innocence which is of critical
importance in a case involving capital punishment had been violated.
53. The provisions of Article 7(1)(c) of the African Charter protect the right to
judicial assistance. To buttress the violation of the terms of this Article, the
Complainants allege that the fact that they could not consult their
counsels until the eve of their trial, i.e. on 15 March 2002, or after more
than one year in preventive custody, constitutes a violation of their right
to judicial assistance.
54. The Complainants further allege that their rights protected under Article
7(1) (d) of the African Charter have been violated, i.e. being tried within a
reasonable time by an impartial court or tribunal. According to them,
such a right has been violated as they were arrested on 15 January 2001
and were kept in detention for more than a year before being arraigned
before the military court on 15 March 2002. They further submit that the
court had competence to try them only during war time, but this was not
the case, and additionally, the judges were not qualified.
55. According to the Complainants, the Respondent State also violated the
rights guaranteed by Article 7(2) of the African Charter which establishes
the principle of legality of punishments and offences. They allege, in this
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regard, that the promulgation of a law adopted in the course of this trial,
setting out more lenient penalties, was delayed, and then finally
authorized immediately after judgment was delivered by the military
court. The Complainants further aver that as enforcement measures had
been abrogated, the afore-mentioned sentences could no longer be passed
without violating the provisions of Article 7(2) of the African Charter.
56. The Complainants further submit that the fact that they were deprived of
contact with their families during the entire period of detention is a
violation of the rights guaranteed by Article 18 (1) of the African Charter.
57. Finally, the Complainants cite, among other allegations, the provisions of
Article 9 (2) of the International Covenant on Civil and Political Rights, to
buttress the argument that, since they were not informed about the
reasons for their arrest and the charges brought against them, their rights
have been violated. Similarly, they denounce the decision of the judicial
authorities to keep them in detention as arbitrary in spite of the amnesty
law which clearly applied to their case.
The Commission’s analyses on the merits
58. Prior to considering the submissions on the merits, the Commission notes
that between 25 June 2005 and 25 November 2012, to be precise, for seven
(7) years, it gave the Respondent State several opportunities to respond to
the allegations of the Complainants. As no response was forthcoming
from the State, the Commission decided to take this decision based on the
facts in its possession in line with the Commission’s practice.5
59. Regarding reference to the provisions of other international conventions
and domestic law of the Respondent State by the Complainants, the
Commission notes that the control of the Respondent State’s actions in
terms of compliance with those standards is not within its purview. The
related submissions will therefore not be considered as part of the merits.
However, where necessary, the Commission will automatically refer to
the relevant and corresponding provisions of the African Charter in case
the alleged violations are substantiated.
Institute for Human Rights and Development in Africa v. Angola Communication 292/04 (2008)
AHRLR 43 (ACHPR 2008) para 34. Social and Economic Rights Action Center, Center for Economic
and Social Rights v. Federal Republic of Nigeria Communication 155/96 (2001) AHRLR 60 (ACHPR
2001) and Union Interafricaine des Droits de l’Homme et al v. Angola Communication 159/96 (2000)
RADH 20 (ACHPR 1997).
5
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60. Concerning Article 2 of the African Charter, the Commission notes that
the Complainants allege that their right to non-discrimination has been
violated without however explaining how, in this particular circumstance,
the said closed–door session violates the rights referred to. The
Commission must therefore reject this submission as being a violation of
this provision of the Charter.
61. With regard to Article 5 of the Charter, the Commission takes inspiration
from Banda where ordeals such as « whipping and beatings with sticks »
were viewed rather as inhuman and degrading treatment and not acts of
torture.6 By contrast, the fact that the Complainants were said to have
been « whipped » is an inhuman and degrading treatment. The same
situation applies to depriving them from having contact with their
families which is also inhuman treatment.
62. In the case of torture also alleged by the Complainants, the Commission
refers to its jurisprudence in the case Sudan Human Rights Organisation and
Another v. Sudan to recall that the facts alluded to must be imputed to an
authority or a State official, and that the purpose is to punish the victim,
and the punishment suffered must be physical, moral or psychological.7
63. In this case, it is undisputed that the reported treatments meted out by the
State security officials was a means of punishing the Complainants for
their presumed responsibility in the assassination of the President of the
Republic. It is also undeniable that some of the Complainants were
sentenced to death and remained in the corridors of death for more than
two years. Such a situation, to say the least, is likely to bring about agony
and a psychological pain which, in the opinion of the Commission, is
torture. Hence, the Commission concludes that Article 5 of the African
Charter has been violated.
64. The Complainants, among others, invoke the provisions of Article 9(2) of
the International Covenant on Civil and Political Rights to support the
assertion that the lack of information as to the reasons for their arrest is a
violation of their rights. Furthermore, they allege that their detention was
arbitrary because it was prolonged in spite of an Amnesty Law which
should have gone in their favor.
65. These allegations obviously point to the right not to be detained illegally
and arbitrarily, which is protected by Article 6 of the African Charter. By
6 Banda v. The State (2002) RADH 118 (HCZa 1999) paras 1, 10-12.
7 Communication 279/03
(2009) AHRLR 153 (ACHPR 2009) paras 155-157. Also Ben Salem v.
Tunisia Communication 269/2005 (2007) AHRLR 54 (CAT 2007) paras 16.4, 16.5.
12
referring to its Principles and Guidelines on the Right to a Fair Trial, the
Commission notes that Article 6 includes the right of the individual to be
informed about the reasons for his arrest and charges preferred against
him at the time of the individual’s arrest.8 The Commission applied the
afore-mentioned Principles in its decision in Law Office of Ghazi Suleiman v.
Sudan, where the arrest and detention lacked legal basis.9 In this case, the
facts alleged by the Complainants are a violation of their rights to liberty
and to the security of their persons.
66. Regarding Article 7(1)(a), the Commission recalls that the possibility of a
detained person to question the legality and the duration of his detention
before a court is fundamental to the enjoyment of the right to a fair trial.
This possibility is established by the Commission in its decision Purohit
and another v. The Gambia.10 It emerges from the consideration of the facts
of the case, that during the entire period of their preventive detention, the
Complainants did not have the opportunity to refer the matter to a judge
to contest the legality and the duration of the afore-mentioned detention.
67. Article 7(1) (a) of the Charter also includes the right to an appeal against a
judicial decision. The Commission has ample jurisprudence on the right to
appeal, in particular, concerning cases involving military courts and/or
where the death penalty is enforced. The consistent principle adopted is
that the military courts do not enjoy any exception regarding rights to a
fair trial.11 The right to appeal, particularly in the event of the death
penalty being invoked, is also established by the Commission in the
Principles and Guidelines on the Right to a Fair Trial.12 In the case in point, the
provisions of Article 5 of the Decree-Law establishing the military court
did not provide for any such appeal or opposition.
68. Still on the issue of violation of Article 7(1)(a), the Commission is of the
opinion that the right protected by this provision makes it mandatory for
the courts to assign reasons for their judgments. Such an obligation is
clearly highlighted in the Principles and Guidelines on the Right to a Fair
8 African Commission ‘Principles and Guidelines on the Right to a Fair Trial and Legal Assistance
in Africa’ (2001) Principles M(2)(a).
9 Op. cit. para 49.
10 Communication 241/01 (2003) RADH 98 (CADHP 2003) para 72. See also, Zegveld and another v.
Eritrea Communication 250/02 (2003) RADH 85 (CADHP 2003) para 56.
11 Law Office of Ghazi Suleiman v. Sudan Communication 222/98 and 229/99 (2003) RADH 142
(ACHPR 2003) para 53 ; Women’s Legal Aid Centre (on behalf of Moto) v. Tanzania Communication
243/01 (2004) RADH 120 ACHPR 2004) para 47 ; Civil Liberties Organisations and others v. Nigeria
(2001) RADH 80 (ACHPR 2001) para 32-34.
12 Principles A(2)(j), N(10).
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Trial.13 In the case in point, the Commission notes that the Complainants
allege a complete failure to produce the judgment of the military court. In
the case of Byagonza v. Uganda14 and Mamboleo v. DRC,15 the Commission
laid the blame on the State for failure by the domestic courts to produce
the judgments and took its decisions based on information submitted by
the Complainant. In this particular instance, the judgment of the court has
never been made available to the Complainants.
69. On the last point relating to allegations of violation of Article 7(1)(a), the
Commission recalls that the African Charter guarantees the right to legal
redress in spite of the express lack of a provision to that effect. The
Commission spells out the content of such a right in the Principles and
Guidelines on the Right to a Fair Trial.16 The doctrine also recognizes the
existence of a right to legal redress under the African Charter.17 Better still,
the Commission has a wealth of jurisprudence in that regard18 and other
regional human rights protection bodies make an extensive use of it.
70. For instance, in a very significant way, in implementing the African
Charter, the ECOWAS Court of Justice adopts an approach derived from
the right to legal redress in the case Manneh v. The Gambia regarding illegal
detention. The adopted principle is that in terms of human rights, it would
be more of a punitive redress than a just reparation. Thus, the Court was
of the opinion that since such a detention had inflicted, inter alia, physical,
psychological and moral pain on the Complainant, the latter had a right to
compensation.19
13 Principles A(2)(i).
14 Byagonza Christopher (represented by Dr. Curtis Doebbler and Ms. Margreet Wewerinke) v. Uganda
Communication 365/08 paras 151-154, 168.
15 Maître Mamboleo M. Itundamilamba v. the Democratic Republic of Congo Communication 302/05
ACHPR (2013) paras 110-111.
16 Principles C(a), C(b)(2).
17 G Naldi ‘Reparations in the practice of the African Commission on Human and Peoples’
Rights’ (2001) Leiden Journal of International Law 686-688 and H Adjolohoun Droits de l’homme et
justice constitutionnelle en Afrique : le modèle béninois à la lumière de la Charte africaine des droits de
l’homme et des peuples Paris : L’Harmattan (2011) 58-72.
18 For instance, Institute for Human Rights and Development in Africa v. Angola Communication
292/04 (2008) AHRLR 43 (ACHPR 2008) paras 86-87 ; Wetsh’okonda Kosso and others v. RDC
Communication 281/03 (2008) AHRLR 93 (ACHPR 2008) para 93 ; Antoine Bissangou v. Congo
Communication 253/02 (2006) AHRLR 80 (ACHPR 2006) ; Kenneth Good v. Botswana
Communication 313/05 (2010) AHRLR 43 (ACHPR 2010) para 245.
19 Chief Ebrimah Manneh v. The Gambia (2008) AHRLR 171 (ECOWAS 2008) paras 29-40 where the
Court awarded the Complainant compensatory damages in the sum of 100 000 dollars. Also in
Kadijatou Mani Koraou v. Niger (2008) AHRLR 182 (ECOWAS 2008) paras 92-96 where the
ECOWAS Court of Justice considers that nine years of servitude have caused a psychological and
moral pain to the Complainant and awards him compensatory damages in the sum of 20 000
dollars.
14
71. In this Communication, the illegal detention of the Complainants has
already been established above. They received no compensation as
reparation for such a detention.
72. In the light of the above, the Commission notes that the Complainants did
not have the opportunity to seek redress for their detention and much less
to appeal against the decision to sentence them. Furthermore, no reasons
were assigned for the said judgment and neither were the Complainants
compensated for their illegal detention. The Commission therefore
concludes that the provisions of Article 7(1)(a) of the African Charter were
violated as far as the rights listed above are concerned.
73. Article 7(1)(b) of the African Charter protects the right to be presumed
innocent. The respect for this protected right is all the more significant
where the death sentence comes into play.20 As recalled in the case Law
Office of Ghazi Suleiman v. Sudan, the Commission believes that, the fact
that an accused person is declared guilty even before finally determining
such culpability is a violation of presumption of innocence.21
74. In the current case, both the Prosecutor at the military court and the
President of the afore-mentioned Court agreed on this fact; that following
the sentencing of the Complainants, the investigation continued in the
case relating to the assassination attempt that cost the life of President
Laurent Désiré Kabila. The proof is that, a search warrant issued after the
Complainants were sentenced, contains clear instructions seeking proof to
clarify the matter. In such circumstances, the sentencing of the
Complainants seems to be a presumption of guilt. The Commission
concludes from this that the provisions of Article 7(1)(b) of the African
Charter have not been complied with.
75. The provisions of Article 7(1)(c) of the Charter protect the right of judicial
assistance. The Commission stretches the scope of such a right in its
Principles and Guidelines on the Right to a Fair Trial.22 In its decision Article
19 v. Eritrea, it lays particular emphasis on the right to have access to a
counsel especially during investigations.23 The Commission notes that
during the whole year of their preventive detention, the Complainants
could not get in touch with their counsels. They were not allowed to do so
20 Principles N(6)(e).
21 Op. cit. paras 54-56.
22 Principles G(b).
23 Communication 275/03 (2007) AHRLR 73 (ACHPR 2007) para 103.
15
until the eve of the trial. Such a state of affairs is obviously a violation of
the right to judicial assistance.
76. Article 7(1)(d) of the African Charter establishes the right to be tried
within a reasonable time by an impartial court or tribunal. In respect of
the right to be tried within a reasonable time, the Commission highlights it
in its Resolution on the Right to Remedy and a Fair Trial.24 The Commission
also refers to it in its decision Article 19 v. Eritrea to lay particular emphasis
on the fact that the circumstances of the Complainant must be taken into
consideration and that the seriousness of the alleged acts cannot be a
justification for the reasonable time.25 In this case, the Commission has
already noted that the preventive detention of the Complainants was
unduly prolonged and without trial.
77. The Principles and Guidelines on the Right to a Fair Trial clarifies the meaning
of the right to be tried by an impartial court by determining as a relevant
fact; the fact that the judicial officer may « have expressed an opinion
which would influence the decision-making » or that he may consult a
higher authority before rendering a decision.26 As the Commission
indicates in the case Civil Liberties Organisations v. Nigeria, impartiality
means that the judicial organization does not depend on the exclusive
power of the Executive but of the Legislature and that military courts are
no exception to impartiality.27
78. In this Communication, the members of the military court were mostly
military or serving police officers. The discretionary power of
appointment by the President of the Republic in respect of these judges
establishes or is likely to establish a hierarchical relationship with higher
authority. In these circumstances, the Court would not meet the required
standards of an impartial court. As the Complainants were not tried
within a reasonable time and by an impartial court, the Commission
concludes that the provisions of Article 7(1)(d) were violated.
79. Concerning Article 7(2) of the African Charter which guarantees the right
to be sentenced only for actions or omissions previously provided for by
24 African Commission ‘Resolution on the procedure on the right to redress and fair trial’ (1992)
para 2(c).
25 Op. cit. paras 96-100.
26 Principles A(5)(c)(2) et A(5)(e).
27 Civil Liberties Organisations and others v. Nigeria op. cit. para 27.
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the law, the Commission has a rich stock of case laws on such a right.28
However, in addition to the general prohibition of retroactivity is the
exception by which the accused person must enjoy more lenient criminal
laws. Though the provisions of Article 7(2) of the African Charter do not
expressly provide for the enforcement of more lenient criminal laws, such
a principle is established by the International Covenant on Civil and
Political Rights to which the Respondent State is a Party.29 In any case, the
Commission recognizes such a principle in its Principles and Guidelines on
the Right to a Fair Trial.30
80. In the case of the Complainants, the death penalty was pronounced
against them whereas the law on enforcement measures of the
aforementioned law had been abrogated. Furthermore, a law adopted
during their trial, provided for less severe measures. However, the said
law was never put into effect until after the military court had announced
its judgment. In such circumstances, the Commission concludes that the
provisions of Article 7(2) of the African Charter were not complied with.
81. Article 18(1) of the African Charter states that: « the family shall be the
natural unit and basis of society. It shall be protected by the State which
shall take care of its physical and moral health ». In the opinion of the
Commission, the spirit underlying this provision of the Charter is that
persons in detention must as a matter of course enjoy material and
psychological support of their close relations. This is of paramount
importance in view of the particularly insecure detention conditions in
Africa.
82. The Commission recalls such a need in various decisions, by highlighting
the trauma that a person in detention may suffer from as a result of his
inability to have access to his family.31 The Commission has already noted
that the fact that the Complainants were deprived of getting in touch with
their family is an inhuman treatment. Such a treatment does not guarantee
neither the protection of the family, nor its physical and moral health.
Consequently, the provisions of Article 18(1) of the African Charter were
not complied with.
28 Refer among others to Jawara v. The Gambia Communication 147/95 et 149/96 (2000) RADH 98
(ACHPR 2000) para 63 ; Amnesty International v. Zambia Communication 212/98 (2000) RADH 359
(ACHPR 1999) para 36.
29 The Commission uses the provisions of Article 61 of the African Charter to make reference to
the express provisions of the Covenant.
30 Principles N(7)(b) and (c).
31 For instance, Article 19 v. Eritrea op. cit. para 103 ; Constitutional Rights Project v. Nigeria
Communication 143/95 and 150/96 (2000) RADH 243 (ACHPR 1999) para 29 ; Civil Liberties
Organisations v. Nigeria op. cit. para 27.
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The Complainants’ prayers
83. As a remedy for the alleged violations, the Complainants pray the
Commission to :
1. Recognize that the Democratic Republic of Congo has violated
Articles 2, 5, 7 and 18 of the African Charter.
2. Declare the Decree-Law No. 019 of 23 August 1997 on the
establishment of a military court to be contrary to the
international commitments subscribed to by the Democratic
Republic of Congo in relation to fair trial.
3. Order the Democratic Republic of Congo to re-open the case
and review it by adhering strictly to human rights.
4. Request the Democratic Republic of Congo to compensate the
Complainants for all the different types of injury they suffered
through human rights violations they were subjected to.
84. Having concluded the violation of the rights protected by Articles 5, 6, 7
and 18(1) of the African Charter, the Commission followed up on the
allegations of the Complainants. As indicated in its analyses, the
Commission recognizes the principle of redress, including monetary
compensation for violation of rights protected by the African Charter.
85. However, the Commission adopted its consistent position according to
which it cannot take the place of national authorities in practice, when it
comes to redress of injuries suffered. Consequently, it has referred the
Complainants to the said authorities for the assessment of the quantum of
compensation,32 unless the request has been indicated precisely in the
Communication like in the case Kenneth Good v. Botswana.33 In this case,
the Complainants did not quantify the injuries suffered.
86. The Commission notes therefore that the trial of the Complainants was
ongoing, the Respondent State passed Law No. 023 of 18 November 2002
on the military justice Code and its Article 276 provides for opposition
32 Cases such as Mekongo Louis v. Cameroon, Bissangou v. Congo op cit ; Association of Victims of
Post Electoral Violence and Interights v. Cameroon Communication 272/03 (2009) AHRLR 47
(ACHPR 2009).
33 Kenneth Good v. Botswana Communication 313/05 (2010) AHRLR 43 (ACHPR 2010) para 245.
18
and appeal against the judgments delivered by the military courts.
However, such a reform only partially settles the non-compliance with the
Congolese criminal law and the African Charter, the violation of which
has been noted in this Communication. Furthermore, the abovementioned law does not obviate nor does it remedy the injuries suffered
by the Complainants, some of whom languished in the corridor of death
for a decade.
87. Under the provisions of Rule 112(2) of the Rules of Procedure of the
Commission, when a decision is taken against the Respondent State, the
parties must, within a period of one hundred and eighty (180) days, with
effect from the date of notification of the decision, inform the Commission
in writing about all measures taken or in the process of being taken by the
Respondent State to give effect to the decision..
Decision of the Commission
The Commission,
For these reasons,
88. Declares that the Democratic Republic of Congo has not violated the
provisions of Article 2 of the African Charter.
89. Declares on the other hand that the Democratic Republic of Congo has
violated the provisions of Articles 5, 6, 7 and 18(1) of the African Charter.
Consequently, it :
a) Requests the Democratic Republic of Congo to align the provisions
of Decree-Law No. 019 of 23 August 1997 establishing a military
court with the standards of fair trial prescribed by the African
Charter.
b) Urgently requests the Democratic Republic of Congo to re-open
and review the case in strict compliance with human rights
standards at least for persons still in detention
c) Requests the Democratic Republic of Congo to maintain its
moratorium on capital punishment in accordance with the
Resolution of the Commission requesting States to envisage suspending
the death penalty (1999).
d) Further requests the Democratic Republic of Congo to compensate
the Complainants fairly for the injuries suffered as a result of the
19
violation of their human rights noted in this case. The cases of
confiscation of property shall be resolved through restitution or
complementary compensation. The amount of compensation shall
be determined in accordance with Congolese domestic law.
e) Finally, requests the Democratic Republic of Congo to send a
written report to the Commission within one hundred and eighty
(180) days of notification of this decision regarding measures taken
towards the implementation of these recommendations.
Adopted at the 54th Ordinary Session of the African Commission on Human
and Peoples’ Rights, held from 22 October to 5 November 2013 in Banjul, The
Gambia.
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