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UNION AFR.lCAtNE
AFRICAN UNION
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AfdcwrC0111111lssin110111111111011 & People1~ ' .Rlglit.'J
UNIAO AFRICANA
Commission Africaine des Droits.de rt{omn:,e & des Peup/es
31 Bljilo Annex Layout; K6mbo North.Dis1ri6t, Western.Region, P. 0. Bqk 873,. BariJ{II, TheGambi&
Tel: (220) 441050514410506; Fsx::(220) 4410504
E-m.sil: au-bsniullRlafrica-union.ora•:web www.achDr.ora .
Communication 39311·0
Institute for Human Rights· and ·oevelopment
in Africa and,Qthers
.
.
'
Adopted by the
African Commission on Huinan and Peoples' Rights
durillg the.2d" Extra 0rdinary Sessionj from 9 to 18 June 2016
Banjul, The Gambia
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Commissioner SoyataMaiga -
Chairperson ofthe A1iican Commission
on Human and Peoples• Rights
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Dr. MaryMabo~
Secretary to:the:~ ~ ~ i o n on
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Communication 393/J.0 - Institute for Human Rights and Development in Africa
and Others v. Democratic Republic of Congo
Summary of the Complaint
1.
On 9 November 2010, the Secretariat of the African Commission on Human and
Peoples' Rights (the Secretariat) received from the Institute for Human Rights and
Development in Africa; Action against Impunity for Human Rights, and Rights
and Accountability in Development a Comp
bmitted in accordance with
es Rights (the African
Article 55 of the African Charter on Hum
Charter).
2.
The Complaint was filed on behalf
Ullmwengu Lukumani, Ulimweng
and Y who requested anon ·~, ag
Respondent State or the DRC), a
3.
The Complainants alle
(6) or seven
•
members of
am,
up of about six
ividuals claiming to be
ent (MRLK) and led by
·t that lli
4.
co
put u
people
reported
the populati
5.
well as X
ongo (the
did not engage in any armed
nd police forces given that the latter did not
• that on 14 October 2004, about 100 young
......,..,..,_ in Kazadi's movement and that at no point was it
lations were committed by MRLK members against
a.
However, the Complainants contend that the Anvil Mining Company (an Australian
registered company), seeking to protect its interests in that locality, provided
logistics, foodstuff and financial resources to the 62nd Infantry Brigade of the DRC
Armed Forces (FARDC) stationed in Pweto, to enable them to dislodge the
insurrectional movement.
1 The Democratic Republic of Congo ratified the African Charter on 20 July 1987.
6.
The Complainants assert that on 15 October 2004, during an offensive launched by
the FARDC against the MRLK, serious human rights violations, in particular
arbitrary arrests, looting, massacres and summary executions were reported to
have been committed against the people of I<ilwa. Massive bombings carried out
by the FARDC were reported to have led to the destruction of several houses.
7. The Complainants further aver that from 22 to 24 October 2004, a fact-finding
mission led by the United Nations Mission in the Democratic Republic of Congo
(MONUC) to Kilwa revealed the death of 73 people, incl ding 28 people who were
victims of summary executions during the events o 14 October 2004.
8. The Complainants contend tha
arrested alongside six or seve
by Anvil Mining and later
that he miraculously escap
FARDC tried to shoot •
misfortune befell Y, an: the
death in the midst of several
that he was
e owned
a grave, the
dy. The same
ed only when he feigned
9. According to the Compla
family remains convinced
that Ulimweng Lukumani an Ulimwengu ombele, who are still missing,
are among the people executed at Nsen ele,, and that the Kabiata Hotel, which has
been
converted
detention
centre
by
Colonel
Ilunga Ad~
,,...,,."=·-·
n several inhabitants of Kilwa who were
arres
- .._~~ plainants aver that Kunda Musopelo Pierre,
e MRLK, was detained at this detention centre
and torture
s. He died four years later as a result of the torture
and inhum
red during th.e period he spent in detention.
10. The Complainants s
bmit that Kunda Musopelo Pierre's salary as a police officer
was suspended. The latter was not reinstated after his acquittal by the Katanga
Military Court in April 2005. To date, his family has not received any pension, in
spite of the fact that he had worked for more than fifteen (15) years in the
Congolese police force.
11. The Complainants further allege that on 29 June 2005,
the Prosecutor of the
Katanga Military Court ordered the arrest of Colonel Ilunga Ademar, not for his
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involvement in the operations conducted by the 62nd Infantry Brigade during
the events in Kilwa, but rather for the events that occurred in Pweto in May 2005.
12. They further submit that.on 12 December 2006, trial began in Lubumbashi over the
Kilwa incidents. During the trial, Colonel Ilunga Ademar and eight (8) other soldiers
accused of committing war crimes and crimes against humanity appeared before
the court. In prosecuting Colone] Ademar in the aforementioned trial, the Katanga.
Military Court, on the basis of Section 122 of the ilit!:_ry Judicial Code, ordered a
join.der of the proceedings in respect of the P
di •
13. The Complainants contend that in
force in the DRC, only milita
perpetrators of war crimes and
victims of human rights vi
•
by the military prosecutor'
ases involving
d, the 144
14. The Complainants fu
Colonel Ilunga Ad
also dismiss
judgment giv
Complainants
aga •
•
Mi ...,.....,r-... ...
&J<,
r
e er· •
at the Mili
d that the
_.,........"_ ere not guilty. The court
edress by relying on the
·tted the accused persons. The
tor's Office and the victims appealed
eals were dismissed by decision of the
7 n procedural grounds.
15. The Compl:i1'n:io.,,1taflege thatArticles 1, 4, 5, 6, 7(1), 14 and 26 of the African Charter have
been violated.
Prayers
16. The Complainants pray the Commission to order the following measures to be taken:
A. For the victims on whose behalf the Communication has been submitted
i
Victim X is requesting for the payment of USO 180,000 for loss and damages
suffered during the .events of October 2004 in Kilwa and the sum of USO 1,000
for the property looted from his residence.
ii.
Victim Y, before his demise, requested for the sum of USO 200,000 for the
damages he suffered during the incidents in Kilwa in October 2004, in particular
the Joss of the use of his right hand and the subsequent inability to work.
iii.
FARAY MWAYUMA Ad~le is requesting for the award of USO 600,000 for the
loss of her two sons. She also provides comprehensive information about the
looted property which the family lost and it is estimated to be USO 31,810,331.
iv.
MPWETO Malangisha Pelagie is requestin fo the um of USO 300,000 for the
loss of her brother NYEMBO Lenge.
v.
While contending that "life is
300,000 for the loss of his son
death of his son.
vi.
CCC is requesting for the
USO in damages for the
family during the e
sum of USO 5 000 as
vii.
AAA lost a few months' ol ab
rough drowning. AAA is claiming
the sum of U O 300,000 for th oss of her child. rom the material point of view,
AAA lost her personal effects (clothing, kitchen equipment, mattresses, a bicycle)
which were loote when she fled 13~ g ing through the lake. She estimates the
lost items to cost US 1,000 and s is asl<ing for a refund of the said amount.
viii.
~~~~~~t-fJ MUSOPELO Pierre's son, representing the
asses
detenti
residence
the sum of USO
e ,following the
taking 300,000
embers of his
He is r er claiming the
personal effects looted.
ward of USO 325,000, accounting for the
s suffered during and after the arbitrary
....,.........
the value of the property looted at his father's
n to his salary arrears.
B. Collective reparations on behalf of the victims and other inhabitants of Kilwa
i.
Present and publish apologies, fully and officially, to the population of
Kilwa for the human rights violations committed by its armed forces in
October 2004.
ii.
Seek guarantees from the Congolese State that such acts will not be
repeated.
iii.
Recommend that an independent enquiry be opened in order to clarify the
fate of the missing persons and take appropriate measures to pay due
compensation to the victims' beneficiaries.
iv.
Conduct a head count of all the .Kilwa victims to ~nsure that fair and
equitable compensation is awarded them for the damages they suffered
during the above-mentioned events in October 2004.
v.
Take measures to ensure that the bodies • e mass graves at NSENSELE
are exhumed and placed in coffins to
theJn!a more dignified bupal.
vi.
Erect a memorial at NSENSELE w
persons or those who lost
will be engraved.
vii.
Build a technical sch in
events of October 200 ,
Rehabilitate
and facilitie
serv·
ix.
BuiJ
es of all the missing
ts in October 2004
ren of the
vide it with adequate equipment
care and better public health
during the 2004 incidents.
o-s
ilwa to
sist the victims and other
a resulting from the events of
y lake and by road) to Kilwa to address the
the reoccurrence of similar events of such
xi.
Or et e e-op n& of an enquiry into the Kilwa incidents to ensure that
the r ponsibility of officials of the Congolese State and of the Anvil
Minin C mpany is established in the case concerning the tragic events of
October OOA, and to give the opportunity to the victims to speak about
the violations they were subjected to.
xii.
Establish a monitoring committee comprising the representatives of the
.Kilwa victims in order to ensure that the recommendations of the African
Commissfon are effectively implemented.
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Procedure
17. The Complaint was received at the Secretariat on 9 November 2010. At its 48th
Ordinary Session held from 10 to 24 November 2010 in Banjul, The Gambia, the African
Commission on Human and Peoples' Rights (the Commission) considered the
Communication and decided to be seized thereof. On 13 December 2010, the parties were
informed of the Commission's decision.
18. The Secretariat also informed the parties that the:- Commission will consider the
Communication on admissibility during its 49th Ordinary
to submit their observations on admissibility by. Feb
submitted their observations on admissibili~ on 6 Mi 2011.
19.
The Secretariat wrote to the Com
arguments on admissibility
•
to the Respondent Sta
ACHPR/39'3/10/RDC/366.1
on admissibility to
observations latest by
20. The Secretaria
arguments on
22August20
de
·bility o
co
2012 •
l
the a
er e No
ts' submission
to submit its
ting the latter to submit its
une 2011, 2 December 2011 and
rmed the parties that the Commission
21 .
I
·on, and requested them
011. The Complainants
,,.r,:::-:.-,,,,-....-n'\·
dinary Session held from 9 to 22 October
that a decision will be taken based on the
22.
On 10 May 2 13 the Secretariat informed the parties that the Commission considered
the Communication during its 53rd Ordinary Session held from 9 to 23 April 2013 in
Banjul, The Gamb1a, and decided to defer its decision on admissibility to its next Session.
The Commission decided once again to defer the admissibility decision to its 54th
Ordinary Session. The parties were duly informed of this decision.
23.
At its 15th Extraordinary Session held ft:om 7 to 14 March 2014 in Banjul, The
Gambia, the Commission gave a decision on admissibility. The parties were
informed accordingly on 17 March 2014 and on the same date the Complainants
were requested to submit on the merits.
24.
On 3 May 2014, the Complainants requested the Commissio.JJ. for additional time
and requested for the beneficiaries and additional victims to join the suit On 6 May
2014, the Commission granted an additional period of thirty (30) days and
indicated that the joinder request will be considered by the Commission at the
merits stage.
25.
On 26 June 2014, the Secretariat received the Complainants' observations on the
merits. The Secretariat forwarded the same to the Respondent State on 8 July 2014
and wrote to the Complainants acknowledgin
26.
At its 17th Extraordimuy Session held fro
Gambia, the Commission decided
default judgment, it would cons·
of thirty (30) days to parties
period prescribed under the
sent to the Respondent S
reaction. At its s
Communication and
27.
Th
(4), (
28.
,.,,,.,,.,,,,......
2015 in Banjw, The
ase or delivering a
lnal deadline
'thin the
ut there was no
considered the
mmunication meets the conditions under
elaborate on the conditions under Article 56
"""""~)"1.';!'J
56(4), they submit that the Communication
uring a field mission to the DRC from 17 April
liable sources.
Regarding the co ditions under the two other paragr.iphs of Article 56, the
Complainants fus f all present arguments on the admissibility of the cases of
Ulimwengu Lukumani, Ulimwengu Nombele and the Ulimwengu family; cases
that were brought before the Congolese courts. TI1ey then elaborate on the cases
of Kunda Musopelo Pierre, the Kunda family; of X and Y that were not brought
before.the Congolese courts.
29. Regarding the first three cases, the Complainants assert that the condition of the
exhaustion of local remedies under Article 56(5) has been met. Thus, the
Complainants contend that the Katanga Military Court was seized of the referral
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decision of 12 October 2006 by the Military Prosecutor in respect of the case
involving war crimes and crimes against humanity committed by Colonel Ad~ar
and eight (8) members of the FARDC, and passed its judgement No. 010/2006 on
28 June 2007 acquitting all the accused persons for lack of evidence.
30. The Complainants assert that the appeal lodged against this judgement before the
Military High Court by the parties to the Kilwa suit was declared inadmissible for
lack of special powers of attorney regardin the civil parties (Complainants)
mplainants before the
whereas the lawyers were the same who rep e--•.·.-·Military Court. The Complainants further
neral appeal filed by
on the grounds
Major Ndaka, Deputy Military Pr _ ...-...
that he was not of the same rank Al!~~;t.J,
\...~g~a
• defendant.
The Complainants allege that g·
e highest
d.
court of appeal in the matte •
31. Regarding the cases of Kun
Complainants ackno
Congolese judicial au
above-mentio
,
..._,,. .,l!lo..Al:.-~,
p erpetrators
s
spite of the tes monies of vie
32.
Th
of
hu
from
local r
and pray
f X and Y, the
matter to the
ee
by stating that given the
the responsibility of the
olese military courts, in
f mass graves.
rt that th
gh Court's decision is tangible proof
;11..,1::,u.1.
ourts concerned w i t h regard to the
""<t•lP!~~..,......~] mmitted in Kilwa in October 2004. Citing
~.w,;..1;;, The Gambia, the Complainants aver that the
:;;\;~~:~~.~,,,..
pelo Pierre and to X and Y were ineffective,
ider that local remedies were exhausted.
33. Still on the issue of exhaustion of local remedies, the Complainants further aver
that the involve e t of members of the armed forces in the violations suffered by
Pierre Kunda Mus ·pelo, X and Y, is not likely to encourage the quest for justice in
the DRC. In this regard, the)& mention Communication No. 1186/2003 in which, in
order to declare a Communication against Cameroon admissible, the UN Human
Rights Committee stated that the involvement of the Executive and the military of
the Republic of Cameroon in human rights violations rendered local remedies
ineffective2• In this regard, they contend that it would not only be risky for the
2
Human Rights Committee, Commrmication No.1186/2003, 13 November 2007, Para 5.5 ~ --
.
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victims to refer the matter to the Congolese courts, but also that such an action
would have no prospect of success.
34-. Regarding the condition on submitting the Communication within a reasonable
period after exhausting local remedies as provided under Article 56(6) of the
African Charter, the Complainants assert that even though the period of six
months which is generally applied by the Commission in its jurisprudence was
not respected, there is corroborating evidence to justify an exception to this rule.
35. As such, the Complainants submit that des •
<>t-t,,;l'k
the sui@, they were still nof notified about
the time the matter was brought b
the
•u•~=~ibl
further assert that it is difficult, an
in the DRC given that they were e er info
Military High Court made its • ~ion.
36. The Complainants
violations (73 peo
events in •
consideratio
such an ap
complaints
Co
made by the parties to
h Court's decision at
The Complainants
er legal action
which the
nature of the
~xecu ed during the
o be indulgent in its
omplainants assert that
ozens of victims whose
e Congolese Military High
h
nsid
37. L
the Complainants raise the issue of the
ina
~~a e of the reasons justifying the three years
that
edies were exhausted and the time the
matter
.- ~~-,r:
Commission. They assert that Kilwa is 350 km
north of
e courts are found and that the road to I<ilwa gets
very bad d
rainy season, so much so that travelling from Kilwa to
Lubumbashi
take a week4 • Thus, they contend that the inaccessibility of
it difficult to have access to judicial institutions, but also
Kilwa not only
difficult for the victims to enjoy legal assistance lUlder acceptable conditions.
,
3 See, among others, the letter sent to the senior court registrar of the Kinshasa Military High Court
"Application for a Copy of the Appeal Decision".
4See pictures taken by IHRDA & ACIDH during a mission to Kilwa in April 2010; Supporting Document
No. 10.
Respondent State's Observations on Admissibility
38.
The Respondent State did not submit any observations on admissibility in spite of
several requests from the Secretariat.
Analysis of the Commission on Admissibility
39.
The Communication was submitted in accord~~:::.:,.......:.::
Charter which mandates • the C o ~
ceive and consider
"Communications other than those of State Pa
Communication to be
declared admissible,. it has tom
~.~.a:-· Article 56 of the
African Charter.
40.
In accordance with the Rules
mtMi$Jtl~
e latter is
"il•v
requests the
seized of a Communicati
Complainant to pre
a
within two
5
rnonths • Upon rec
AJi&Eii~
rvations, the Secretariat
transmits a c .,/~,..........
.a..-,..,,.,
ts the latter to submit its
om
ofumission's request.6
observations Wl
41 .
In this Co
r
re
42.
h1 exa • • th~ con • ons of admissibility under Article 56 of the African
Charter, the Commission ill dwell on the conditions that the Complainants
claim to have
equivocally•been met. before examining the conditions under
Article 56 (5) an ~ . :Regarding the latter conditions, the Complainants provide
ti.on, the
ed, and th
. . "' .
ss10n no es that the abovementioned
e espondent State did not subtnit any
fie various reminders. As such, the
e Communication on the basis of the
s See Rule 105(1) of the Commission's Rules of Procedure.
6 See Rule 105(2) of the Commission's Rules of Procedure.
7
See fostitute for Human Rights and Development in Africa v. Angola Communication 292/04 (2008) AHRLR
43 (ACHPR 2008) para. 34; Sodal and Eco110111ic Rights Action Center and Center for Economic and Social
Rights v. Nigeria Communication 155/96 (2001) AHRLR 60 (ACHPR 2001); and Union Interafricaine des
Droits de l'Homme & Otliersv. Angola Communication 159/96 (2000) AHRLR 20 (ACHPR 1997)
more substantial arguments.
Analysis of the conditions under Article 56 (1), (2), (3), (4) and (7) of the African
Charter
43.
Article 56(1} stipulates that Communications should indicate their authors even if
the latter request anonymity. In this Communication, the identities of the authors
are dearly stated. The authors are the Institute for Human Rights and
Development in Africa, Action against Impuni o Human Rights, and Rights
and Accountability in Development, repres
g
a Musopelo Pierre, the
bele, the Ulimwengu
Kunda family, Ulimwengu Lukumani, ~-.....u
family, as well as X and Y who reques
that this condition has been met
44.
Regarding Article 56(2) which s
compatible with the Charte
Otim!isa
cmJ.;,J]~,\:..
African Charter, the Com
fncie violation by a S
~·~~~
in particular the ri
~M,lil~
The Commiss
clu
~ffii'
u,11,wu.L,
45.
Article 56(3)
or insulting Ian
to
Co
bee
46.
Under Adicle 56 4), Conunumcations must not be based exclusively on news
disseminat&i thrpugh
e mass media. The Commission notes that the
information provided by the Complainants is mostly based on the findings of a
field mission d • g which they gathered testimonies of victims. As such, the
Commission conc!Wf.es that this condition has been met.
47.
Regarding Article 56(7), the Commission refers to the facts provided by the
Complainants and notes that the Communication does not deal with a case which
has been settled in accordance with the principles of the Charter of the United
Nations, or the Constitutive Act of the African Union or the provisions of the
African Charter. The Commission thus concludes that the condition under Article
56(7) has been met.
ates that
age direc
• •
ust be
or with the
eveals a prima
y e African Charter,
14 and 26 of the Owter.
e 56(2) has been met.
not be written in disparaging
e State concerned and its institutions or
the Commission considei:s that the
ge. It follows that this condition has
Analysis of the conditions under Article 56 (5) and (6) of the African Charter
48.
Article 56(5) of the African O1arter stipulates that Communications must be
submitted after exhausting local remedies, if any, unless it is obvious to the
Commission that this procedure is unduly prolonged. The objective of this
principle of international law is to prevent international bodies from playing the
role of courts of first. instance. It is also to enable the Respondent State to take
cognizance of the charges brought against it and to redress them, if necessary,
through its legal system8•
49. In its jurisprudence regarding its inte
6 5), the Commission
decided in the case of Jawara v. The
t reme •
available, effective and sufficient9. As such, the •
austed must be
t
A.
A remedy is considere~vailab~ th..!.fetitioner c'?1 pursue it without
if..........
it offers a prospect of success, and it
impediment, it.....is deemed effective
......
is found sufficient if it is capable of redressing the complainti0.
so. In
51 .
exhausted in
victims, they
arguin that
wo
, -~-~of
at
tacit
at local remedies were
e case of the other four
ught before the local courts,
al remedies given that such remedies
reasons of clarity, the Commission
w·
~;~~~~j
ented by the Complainants.
:....a.1J...lil1
~~~;j,
w
Lukumani, Ulimwengu Nombele and the
.,.,__,.:.,_Commission notes that under Congolese Law No.
Ulimw
023/ 2002
vemb
2 on the Military Judicial Code, the courts seized by
the victims w r courts which have jurisdiction over the crimes alleged to have
been committe : Besides, the Commission notes that in accordance with Section 83
of the same law, ' Military High Court handles appeals against the decisions of
military trial courts of first instance and ifs decisions are final.
8
See Free Legal Assistance Group and Others v. DRC Communications 25/89-47/90-56/91-100/ 93
(2000) AHRLR 299 (ACHPR 1995); Commis$io11 Natiomile des Droits de l'Homme et des Libertes v. Oiad
Communication 74-/92 (2000) AHRLR 343 (ACHPR 1995) and Jrrwarn v. 11te Gambia. Communication
147/95-149/ 96 (2000) AHRLR 98 (ACHPR 2000)
9
Sir Dawda K Jmuara v. 11,e Gambia Communication 147/95-149/96 (2000) AHRLR 107 (2000) para 31
10 /awara para 32
52.
The Commission further notes that on 28 June 2007, the Katanga Military Court
ruled on the accusations brought against the alleged perpetrators of the crimes
committed. On December 21 of the same year, the Military High Court dismissed
the appeal against this ruling even though, at the time the Commission was seized
of the matter, the Complainants had not been notified of the dismissal ruling.
53. In any case, the Commission notes that the dismissal ruling, which did not favour
g iil~ ·t
the Complainants, put an end to local remedi
there is no higher court
re pos \ fe the lack of notification
that can deal with the case. Even if an appe
made such an avenue impossible. The CommIS
es that local remedies
should be considered as having been~~....
54. With regard to the case of Kunda Nf
nd Y, the
courts as a result of
e first group of
been effective. The
hers of the armed forces
and Y is not likely to
the Complainants doubt
Complainants submit that th
the partiality with which the co r
complainants, given
Complainants further
in the violati "A<P.
'?J:Kli
.,_:,-;;s
,lF~fi~r
enhance the p
the prospect o
s of loca
55.
5 6 .
On this issue, the Commission reitera that it is incumbent on the Complainant
as ~•,..~!'+•~
to exhaust local remedies and not to make
~~~~ff remedies.11 In this regard, the Com.mission
effo
notes
v u • ~ ~ ~ on, the situation complained about by all the
imilar factual and legal factors.
Thus, the alle~ea violatio were committed under the same circumstances in
terms of time, 15 ctober 2004, in the same place (Kilwa) and by the same people
(the FARDC). TI1e e: actual elements, considered by the local courts and based on
which their decision was made, are the same for the two categories of victims.
Besides, and in view of the above, even if the victims of the second group decided
to seek local remedies, their case would have been heard by the same courts.
11
A C H P R ,
C.cmmmnication 361/)8: J.E Zitl,a
&
P.f.L. Zitlia v. Mozambique,
p a r a
1 0 7.
57. In the light of these findings, it is· difficult not to form an opinion that bringing the
matter before these courts would have led to an identical or similar outcome. It can
be concluded that such remedies did not offer any prospect of success and that the
condition for their success was not met Under such circumstances, local remedies
should be considered to have been exhausted. As such, the Commission concludes
that regarding the second group of victims, the Communication meets the
condition under Article 56(5) of the African Charter.
58. Furthermore, the Commission will determ •
African 01arter, the Communication was
from the time local remedies were e
seized of the matter.
59.
in a reasonable period
the Commission was
Even though the African
p eriod" within which a
remedies, 12 the Commissio
European systems, de
60. Moreover, the
•.mnussio ....,,w,_,. ,
within which a, , mmunica
by-case basis
king into
v. Zimba
the
exc
exil
'-'··''"'--..
easonable
ting local
erican and
that "reasonable period"
should be decided on a caseces of the case.u As such, in
mmission decided that given the
e omplainant found himself - living in
od for him to submit his complaintIS
61. In the light of the "urisp.ruden
ecalled in this context, the issue the Commission
•s whether the period within which the Commission
needs to re olv m ni
was seized of,this Commurucation can be viewed as reasonable. In this regard, the
that close to three years elapsed between the time local
Commission n
remedies were e a sted and the date it was seized of the Complaint In order to
12
See Darfur Reliefand D ocume11tatio11 Centre v. S11da11 Communication 310/10 (2009) AHRLR 193 (ACHPR
2009) para 74
13
ACHPR, Communication 308/05 Maj1m1 v. Zimbabwe, para 109
14
See Darfur Relief and Documentntion Centre v. Suda,, op, cit para 74; Tsikata v. Glzann Communication
322/06 para 112
15
See Cltinliamo v . Zimbabwe Communication 307/05 (2007) AHRLR 96 (ACHPR 2007) para 89.
-~--~ 4
.
!It
'§
I
~T~ ~
~"\.
1
➔
'
:o
I
justify that this period of time is reasonable, the Complainants attribute the delay
to the physical inaccessibility of the courts and the lack of notification by the
Military High Court of its judgement. They also raise the issue of perpetration of
serious and massive violations.
62. On the issue of inaccessibility of the courts, the Commission notes that the
distance between the Complainants' place of residence and the location of the
courts in I<ilwa is 350 km. Considering this factor, it would be unlikely that three
years elapsed in covering such a distanc
~IH!lllt..'der the most difficult
conditions. As the Complainants themsel
ommission therefore
such conditions could easily take a week. M
da
concludes that even though it may h
oor state of the
road alone cannot justify the dela
63.
Regarding the lack of no •
Commission agrees
Complainant. Indee
_,,.,.-.
judgement giv
~~m
notification co
procedure but
gro
material impe.....·u~n,-4•
a
eizure by the
ourt of appeal and its
Incidentally, the lack of
• g not only the issue of
t delivered. In this case, it is
material im ssi ty which it took into account in the
01i11llfl
c
·ted supra,.one of th ctors frequently used by the Commission to
determine: reaso®,ble peri
is
need to ensure fairness and justice. The
Commissi<>l': use
ac or as grounds for its decision in the case of Darfur Relief
and Documeni,1f!~t,l"'--"nt~
udan.16 The Commission at that time decided that
though the obj ·ve of Article 56(6) is to discourage any delay in seizure, it is also
incumbent upon l to provide an opportunity for the Complainant to be heard
when valid and app opriate reasons have accounted for such a delay. The relevant
factor in these circumstances is the "need for fairness and justice". The Commission
is of the view that such a factor is crucial in specific situations where local remedies
did not meet the need for fairness and justice which must be the objective of any
procedure aimed at protecting human rights guaranteed by the African Charter.
16 Op. cit.
1
para
65.
The Commission is therefore of the view that the "need for fairness and justice" is
motivated by a more determining reason which is to ensure that the Commission is
in a position to consider the Communication in an appropriate and fair manner. The
related issue is whether in the circumstances of this case, the time element for the
seizure of the Commission played a role in rendering the evidence inaccessible or
changed them to the extent that an appropriate consideration was made extremely
difficult or impossible. The decisive reason in such situations is therefore one of
"fair consideration" of the case.
66. In the present case, and as highlighted ab
non-compliance with certain mini.mu
ineffectiveness of local procedur
decision of the highest com
Commission is of the view
will deprive the victims of
deprived of at the national level.
67. On the issue of then
of the view
the case nee
Co
•
at
con
the
outlin
justice •
• ants raise the issue of
and the partiality and
otification of the
ation, the Commission is
ed by the Complainants,
nitial Complaint and the
ormation to provide the
ppo
on e merits. In addition, looking
rted, this Communication obviously
tions. In the view of the Commission,
~~~~~
•ghts the need to guarantee the principles
er the merits to avoid any risk of denial of
rious allegations.
that the timeframe for the
s ize the Commission is not unreasonable. The Commission
Complainants
at the Communication meets the condition under Article 56
therefore conclud
(6) of the African Charter.
Decision of the Commission on Admissibility
69. In view of the foregoing, the African Commission on Human and Peoples' Rights
declares the Communication admissible in accordance with Artide 56 of the
African Charter.
...
Merits
Complainants' Submissions on Merits
Joinder of victims/beneficiaries
70. Even though the Complaint was initially filed on behalf of Kunda Musopelo
Pierre, the Kunda family, Ulimwengu Lukumani, Ulimwengu Nombele, the
Ulimwengu family, as well as X and Y; the C r>-ru,..n ..., ts submitted at the merits
stage a request for joinder for the victims
L, MMM and Mpweto
Malangisha Pelagie who are either beneficiarie
71. The Complainants recall the Co
and state that in circums
victims who were not part o
the case i£ the matter has not ye •
identical,
e part of
Alleged violation of Article l
72.
the provisio
me
incumbe
Charter to
73.
on its obligations under
ed to take the necessary
e violations committed by the
·t in the violations with the Anned
t by failing to conduct investigations
the State also gave up on its obligations
the Complainants contend that it was
te under the conditions set out in Article 1 of the
and adequate reparation.
In order to establis the relationship between the Respondent State, particularly
through the FARDC, and the Anvil Mining Company, the Complainants mention
the report of the United Nations Mission in Congo (MONUq which attests to the
fact that the Company in question released its aircrafts to transpo.rt at least 150
FARDC soldiers from Lubumbashi to Kilwa, its vehicles for the conduct of
operations in the town and to transport arrested civilians to detention centres for
them to be tortured or sent to mass graves for execution and also to transport
corpses from homes, streets or places of detention to mass graves. The same
vehicles and earth-moving machines were used to bury the victims, loot and take
away people's property.
74.
The Complainants conclude that the authorities of the Respondent S@te were not
only informed but were also directly involved in the violation of the obligation
under Article 1 of the Charter.
Alleged violation of Article 4
75.
Regarding the violation of this right, the
executions and killings, enforced d
disproportionate use of force. The
survived the summary executions
witnessed the transportation of
I<ilwa where they were exe
not hit him and he escaped
his neighbour LLL, wa
76.
.-·::.·, ::.:=
12-year old s
executed. LL
funeral coul
pre
. -~ ~:'e
rec
rganis
ingso.
i:U.l1{tru"Li",'~41~ cite
cases of summary
drowning and the
at X did
execution of MMM, the
ming from school and
e would be arrested. The
Ademar, a FARDC officer,
77.
Reg
left
killed
daugh
Complaina
year old, an
Pelagie, in her attemp~ to escape, she
:::-;i.i1n.1.:i:.,::r.
, a mentally-challenged person. He was
·•=·-=-- __' """-"'"'s;
• to a mass grave. NNN witnessed her
abused by Col Ademar' s men. Similarly, the
ies of the parents of two young men, CXX), a 19year old, who were executed by the FARDC.
78.
The Complainants te the testimony of FARAY MWAYUMA Ad~le who lost her
two sons, ULIMWENGU LUKUMANI and ULIMWENGU NOMBELE, who stayed
back in Kilwa to protect the family's property. They are missing, and survivor X
testified that all civilians who remained in the town when the FARDC arrived were
arrested and executed by Colonel Ademar's troops.
79.
Conce_rning the cases of death by drowning, the Complainants contend that they are
attributable to the FAl{DC since the civilians concerned attempted to escape in
.-u, ~..~:.'"'.,,r,,.
\
. 'f.:;..., . , ...
'"' ~l ...
"
/.
".,, /~,
dozens by lake from Kilwa to Zambia. Witness AAA reports that the FARDC fired
shells that caused the boats to capsize and prompted the deaths by drowning. AAA
lost her baby of a few months old under these circumstances. The body of the baby,
BBB, was recovered and buried by villagers in a village called Kalaso. CCC, the
father of AAA, corroborates her testimony ~nd explains that 12 of his dose family
members were in a boat in which BBB, EBE, FFF, GGG, I-Il-IB, m, ill and KKK died
by drowning.
Alleged violation of Article S
80.
The allegation of violation of the right protec
on the case of KUNDA MUSOPELO
Complainants allege that the victim
had with Colonel Ad~mar; that
incommunicado detention £
him upon the insistence of
lost weight, walked
out to him durin •
81.
th ..,..,.,._,._
82.
ad
gh
e of
rticle focuses mainly
• in Kilwa. The
onflict he
held in
y to meet
that he had
treatment meted
elease in spite of the fact
He also did not receive any
ngolese police force for more
owed three months' salary arrears
after the events. He was married, a
iving in a very deplorable situation and is
all depended entirely on him.
w-~~~- th.er allege that the population of Kilwa was generally
,...AA~,\lll•an and egrading treatment through bombardments, forced
•exile, disappear c;,es, looting and fear of reprisals or new violations. They also
mention the impos i ility for survivors to mourn their dead ones in a dignified
manner.
Alleged violation of Article 6
83.
On the allegation of violation of this provision of the Charter, the Complainants
submit that KUNDA MUSOPELO Pierre was arrested for no reason and held in
incommunicado detention for close to three months without being brought before a
judge for trial.
19
[(~\;
~~
Alleged violation of Article 7(1)
84.
The Complainants contend that the proceedings at the Military Courts were marked
by a series of violations. They cite, among others, the questioning of victims without
their lawyers whereas accused persons were assisted and the impossibility for
several witnesses to enjoy the services of interpreters. They were interrogated in
French whereas the majority of them speak Bemba.
85.
Moreover, the Complainants indicate that
public hearings in Kilwa, especially a •
Cross workers who did not att
criticised the court for harassing
was threatened with death
his testimony.
86.
The Complainants fur
rights defenders, the
supported th
the organisati
ere not beard during the
• g Company and Red
t:: risals. MONUC
e of them
e to admit
ing and after the trial, human
,an rights organisations. that
it among others, the case of
.....,t., .........
/
87.
According to
numereus an
died
Liber
--~ ;;.,;.-:;..
and
FARDC
lainants,
vidence,
-most alarming of all is that in spite of the
Court concluded that all persons who
e Revolutionary Movement for the
~M~
pie's property was destroyed by the MRLK .
"'""""r..:,;:;,,,.,
rried out in I<ilwa. They claim that all the
88.
The Complain nts submit at Ms Louise Arbour, the then United Nations Hig~
Commissioner fo
uman Rights, in a statement, expressed surprise at the verdict
of the military cou . in spite of the serious violations deliberately committed. The
Complainants are of the view that the decision of the Military High Court to
dismiss the appeal of the victims is also a violation of the right to a fair trial. They
submit that the grounds for the said dismissal of the appeal, among others, are the
lack of special powers of attorney from the victims' lawyers whereas the same
lawyers had represented the victims in the courts of first instance; the fact that the
Military Prosecutor was said to have a lower rank than the main defendant;
meanwhile the said prosecutor had acted in that · capac;:ity throughout the
20
A~;~~~
II'./@)~"~~
"~ , ;J
\ \ \...:J ~,.
~~ .
proceedings without any objection from the court. The Complainants contend that
these grounds are a violation of the right to appeal.
Alleged violation of Article 26
89.
The Complainants refer to the immense pressure put on the military prosecutor,
Colonel NZABI MBOMBO, to compel him to drop the charges levelled against the
workers of Anvil Mining, as a violation of Article 26 of the Charter. They allege that
his refusal to give in to the pressure led to
fer to another court. The
Complainants further cite the letter of the Uni
ecial Rapporteur on the
Independence of Judges, which stated that "tli
the accused persons
in spite of the huge evidence produc
• clu
s accounts and the
changes made at the helm of the
rtray that the
m.-"""
e Comp,A@~•ts submit
independence of judges was not relP,
military prosecutor
that the Special Rapporteur la" e pha
mid-way into the trial.
i~
Alleged violation of Article
90.
The Compla • .,__,__
~~~y
• • g that the widespread
bombings in
the
s of the FARDC caused
the destructi
e confisca
_ 0 houses and lots of property
from traders. People lost not only their
according to MONUC. Cash was e r
perSQ
e-generating activities. They cite the
case
mily which, among others, lost fishing nets,
a die
~g;-~i~:T chicken, agricultural products, bags of salt
and o
-=,_,,.,,.. ·,......
commercial a.ctivities carried out by the
'lo;l•:,.:"<I".,
• y experienced very difficult living conditions.
family. F
91.
The Complainants further contend that the destruction of houses is also a violation
of the right to hou ng.
Alleged violation of Article 22
92.
To buttress the allegation of violation, the Complainants claim that the destruction
and looting of property deprived the people of their means of carrying out activities
which helped them to survive. They allege that the right to economic development
has been violated, given that the bombings and looting of working tools used for
the production of services and agriculture have undermined economic activities.
21
The Complainants contend that this situation has brought about unemployment
and poverty among the people.
93.
Regarding denial of the right to cultural development and respect for identity, they
refer to the violation of the right to funeral rites, which is very important in African
societies. The Complainants contend that burial in mass graves is an affront to
African values and traditions, given that in the societies concerned, it is only after
sepulchres have been constructed that the parents of the deceased can mourn and
uls of the departed. The
conduct traditional burial rites for the repos o •
Complainants assert that this is the tradition • ,tne DRG general, and especially
among the Babemba community in Kilwa.
Respondent State's submissions on
94.
As indicated under
requirements •
Complainan
compliance
observations.
95.
-;.--...,........,.
vant
omplied with all the
e in transmitting the
State. In spite of its
nt State did not transmit any
~~~~,~th
~-:, practice of Jssuing a default judgment
• submit. On the basis of its jurisprudence and
e ure, the Commission decides to consider the
mel'its o
On this issue, the o:mmission notes that it has accepted the joinder of parties,
particularly in the case of Haregewoin Gebresellaise and Institute for Human Rights &
Development in Africa v. Ethiopia and this is generally done on the basis of its human
96.
17
See Institute for H11ma11 Rigl,ts and Development in Africa.v. Angola Communication 292/04 (2008) AHRLR
43 (ACHPR 2008) para. 34; Social and Economic Rights Action Center and Center for Economic and Social
Rig1,ts v. Nigeria Communica tion 155/96 (2001) AHRLR 60 (ACHPR 2001).
rights protection mandate.18 That said, in considering in particular the substantive
conditions for admitting third parties, the Commission took into account the
similarity of the facts, prayers and identical nature of the issues of law or fact in
respect of the said requests. It also considered that the most relevant provisions
being the joinder of Communications, the same should also apply to the joinder of
Parties.1 9
97.
In this case, the beneficiaries and victims whose joinder is requested are natives of
I<ilwa, and they allege to have experienced th
ev.ents as the initial victims.
in logic, the facts, their
Even if their requests are different, which is
yests c tain a certain degree of
authors and the questions of law raised by these
to j
• case. The
similarity to the extent that it is ap
Commission thus decides to gran
e related
legal implications.
Additional submissions an
tions of violations of the
provisions of
omplainants extend their
e Charter. According to the
al claims can be accepted as long as
o not undermine issues already resolved at
can be substantiated by the author and cannot
the opposing party.20
99. The Commission
a established the similarity and identical nature of the facts
above. It further notes that the Complainants have supported the allegations of
18
Haregewoin Gebresellaise and lnstitttte for Human Riglrts & Development i11 Africa v. Ethiopia
Communication 301/05 (ACHPR 2011)
19 Haregewoin Gebresel/aise 1111d Institute far Human Rig/its & Development in Africa v. Ethiopia paras 67-70.
20 See Open Society Justice Initiative v. C.ote d'Ivoire Communication 318/06 (ACHPR 2015) para 89 and
Genevi~ Mbia11ke11 v Cnmeroo11 Communication 389/10 (ACHPR 2015) paras 99 and 100.
violation of Article 22 and will consider the related submissions under its analysis
on the merits. Given that the Respondent State received ample notification of the
procedure and the evidence of the case, the Commission is in a position to deliver a
default judgment. As such, the question of opportunity for a response from the
opposing party does not arise. Finally, it emerges from the consideration of the
request for a joinder of the parties that the conclusions on admissibility are
applicable to the new submissions and pr
• sion thus concludes
that the said claims should be admitted an
Alleged violation of Article 1
100. The Commission clearly estab
(SERAC) and Center for Ee
Parties to the African Chart
fulfill the rights guar
of the complainant
~~~ti~
Commission •
should refrain.
'~ Qi~....
respect right-h
Applied to the
for breaching
int
A
Minin
•
e curren
to respect
the ri hts
at States
the contention
t
protect. As the
ect entails that the State
ental rights; it should
d liberty of their action.
is to be considered responsible
, in the instant case the FAROC,
ople.
~~~~~1,,_t:ly, the complainants alleged that the Anvil
the perpetration of the alleged violations of
various rig
un et the.," ican. Charter. Although this raises the question of the
responsibility: of llie mul ~ a onal corporation for violations of rights guaranteed
in the African CRarter, principally it concerns the duty of the state to protect. This
101.
=~"-=-
duty entails that't:b~ state takes all necessary steps to safeguard.against Jl,uman rights
abuses by third parties, including corporations, including through taking measures for
preventing, investigating, punishing and providing redress for victims. With respect to
the role of the mining company, following its finding in the SERAC et al v. Nigeria, the
Commission emphasizes the necessity and legal imperative that entities engaged in
the extractive industries undertake their operations with due regard to the rights of
the host communities. At the minimum they should avoid from engaging in
activities having the effect of bringing about violations of the rights of the members
of the communities in the areas of their operation. TI1is includes not participating
--.-:-:::----:,
24
/ ; . ·~ ~•. ·:~·.tr,i.,
fl~~:'."'~,\
( \ A>v ~/
·v. .~ <,;;;:- 'l
,rJ~
'-~!!.~~
t ¥
§Xj
in or supporting the perpetration of violations of human and peoples' rights.
As the uncontested facts presented by the complainants revealed, in the instant
case, not only has the State failed in respect of its duty to respect as noted above, it
also failed in respect of its duty to protect. It failed not only to investigate and
punish the involvement of the Anvil Mining Company but also to provide redress
for the victims against the Company for the role it played in the perpetr~tion of the
violations. As a result, the State was in breach o 'ts obligations under Article 1 of
the African Charter.
102.
Alleged violation of Article 4
103.
According to the provisions of
'nviolable.
Every human being shall b
person. No one m
Concemin.g the
violations of the •
arter, the Complainants cited
ces, deaths by drowning
104. Rega
"""·~M1ns, the Commission has consistently
is a flagrant violation of the provisions of
. Nigeria, the Commission concluded that
..:.;.::;;;; ,,d:;;a~tory o
e State party to prohibit arbitrary killings by
e public authorities to strictly control the conditions
agents of tti "•''"'""''·"'
under which a erson may 6 aeprived of his life. 21
~'~~q.;T,.
ma·
Artie
105.
In this case, the
mmission notes that the reported facts reveal bombardments of
the civilian populati n, arrests followed by extrajudidal killings, all actions that
constitute a violation of Article 4. The arguments made by the military courts seem
to establish that these actions were justified as a result of the participation of the
entire population of Kilwa in an uprising instigated by the MRLK Movement. Apart
from the fact that such an assumption is materially unlikely, nothing justified the
2
1 See SERACv. NigeriaCommunication 155/96 (2001) AHRLR 60 (ACHPR 2001) para 67.
_
~
(1,i,.•(J,IM.
2s
.
-•~•f
•:'VJ·· - · · ·
--~~-- ·
widespread bombardment and the execution, outside any legal procedure, of a
large number of civilians including women and children.
106. The Commission notes that whatever the causes of the deaths of persons who fled
the town of Kilwa in the circumstances of this case, there is a direct causal
relationship between the bombardments and the abuses perpetrated against the
targeted population. The deaths that occurred by drowning, followed by the firing
of shells at the boats transporting the people fleeing fall under this category. The
same situation applies to the enforced disappe
ces • ce the victims have still
not returned to their families almost five yeafs a r the
the survivors confirm such a conclusion.
107. Having established the facts as c
establishing the violation of •
conclude on the responsibili
~m~¥
that the principle is the r
long as one of its in
respect, protect
!-'.:;,'-JrN~
"'U>h'I""..:'"
individuals ass·
Respondent Sta
committed by
108.
ortant to
n recalls
esponsible as
a1 e
obligation to
putability of the actions of
urce in the fact that the
. In this case, the violations
the Respondent State.
ty of such actions to Colonel Ademar
and
rvention in Kilwa. In this regard, the
~m~wtf'2'Jl'E,g
proof and circumstantial evidence have
Commis ·on
been pro uced t emonst:i'a su
utability. In the first place, it observes that
many inha itants f • a among other survivors and families of the executed
victims, provid~ testim n es about seeing FARDC members. Heads of
international organisations and non-governmental organisations such as MONUC
and ASADHO co firmed this fact. Finally, crectible authorities from the United
Nations, in particular' the High Commissioner for Human Rights and the Special
Rapporteur on the Independence of Judges also confirmed the imputability of the
abuses to FARDC members.
A ~ ·- - . . ,
22 See SERAC para 44.
See Articles on the Responsibility of States for Internationally Wrongful Acts 2002 UN Doc
A/ RFS/56/83, art 4. See also the judgment of the International Court of Justice in the case of LnGrand
(Germa11y v. USA) IC] Reports (2001) 468.
23
•
109. Even though the local courts themselves have confirmed the intervention by the
FARDC, they however found the absolute lack of responsibility on the part of the
FARDC members who were prosecuted. The Commission already concluded above
that, looking at the flagrant and the internationally-publicised nature of the facts, it
was probably erroneous to conclude that all the civilians were parties to the conflict
and that there was no single case of summary execution. Even if that was the case,
the summary execution of civilians arrested but who were not participating in or no
longer in the combat would all the same
arbitrariness, which is
prohibited by the Charter interpreted toge
relevant provisions of
2
international humanitarian Iaw. 4 Moreover,
of Article 4 mentioned
above are attributable to the Respond
te ..., r.,.._
irect responsibility of
members of the armed forces, in
G
concludes that the Respondent Sta
Charter.
Alleged violation of Article 5
110. The provisions
torture and •
le g
or degra
dignity and prohibit
f Human Rights considered "torture" to
o
ering, whether physical or mental, is
a specific purpose" .25 The United Nations
General Comment No. 20 that the offences
Committee a
t Tort1,,.,m;,.,,ntes •
committeci:i!TIUS cause atr ClO~g__~.u.ring inflicted intentionally, with the aim of
extracting 1q{prmaqon r confessions, punish the victim for real or alleged acts and
be imputabl~~Jate offi ~a or a person acting in that capacity. The Commission
adopts this position in its decision in Sudan Human Rights Organisation and Another
v. Sudan.26
'
24 See Additional Protocol to~e Geneva Conventions of 12 August 1949 on the Protection of Victims of
Non-International Armed Conflicts (Protocol II), Art 1; Geneva Convention (I) of 12 August 1949 for the
improvement of the fate of the wounded and the sick in armed forces at war, Art 3. See also, Tire
Proseerttor V. Dttsko Tadic, 1997 (International Criminal Court for Ex-Yugos'Javia), Case No. IT-94-1 para
562.
25 Selmounl v. France (1999)
26 Communication 279/03 (2009) AHRLR 153 (ACHPR 2009) paras 155-157. See also: Ben Salem v. Tllnisia
Communication 269/2005 (2007) AHRLR 54 (CAT 2007) paras 16.4, 16.5.
..
112. Concerning acts that can fall within the scope of the above list, the Commission
concluded in the cases of Malawi African Association and Others v. Mairritanja and
Achuthan and Amnesty International v. Malawi that the fact of being buried and
burned or better still the deliberate refusal by police officers to give victims access
to health facilities constituted acts of torture.27 The Commission will first of all
consider the case of KUNDA MUSOPELO Pierre before considering the case of the
population of Kilwa.
113. Concerning KUNDA MUSOPELO Pierre, wh
Kilwa Police Chief, it has to be determn,>A/1 he
for three months, without contact •
to him during the said detention co
The Commission notes that
aid
beaten and whipped. The tr
"';'f,;<,,.,,,
the officer of having su •
Katanga (MRLK). In the
i--n,,,_
case, the Co
.,.,,::,,~114. In Modise v. B
E~
ers th
.28 Lo •
the Commis
viola
Co
of th
115. Regar
•
the pop
Human Rig
Sudan29 in w
of the events was the
•cado detention
-===
meted out
.tUJJrot:,treabnent.
,.,....__...... _
ing been
who accused
e.nt
e Liberation of
and circumstances of the
re.
tghts and Interights v. Egi;pt,
ding treabnent essentially
e violates dignity all the more.
the violation of the right to dignity
MUSOPELO Pierre.
inhuman and degrading treabnent against
mission recalls its position in the case of Sudnn
. nlre on Housing Rights and Evictions (COHRE) v.
eluded that the fact that the Respondent State, in its attempt
A,·r,,¥•~""'"-
21
Malmui Afn'can Association and Otliers v. Mauritania Communications 54/91, 61/91, 98.93, 164-196/97
and 210/98 (2000) AHRLR 148 (ACHPR 2000), para.s 115 and 116; Aclmtlzan and Amnesty Internntio11al v.
Malawi Communication 64/92, 68/92 and 78/92 (2000) AHRLR 142 (ACHPR 1995), para 7.
23 See Modise v. Botswana Communication 97/93 (2000) AHRLR 30 (ACHPR 2000) para 91; Egyptian
Initiative far PersonalRiglits et lflteriglits v. Egypt Communication 323/06 para 196.
2
9
See Sudan H11ma11 Rigltts Organisatio11 .and Centre on Hoµsing Rights and Evictions (COHRS) v. Sudan
Communication 279/03-296/ 05.
.,
to fight the Janjaweed militia, targeted the civilian population, thus causing their
forced exodus constituted inhuman treatment under Article 5 of the Charter. The
conclusions as to the violation of the right to dignity of KUNDA MUSOPELO Pierre
are also applicable to the entire population of I<ilwa who had to flee from their
homes and lived in exile under precarious conditions. It is therefore appropriate to
conclude that Article 5 was violated in their case.
Alleged violation of Article 6
116. Article 6 of the Charter states that: "Every in
and to the security of his person. No one may
reasons and conditions previously laid d
by
arbitrarily arrested or detained"
pl
MUSOPELO Pierre was arbitrarily
victim's detention was based
and c
down bylaw.
have the right to liberty
his freedom except for
ar, no one may be
at KUNDA
ether the
117. In the case of Ouko v. Ken. ·a
(10) months w·
arbitrary. 30 It
detention for
6 of the Cha
118. Fur
Hu
perspec
.
1 7
,•:.:=,_.""'
~ ~ = =,1,-
te pe
ticular,
position
view that the detention was
1,p and Others v. Zai're that
n of the provisions of Article
. Mussie Ep1trem v. Eritrea, the
·cado detention is arbitrary.3 2
o •
that, as maintained by the United Nations
'i
v. Cameroon, an assessment from the legal
e
the Charter must be based on the necessity
tances and not necessai:ily as being "contrary to
the law" .33
119.
In the circumstances of the case, the Commission notes that the victim's detention
lasted for more tharvthree months without the victim appearing before a judge or
ao See Ouko v. Kenya Communication '232/99 (2000) AHRLR 135 (ACHPR 2000) paras 20-21.
31 Communications 25/89, 47/90, 56/91 et 100/93 (2000) AHRLR 74 (ACHPR 1995) para 42.
32 See Liesbeth Zegveld attd Mussie Ephrem v. Eritrea Communication 250/02 para 56.
33 Gorji-Di11ka v. Cameroo11 Communication 1134/2002 (2005) AHRLR 18 (ACHPR 2005) para 5.1.
having any contact with his family. Furthermore, the main reason for his detention
was his. alleged participation in the activities of the MRLK insurrectionist
movement, reasons which the Commission has earlier dismissed as irrelevant. The
fact that the interested party was subsequently tried and acquitted does not make
any difference in this case in view of the fact that the arbitrary detention was
already established before the military courts' proceedings began. The Commission
thus finds that Article 6 of the Charter was violated. The findings of the
Commission regarding the responsibility of th ResP.Ondent State for violating
e same further apply in
Article 4 also apply concerning the violation o p a e
the cases of the civilians detained by FARDC e bers
such as victims X and Y.
Alleged violation of Article 7(1)
120. Article 7(1) of the African Ch
heard in
~t~~~
fair trial, the
accordance with due roe
Complainants allege
hw
nducted in the
absence of lawye
~~Jliriii~
erstood by the victims,
exclusion an
,_-.......
,...... ,,
tions supporting them,
and finally
.
ite of the tangible and
convincing e
obor
ding United Nations agencies.
Based on th
of
, e om.mission is of the view that
it is
tal rights, which include the right to
defe
eal (Article 7(1)(a)).
0
121.
.,.,
._..,. _._ Commission is of the view that it was not
:.r-=•---~w.here the alleged victim was denied assistance by his
counsels as 1t. was tHe ca '• the cases of Saro-Wiwa v. Nigeria34 and Avocat5 Sans
Frontieres (011 b 'llli of Bwampamye) v. Bunmdi.35 Indeed, the right to defence derives
from the need fa e person charged or accused to enjoy the services of a specialist
(counsel) and be· o med of the procedure and substantive issues in order for his
rights to be guaranteed.
34
International Pen 1111d Otlter$ (011 behalfof Saro-Wiwa) v. Nigeria Communications 137/ 94, 139/94, 154/96
and 161/97 (2000) AHRLR 212 (ACHPR 1998) paras 99-101.
35 Avocats Sans Fro11tieres (011 bel,alf of Bwampamye) v. B11ru11di Communication 231/99 (2000) AHRLR 48
(ACHPR 2000) para 28.
122. The same analysis applies to the need to communicate with the accused person in a
language he understands throughout the proceedings. Recalling its Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, the Commission
arrived at a similar conclusion in the case of Titanji Duga Ernest (on behalf of
Clleonumu Martin and Others) v. Cameroon.36 In this case, the victims were all Englishspeaking and were interrogated in French.
123. Even though the
right to witnesses, both prosecution and defence witnesses,
particularly the right to summon, examine ~~~~
explicitly stipulated in Article 7 of the Cha
""'.,'·-••ding standards of this
Article in other Conventions confirm
ered by the provisions
of Article 7(1) (c) of the Charter, i.
uropean Court of
t under the
Human Rights has consistently fo
. Italy and
provisions of Article 6(3)(d) of e Con:
Solakov v. the Jonner Yugoslav R h1l'c oJJVJ~::c:uo
124. The Commission note~ that in
w
witnesses and victims
whereas they s
ly
of the judge's re s and o
right to defenc
cted unde
125. Regarding the a eg
the P •
and r
general.
decision and
36 See Tit,111ji Dugn Ernest
Co
·cation, many
absence of their lawyers
were not heard as a result
ments point to a violation of the
e Charter.
violation of e ng to an appeal, the Commission notes that
• lines on ti
it
a Fair Trial in Africa underscores "the
out undue delay with adequate notice of
.___,._.. ti.al element of the right to a fair hearing in
al connection between the right to a reasoned
ppeal as recalled by the .Commission in Good v.
1, Sb.ehnlf of Oieo11um1t Martin and Others) v.' Cameroon Communication 287/04
(ACHPR 2014) para 69; and e African Commission, Principles and Guidelines on the Right to a Fair
Trial in Africa, Guidelines N 'Right to an Interpreter'.
37 See European Human Rights Convention, Articles 6(3)(c) and 6(3)(d).
38 See Luca v. Italy, Application No. 33354/96, § 39, ECtHR 2001 II and
Solalcov v. the fom,er Yugoslav
Republic of Macedonia, Application No. 470'2:J/99, § 57, ECtHR 2001 X.
39 African Commission 'Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in
Africa' (2001), Principles A (2)(i). Highlighted by the Com.mission
..
Botswa1za.40 and Amnesty International v. Zamoia. 41 Such a position is consistent with
the practice of the European Court of Human Rights42 anq the Inter-American
Court of Human Rights.43
The importance of sufficient and relevant grounds for judicial decisions is
confirmed in the practice of national courts. In this regard, it is worthy to mention
that in the case of Dibagula v. The Republic, the Court of Appeal of Tanzania found a
violation of the right to a fair trial, stating tha 'ffbe necessity for courts to give
reasons for their decisions is borne out of the fac
. th
sons introdi.ice clarity and
44
minimise tire chances of arbitrariness" . The Co Qt Appe · onsequently concluded
that the trial judge framed irrelevant issues an ~1ailed to empt to discuss those
issues.45
126.
Mor~over, failure to state reason
European Court of Human Ri
v. France4 6 and Baucher v. France.
127.
peal. The
es of K.K.
In the present Co
of these prin •
FARDCme
128.
are to be assessed in the light
military courts to acquit the
• • s the victims' appeal for
Regarding
conclu ed
the
cour
of
n, courts, the Commission has already
129.
s_clusions regarding the establishment of
DC. The judgment of the trial military
'ly found that none of the accused members
violations did not take place or cannot be
ication 313/05 (2010) AHRLR43 (ACHPR 2010) paras 162, 175.
41
Amnesty lntemational .
42 See for example, Baucher v
43
nbia Communication 212/98 (2000) AHRLR 325 (ACHPR 1999) para 61.
ance, ECtHR (2007).
See for example, Barbani D1tarte and Others v. Uruguay; 13 October 2011, paras 183-185.
44 Highlighted by the Commission.
45 Dibagula v.
The Republic (2003) AHRLR 274 (fzCA 2003) paras 19-20.
46
K.K. v. France, ECtHR, 10 October 2013, Application No 18913/11, para 52.
47
Baucher v. France, op. cit, paras 47-51.
imputed to them and that all persons arrested or executed were killed while taking
part in combat operations on behalf of the insurrectionist movement.
The Commission notes that the Military High Court, sitting as an Appeals Court
confirmed the first decision in spite of the numerous testimonies of survivors, of
beneficiaries of the deceased persons, employees of Anvil Mining Company,
officials of the United Nations, representatives of MONUC, the United Nations
High Commissioner for Human Rights and the United Nations Special Rapporteur
on the Independence of Judges. These elements lea to a legitimate suspicion of
ns given in the decisions
glaring shortcomings regarding the relevance
of the national courts. Such conclusions ob
non-compliance with
the obligation for national courts to provide rea
decisions.
130.
Moreover, concerning the ap
Military High Court dis •
victims' lawyers did not
represented their clients •
prosecutor experienceg,_ a
lower rank compared
lack of reaso
Moreover, th
u
circumstances o
case.
of Article 7(1)(a) of the Charter
131.
lawyers
The military
the was of a
•ss1on s findings on the
apply to this issue.
right to appeal in the
udes that the provisions
Alleged violation of Article 26
132. This
the in
Zimbabwe
pressure
gives the im
ation on the Respondent State to guarantee
-=,,.. ommission noted in the case of Meldrum v.
e courts necessarily presupposes the lack of
allegation of a violation of Article 26 of the Charter
inter erence by the Respondent State or its institutions.
133. In this case, it is the transfer of the military prosecutor that is being questioned. In
this regard, the C mmission notes that the independence of members of the
prosecution is a sensitive issue, particularly in African States with a civil law
tradition inherited from the continental or·French legal and judicial system. In this
system, just like in the case of the Respondent State, it is the prosecutor, a
48 See Zimbabwe Lawyers for Human Riglits and Institute for Human Rights and Development in Africa (011 belialf
of Andrew Barclay Meldmm) v. Zimbabwe Communication 294/04 (ACHPR 2009) para 122.
fi
.~
,.,..,.
4f.i~33
I~'-~
\~f1
magistrate working in the Prosecutor's Office, who represents the people under the
direct authority of the Minister of Justice who is a member of the executive arm of
government. This authority of the execu.tive arm can give instructions to the
magistrate of the Office of the Prosecutor who is also vested with functions and
powers of a judicial nature.
134. This state of affairs obviously undermines the independence of justice delivery and
judicial authorities as has consistently been noted by the European Court of Human
Rights. Such was the case in the two decisions of. • g: 1 delivered notably against
France, whose judicial system particularly in
Qsecution was inherited
dvedy
. France and Moulin v.
by African civil law courts. In fact, in the cases o
France, which were decided in 2008 an
O ~spe tivel
t noted that the
as a Jtlru ial au
:n1:;1~~ot exercise
Attorney General cannot be cons·
such functions for lack of in
135. In this case, information co
MBOMBO, Senior M.
the matter bef
Kananga whil
officer had c
the details of
control of the
con
the
of the
that Article
....
01
........,
Colonel NZABI
of
e and brought
hasa and reassigned to
s where the said judicial
was in possession of all
progress shows the absolute
e o justice, including the lack of
cising such control. The Com.mjssion
as necessarily a conflict of interest to
-,t,;,r,~ ated by the impossibility of independence
thority. It is thus appropriate to conclude
violated.
Alleged violation of Article 14
136.
Article 14 of the Charter stipulates that "The right to property shall be guaranteed.
It may only be encroached upon in the interest of public need or in the general
interest of the community and in accordance with the provisions of the appropriate
laws". The Commission has earlier indicated that the acts constituted abuses against
49
See Medvedyev v. France, Application No. 3394/03 (ECtHR 10 July 2008); Moulin v . .France, Application
No. 37104/ 06 (ECtHR 23 November, 2010).
---
civilian victims. Consequently, expropriation in the interest of public need must be
discounted.
137. In the present Communication, regarding a subsequent violation to those
established by the Commission above, it is sufficient to point out the nature of the
property looted and their imputability to the Respondent State. The issue of
imputability has been addressed above. Regarding the nature of the property
looted, the Commission notes that, as stated by the Complainants and confirmed by
some international organizations, particular!
~ """"-d Nations, the FARDC
members caused a lot of material damage fol
in the residential and commercial areas.
138. They subsequently looted, in a
to MONUC sources, including
activities. Means of producti n
generating activities. These des
to property as guaran
Kilwa population as a
that the build
concerned wa
fle
139. Und
ions of
22, all peoples shall have the right to their
"·••····"·- ent with due regard to their freedom and
1 enJ men of the common heritage of mankind. The
la ·on of the right to economic and cultural development.
econ
identity
Complain
140.
according
mmercial
incomeon of the right
• p
ar, and for the
nd infrastructure. Given
d that the population
further conclude that the
fa judicious consideration of the arguments to back this allegation,
~rify the meaning of the right to development under the
provisions of Artie er.22 of the Charter. The provision stipulates that "All peoples
shall have the right to their development ...."51 Reference to peoples may be understood
to mean that it is necessary to have the status of people, in the sense of ethnic or
national group, or indigenous community, in order to enjoy this right.
so See SERAC v. Nigeria op. cit. para 61 .
51 Highlighted by the Commission.
.-
1 ff ~ ;
,I'
'\
/
'
••r
:: •
:)
l
141. The Commission in the communication Sudan Human Rights Organization and Centre on
Housing Rights and Evictions (COHRE) v. Sudan held that 'to determine violation of this
article (Article 22), the Commission will first have to determine whether the victims
constitute a 'people' within the context of the African Chaiter.' The Commission went on
to say that 'An important aspect of this process of defining "a people" is the
characteristics, which a particular people may use to identify themselves, through the
principle of self identification, or be used by other people to identify them. These
characteristics, include.the language, religion, culture, the territory they occupy in a state,
common history, ethno - anthropological factors, o mentipn but a few. In States with
mixed racial composition, race becomes a dete._=.--:,,--~-t ot
ethnic identity can also be a factor.'
0
142. In the instant case, while providin
part of a people within the fram
materials does not by itself
the right to development is c
preclude the exercise of this
the doctrine that the e
the individual and.collec
n
the victims form
lack of such
e fact that
hn◄~e1in
143. After understan
m this subjec
need to unders
in its subs
na
h
•
the o
the rig
development
us agrees with
t must "closely combine
nsider only the collective
ec
right to development, there is
e, in this case its economic and cultural
ve been violated. In its jurisprudence,
n the economic and cultural aspects of
e 22 of the Charter. Regarding cultural
ecision in Democratic Republic of Congo v.
Burundi, Rw fid
which the Commission notes that the fact that the
Respondent Sta s urie m ass graves the victims ·of massacres perpetrated by
them is a "violation of the right of the Congolese people to cultural development''
against the popula ..on of the Eastern province of the Complainant.53
'The right to development Implications for international economic law' 15 (2000)
American University Internatio11nl Lnw Review 1425; Maurice Flory, 'Le droit au d~veloppement' A11n11nire
Fra11rais de Droit Intemntionnl Volume 27 (1981) 171..
52 See Isabella 0. Bunn
53 See Democratic Republic of Congo v. B11nmdi Rwmida a11d Uganda Communication 227/99 (2004) AHRLR
1
19 (ACHPR 2003) para 87.
144. Such a meaning of the right to cultural development is in conformity with the
approach adopted by UNFSCO which, in the 2007 Fribourg Declaration on Cultural
Rights, states that "The term "culture" covers those values, beliefs ... traditions ...
through which a person or a group expresses ... the meanings that they give to their
existence and to their development" 54 The Declaration further states that
'"'Cultural community" connotes a group of persons who share ... a common
cultural identity that they intend to preserve and develop" .ss
v. Cameroon, even though
145. As concerns economic development, in Gttnme
the Commission could not find a violation
however noted that the acts of" eco
•
infrastructure", if established, wo
development.56 On the other hand
d'Ivoire, the Commission found a
the grounds that the denial to
and identification documents
the economic developm
need to ensure a r 11al
and to imme •
•
should be resp
rotect
,.
146. In the present
des
•
nega
case,
realisin
develop
infrastruc
or lack of evidence, it
d the lack of economic
n of the right to
ty Jus ~
• 'ative v. Cote
pmenton
up nationality
and enjoying
ion
ther noted "the
<=a,.1-nJ'. a conducive environment tive right to development
ommunication,
of econ
...~..,~.- ~
---·
ion is of the view that logically, the
• a
or for economic use inevitably has
applies to the property destroyed in this
-;,,.--"..
'-'l~•r,.•~,:,
income-generating activities, and thus in
2
• wa to participate in and enjoy economic
strayed includes personal assets and other
and health centres used by the entire Kilwa
54 Fribourg Decl11r11tion on Cultural Rights (2007) Article 2(a}.
s.s Article 2(c).
56 See Gunme 1111d Otllers v. 0,111eroot1 Communication 266/cr3 (2009) AHRLR 9 (ACHPR 2009) paras 2()5..
206.
57 See Open Society J11Stice It1iti11tive v. Oite d'Ivoire (ACHPR 2015) 187-194.
58 OS/I v. Oite d'Ivoire para 191.
.
I
4
community. In these circumstances and in the light of the meaning developed
above, the right to economic development of the people of I<ilwa has been violated.
147. From a cultural perspective, the victims were buried in mass graves and were
consequently deprived of sepulchres worthy of their humanity in accordance with
their cultural and ritual practices. Family members were denied the right to
perform for their deceased relatives the requisite rites in accordance with the
practices recognised in the Democratic Republic of Congo and in particular among
the Babemba community in I<ilwa. In the circumstance f the case and in the light
of the meaning of the right to cultural evelopme developed above, the
Commission finds that the cultural aspect of'tli right
der Article 22 of the
Charter has been violated.
Prayers of the Complainants
148. In accordance with the Co
rights guaranteed by
compensation,59 thoug
and provide evident~60
149. The Commissi
costs of the dama es caused, in
bene • • •
d requests
Co
surv
Co
detenti
demise.
150.
e violation of
uding financial
d to assess the damages
detailed inventory with
ided by some survivors and
stated under the summary of the
een 180,000 to 200,000 dollars for the
"Ti'il'~..,.n~~;:t.e deceased persons. The beneficiaries of
~ ~.,,W
~tiJ"".,.~'IUe requesting for 325,000 dollars for arbitrary
~'.;~t'l,"\r-1.....:
d salary arrears due the victim before his
lt.
otes that even though the purpose of compensation in human
rights disputes is o necessarily punitive, money can heal wounds. Regarding the
amounts claimed, th Commission notes that they were substantiated and is of the
view that no financial compensation can make up for human lives lost. As such, it
concludes that is appropriate to grant compensation.
59 See Good v. Botswana op. cit para 245; Antoine Bissa11go1t v. Co11go Communication 253/02 (2006) AHRLR
80 (ACHPR 2006); Embga Mekorrgo Louis v. Came,0011 Communication 59/91 (2000) AHRLR 60 (ACHPR
1995) para 2.
60 See Good op. cit.
151. The Complainants requested for public apologies. This type of reparation can
serve several purposes, including psychological healing of the victims, promoting
social justice, restoring societal balance and changing behaviours.61 Its
implementation indicates the need to take into account the importance of apologies
in the understanding of the victim and the perception they have about it. In
general, the public image of the victim was undermined and this explains the
frequent recourse to this mode of reparation •
mechanisms and stakeholders to implement
aration is also crucial
to its effectiveness.62
152. In this case, the dignity
the implementation of th
of a rehabilitatio
successful p
an
pu •
t of the v
153. R
.>V>.-~, ""
., ....._,~,
•
"tation process, for which
play a crucial role.
de by the Complainants, the Commission
•rectly concerned by the facts considered in
. Th· • a public interest litigation case which should benefit
who were not party to the Communication. All the collective
requests made ar r levant in this regard.
Decision of the Commission on Merits
See BT White 'Say you are sorry: Court-ordered apologies as a civil rights remedy' (2006) 91 Camel Lmo
Review 1261-1312.
61
62 See R Carroll' Apology as a legal remedy' (2013) 35 Sydney Law Review 317.
•
For the above reasons, the Commission:
154. Finds that the Democratic Republic of Congo has violated the prov1sions of Articles
1, 4, 5, 6, 7(1)(a), 7(1)(c), 14, 22 and 26 of the Charter and the right to housing. As a
result, the African Commission:
i.
Requests the Democratic Republic of Congo to take the necessary steps to
prosecute and punish State employees anil"personnel of the Anvil Mining
Company involved in the said violati
ii.
pensation
Requests the Democra
amounting to USO
iii.
Urges the
to award compensation
ely FARAY MWAYUMA
; MP
loo
gie for the loss of her brother,
e; LLL f
oss of his son; CCC for the loss of 7
ition to USO 5,000 for his looted property;
er: w months old baby who died by drowning.
~"--"~
iv.
Dem&ratic Republic of Congo to award compensation
amountiri to USO 325,000 to KUNDA Kikumbi Dickay, son of KUNDA
MUSOPE 0 Pierre, representing the KUNDA family.
v.
Requests the Democratic Republic of Congo, as part of collective
reparation, to:
-
Officially present and publish a full apology to the population of
Kilwa.
•
-
Conduct an independent inquiry in order to clarify the fate of
missing persons and award compensation to their beneficiaries.
-
Conduct a head count of all the victims who are not party to this
Communication towards awarding them fair and adequate
compensation for the damages suffered.
Take steps to exhume the bodies buried in mass graves at
NSENSELE and give them a di~ifie burial.
-
Erect a memorial at NSEN
missing victims.
during the
oad and
lations.
events, particul
waterway a
-
Provide ad
inhabi~nts
b thee
ome
vi.
•ms and other
trauma caused
o to ensure that the
imple
ation of
d by a Monitoring Committee
the victims and their beneficiaries and
·ssion on Human and Peoples' Rights
vii.
R
tic Republic of Congo to report in writing, within
one hundi;ed and eighty {180) days, on the measures taken to implement
these recommendations.
Adopted at the 20th Extraordinary Session of the African Commission on
Human and Peoples' Rights held in Banjul, Republic of The Gambia, from 9 to
18 June 2016