ACHPR/37/OS/11/427/draft
AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
African Commission on Human & Peoples’ Rights
Commission Africaine des Droits de l’Homme et des Peuples
90, Kairaba Av, P. O. Box 673, Banjul, The Gambia Tel: (220) 4392 962 Fax: (220) 4390 764 E-mail: achpr@achpr.orgWeb www.achpr.org
REPORT
OF
THE PROMOTIONAL MISSION
TO
THE DEMOCRATIC REPUBLIC
OF CONGO
12th TO 24th JANUARY 2004
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INTRODUCTION
The African Charter on Human and Peoples’ Rights provides for the establishment
of the African Commission on Human and Peoples’ Rights. The 18th OAU Summit
of Heads of State and Government meeting in Nairobi, Kenya on 26th June 1981
adopted the African Charter. The African Charter came into force on 21st October
1986 upon ratification by the requisite number of Member States. The first members
of the African Commission were elected at the 23rd OAU Assembly of Heads of State
and Government in July 1987 and the inaugural session of the Commission took
place in November 1987.
Under the African Charter, the African Commission is mandated to promote the
observance of the African Charter, monitor its implementation, and ensure the
protection of the rights and freedoms set out in the Charter across the continent,
interpret the African Charter and advise on its implementation.
The Promotional function of the African Commission mandates Members of the
African Commission to undertake promotional missions to States Parties to the
African Charter. Promotional missions are an important aspect of the African
Commission’s activities as they enable it to establish communication and links with
Member States as well as sensitising State Parties and others stake holders on the
African Charter.
The Democratic Republic of Congo is a State Party to the African Charter on Human
and Peoples Rights. It ratified the African Charter on 20stJuly 1987.
A BRIEF POLITICAL
REPUBLIC OF CONGO
BACKGROUND
OF
THE
DEMOCRATIC
Pre-Independence
The area of present day Democratic Republic of Congo was populated as early as
10,000 years ago and settled in the 7th and 8th centuries A.D. by Bantus from
present-day Nigeria. Between the 14th and 18th centuries, the Congolese people lived
in a variety of states, most notably the Kongo kingdom (15th century), Kuba
kingdom (17th century), the Luba (16th century) and Lunda (17th century).
In 1482, Portuguese navigator Diego Cao became the first European to visit the
Congo, paving the way for the Portuguese to establish ties with the king of Kongo.
Throughout the 16th and 17th centuries, the area of the DRC became a principal
source of slaves for markets in Arabia, the Middle East, and the New World as
European merchants engaged in a slave trade via Kongo intermediaries. The trade
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had devastating effects on both Kongo and non-Kongo communities for almost 400
years causing many local rebellions and ethnic warfare.
The area was explored by Henry Morton Stanley in the late 1870’s and was officially
colonized in 1885 as a personal possession of Belgian King Leopold II who named it
the Congo Free State. Stanley had founded a number of stations along the middle
Congo River and signed treaties with several African rulers which allegedly gave the
king sovereignty in their areas. For almost the entire period of the Congo Free State
(1885—1908), the people of present-day DRC were subjected to a staggering
sequence of wars, repression, and regimentation. Millions of Congolese are said to
have been killed, or worked to death during Leopold's control of the territory.
Over time, public reports about the brutal treatment of Africans led to a popular
campaign for Belgium to seize the state from Leopold, and in 1908 administration
shifted to the Belgian Government and the country was renamed the Belgian Congo.
Under Belgian rule the worst excesses of the Free State were gradually diminished,
but little was done to give Africans a significant role in its government or economy.
As the United Nations became a major forum for promoting the aspirations of the
colonized during this period, anti colonial sentiment emerged on the international
scene and profound social and economic changes began to stir the collective
consciousness of Africans.
The Independence Movement
During the period of the Belgian Congo, Congolese nationalists, notably Joseph
Kasavubu (head of ABAKO, a political party based among the Kongo people) and
Patrice Lumumba (leader of the leftist Mouvement National Congolais), became
increasingly strident. In January of 1959, there were nationalist riots in Kinshasa, and
thereafter the Belgians steadily lost control of events in the Congo. Eventually it was
decided that the Belgian Congo would become fully independent on June 30, 1960.
Independence and Conflict
Following elections in June 1960, Lumumba became prime minister and Kasavubu
head of state. However, the Republic of the Congo (as the nation was then called)
began to fragment along ethnic and personal lines. On July 4th the Congolese army
mutinied, and on July 11th Moise Tshombe, provisional president of Katanga,
declared the province to be independent.
On July 14th, the UN Security Council voted to send a force to the Congo to help
establish order; however the force was not mandated to intervene in internal affairs
and could not halt Katangan secession. Therefore, Lumumba turned to the Soviet
Union for help, but was dismissed as prime minister by Kasavubu. Colonel Joseph
Mobutu, the head of the army, seized power and dismissed Kasavubu. On December
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1st Lumumba was arrested by the army and died under mysterious circumstances
while Mobutu eventually ceded control back to Kasavubu.
The secession of Katanga, an area with great mineral resources, particularly weakened
the national government. In August 1961, the UN forces began disarming Katangese
soldiers, and in December UN and Katangese forces became engaged in battle.
Tshombe was forced to give in, and in January 1963, agreed to end Katanga's
secession.
At the end of June 1964, the last UN troops were withdrawn from the country. In
desperation, Kasavubu appointed Tshombe prime minister, but this resulted in largescale rebellions. With the help of U.S. arms, Belgian troops, and white mercenaries,
the central government gradually regained control of the country. Nonetheless,
national politics remained turbulent. In November 1965, Mobutu intervened again,
proclaiming himself president and dismissing Kasavubu.
The Mobutu Regime
Embarking on a campaign of ‘cultural awareness’, Mobutu renamed the country the
Republic of Zaire, changed his name to Mobutu Sese Seko and encouraged his
citizens to follow suit. During his reign, Mobutu oversaw the establishment of one
of the worlds most corrupt and kleptomaniac regimes. He courted French and
American Cold War geo-strategic interests and schemes in Central Africa to ensure
his political survival, and in turn France and the United States used Zaire as a ground
for covert activities against bordering countries particularly Leninist-Marxist Angola.
Mobutu’s corrupt administration and poor economic policies drove Zaire into an
economic collapse.
Mobutu headed the sole political party, the Popular Movement of the Revolution
(MPR) and in 1970, was elected unopposed to a seven-year term as president. In the
early 1970s he centralized the administration of the nation, encouraged the
participation of foreign firms in the economic development of the country, improved
relations with neighbouring independent countries, and maintained good relations
with the West. At the same time, the government had to contend with increasingly
active political opposition, accompanied by escalating economic decline. Mobutu's
policy of assigning jurisdiction over security matters to members of his own ethnic
group (the Ngbande), led to ethnic conflicts and a succession of coup attempts
between 1975 and 1978.
Promising political reforms, the government made superficial changes but the
detention of dissidents and violent clashes between soldiers and students continued.
As the Cold War came to a close, internal and external pressures on Mobutu
increased. In late 1989 and early 1990, Mobutu was weakened by a series of domestic
protests, by heightened international criticism of his regime's human rights practices,
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and by a faltering economy. In April 1990, Mobutu agreed to the principle of a multiparty system with elections and a constitution.
Rebellion and Civil War
A loss in confidence in Zaire’s government and riots by soldiers in Kinshasa led
Mobutu to agree to a coalition government with opposition leaders in 1991.
Economic collapse continued unabated, with the national infrastructure seriously
deteriorating.
The nation's problems were compounded by an influx of Hutu refugees from
Rwanda and a spill over of ethnic fighting between Hutus and Tutsis into Zaire. In
October 1996, Rwandan troops (the RPA) entered Zaire at the same time that an
armed coalition led by Laurent-Desire Kabila known as the Alliance des Forces
Democratique pour la Liberation du Congo-Zaire (AFDL) was being formed. With
the goal of forcibly ousting Mobutu, the AFDL, supported by Rwanda and Uganda,
began a military campaign toward Kinshasa. Following failed peace talks between
Mobutu and Kabila in May 1997, Mobutu left the country, and Kabila marched into
Kinshasa on May 17th, 1997. Laurent Kabila declared himself president, consolidated
power around himself and the AFDL, and renamed the country the Democratic
Republic of Congo (DRC). Mobutu fled to Morocco where he subsequently died.
Kabila’s Army Chief and the Secretary General of the AFDL were Rwandan, and
RPA units continued to operate with the DRC’s military. However, over the next year
Kabila’s relations with his foreign backers deteriorated. In July 1998, Kabila ordered
all foreign troops to leave the DRC but most refused to leave. On August 2nd,
fighting erupted throughout the DRC as Rwandan troops in the DRC “mutinied”
and fresh Rwandan and Ugandan troops entered the DRC. Two days later, Rwandan
troops flew to Bas-Congo, with the intention of marching on Kinshasa, ousting
Laurent Kabila, and replacing him with the newly formed Rwandan-backed rebel
group called the Rassemblement Congolais pour la Democratie (RCD). The Rwandan
campaign was outstripped at the last minute when Angolan, Zimbabwean, and
Namibian troops intervened on behalf of the DRC government. The Rwandans and
the RCD withdrew to eastern DRC, where they established de facto control over
portions of eastern DRC and continued to fight the Congolese Army and its foreign
allies. In February 1999, Uganda backed the formation of a rebel group called the
Mouvement pour la Liberation du Congo (MLC), which drew support from among
ex-Mobutists. Together, Uganda and the MLC established control over the northern
third of the DRC.
Eventually, the DRC was divided de facto into three segments, and the parties
controlling each segment had reached military deadlock. In July 1999 the Lusaka
cease-fire agreement was proposed and was eventually signed by the heads of the six
governments (DRC, Uganda, Rwanda, Namibia, Angola and Zimbabwe) involved in
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the conflict and the leaders of the two main Congolese rebel groups (the MLC and
RCD) in autumn of the same year. Setting out a framework for independently
facilitated national dialogue and reconciliation and an Inter-Congolese dialogue, the
agreement was intended to lay the foundations for free, democratic and transparent
elections and the drawing up of a new constitution. To maintain liaison between the
parties, the Security Council set up the UN Organization Mission in the Democratic
Republic of Congo (MONUC) on 30th November 1999, incorporating UN personnel
authorized in earlier resolutions. By the end of 1999 however, implementation of the
accord was stalled and the cease-fire was in danger of collapsing.
Peace Process
On 16 January 2001 President Laurent Kabila was shot and killed by one of his
bodyguards. His son, Joseph Kabila, was sworn in as the new President ten days later.
He undertook to implement the Lusaka agreement, open up internal politics, improve
human rights, and liberalise the economy. Over the next year, MONUC deployed
throughout the country and the Inter-Congolese Dialogue proceeded. During this
period Ugandan, Angolan, Namibian and Zimbabwean troops started to withdraw
from the DRC in varying numbers.
In October 2001, the Inter-Congolese Dialogue began in Addis Ababa under the
auspices of Facilitator Ketumile Masire (former president of Botswana). The initial
meetings made little progress and were adjourned. On February 25, 2002, the
Dialogue was reconvened in South Africa. It included representatives from the
government, rebel groups, political opposition, civil society, and Mai-Mai (Congolese
local defence militias). The talks ended on April 19th without the parties reaching an
all-inclusive agreement on a transition to an electoral government.
On 30th July 2002 the Presidents of the DRC and Rwanda signed a peace agreement
in Pretoria, South Africa. The Government of the DRC collaborated with MONUC
to dismantle the forces responsible for the Rwandan genocide which were operating
in DRC, while in response the Rwandan army made a full withdrawal from DRC
territory in October 2002.
New Constitution
With active engagement by the international community, an Inter-Congolese peace
deal was finally signed in December 2002 in South Africa between the Kinshasa
government, the main armed groups and members of the political opposition on the
formation of a transitional national government. This was formally agreed by the
parties on 2nd April 2003 and the transitional government was promulgated on 30th
June 2003. The new interim constitution provides for a transitional government for
the DRC, including rebel groups and opposition parties, to rule for up to two and a
half years when it is expected to hold its first democratic elections in four decades.
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During this period Kabila is to remain head of state, but with four vice-presidents
representing the main opposition groups.
In May 2003, the last Ugandan troops left eastern DRC as reports emerged of bloody
clashes between rival militias in Bunia area. Economically driven ethnic strife in
natural resource-rich Ituri district between Hema and Lendu militias caused between
200,000 and 350,000 people to flee when fighting worsened. Thousands of civilians
sought asylum in Uganda and the UN warned of a possible genocide. Due to
prevailing insecurity, on the 30th May the Security Council authorised the deployment
of an interim emergency multinational force to Bunia to stabilise the security
situation. The Force was officially launched as an EU European Security and Defence
Policy (ESDP) and was coded Operation Artemis. The EU-led force in Bunia is
scheduled to end its operations on the 1st of September, when MONUC troops are
expected to take over.
Congo's transitional power-sharing government met for the first time 25th July 2003,
heightening hopes for the end of nearly five years of war. President Kabila presided
over the meeting, which was also attended by the four vice presidents -- Two of them
are leaders of the main rebel groups - Azarias Ruberwa, for the Rassemblement
Congolais pour la Démocratie, or Rally for Congolese Democracy (RCD-Goma), and
Jean-Pierre Bemba for the Mouvement pour la Libération du Congo, or Movement
for the Liberation of Congo (MLC). The others are Abdoulaye Ndombasi and
Arthur Z'ahidi Ngoma, representing the government and political opposition parties
respectively. The new government is also comprised of 36 ministers and 25 vice
ministers. During its first meeting, the newly-inaugurated ministers of the transitional
government of the DRC pledged to make the resolution of the conflict in Ituri
District a major priority. Other decisions taken during the new government's debut
meeting included the authorisation of free circulation of people and goods
throughout the country, the return to a unified currency, and the use of uniform
national symbols.
Political Structure
Although peace remains very fragile, the transition power sharing government and
the new constitution represents a significant shift from a highly centralized
government towards an increasingly representative system. There are several active
political parties in the country, and the new transitional government involves four
major groups: the government in Kinshasa (Parti pour la réconciliation et le
développement-PPRD); the official opposition and the two main rebel groups: the
Congolese Rally for Democracy (RCD), the Congolese Liberation Movement (MLC).
Until the recent peace agreement, political conditions stood as follows:
Executive branch:
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The President is both the chief of state and head of government, and appoints a 25member cabinet of ministers known as the National Executive Council. The
administration of the DRC is divided into 10 provinces (Bandundu, Bas-Congo,
Equateur, Kasai-Occidental, Kasai-Oriental, Katanga, Maniema, Nord-Kivu,
Orientale, Sud-Kivu) and one city (Kinshasa). A provincial governor, who is
appointed and dismissed by the president, administers each province.
Legislative branch:
This is comprised of a 500-member Transitional Constituent Assembly which was
established in August 2000 by Laurent Kabila. The status of the transitional national
assembly, appointed by the Executive is uncertain following the conclusion of the
recent political agreements signed by the country's main political forces. It is probable
that the assembly will be superseded by a new constituent assembly consisting of
delegates from all the parties involved in the new transitional government.
Constitution:
Laurent Kabila abolished the previous constitution and all institutions of the state
except the judiciary. A constitutional decree declared the institutions of the country to
be the president, the government and the courts and tribunals. All power was to be
vested in the head of state, pending the adoption of a new constitution. In October
1997, Kabila appointed a 42-member Constitutional Commission, which was to draft
a new constitution. The draft constitution was referred to a 300-member Constituent
Assembly in March 1998, which was to review the document and submit it to a
national referendum. The Assembly, however, was unable to convene, owing to the
outbreak of the recent conflict. Under Joseph Kabila, the process of drafting a new
transitional constitution began in June 2002 and finally in April of 2003 a new
transitional constitution was promulgated.
Elections:
The last elections were held on 29th July 1984 when Mobutu Sese Seko ran
unopposed as leader of the sole political party, and was elected for a seven-year term.
When Laurent Kabila assumed governing authority he pledged to hold elections by
April 1999, but in December 1998, announced that elections would be postponed
until all foreign military forces attempting to topple the government had withdrawn
from the country. This means that the DRC has not held multiparty legislative
elections since 1965 and has never held multiparty presidential elections. Both
however are envisaged following the installation of the new transitional multiparty
government.
Structure of the Judicial System
The civilian judiciary is composed of lower courts, appellate courts, the Supreme
Court and the Court of State Security. There are also military tribunals that exercise
jurisdiction over civilians. An informal judicial power has also developed in the form
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of security services, the militias, local leaders and warlords, rebels and other factions
exercising informal judicial power.
The Civil and Criminal Codes are based on Belgian and customary law. The law
provides for the right to expeditious public trial, the presumption of innocence, and
legal counsel at all stages of proceedings. However, the Government continues to
disrespect these rights in practice. Court-appointed counsel at state expense in capital
cases, and when requested by courts, is provided by the law. However, the
Government only provides counsel at its discretion.
Judiciary
The Constitutional Act of Transition of the Mobutu Regime and Laurent Kabila's
Decree Law No. 3 provided for an independent judiciary. In practice, however, the
government has failed to provide the legal framework to ensure the independence of
the judiciary. Many obstacles have hindered judicial independence, including absence
of economic autonomy of the judicial bodies, the tendency of executive and
legislative authorities to exert pressure on the judiciary, and the prevailing corruption
of judges and magistrates. Corruption has been facilitated by very low salaries or, in
certain cases a complete lack of salary. The judiciary in the DRC suffers from
desperate financial conditions. Judges are paid poorly and only on an intermittent
basis. There are substantial shortages of personnel, supplies, and infrastructure.
GENERAL INFORMATION ABOUT THE DEMOCRATIC REPUBLIC
OF CONGO
The Land and People
The DRC lies on the equator, borders the Republic of Congo, the Central African
Republic, Sudan, Uganda, Rwanda, Burundi, Tanzania, Zambia and Angola, and has a
small coastline on the Atlantic. The central region has an equatorial climate with high
temperatures and heavy rainfall, with different climatic cycles in the northern and
southern regions. The DRC is rich in natural resources possessing the second largest
rain forest in the world, fertile soils, ample rainfall, and considerable and varied
mineral resources including cobalt, copper, cadmium, petroleum, industrial and gem
diamonds, gold, silver, zinc, manganese, tin, germanium, uranium, radium, bauxite,
iron ore and coal. Although the DRC maintains these valuable resources, the
declining economy and long-term state of conflict have resulted in a number of
environmental threats including poaching, water pollution, deforestation caused by
refugee populations, soil erosion, and irresponsible mining.
There are over 200 African ethnic groups represented in the DRC, the majority of
which are Bantu. The four largest tribes – Mongo, Luba, Kongo (all Bantu), and the
Mangbtu-Azande (Hamitic) make up about 45% of the population. The official
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language is French with Lingala (a lingua franca trade language), Kiswahili (or
Swahili), Kikongo and Tshiluba widely spoken as well. 50% of the population
identify themselves as Roman Catholic, 20% as Protestant, 10% Kimbanguist, 10%
Muslim, and 10% other syncretic sects and indigenous beliefs.
The estimated population of the DRC is 52 million with a growth rate of
approximately 2.79 %. 48.2 % of the population is between 0-14 years old, 49.3% are
15-64 with only 2.5 % living beyond the age of 65. The infant mortality rate is 98.05
deaths per 1,000 live births total population and the life expectancy at birth for the
total population 49.13 years. Male life expectancy is estimated at 47.19 and female at
51.13 years. Since independence, efforts have been made to increase access to
education, and secondary and higher education have been made available to many
more Congolese. According to estimates made in 2000, 41.7% of the population has
no schooling, 42.2% has primary schooling, 15.4% has secondary schooling, and
0.7% has university schooling. At all levels of education, males greatly outnumber
females. The DRC’s literacy rate (defined as those aged 15 and over who can read
and write French, Lingala, Kiswahili, or Tshiluba) for the total population is 77.3 %;
86.6% of which are men and 67.7% women.
The DRC’s economy has declined significantly since the mid-1980's due a variety of
unsuccessful government measures, ongoing conflict, the residue of colonial rule, and
corruption. It has been estimated that DRC may comprise the most mineral-rich
chunk of land on the globe but its recent history has been one of internal conflict.
The war has dramatically reduced national output and government revenue and has
increased external debt. Foreign businesses have curtailed operations due to
uncertainty about the outcome of the conflict, lack of infrastructure, and the difficult
operating environment. The war has intensified the impact of such basic problems as
an uncertain legal framework, corruption, raging inflation, and lack of openness in
government economic policy and financial operations.
Trade in the DRC has been severely hampered by conflict and the devastating effect
it has had on the country’s infrastructure. The high level of corruption is another
problem in this area with customs officials notorious for accepting bribes in return
for trade licenses. Nonetheless, the DRC exports products such as diamonds, copper,
coffee, cobalt and crude oil. Its major export partners include Benelux (62%), US
(18%), South Africa, Finland and Italy. The country imports foodstuffs, machinery
for mining and other industry sectors, transport equipment and various fuels and its
major import partners include South Africa (28%), Benelux (14%), Nigeria (9%),
Kenya (7%) and China.
Composition of the delegation
Mr. Andrew Ranganayi Chigovera, Member of the Commission,
Ms. Sanji Monageng, Member of the Commission, and
Ms. Annie R Mulumba, legal officer at the Secretariat of the Commission.
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Correspondence between the Secretariat and the government of the DRC in
respect of the mission
On the 1st April 2003, the Secretariat of the African Commission sent a note Verbale
to the Ministry of Foreign Affairs and International Cooperation of the Democratic
Republic of Congo informing the latter of the Commission's intention to send a
delegation on a promotional mission to the country from 14 to 31 July 2003. Copies
of the Note Verbale were forwarded to the Office of the President, the Ministries of
Human Rights and Justice. Reminders were sent to the authorities of the DRC on
18th June and 15th November 2003.
By a Note Verbale dated 8th December 2003, the Ministry of Human Rights advised
the Secretariat of the African Commission that they were ready to receive the mission
of the African Commission from 12th to 24th January 2004. The Secretariat of the
African Commission thus requested the Ministry to draw up a tentative programme
of the visit.
The Ministry of Human Rights coordinated the arrangements for the mission on
behalf of the government and was in contact with the Secretariat of the African
Commission.
Mr. Olela, the Permanent Secretary to the Minister of Human Rights, received the
delegation assisted and accompanied the delegation to some of the meetings. The
delegation would like to express their appreciation to the Ministry of Human Right
for facilitating the Mission.
THE PROMOTIONAL MISSION
Mr Andrew Ranganayi Chigovera is the Commissioner responsible for promotional
activities in the Democratic Republic of Congo (DRC). The promotional mission to
the DRC was undertaken from 12th to 24th January 2004.
MEETINGS IN KINSHASA
Non-Governmental Organisations
The delegation held a meeting with a number of human rights NGOs based in
Kinshasa. The meeting was convened at the conference room of the headquarters of
the UN offices. There were 20 NGOs represented at that meeting. The Mission
would like to express its appreciation to the Chairman of the African Association for
the Defence of Human Rights (Association Africaine de Défense des Droits de l’Homme ASADHO), Mr. Amigo Ngonde for the assistance provided in respect of gathering
members of the human rights NGO community.
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The meeting was chaired by Commissioner Andrew R. Chigovera who introduced the
delegation and briefed the NGOs on the mandate of the African Commission as well
as the purpose of the mission. He indicated that the mission is intended to sensitise
the government, civil society and the NGO community on the existence of the
African Charter on Human and Peoples’ Rights and on the mechanisms established
by the Charter.
Commissioner Chigovera elaborated on the expectations of the African Commission
from the human rights NGO community. Participants at the meeting were informed
that the African Commission recognises that NGOs are valuable partners in the
promotion and protection of human rights in Africa. Consequently, the African
Commission adopted a Resolution on the criteria of granting observer status to
NGOs in order to strengthen the cooperation and partnership with NGOs working
in the field of human rights. Observer status enables communications from the
Commission to the local NGOs and the right of the NGOs to participate in the
public sessions of the African Commission.
NGOs, by virtue of the fact that they are based on the ground, are looked to by the
African Commission to provide information on human rights issues in order to assist
it in assessing the human rights situations in various countries.
Commissioner Sanji M. Monageng restated the need for NGOs to make it their
business to participate in the preparation of State reports and that the government
should at least give a copy of the report to the NGOs. Commissioner Monageng
added that the NGOs are the Commission’s “eyes and ears”. They are required
therefore to take particular interest in the compilation/preparation of State Reports
to the African Commission and submit shadow reports to the African Commission
when and where necessary.
Participants at the meeting wanted to know what action the African Commission
would take in situations where massive violations of human rights occur as a result of
wars or civil unrest in Member States. Commissioner Chigovera informed the NGOs
that when the African Commission is faced with such a situation, the action taken will
depend on the situation at hand, whether the African Commission has the mandate
to act. If the African Commission decides to act, it will immediately pass the
information to the concerned government calling upon it to take sincere measures to
curtail the threat of such violation; it may issue a resolution or send a fact-finding
mission to the country concerned. However, it should be noted that the African
Commission could only send a fact-finding mission where the country concerned
permits it to undertake such a mission. He also reminded the NGOs that the over-all
duty of the African Commission is to assist African States to develop a human rights
culture within their countries through various activities and not to condemn them all
the time.
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There was a general concern raised by the NGO community on the question relating
to the status of the establishment of the five institutions designed to support
democracy, which were outlined in the Global and All-Inclusive Agreement on the
Transition in the Democratic Republic of Congo (DRC), signed in Pretoria, South
Africa on December 17, 2002. These Institutions included:
1. The Independent Election Commission (La Commission électorale
indépendante);
2. The National Human Rights Observatory (L’Observatoire nationale des
droits de l’Homme);
3. The High Authority for the Media (La Haute autorité des médias);
4. The Truth and Reconciliation Commission (La Commission vérité et
reconciliation);
5. The Commission for Ethics and the Fight Against Corruption (La
Commission de l’éthique et de la lutte contre la corruption).
The NGOs were concerned that these institutions have been established but they are
not yet fully operational because their structure and mission have not yet been
defined in any legislation (loi organique); that the same institutions are politicised in that
a great number of their members come from the “former combatants” and not from
civil society, as was called for in the Global and All-Inclusive Agreement.
Commissioner Chigovera stated that he believes these institutions are good for
democracy and that the African Commission does not have a mandate to organise
institutions established by its Member States, however if the structure is such that it
affects the government’s application of the Charter, then the African Commission
has a role to play. He promised, though, to raise the issue with the relevant
authorities.
Responding to the question on the failure by Member States to comply with the
decisions of the African Commission, Commissioner Chigovera acknowledged that
coercive powers are absent to make States implement decisions taken by the
Commission. He further stated that Activity Reports of the African Commission are
submitted every year to the African Union Assembly of Heads of States and
Governments to adopt and implement the decisions and notifications are addressed
to governments to remind them on their duty to implement the decisions of the
African Commission.
In conclusion, Commissioner Chigovera related the constraints that the African
Commission is faced with and stated such constraints occasionally affect the work of
the African Commission. He however encouraged the NGOs present to continue
assisting the African Commission in discharging its functions and also appealed to
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them to establish good working relationships with organs of government and work
towards the promotion and protection of human rights in the country.
At the end of the meeting, the human rights NGO community submitted to the
delegation from the African Commission on Human and Peoples’ Rights a
Memorandum (attached to this Report).
National Human Rights Observatory (NHRO)
The delegation met with Mr. Mpinga Tshibasu, Chairman of the National
Human Rights Observatory and three of his assistants. Commissioner Chigovera
introduced the African Commission as an African Union body established under the
African Charter on Human and Peoples’ Rights. He described the responsibility of
Commissioners, which he said is to oversee the implementation of the African
Charter. He added that Commissioners carry out promotional missions to State
Parties with the intention of popularising the African Charter, reminding States of
their obligations towards the Charter and discussing human rights issues that can be
of interest or concern to the State Party. Commissioner Chigovera pointed out that
the delegation attaches a lot of importance to this particular mission because it comes
at a stage when all Africans are hoping for a peaceful settlement of the problems in
the Democratic Republic of Congo. The African Commission believes that it can, in a
way make an input in the democratisation process in the Congo.
Commissioner Chigovera asked questions on the role of the National Observatory.
Mr. Tshibasu informed the delegation that the National Observatory is established by
the Constitution and its powers spelt out in the organic law that is yet to be
promulgated. The National Observatory will be an advisor to the government on
human rights issues. Its mandate includes, among other things, monitoring the
human rights situation in the country, following up on the
ratification/implementation of local and international instruments, initiating enquiries
over reports of massive human rights violations and assisting complainants in
ensuring that decisions are implemented on their behalf. The Chairman declared that
in order to achieve its mandate, the Observatory need to have the organizational setup in place, including finances and personnel. In this regard, the Chairman expressed
the need for strong contact and collaboration with the African Commission in
sensitising governments to make sure that National Human Rights Institutions are
operating independently from the organs that established them.
Responding to the question relating to the composition of the five institutions for
democracy, Chairman Tshibasu expressed the hope that civil society will be given
prominent representation in the composition of the five institutions for democracy.
The Chairman pleaded again with the African Commission to lobby for such a
transparent and representative composition. He raised concerns about the structure
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of the National Observatory by declaring that if members of ex-rebel groups
dominate it, the expectations of the population would not be met, as this would
jeopardise proper investigation of human rights violations.
In reaction to the statement of the Chairman of the National Observatory,
Commissioner Chigovera promised the Institution that the issue of their composition
would certainly be raised with government’s officials although the African
Commission has no power to instruct governments what the composition should be.
He suggested that these concerns could be addressed through the organic law.
Lobbying was therefore necessary to ensure the independence and the representation
of civil society so as to strengthen the democratisation of the Democratic Republic of
Congo. It is very important for the organic law to be promulgated speedily to give
effect to the operation of the Institutions for democracy as expected by the
Constitution.
Commissioner Chigovera observed that the Institution’s ability to monitor/advise on
human rights issues, to make impartial decision would heavily depend on its
independence, including finance. The source of funding need to be guaranteed by the
organic law, which should make it obligatory that the institutions supporting
democracy have their own budget directly from Parliament as a minimum. The
organic law should also permit these Institutions to source for extra budgetary funds
without any restrictions imposed.
The delegation was informed that the National Human Rights Observatory submitted
its application for affiliate status at the 34th Ordinary Session. Commissioner
Chigovera promised to follow it up with the Secretariat of the African Commission.
Commissioner Monageng commended the efforts Chairman Tshibasu and his office
put in the advancement of the national human rights observatory. She mentioned that
the African Commission has interest to ensure that such Institutions, which are the
base of democracy, succeed. She thanked the Chairman for agreeing to meet the
delegation at short notice and engaging in a forthright and open manner.
3. Bar Association
Commissioner Chigovera informed the lawyers that through promotional missions,
the African Commission is able to sensitise governments, human rights practitioners
and civil society on the provisions of the Charter, and how the African Commission
handles complaints of human rights violations.
A question was raised regarding the coercive powers of the Commission in relation to
its decisions. Commissioner Chigovera replied that the Commission, like any other
Treaty Supervisory Body, has no coercive power. It is not a court of law, but a quasijudicial body and in the exercise of this role, it makes decisions, which decisions do
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not have the same force as those of a court. These decisions are submitted annually
to the Summit of Heads of State and Government of the African Union every year.
In terms of enforcement, first it is anticipated that the Summit will bring to the
attention of its members the issues in the decisions of the Commission and where
appropriate, the Summit might use its powers to persuade the States to comply. The
African Commission, on its part, communicates the decisions to both parties and
request the concerned State to comply with the decision and to inform the
Commission what it has done with the decision when it lodges its two-yearly report.
Commissioners follow the action up when they undertake a promotional mission to
that particular country.
In relation to the question raised on what were the expectations of the African
Commission from the Bar Association, Commissioner Chigovera revealed that the
African Commission regards the Bar Association of any country to be one of the
pillars of human rights in the country. Lawyers are human rights defenders; they
defend, sue, and ask for compensation. The Association is a foundation of the human
rights situation in a country. The African Commission expects the Association to take
up human rights issues to the Commission where domestic remedies have been
exhausted. Commissioner Chigovera expressed hope that the Bar Association will
establish some relationship with the Commission in order to access information at
the Commission. Such relationship can be established by applying for observer status
before the Commission. This will allow the Bar Association to participate in the
public sessions of the African Commission, also be able to propose agenda items for
the Commission sessions.
Members of the Bar Association wanted to know if, in terms of monitoring human
rights situations in a country, a promotional mission was enough. Commissioner
Chigovera explained that a promotional mission is not a monitoring mission. When
the African Commission is dealing with a crisis situation, an investigative or factfinding mission is sent to that particular country. This is why the African
Commission would like to establish contact with human rights practitioners, NGOs
and other institutions because they become a very important source of information.
For example, in the DRC, ASADHO has been a very regular source of information
for the African Commission. In addition to local institutions, the Commission also
gets information from international NGOs, such as Amnesty International, UNHRC,
with whom the African Commission have a Memorandum of Understanding relating
to the Status of Refugees. Internationally, the African Commission is still called a
young human rights monitoring organization. It has limited capacity in terms of
personnel and finance.
In response to the lawyers’ enquiry about the source of funding of the African
Commission, Commissioner Chigovera explained that in terms of the African
Charter, the main source of finance of the African Commission is the African Union
itself. The AU appropriates a budget for the Commission but it is very inadequate.
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Therefore the African Commission is authorized to approach donors to fund some
of its activities; for example, the Commission is unable to procure enough legal staff
from the AU budget, and approaches some donors to assist in financing some legal
officers’ posts.
The lawyers wanted to know how the Commission deals with the safety of human
rights defenders. In response, Commissioner Chigovera gave details on how the
Commission handles urgent appeals: when the Commission is informed that human
rights defenders are in trouble, for example, when journalists or lawyers have been
arrested, the African Commission writes, through its Chairperson, to the concerned
government asking for some clarification about the situation, also asking for release
of the person, and if the victim is alleged to have committed a criminal offence, that
he/she should be charged and tried in accordance with international rules. In
conclusion, he informed the lawyers that at the 34th ordinary session, the Commission
nominated a Focal Point on human rights defenders.
High Authority for the Media
The delegation met with Mr. Sakombi Inongo, 2nd Vice-President and 2nd
Rapporteur of the High Authority for the Media (HAM). He informed the
delegation that Parliament is promulgating the organic law that establishes the High
Authority for the Media. The HAM regulates the media in the DRC. It was set up as
a result of popular demand by the Congolese. The principal role of HAM is to ensure
neutrality, impartiality and accountability of both private and public media. Free and
transparent democratic elections will depend on this particular Institution. It has to
play a central role among the politicians. The role will be to allocate equal time on the
media during political campaigns. It will work in synergy with the Independent
Electoral Commission. Currently, the organic law that will set up HAM parameters is
in the process of being promulgated and once it is adopted by parliament, it will
become law establishing the vision, strategy and work plan for the media.
The Action plan is based on the following 4 pillars which are divided into short-term
to 2004 (Pre-election period) and mid-term to 2005, which is the election period:
(1) Implementation and Development of Institutions
(2) Regulation of the High Authority for the Media
(3) Control of the entire media and monitoring law for the media
(4) Promotion and development of the media, and access to new technology.
Commissioner Chigovera informed the Vice President that the African Commission
has developed a Declaration on Freedom of Expression to set out the minimum
requirements for freedom of expression. Commissioner Chigovera recommended Mr
Sakombi to read the Charter and the principles in the Declaration for freedom of
expression and stressed that the Declaration is not a law but a guide on minimum
standards expected. Commissioner Chigovera informed the members of the Media
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Commission that he is one of the architects of the Declaration and as a focal person
he believes that freedom of expression is the cornerstone of democracy and has to be
taken seriously. The Commissioner noted that the African Commission is very
excited about the establishment of the high authority for the media at this crucial
period with a view to ensuring that a free and fair election is held. There is no doubt
that the principles of impartiality and neutrality will guide the High Authority for the
Media. He also expressed hope that the High Commission will live beyond 2005 as a
monitor of freedom of expression.
United Nations Mission in the Democratic Republic of Congo (MONUC)
The delegation had fruitful discussions with M. Roberto Ricci, Chief of the
Human Rights Section of MONUC who described the activities of the MONUC
offices in the country. MONUC works closely with the office of the High
Commissioner for Human Rights.
The mandate of MONUC is established by Security Council Resolution 1493, which
provides that MONUC’s current work plan is to expire by end of May/beginning of
June 2004. MONUC has been mandated to monitor and investigate the human
rights situation. It has a special investigative unit. MONUC is composed of 55
elements in the human rights sections, including administrative assistants and all
national and international staff, with about 45 professionals. MONUC has offices
throughout the country including Kinshasa, Kisangani, Bunia, Beni, Goma, Kindu,
Bukavu, Katanga, Kalemi, Lubumbashi, etc. In all they have the same number of
people working in the DRC as in Liberia, a much smaller country.
The main focus of MONUC includes human rights monitoring, ensuring the rule of
law, preserving facts and preventing/stopping violence such as attacks on life,
arbitrary detention, deprivation of liberty, torture and sexual violence.
The operating system of MONUC is to audit the justice system, to conduct a series
of seminars/workshops to provide the justice data and make recommendations. The
idea is to review the initial data and make sure that Congolese authorities increasingly
own the process. MONUC is publishing reports based on their special investigations.
They are finalising three thematic reports: (1) Events in Ituri over the past two years;
(2) Mapping of major violations in Congo for the past two years; (3) Sexual violence
report.
Commissioner Monageng inquired about allegations of sexual violence in the eastern
region. Mr. Ricci emphasizes that he has never heard such large scale sexual violence
(Mr. Ricci was in Rwanda in 1995). The widespread conflict in the area is coupled
with massive sexual violence at every level of society. Sexual violence committed by
the military all over the country, including in former government-controlled areas, the
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violence often comes with the military using men as porters and women as slave
labourer and sexual slaves. There are cases of women being abducted and abused for
one week or 10 days, observed Mr Ricci. There were cases of rape perpetrated
against children ranged from three years old to women as old as 80; also men are
affected. The physical abuse includes lashings and eye gouging. Currently, MONUC
has data on South Kivu, where they have recorded about 1,000 cases of sexual
abuses. Mr. Ricci emphasized that they actually have very limited access to some areas
and most of the perpetrators there are Mai-Mai and Interahamwe, but also other
forces.
Commissioner Chigovera raised questions on reports about violence against the
Pygmies following reports of enslavement, brutalisation and cannibalisation. Mr. Ricci
responded that some databases have been established on these incidents but not all
the facts were analysed. He pointed out that he was not sure that Pygmies have been
particularly targeted; there is a culture of discrimination against them that was
worsened by the conflict.
In conclusion, Commissioner Chigovera raised concern about the composition of the
Truth and Reconciliation Commission. He wanted to know the composition of the
TRC and to what extent all sectors of the society have been represented in the
process.
In response, Mr. Ricci indicated that in his opinion, there hasn’t been enough
consultation in the appointment of members of the TRC. He noted that most of
those appointed are politicians, mostly former combatants. In his view, this
composition would jeopardise the effectiveness of the TRC. He also informed the
delegation that the mandate of the TRC is to investigate human rights violations as
far back as 1960.
Mr. Ricci further expressed the fear that because of the nature of the five institutions
to support democracy, if any of them is not functioning properly, this might affect
the operation of the others. He also noted that to strengthen these institutions and
assure their effectiveness, they must be availed of sufficient financial, human and
other resources.
In response to the question whether the justice mechanism will be operational before
the elections, Mr. Ricci pointed out that the administration of justice is within the
domain of the national courts. He doesn’t expect anything to happen before the
elections. There are inadequate basic working tools such as a lack of/inadequate pay
for the magistrates and staff. As a result it takes a long time for justice to be
dispensed.
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Minister of Human Rights
The delegation had pertinent discussions with Ms. Marie Madeleine Kalala,
Minister of Human Rights who stressed that the Ministry is dominated by
members of the civil society. Because of this, the Ministry’s approach to human rights
is in line with the views expressed by members of civil society. To this end, there is a
good working relationship between the Ministry of Human Rights and the NGO
community in the promotion and protection of human rights in the DRC.
The Minister encouraged the presence of the African Commission in the DRC, which
she thinks is an opportunity to get the real picture of the human right situation on the
ground. The Minister reminded the delegation that the Africa Commission should
keep in mind that this is a post-conflict situation. There has been an improvement in
the civil, political, social and cultural climate. There is less harassment of human
rights activists as compared to the past.
Commissioner Chigovera reported to the Minister the primary concern expressed by
the NGO community, which was their apprehension that the composition of the five
democratic institutions will be dominated by politicians and that they hoped there
would be more government-support for involvement of the civil society, in particular
in the Human Rights Observatory. Their fear was that if it was only a political
institution, a lot might be sacrificed.
The Minister replied by emphasizing that she was an active member of the NGO
community before her appointment as a Minister. She is concerned about her
position in this issue as long as she has a duty to the government and a duty to the
civil society as well. The problem of the composition of these institutions finds its
roots in the Pretoria Peace Agreement. This Peace Accord being a foundation for all
Institutions that formed the basis for transition prescribes the participation of all
components on the basis of equality. It is up to the parties to lobby for
representatives with great ability and high integrity to assert themselves. As former
member of the civil society, she thinks that the civil society was not bold enough to
take up and solve this issue of its representation in the new institutions. Now it is
inappropriate to debate on that issue as the government is applying the Resolutions
adopted by the Pretoria Peace Accord.
Commissioner Chigovera sought the opinion of the Minister on the impact of the
strike of the magistrates. The Minister stated that the recent strike of magistrate had a
serious impact on the administration of Justice bearing in mind the inadequate
number of magistrates in the country. The strike was led by the Union of Magistrates
and the protest related to the adjustment of the budget in 2004. The magistrates
demanded a pay of at least US $ 1000 but the government couldn’t offer it. The
government usually offers US $ 100 at the bottom of the ladder and US $ 200 at the
upper scale. The salaries for magistrates range from US$ 30 to 60 a month.
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Commissioner Chigovera asked whether the justice system is functional throughout
the country or only in certain areas. The Minister replied by emphasizing the need for
the government to take effective control of all the regions before assuring that the
justice system is functional.
In the Eastern region, the participation of MONUC has made a difference in
protecting people: security has improved there is free movement. There is little
improvement even though, violations continue in some areas where the police and
military are not deployed. Women are still being raped and government is aware of
this. In Kisangani, there is a commander but the challenge is to have the military obey
his orders and by extension, government orders. The Commander has brought some
sort of calm to the region and is well respected.
Commissioner Monageng asked the Minister how the government was tackling the
issue of violence against the rights of women. In response, the Minister noted that
there is a deliberate effort at national and international level to deal with violence
against women. The new Penal Code will criminalize any form of violence against
women. UNDP has developed a program to provide assistance in terms of
counselling and other forms of assistance to women who are domestically abused.
The Ministry of Women Affairs has also taken the issue of representation of women
in Parliament very seriously. To this end, the Ministry of Women Affairs has
encouraged the government to adopt the SADC resolution that requires a quota of
30% representation of women in Parliament.
Meeting with the Prosecutor General of the Republic
In the meeting with Mr. Tshimanga Mukeba, the Prosecutor General (PG),
Commissioner Chigovera highlighted the importance of the office of the Prosecutor
General. He sought clarification from the PG on the role of its office in the context
of human rights.
The PG elaborated on the mandate of his office that is extended beyond the
transitional period. The basis of his mandate is to investigate complaints received
with the assistance of the police and present the complaints to Court in accordance
with the law. The PG has power to prosecute among others magistrates, ministers
and high-ranking officials after a 2/3-majority approval by Parliament. He stated that
his office has not yet received complaints of massive violations of human rights cases
and government provides legal aid for indigent people.
Judge President of the Supreme Court
Meeting Mr. Kamba, Judge President of the Supreme Court, the delegation was
briefed on the functions of the Supreme Court. Commissioner Chigovera introduced
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members of the delegation and the purpose of the mission. He also talked on the
establishment of the Commission under the African Charter and responsibilities of
the State parties. Commissioner Chigovera briefed the Judge President on the
communication procedure of the African Commission and how the African Charter
may be implemented at domestic level. The Commissioner mentioned that the
African Commission is here to make the Office of the Judge President aware of what
it does and to exchange ideas on issues of mutual benefit where possible. The African
Commission also has a website where our decisions and other information can be
accessed.
The Judge President pointed out that the experience of war in the country has led to
numerous violations of human rights. It is the responsibility of the Courts to assure
that justice is done, despite the limited resources at the disposal of the justice system.
The Judge President mentioned that he heard about the African Charter but it is his
first time to come in contact with the members of the African Commission. The
implementation of the African charter requires the incorporation of the African
Charter in the national laws and they have started the process: some of the provisions
of the ICC & African Charter will be incorporated. The Judge President is also aware
of the establishment of the African Court on Human and Peoples’ Rights and would
like to know about the relationship between the African Commission and the African
Court.
The Protocol for the establishment of the African Court on Human and Peoples’
Rights has now been ratified by the required number of countries and the Court may
be established. The African Court was brought about to strengthen the work of the
African Commission. The African Commission can make recommendations on how
the violations of human rights can be remedied. The African Court, with coercive
powers, will make specific decisions including quantifying damages to be paid. Even
after the Court comes into existence, many matters will still continue to come to the
African Commission for decisions. The African Court will also be referring some
matters for admissibility to the Commission. The net result is that the Commission
will continue to be concerned with matters that need recommendations and advice to
Member States.
Both the Judge President and the Commissioners agreed on the need for national
courts to collaborate with the African Commission, to be familiar with the African
Charter and to apply principles of the Charter in dealing with matters coming before
the Courts, in particular those concerning human rights abuses. In an effort for
mutual and future collaboration, it was agreed that the African Commission could be
invited to assist in human rights training in the DRC as resource persons.
Regarding the discussions on the meagre salaries of magistrates, the Judge President
admitted that he was well aware of the conditions of magistrates. He requested the
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delegation to take up this issue with the relevant authorities, as recommendations
from the African Commission would carry more weight.
Minister of Justice
During the meeting with Mr. Kisimba Ngoy, Minister of Justice, Commissioner
Chigovera explained about the establishment, mandate and activities of the African
Commission as well as the purpose of the mission. He enquired about the justice
system and the general human rights situation in the country as perceived by the
honourable Minister.
The Minister briefed the delegation on the general operation of Courts. In the Ituri
region, the justice system had collapsed during the war. During the second week of
January 2004, a number of magistrates had been dispatched to the eastern region; the
Minister believed at the time of the delegation’s mission, courts were operating in the
region. The government is receiving support from donors to set up courts where
there was a break down.
The Minister stated in relation to law that there is a Judicial Code that is in force now
but still needs to be reviewed in light of the DRC’s international obligations because
of some contradictory issues, amongst others, the issue of the death penalty.
Responding to the query about the strike of magistrates, the Minister informed the
delegation that the judiciary of the country has been overwhelmed not only by war
but also by the strike of magistrates. He admitted that it is very difficult for the
judiciary to adequately operate in terms of salaries and other conditions of work; as a
result there is a relationship between corruption and empty stomachs, he added.
The Minister briefed the delegation about the Institutions for Democracy and made
particular mention of the Truth and Reconciliation Commission that was created to
curb impunity. He expressed hope in trying to find the best solution for massive
human rights violations in terms reconciliation process a lot of related problems
would be resolved.
Office of the High Commissioner for Human Rights
Mr. Mahamane Cisse-Gouro, Deputy Director of the HCHR explained to the
delegation that his office is a permanent office established by the UN to monitor
human right compliance by the DRC and to assist with training in human rights
areas.
He briefed the delegation on the human rights situation of the country stressing that
massive violations of human rights are still taking place in the East. Some attempts
are made by MONUC to prevent further violations. The need for an integrated army
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and the government presence in the entire territory was emphasised to ensure that
the government of the DRC assume responsibility for all its citizen.
Meetings in Lubumbashi
The Governor
The first meeting scheduled was a courtesy visit to Mr. Ngoy Mukena, Governor of
the Katanga Province. Commissioner Chigovera briefed the Governor on the
objectives of the mission. He emphasized on the need for collaboration between
government and local NGOs in human rights monitoring. He also enquired about
the general human rights situation of the province.
The Governor acknowledged that MONUC has put a lot of effort into this
collaboration and has made NGOs behave more openly towards government.
Government is the main protector of human rights and should work hard towards
ensuring the protection of the human rights of its citizen. To achieve this mission,
NGOs are the eyes and ears of government and should help government to become
aware of what is happening on the ground. NGOs should not be viewed as
opposition parties.
Regarding the human rights situation, there are still cases and reports of human rights
violations, especially by the police. The governor’s office is working towards
improving this situation with the assistance of NGOs. There is a need for organising
training for the police in order to improve the relationship between the police and the
people.
Visit to Kasapa Centre for Penitentiary and Re-education
In line with the delegation’s programme and arrangement for the visits, a trip was
made to Kasapa prison. The delegation met the officer in charge of the prison who
informed the delegation that he needed specific authority from his superiors. He
emphasized the need for written authorisation to permit the delegation to visit the
prison. He further stated that such written permission is a prerequisite for the
delegation to have access to the prison. The delegation was therefore unable either to
discuss its mission and purpose of the mission or any other issue relating to the
conditions in this particular prison.
It became apparent in the course of the delegation’s visit to Lubumbashi that no
formal arrangement was made for the delegation in Lubumbashi. The delegation had
to rely on MONUC’s representative and ASADHO to facilitate meetings with State
authorities.
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The delegation appreciates the tremendous assistance of Mr. Louis Marie Buaka of
MONUC and Mr. Freddy Kitoko of ASADHO without whom the delegation’s
mission to Lubumbashi would have been very difficult.
Local human rights NGOs in Katanga
Addressing members of NGOs, Commissioner Chigovera explained the
establishment and mandate of the African Commission, its relationship with State
parties and the African Union. The Commissioner explained to the NGO community
how they can access the African Commission through the application for observer
status and articulated the protective function of the African Commission.
During discussion it became apparent that most participants present in the meeting
were not aware of the African Commission. They expressed the wish for the
Commission to stay much longer so as to have more exchange of information. For
those who were aware of the African human rights system, they felt that too many
African institutions were being established without adequate resources.
While the need for collaboration with the government was acknowledged during the
NGO meeting, the NGO community of Lubumbashi were sceptical of the sincerity
of the Governor’s commitment to collaborate with local NGOs.
Commissioner Chigovera emphasized the need to liaise with MONUC in order to
double efforts in human rights education and sensitisation of the population for the
coming elections.
Meeting at the Court of Appeal with the President of the Court of Appeal and
the Public Prosecutor of Katanga Province.
After formal introduction of the delegation and the purpose of the mission,
Commissioner Chigovera inquired about the management of criminal cases, the
situation of pre-trial detention, the legal assistance to indigents and the awareness of
the African Charter and international conventions ratified by the DRC and whether
magistrates apply them when dealing with cases coming before them.
In response, Mr. Kikunguru, the President of Court of Appeal informed the
delegation about the role of the Court of Appeal in the management of criminal
cases. He indicated that the Court has no access to international instruments and
therefore, not familiar with the implementation of such instruments and could not
apply them in matters that come before them. He further noted that even if an
international treaty were quoted, it would be difficult for the President of the Court
to apply it, as the latter would have no knowledge of how the text would be
interpreted.
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Mr. Munoko, the Public Prosecutor pointed out that the Constitution of the DRC
contains several provisions similar to those found in the African Charter. He
acknowledged the need for Courts to have access to the African Commission’s
decisions and hoped that this mission was not the last visit.
The President of the Court raised the issue of the condition of service of magistrates;
particularly of the meagre salaries paid to magistrates stating that it was not conducive
to proper administration of justice and such poor salaries is an incitement for
corruption. Commissioner Chigovera emphasizing the urgent need to address the
salary issue of magistrates and stated that while it has raised the issue of salary with
the Minister of Justice who indicated that steps were being made to improve the
situation of magistrates, the delegation would follow this issue with keen interest.
In view of the fact that the delegation had no opportunity to visit any prison in
Lubumbashi, it raised questions patterning to prison conditions in the DRC. In
response, the Public Prosecutor advised the delegation that there is congestion
because the prison capacity has not been improved; the existing prisons are carrying
many more prisoners than their initial capacity, most of the prisons were built before
independence.
Further, he stated that even the existing facilities have not been renovated due to lack
of resources. In fact some of the structures have collapsed. For instance, some of the
prisons have no running water. Therefore there is a serious problem of
accommodation and space for both pre-trial and convicted prisoners/juveniles and
adults. The Public Prosecutor informed the delegation that as a result of inadequate
resources, prisoners have a meal once in two days. Prison conditions are exacerbated
by the fact that few judicial officers are assigned to deal with prisoners’ cases and the
absence of transport to take them to magistrate courts for trial.
In relation to the treatment of prisoners, the delegation was informed that magistrates
on a monthly basis do inspections but in urgent situations they can make more visits.
NGOs and some international organisations are also allowed to visit prisons from
time to time.
Regarding legal aid, the delegation was informed that the Bar Association provides
lawyers to assist people free of charge.
Bar Association
During discussions with the delegation, Mr. Jean Claude Muyambo, Chairman of
the Bar Association in Katanga reported that while the situation has improved with
the transitional arrangement, there were numerous violations of human rights still
taking place in the province.
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With regard to the administration of justice, many cases are pending before the Court
because of the failure of the legal profession to provide adequate assistance to citizen.
The Chairman explained that the Bar Association provides lawyers to assist people
before the Court. The Chairman stated that the lawyers are still faced with some
problems in accessing their clients in police custody. He stated that in its effort to
facilitate access to lawyers, the government has provided the Bar with a piece of land
for office purposes. Some lawyers, businessmen and the government are funding the
building of those offices.
In the area of human rights, the Chairman informed the delegation that the10th of
July of every year, the Bar embarks in some public legal education exercise while
visiting various parts of the province. During those public education campaigns, the
lawyers collect information from the population and select cases that can be taken up
to Court. However, lawyers still have problems to access certain victims in some parts
of the province, especially those victims that have been abused by some authorities.
In an effort to rebuild the legal profession, the Bar Association published a book to
assist its members familiarize with the rules of procedures. The Chairman admitted
that lawyers in the province are not aware of the provisions of the African Charter
and would take advantage of the delegation’s visit to access information on the
African Commission through its website.
Commissioner Chigovera encouraged the Bar Association to apply for observer
status and to bring complaints to the African Commission. He commended the
tremendous work done by the Bar Association in Katanga under very difficult
conditions particularly, the financial constraints. He recommended the government to
think of some form of compensation to lawyers to enhance the ability of the Bar
Association to represent as many people as they can.
In conclusion, Commissioner Chigovera explained that the Commission is available
to provide training to members of the Bar Association on human rights under the
African Charter, if requested.
Military Court of Katanga
After general introduction of the mission, Commissioner Chigovera enquired about
the quality and respect of justice, the right to fair trial and the appeal process. In
response, Mr. Nzambi Mbombo, Judge President of the Military Court
informed the delegation about the evolution of the new military Court set up by
Decree N. 03-001 of 15th April 2003. The Judge President reported to the delegation
that the former Court of Military Order (Cour d'Ordre Militaire) established by
Decree No 019 of 23 August 1997 was using extra judicial procedures. Although the
COM was established to ensure discipline within the army, its ill-defined jurisdiction
has encouraged trials of civilians for crimes such as armed robbery, mismanagement
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of public funds, or any activity perceived to be a threat to state security. There were
cases of looting and illegal confiscation of convicts’ properties and many deaths
sentence were executed and extended to juveniles. Furthermore, the COM had
diminished the authority of the civilian judiciary by trying a variety of cases, including
those that would clearly fall under the jurisdiction of regular tribunals.
The Judge President explained to the delegation that today, there is a new judicial
code and a military Penal code, which comply with international instruments. The
newly set up military Court allows convicts the right to appeal. In case of capital
punishment, the execution is not carried out immediately; the convict is given a
chance to either request for a Presidential pardon or for the sentence to be
commuted to life sentence. The accused before the military court can only be
represented by a Congolese lawyer.
The Judge President informed the delegation that the military court has jurisdiction
extending to civilians when civilians are involved in military offences. He stated that
all members of the Defence forces are subjected to the military court procedures
regardless of whether it is a civil, military or criminal offence that they have
committed.
Provincial Commanding Officer - Police of Katanga
Meeting with the Deputy Provincial Commander, Colonel Bazenga,
Commissioner Chigovera introduced the delegation, explained the purpose of the
mission and inquired on the human rights situation in the province.
Colonel Bazenga conveyed apologies from the Head of police Commandant Kabulo
who was out of the province. He welcomed and briefed the delegation on the status
of law and order in the Katanga province. He observed that the situation of human
rights has improved though there are still cases of concern in the north of the
province. The Commander briefed the delegation about the role of the police in
protecting human rights. He stated that the police service is one of those institutions
that is in constant contact with members of the general public in the course of
carrying out their functions and as such it is very important that they uphold the
human rights of the general public they seek to serve. He further indicated that the
relationship between the police and the people has improved. To this end, the
department of public relation of the police is conducting regular programmes on
radio and television to explain the role of the police and to sensitise the population
about their rights.
Commissioner Chigovera wanted to know if there was an independent body to
investigative cases of ill treatment of suspects by police officers. Colonel Bazenga
replied that there was no independent body to investigate complaints of violations of
human rights. But if such cases occur, the police disciplines or prosecutes the officer
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upon receipt of a complaint. He also informed the delegation that there was no
training on human rights for police officers.
Commissioner Monageng inquired about the respect of the 48 hours in custody. The
Commander stated that the law allows detention for up to 48 hours. Before the arrest
is conducted all the required investigations will be followed and the Commandant of
police inspects detention places everyday, suspects are counted in the morning and
evening.
In conclusion, Commissioner Chigovera explained that, if invited, the African
Commission is available to assist in the training of members of the police service on
human rights under the African Charter.
MONUC-KATANGA
The Monuc representative in Kinshasa, Mr. Roberto Ricci briefed the delegation
about the setting of the office in the country. Ms Magda and Mr. Louis-Marie Buaka
elaborated on the human rights situation in the province. Ms Magda stated that while
Katanga province was not touched by the most recent war in the DRC, there are
several other human rights issues in the province that require attention. There are still
human rights violations, especially in the North of Katanga. Apart from the North,
there are reports of human rights abuses, extortion of money and illegal arrests by
members of uniformed forces of the members of the public.
Mr. Buaka emphasised the need for Monuc offices in the province to assist in the
creation of necessary environment to hold free and fair elections. In this regard, the
Monuc office in Katanga has requested a radio station to assist in voter education, as
the current generation has never participated in elections since the last election held
in 1984.
During discussions about the prison conditions, Ms. Magda confirmed that prisons in
the province are overcrowded because of inadequate resources allocated to places of
detention. Some prisoners face difficulties for their cases to be dealt with because in
many cases detainees are transferred from one prison to another without a file. As a
result, there are delays in disposing of cases of such detainees.
Parliament (Kinshasa)
Meeting in the Chamber of the Speaker of Parliament, Honourable Oliver
Kamitatu, Commissioner Chigovera explained the purpose of the promotional
mission. He stated that the African Commission seeks to build relationships with the
legislature in Member States because they act as watchdogs for government excesses
and government seeks approval of parliament before ratifying any international
instruments.
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Commissioner Chigovera briefed Honourable Kamitatu about the meetings that the
delegation has had so far and said that the mission hoped that government would
fulfil its undertaking to ratify the two regional human rights instruments – the
Protocol to the African Charter establishing the African Court on human and
peoples’ rights and the Protocol on the Rights of Women.
Honourable Kamitatu informed the delegation that Parliament consists of all parties
involved in the transitional arrangement; it has a total membership of 500
parliamentarians. He also explained that parliament has the power to make laws
generally presented to parliament by the executive; parliament could pass, alter or
annul any law.
He was aware of the existence of the African Commission. The Speaker was anxious
for the African Commission to collaborate with his parliament with a view to
enlightening parliamentarians of the provisions of the African Charter and to ensure
that parliamentarians take into consideration those provisions in the promulgation of
various bills.
The Speaker added that the collaboration of his Parliament with the African
Commission would assist Parliament to have information on the human rights
NGOs operating in the DRC, in particular those with observer status before the
African Commission, for purposes of enhancing the Parliamentarians knowledge of
human rights and the provisions of the African Charter.
With regard to the 5 institutions supporting democracy in the country, the Speaker
observed that the 2 crucial ones were: the Truth and Reconciliation Commission and
the National Observatory for Human Rights. The Speaker expressed hope that the
organic law establishing the 5 institutions for democracy would be adopted by the
end of February 2004. He informed the delegation that the organic law has taken long
to be adopted because of the need to secure some consensus among the 8
components of the transitional government (5 main components from former rebel
groups and 3 components from non armed groups).
He further expressed hope that all the necessary steps required for the transitional
organic law including the bringing of the entire territory of the country under one
government be put together at the very least by July of 2004 to enable adequate
preparation of the coming elections. Namely:
- The promulgation of necessary organic law for the establishment of the
institutions to support democracy;
- The enacting of all the necessary transitional laws;
- The integration of various armies into a single army and the assertion of a
central government authority over all the components;
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-
Demobilization and rehabilitation of the soldiers to be accommodated in the
single army;
Rehabilitation of the judiciary;
The government need to define the offences that would benefit from amnesty
in order to urgently finalize the law of amnesty.
In addition, the Speaker felt that it would assist greatly if parliamentarians were to be
aware of the DRC’s international instruments that need generally to be incorporated
in the Constitution. Commissioner Chigovera informed the Speaker that the African
Commission would also appreciate collaborating with the Congolese
parliamentarians. He also observed that it would be useful for the African
Commission to be involved in meetings, training or in discussing either the
Constitution or the organic laws in relation to their compliance to with the African
Charter, if invited by the DRC government.
Commissioner of Police (Kinshasa)
Commissioner Chigovera introduced the delegation and explained to the Inspector
general of Police, Mr. Katsuva about the African human rights system,
establishment of the African Commission, its composition, its mandate and the
purpose of the promotional mission.
The Inspector of Police gave an overview of the state of law and order in the country.
Commissioner Chigovera took the opportunity of the meeting to discuss the
condition of service of the police in the DRC.
In response to the enquiry of Commissioner Chigovera on the need for training
police officers in human rights, the Commissioner of Police admitted that since 1997,
the police did not undertake any human rights training of its staff due to the situation
of war in the country. However, since the coming into place of the transitional
arrangement, more focus on human rights is emphasized. The police have now a
human rights office, which deals with allegations of human rights abuses brought to
the attention of the police.
With respect to allegations of brutality by police officers, the Commissioner of police
indicated that the public should endeavour to utilise the legal procedures available to
them to bring such offenders to justice. However, in those cases where there have
been valid reports of killings as a result of acts of police officers, the officers
responsible have been arrested and brought to court. Furthermore, cases of torture
and assaults by police officers can be brought to the attention of the existing tribunals
in the police that discipline erring officers. Another alternative is the proposed Police
Complaints Authority which even though is not functional at present would be able
to handle cases that relate to deaths or serious injuries which have occurred as a result
of a police officer’s act.
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The Commissioner of police expressed hope that the institutions established to
support democracy in the country would adequately secure the respect for human
rights in order to hold free and fair elections. The Commissioner noted that the
police was well aware of its major role in facilitating the election process. To this end,
he requested the African Commission to assist in human rights training for police
officers.
Visit to the Penitentiary Centre for Re-education and Rehabilitation of Makala
The Officer in Charge of the Penitentiary Centre for Re-education and
Rehabilitation, Mr. Dieudonné Kitungulu received the delegation in Makala.
During the meeting, Commissioner Chigovera explained the role of the African
Commission, the promotional mission and its general mandate. He informed the
prison authorities that what prisons do in relation to prisoners play a vital role in the
promotion and protection of their human rights, for instance, rehabilitation and
treatment of inmates. Conditions of detention include prisoners’ health, diet, and
treatment while in prison, and the environment in which they live.
Commissioner Chigovera stated that within the special rapporteur mechanism of the
African Commission is a Special Rapporteur on Prisons and Conditions of Detention
in Africa. Commissioner Vera Chirwa who is presently the Special Rapporteur is
entrusted with the mandate to examine the situation of prisons and conditions of
detention in Africa and to ensure the protection of persons held in places of
detention.
The Officer in Charge informed the delegation that this prison is now being
converted to a Centre for re-education and rehabilitation. As a result of this
conversion, there is therefore relaxation of the normal rules governing prisons
generally and the conditions have been improved to be more humane. The authorities
informed the delegation that the prison holds 2,600 inmates while its capacity is for
1,500 inmates.
After the meeting the delegation was taken to visit the penitentiary centre. The visit
reveals that the prison conditions are more or less an open prison and the prison is
slightly congested. Unlike in most prisons, inmates spend their time (from 8am to
4pm) outside their cells moving around within the prison complex with little
supervision. In fact prisoners themselves are trained in some kind of management of
their affairs and security of prisoners to ensure that they are all treated equally.
Visits and meals: The prisoners, both convicted and awaiting trials are permitted
visitors three days a week (Wednesdays, Fridays and Sundays). The family is allowed
to bring food and other items to prisoners. The delegation noted however, that the
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food provided by the Centre is not adequate and does not meet the international
standards. Male prisoners are given food once a day while women and juveniles
receive porridge in the morning and a meal a day.
Activities: The prison carries out various rehabilitation activities, which include:
providing formal education especially for juveniles, this is done in collaboration with
NGOs, training in carpentry, sewing, sport activities, and TV to allow them access to
information.
Health: The detention Centre has some facilities for outside nurses to come to the
prison and take care of the needs of pregnant women.
Concern: There are serious constraints of resources that include the unavailability of
transport to take prisoners to Court. Magistrates have to travel and hold Court
sessions in the prison.
It is noted that inmates with young children have no facilities to cater for them; they
share the same dormitory as other convicted and non-convicted inmates. Male
juveniles as well are kept in the same dormitories as older male inmates.
CONCLUSION
The delegation met and discussed various human rights issues with a number of
government officials, MONUC officials and NGOs in DRC. The delegation
indicated that the African Commission was willing, through the Commissioner
responsible for DRC, to cooperate, assist and participate in their activities.
The delegation explained that the mandate of the African Commission is basically
geared towards assisting African States to develop a human rights culture within their
countries and through undertaking promotional missions to Member States, the
African Commission is enabled to appreciate the particular situations in the country,
as well as sensitising human rights stakeholders of the Charter and the rights
protected therein.
At all the meetings, Commissioners shed light on the work of the African
Commission, its mandate, its aspirations and shortcomings. The delegation also
made it clear that the African Commission was readily available for anyone desirous
of working with it and participating in its efforts to implement the African Charter.
It is hoped that the level of understanding that was achieved would be further
nurtured and exploited to bring the African Charter closer to its beneficiaries.
The Mission would like to express its appreciation to the Ministry of Human Rights,
ASADHO and MONUC for facilitating the promotional mission to the Democratic
Republic of Congo.
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OBSERVATIONS
1. During the course of preparing for the promotional mission to DRC, the
Secretariat clearly indicated to the Ministry of Human Rights and Foreign
Affairs that the mission was interested in meeting them and many other
named government officials, and institutions as well as civil society institutions
including NGOs. However no meetings were arranged with either the
Ministry of Foreign Affairs or any other Ministry or institution prior to the
delegation’s arrival. Rushed arrangements after the arrival of the delegation
achieved limited success, as the delegation was unable to meet some of the key
ministries and institutions. It was never certain on what would happen on any
day thereby making it difficult for the delegation to focus its attention to any
particular issues.
2. The government failed to provide land transport facilities for the delegation
throughout the mission.
3. There was absolutely no coordination between Kinshasa and Lubumbashi in
regard to the delegation’s programme in Lubumbashi. In the results, the
delegation was not allowed to visit the prisons in Lubumbashi.
4. The delegation initially planned to travel to Goma in the East of the country.
This was not possible because the flight schedules could not allow the
delegation to cover meetings with key people.
5. The delegation was unable to make any impact on the issue of indigenous
peoples, particularly the pygmies because the delegation was unable to meet
relevant Ministries and could not undertake the trip to the East of the DRC
where the issue is more visible.
OUTCOMES
The delegation of the African Commission noted substantially that the review of law
and the restructuring of the Institutions for Democracy are vital to the transitional
arrangement. It is imperative that all parties be involved including the DRC
government, the United Nations, the African Union and the international community
and take urgent steps to ensure that these issues are attended to in order to ensure the
smooth transition for the elections. Of critical importance is the imperative for the
Central government in Kinshasa to establish sovereignty over the entire territory of
the DRC.
Judiciary
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From the discussions of the delegation, it is very clear that the justice system is
inadequate to provide justice to citizens. There is an urgent need for the Democratic
Republic of Congo to be provided with adequate resources to enable it to bring its
laws in line with International standards and to revamp its justice system through
recruitment, training of judicial officers, including prosecuting authorities. There also
is urgent need to improve conditions of the judiciary, in particular the salaries of
magistrates to mitigate possible corruption and improve their working conditions.
The Eastern part of the country requires particular attention as the delegation was
informed that there was total breakdown of the justice system in that part.
It is commendable that the Bar Association in Katanga is doing tremendous work
under very difficult conditions particularly financial constraints. The government
should consider providing resources to enhance the ability of the Bar Association to
represent as many people as they can. Further, the Bar Association of Katanga is
encouraged to collaborate with the African Commission with a view to accessing the
African Commission’s material to use for purposes of training their members and
adequately equip them to defend human rights of the people they represent.
The delegation observed that the Prosecutor General has power to prosecute among
others magistrates, ministers and high-ranking officials after a 2/3-majority approval
by Parliament.
This situation is rather curious because it might lead to a situation whereby some
officers would be untouchable and beyond the reach of the law.
The delegation noticed that the office of the Prosecutor General has not received any
complaint of human rights violation despite the existing situation of the country. The
delegation is concerned that the Military Court had jurisdiction to trial civilians who
would have difficulties to appreciate military procedures and disciplines, and the
absence of judicial avenues for appeal.
The delegation is concerned by the interpretation of Article 2 of the Decree 03-001
of 15th April 2003 which stipulates: “Pending the adoption and promulgation of the law on
Amnesty by the National Assembly, the following offences have been provisionally listed to benefit
from amnesty: acts of war, political crimes committed and opinions expressed from 2nd August 1998
to 4th April 2003, with the exception of war crimes, genocide and crimes against humanity.”
From the discussions of the delegation with various authorities, there is a general
concern raised about a controversial interpretation of the above Decree that does not
define the term “Acts of war”. The Mission therefore urges the government to ensure
that clear definition is provided for the term “Act of war”.
Speaker of Parliament
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It is clear that the Speaker of Parliament is anxious for his parliament to establish
some collaboration with the African Commission with a view to facilitating
Parliament’s awareness of the DRC’s international obligations in order that these are
taken into account in the promulgation of laws especially those laws relating to the
establishment of democratic institutions and protection of human rights. The Speaker
of Parliament expressed the need to incorporate the provisions of the African Charter
in the Constitution of the DRC.
Non-governmental Organisations
It was apparent that there was limited knowledge on the part of NGOs in
Lubumbashi (apart from ASADHO) of the human rights international instruments
that impact negatively upon their effectiveness as human rights activists.
Prisons
The Delegation appreciated the concept of rehabilitation and re-education in prison
as is the case in Makala prison is highly commendable. The delegation believed that
this concept could be usefully imported elsewhere, more particularly in its current
transitional arrangement. It appears to be producing very successful results. For
example, the delegation’s contact with prisoners did not raise any form of anxiety on
the part of prisoners despite the meagre provisions in terms of food; prisoners
appeared to be generally satisfied with the environment.
Despite the fact that the prison contains all types of convicts including those facing
death penalty, no escape is reported to have taken place. Another interesting feature
is the management of the prison whereby prisoners trained in management do the
supervision of prisoners. The delegation believed that this concept will produce more
beneficial results if more resources are provided to the penitentiary centre to enable it
to introduce other forms of training such as: formal education, provision of resources
to the prison to enable it sustain its own requirement such as food.
It is quite sad to note that a number of children are living with their mothers in
prison sharing dormitories with several other inmates.
Office of the High Commissioner for Human Rights
It is necessary that the infrastructures of the Office of the HCHR be enhanced by
increasing the size and capacity of the office and by involving the participation of the
African Commission if resources are available.
RECOMMENDATIONS
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A.
Judiciary
1. The Mission urges the African Commission to establish and maintain links
with the Judiciary in the Democratic Republic of Congo and involve them in
the activities of the African Commission to ensure proper publication and
distribution of its works and decisions to national Courts in Africa;
2. The Mission recommends that the African Commission looks into ways of
encouraging national Courts in Africa to forward their respective judgments to
it and in particular those of a constitutional nature to enrich itself on the
appreciation of human rights by national Courts;
3. The Mission recommends the African Commission to seriously consider the
need expressed by the Speaker of Parliament to incorporate the provisions of
the African Charter in the Constitution of the DRC, with a view to ensuring
that the African Commission makes its input to the process of
democratisation in the DRC in accordance with its mandate in terms of the
African Charter;
4. The African Commission recommends that serious human rights violations, in
particular genocide and crimes against humanity committed during the conflict
in the DRC should not be covered by the amnesty but be prosecuted in order
to discourage impunity;
5. The African Commission requests the DRC to undertake a reform of its
legislation so as to ensure its conformity with the commitments the State has
internationally subscribed to, namely the African Charter, and to initiate
reforms so as to prevent further human rights violations;
6. The African Commission recommends that emphasis be placed on human
rights training, familiarising lawyers with the provisions of international
human rights instruments, in particular, the African Charter.
B.
Institutions supporting Democracy in the DRC
The delegation emphasized on the operation of the five institutions supporting
democracy and makes the following recommendations:
7. The international community should provide enough funds for these
institutions to effectively implement their mandate;
8. The local and international NGOs should support these institutions with
enough information, research material, personnel and equipment in order to
achieve the purpose of their mission;
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9. The government should give its full support and endeavour to implement, to
the best of its ability all the recommendations of these institutions. All the
different parties should cooperate with these institutions, in particular with the
TRC by encouraging their members and supporters to appear before such
bodies if and when requested;
10. The African Commission urges the Government of the DRC to adopt the
organic law establishing the 5 Institutions for democracy;
11. The African Commission recommends to the DRC government to make sure
that the Institutions supporting the democratic process are operating
independently from the organs that have established them.
C. Police
12. The African Commission recommends to the Government of the Democratic
Republic of Congo to initiate extensive awareness programmes on human
rights for members of the Police Service and prison officers. In particular, the
government should consider providing human rights training to police
officers, who constantly come into contact with the population. The police
officers should be trained so as to enable the population to adopt an
appropriate attitude in their relations with law enforcement officials.
13. The African Commission calls upon the government to put in place a
framework for pacification, including legislation on the army and the police.
D. Prisons
14. The Mission noted that while the orientation of the Penitentiary Centre for
Re-education and Rehabilitation is excellent and assist inmates to be better
citizen, it is felt that juveniles, if it is imperative to incarcerate them, should
not be mixed with adults. The African Commission therefore, recommends to
the government of the Democratic Republic of Congo to consider releasing
prisoners, particularly juveniles charged with minor offences on bail in order
to ease the congestion in prisons;
15. The African Commission noted that the problem of congestion in prisons is
as a result of the number of prisoners being held on remand. The African
Commission recommends to the government of the Democratic Republic of
Congo to increase the capacity of the Judiciary and thus enable it address the
problem of the backlog of cases;
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16. The African Commission recommends that it is imperative that more and
better prison infrastructure be urgently provided and the existing ones be
either closed or renovated to ensure proper hygienic conditions for prisoners;
17. The African Commission recommends that adequate food be provided to
prisoners to meet the requirement of the UN minimum standards, and in
addition, the justice system in the DRC should consider other forms of
punishment for minor offences other than imprisonment.
E. General recommendations
18. The Mission recommends that the African Commission and organisations like
ASADHO assist through human rights training and capacity building of local
organisations that have no access to any donor community, as most of them
operate as volunteers at their own expense.
19. The African Commission calls upon the government to speed up the process
of reunification of all the country’s territory in order to prepare for the coming
elections;
20. The African Commission urges the government to deposit the necessary
ratification instruments for international conventions, including for the
African Charter on the Rights and Welfare of the Child, the Protocol on the
Establishment of the African Court and the Protocol on the Rights of Women
in Africa.
Andrew R. Chigovera, Commissioner
Sanji M. Monageng, Commissioner
Annie R.Mulumba, Legal Officer
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ANNEXES
MEMORANDUM INTENDED FOR THE MEMBERS OF THE
DELEGATION FROM THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES’ RIGHTS DURING THEIR MISSION TO
THE DEMOCRATIC REPUBLIC OF CONGO.
INTRODUCTION
On January 9 and 12, 2004, human rights organisations based in Kinshasa met at the
headquarters of the African Association for the Defense of Human Rights (Association
Africaine de Défense des Droits de l’Homme - ASADHO), located at 12, Avenue de la Paix in the
Gombe commune. ASADHO and the Campaign for Human Rights in Congo (La Campagne
pour les Droits de l’Homme au Congo - CDHC) invited these organisations to meet in order to
discuss appropriate strategies to put in place so as to take full advantage of the promotional
mission that the African Commission on Human and Peoples’ Rights has been called upon
to undertake in the Democratic Republic of Congo from January 12-24, 2004.
To avoid addressing the Commission in a dispersed fashion and thereby weakening their
effectiveness, these human rights organisations convened in order to:
1. Discuss the current human rights situation in the Democratic Republic of Congo;
2. Express their concerns relative to the aforementioned situation;
3. Formulate concrete recommendations likely to contribute to the improvement of the
human rights situation;
4. Submit to the Delegation from the African Commission on Human and Peoples’
Rights this Memorandum, which reviews the fundamental concerns that emerge
from concrete propositions. These organisations hope that this Memorandum will
serve as a helpful tool in the Delegation’s defense of human rights with different
Congolese authorities.
For the sake of clarity, this Memorandum is organised around the following three main
points.
1. State of the human rights situation in the Democratic Republic of Congo since the
installation of the Transitional Government on June 30, 2003;
2. State of advancement in the country’s process of pacification and reunification;
3. Status of the establishment of the five institutions designed to support democracy,
which were outlined in the Global and All-Inclusive Agreement on the Transition in
the DRC, signed in Pretoria, South Africa on December 17, 2002.
The human rights associations based in Kinshasa would like to take advantage of this
opportunity not only to present their best wishes to the African Commission - and in
particular to the members of the Delegation in mission to the DRC - but also to wish the
members of this Delegation a pleasant and happy stay in the Democratic Republic of Congo.
I. The Human Rights Situation since the Establishment of the Transitional
Government
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We observe that the human rights situation in the DRC has experienced no notable
improvement.
1. The problem of the conditions in which those who have been detained pending trial are
held has remained the same. In the province of Equateur, in the East and in the interior of
the country, no appropriate tribunals have yet been set up.
2. The amnesty decree for all prisoners declared by the President of the Republic during
2003 has been selectively applied. Some of the intended beneficiaries of this amnesty decree
continue to be detained.
3. Since the arrival in 2003 of the ex-rebels, including Thomas Lubanga, Jean-Pierre Bemba,
Roger Lumbala, and Azarias Ruberwa and their supporters, new forms of criminality have
appeared.
4. At the Reeducation Penitentiary Center in Kinshasa (Le Centre Pénitentiare de Rééducation de
Kinshasa – CPRK), human rights organisations have recorded several cases of irregular
detention.
5. Despite “Operation Kimia” (known as “Operation Peace” in the local language Lingala, this
operation was undertaken in mid-October 2003 by the Ministry of the Interior in
collaboration with the national police in order to bring an end to the prevalence of human
rights violations throughout Kinshasa), human rights violations that continued to be
perpetrated on a daily basis include the illegal detention of people in different police stations,
the slow pace in which the cases of those detained are dealt with, bribery and other excesses
by the police, theft and murder.
6. In the North-Kivu region, members of the Rwandan military place landmines.
7. Citizens and their possessions remain insecure.
8. In terms of the Program for Demobilization, Disarmament and Reinsertion, which has
been undertaken by the government in collaboration with MONUC (United Nations
Organization Mission in the Democratic Republic of the Congo) and local NGOs that work
on demobilization efforts, no measures have been taken for the socialization of both
children and adults that have been “de-militarized”.
9. The situation of women who were sharing households with members of foreign militaries
that have now left the country (including Zimbabweans, Ugandans, Angolans, etc.) is
deplorable because these women and their children have been abandoned.
10. Women in the Reeducation Penitentiary Center in Kinshasa (Le Centre Pénitentiare de
Rééducation de Kinshasa - CPRK) are mistreated and are obligated to prostitute themselves.
11. The aforementioned incidents of mistreatment and prostitution are known to and
facilitated by the female guards at the CPRK.
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12. Women continue to be raped in rural parts of the country that have not yet been
secured.
13. Sexual harassment of girls or women is common in their work places.
14. The principle of ensuring the representation of women in the pacification and
reunification process and in the government is not yet respected.
15. The failure of the recent strike by the magistrates (which lasted for almost two months
and protested, inter alia, the extremely low salaries that are paid to these public servants)
promises to accentuate the violations of the rights of those that appear before them in court.
Specifically, the right to a fair trial is commonly violated by incidents of corruption, haggling
over judgments and slowness in the administration of justice.
16. Failure to respect the independence of the judiciary.
17. The lack of respect for human rights is evident in the government’s failure to deposit
ratification instruments for international conventions.
18. Major violations of the rights of the child include the failure to register babies at birth
throughout the country; the mistreatment of children accused of being witches; failure to
respect the program of demobilisation of child soldiers, such that these children find
themselves in other armies and are used as sexual slaves and no attention is paid to the rights
of these young girls, and problems with inheritance regimes such that children are deprived
of their rightful inheritance upon the death of their parents.
19. A culture of impunity is prevalent throughout the country. The case of the Drodro
massacre in Katanga is but one example.
20. The delay in passing implementing legislation for the Rome Statute that creates the
International Criminal Court, which the DRC has ratified. This culture of impunity is
likewise reinforced by the fact the DRC has signed a bilateral agreement with the United
States under which the DRC has agreed not to hand over any American citizen to the
International Criminal Court.
21. The looting of Congo’s natural resources violates the economic rights of the Congolese
people.
II. THE COUNTRY’S PACIFICATION AND REUNIFICATION PROCESS.
At a practical level, there has not been much progress in the country’s process of pacification
and reunification. The following items are of note.
1. Presently, the army is not yet unified.
2. Each government entity continues to manage the administration of the Provinces
that each controlled during the war.
3. Some members of the military obey only those orders given by former warlords.
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4. In North-Kivu, Major Bora (who was one of many individuals convicted of
assassinating former President Laurent Kabila and subsequently escaped from prison
in Kinshasa) has founded another militia, which has started another rebellion in the
East.
5. The free movement of people and their possessions is not yet assured. Movement of
people and goods is being controlled by the leadership of the different so-called
“composantes,” a term used in the Constitution of the Transition to refer to the
different groups that make up the transitional government, which consists of the
government of Joseph Kabila, rebels groups including the MLC (Mouvement pour la
libération du Congo), RCD-N (Rassemblement congolais pour la démocratie-National), RCDML (Rassemblement congolais for la démocratie-Mouvement de liberation) and RCD-Goma
Rassemblement congolais pour la démocratie-Goma), the non-armed political opposition and
civil society.
6. Corruption and embezzlement of public funds is rampant.
7. There has been a delay in respecting the calendar of objectives set-out by the Global
and All-Inclusive Agreement and the Constitution of the Transition.
8. The lack of sincere collaboration among the leaders of the different “composantes” in
managing the State’s wealth is an element that slows the process of pacification and
reunification.
III. THE INSTITUTIONS TO SUPPORT DEMOCRACY
The Global and All-Inclusive Agreement on the Transition in the DRC calls for the
establishment of five institutions to support democracy. Namely:
(1) The Independent Election Commission (La Commission électorale indépendante);
(2) The National Human Rights Observatory (L’Observatoire national des droits de
l’Homme);
(3) The High Authority for the Media (La Haute autorité des medias);
(4) The Truth and Reconciliation Commission (La Commission vérité et
reconciliation);
(5) The Commission for Ethics and the Fight Against Corruption (La Commission
de l’éthique et de la lutte contre la corruption).
According to Article 155 of the Constitution of the Transition, the mission of these
institutions is:
(1) To guarantee the neutrality and impartiality in the organization of free and
transparent democratic elections;
(2) To ensure the neutrality of the media;
(3) To consolidate national unity through a veritable process of reconciliation
among the Congolese;
(4) To encourage the practice of moral and republic values.
With regard to these Institutions, the following items are of note:
1. These institutions have been established but their structure and mission has not yet
been defined in any legislation (known in French as “loi organique”). Thus they are
not yet fully operational.
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2. These institutions are politicized in that a great number of their members come from
the so-called “composantes” and not from civil society, as was called for in the Global
and All-Inclusive Agreement.
3. The delay in the functioning of four of the five institutions to support democracy (it
appears that the Independent Election Commission is up and running) due to the
delay in passing legislation necessary to authorise their functioning. Note that the
transitional period is to last two years and we are already in the seventh month.
RECOMMENDATIONS
1. With regards to the human rights situation in the DRC
a. Call upon the government to reinforce its efforts to respect and promote human
rights by undertaking a human rights educational program.
b. Call upon the government to establish military courts in those parts of the country
that were formerly controlled by the rebels, with the goal of fighting the impunity
that persists.
c. Call upon the Congolese government to adopt as soon as possible implementing
legislation for the Rome Statute for the International Criminal Court.
d. Call upon the government to make torture a punishable offence in accordance with
the Convention Against Torture, which was signed by the DRC. Likewise, make
sexual harassment a punishable offence.
e. Call upon the government, in accordance with the Convention Against Torture, to
prohibit torture at all levels of the administration, and to make a declaration
recognizing the jurisdiction of the Committee Against Torture established under the
Convention.
f. Call upon the government to ensure free primary school education for all children.
g. Call upon the government to deposit the necessary ratification instruments for
international conventions, including for the African Charter on the Rights and Wellbeing of the Child.
h. Call upon the government to recruit and post magistrates throughout the country.
i. Call upon the government to recall members of the political “composantes” that are
currently involved in the general assemblies of the institutions in support of
democracy.
2. With regards to forwarding the process of pacification and reunification of the
territory:
a. Call upon the government to speed up the process of reunification of all the
country’s territory.
b. Call upon the government to put in place a framework for pacification, including
legislation on the army and the police.
c. Call upon the government to organize retraining seminars on the new political
situation for members of the military and police throughout the Republic.
3. With regards to the institutions to support democracy:
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a. Call upon the government to speed up the process of installing the institutions to
support democracy.
b. Call upon the government to abstain from blocking any aspect of the
implementation of these institutions.
c. Call upon parliament to proceed as its top priority towards adopting structural
legislation for these institutions.
d. Call on all African countries that have ratified the Rome Statute to rebuke the
American government’s efforts to intimidate them into signing bilateral agreements
to prevent sending American citizens to the International Criminal Court.
e. Call on the Government to support the work of the Truth and Reconciliation
Commission.
Done in Kinshasa, January 12, 2004
Signatories
ASADHO (African Association for the Defense of Human Rights)
Amigo NGONDE Funsu, President
Nicole ODIA (signed)
CDHC (Campaign for Human Rights in Congo)
Valentin MAKIDI Kombe (signed)
OCDH (Congolese Observatory for Human Rights)
Christian LUFUTA (signed)
Guy Joseph IMBANZA (signed)
LINELIT (National League for Free and Transparent Elections)
Marie Louise BAKAMUBIA (signed)
PIDEN (Integrated Project for the Development of National Entities)
Clovis KADDA (signed)
GADERES (Action Group for the Demobilisation and Reinsertion of Child Soldiers)
Clovis KADDA (signed)
FCDD (Christian Women for Rights and Democracy)
Anne Marie MUKWAYANZO (signed)
RAF (Women’s Action Network)
Marie MOSSI (signed)
LIGUE DES ELECTEURS (Voters League)
Paul SAMPU (signed)
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Zouzou BUZUNE (signed)
APIC (International Agency for Peace and Reconciliation through Cultural Integration)
Sylvain MBUSA (signed)
TOGES NOIRES (Black Jurists)
Gauthier TAUNYA (signed)
MUTOMBO (signed)
SYNCASS
Willy MAKANDA (signed)
ACPD
Hubert ALUTAS
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PRINCIPAL ACTORS FOR THE TRANSITION
EXECUTIVE
LEGISLATIVE
HEAD OF STATE
Vice President
Commission for
Development and
Infrastructure
PRESIDENT OF
THE NATIONAL
ASSEMBLY
Vice President
Commission for
Security Defense and
Politics
CHAIRMAN OF THE
INDEPENDENT AND
ELECTORAL
COMMISSION
JUDICIARY
PRESIDENT OF
THE SENATE
Vice President
Commission for
Finances and
Economic Affairs
PRESIDENT OF THE
SUPREME COURT
INSTITUTION
SUPPORTING
DEMOCRACY
PROSECUTOR
GENERAL OF THE
REPUBLIC
Vice President
Commission for Social
and Cultural Affairs
CHAIRMAN OF
THE NATIONAL
OBSERVATORY FOR
HUMAN RIGHTS
CHAIRMAN OF THE
HIGH AUTHORITY
FOR THE MEDIA
CHAIRMAN OF THE
TRUTH AND
RECONCILIATION
COMMISSION
CHAIRMAN OF THE
COMMISSION ON
ETHICS AND FIGHT
AGAINST
CORRUPTION
47