Communication 259/2002 - Groupe de Travail sur les Dossiers Judiciaires Stratégiques v.
Democratic Republic of Congo
Rapporteurs
14th Extraordinary Session: Commissioner Reine Alapini-Gansou
Summary of the Facts
1. The Secretariat of the African Commission on Human and Peoples’ Rights (the
Secretariat) received a Complaint on 19 September 2002, against the Democratic
Republic of Congo (DRC), a State Party to the African Charter on Human and
Peoples’ Rights (the African Charter).1 The Complaint was filed by a group of
lawyers (Messrs Roger M. Buhereko, Emmanuel Nongera, Marcel Westh’Okonda,
Sylvie Diulu and Kathy Byenda) belonging to the Groupe de Travail sur les Dossiers
Judiciaires Stratégiques (Working Group on Strategic Legal Cases).
2. The above-mentioned lawyers are acting as legal counsels on behalf of the following
seven (7) persons, the alleged victims of the Complaint:
a) Diyavanga Nkuyu;
b) Mbumba Ilunga;
c) Mwati Kabwe;
d) Bosey Jean Louis;
e) Banga Djunga;
f) Nanasi Kisala; and
g) Oscar Mwita (father of Joseph Kasongo).
1 The Democratic Republic of Congo ratified the African Charter on 20 July 1987.
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3. The Complainants submit that pursuant to Article 5 of the Executive Order No. 019
of 23 August 1997 establishing the Military Court in the Democratic Republic of
Congo, the following sentences were handed down to the individuals mentioned
below :
a) Diyavanga Nkuyu (born in March 1984): was sentenced to death on 6
February 1999 by the Matadi military court for “criminal conspiracy”.
b) Mbumba Ilunga (born on 26 February 1984): was sentenced to death on 13
September 2000 by the Mbandaka military court for “voluntary
manslaughter”.
c) Mwati Kabwe (born on 15 May 1984): was sentenced to death on 13
September 2000 by the Mbandaka military court for “manslaughter”.
d) Bosey Jean Louis (born on 25 May 1984): was sentenced to death on 5
June 1999 by the Mbandaka military court for “manslaughter”.
e) Banga Djunga (born on 9 May 1984): was sentenced to death on 8 August
1999 by the Mbandaka military court for “weapons distribution”.
f) Nanasi Kisala (born in 1984): was sentenced to death on 27 April 2001 by
the Mbandaka military court.
g) Joseph Kasongo (born in May 1986): was sentenced to death by the
Military Court of Kinshasa for “criminal conspiracy and murder in time of
war”.
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4. All the persons thus convicted had their sentences commuted to life imprisonment
except Joseph Kasongo, who is presumed to have been executed on 15 January 2002
immediately after the sentence was handed down.
The Complaint
5. The Complainants allege that the facts presented above are a violation of Articles 1,
3, 4, and 7 of the African Charter and therefore pray the Commission to condemn
the Respondent State to :
a. Ensure that the ordinary Criminal Procedure Code is respected ;
b. Ensure that the Decree of 6 December 1950 on juvenile delinquency is
enforced, particularly the Article 5 thereof ;
c. Put an end to all activities of the Military Court in its current form and
institute a two-tier judicial system to guarantee the right of minors to a
fair trial ;
d. Urge the Democratic Republic of Congo to pay compensation to the
victims of the above-mentioned violations.
PROCEDURE
6. The Complaint was submitted to the Secretariat of the African Commission on
Human and Peoples’ Rights (the Commission) on 19 September 2002.
7. On 2 December 2002, the Secretariat of the Commission acknowledged receipt of the
Communication and informed the Complainants that their Complaint would be
submitted to the Commission for seizure at the 32nd Ordinary Session scheduled to
be held in October 2002 in Banjul, The Gambia.
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8. At the 32nd Ordinary Session, the Commission considered the Communication and
decided to be seized of it. Per Note Verbale of 2 December 2002, the Secretariat
notified the Respondent State by forwarding a copy of the Complaint to it and
requested for its arguments on admissibility within three (3) months. The
Complainants were also informed about this decision by letter dated 3 December
2002.
9. At the 33rd Ordinary Session held from 15 to 19 May 2003 in Niamey, Niger, as there
was no response from the Respondent State, the Commission decided to defer the
consideration of the Communication to its 34th Ordinary Session.
10. On 26 June 2003, the Secretariat sent a Note Verbale by DHL to the Respondent State
informing it about the decision taken at the 33rd Ordinary Session of the
Commission. By the same Note Verbale, the Secretariat transmitted a copy of the
Complaint to the State by reminding it to submit its arguments on admissibility of
the Communication. On the same day, the Complainants were informed of the
decision of the Commission. On 23 September 2003, a new Note Verbale was sent as
a reminder to the Respondent State.
11. At the 34th Ordinary Session held from 6 to 20 November 2003 in Banjul, The
Gambia, the Commission examined the Communication. Based on the fact that the
Respondent State had still not reacted to the series of correspondence sent to it,
requesting for its arguments on admissibility, the Commission decided to postpone
the Communication to its 35th Ordinary Session for a decision on admissibility.
Furthermore, a copy of the Communication was delivered to the delegation which
represented the Respondent State at the 34th Ordinary Session of the Commission
12. By electronic mail dated 29 October 2003, the Minister of Foreign Affairs of the
Democratic Republic of Congo informed the Secretariat that he had not received all
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the previous correspondence transmitted to him. The Secretariat therefore reacted to
that request the same day. Additionally, a copy of the Communication was
delivered by the Commission’s delegation on a mission to the Democratic Republic
of Congo at the beginning of 2004.2 By letter dated 28 November 2003, the Secretariat
also informed the Complainants about developments in the case.
13. In January 2004, the Respondent State forwarded its submissions on admissibility of
the Communication to the Secretariat. The Secretariat acknowledged receipt and
transmitted same to the Complainants. On 1st June 2004, on the margins of the 35th
Ordinary Session of the Commission, the Complainants
submitted their response
which was transmitted to the delegation representing the Respondent State at that
session.
14. At the 35th Ordinary Session, the Commission examined the Communication and
declared that it was admissible. On 13 August 2004, the Secretariat notified the
parties about this decision and requested them to submit their arguments on merits
of the Communication.
15. At the 36th Ordinary Session held from 23 November to 7 December 2004 in Dakar,
Senegal, in the absence of a reaction from the parties, the Commission decided to
defer its decision to the 37th Ordinary Session. On 20 December 2004, the Secretariat
informed the parties about this decision and reminded them to submit their
arguments on the merits of the Communication.
16. At the 37th Ordinary Session held from 27 April to 11 May 2005 in Banjul, The
Gambia, the Commission considered the Communication. As the submissions of the
parties on the merits had not been received, it decided to defer its decision to its 38th
2 Promotion mission of Commissioners Andrew R. Chigovera and Sanji M. Monageng to the Democratic
Republic of Congo from 12 to 24 January 2004.
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Ordinary Session. By letters dated 24 June 2005, the Secretariat notified the parties
about the decision and requested them to forward their submissions on the merits.
17. At the 38th Ordinary Session held from 21 November to 5 December 2005 in Banjul,
The Gambia, the Commission decided once again to defer its decision as the parties
had not yet presented their submissions. On 6 December 2005, the Secretariat
notified the parties about this decision and requested them to present their
memoranda on the merits.
18. On 28 February 2006, the Complainants submitted their arguments on the merits to
the Secretariat. The Secretariat acknowledged receipt of the arguments on 20 March
2006 and transmitted a copy to the Respondent State on the same date, requesting it
to make its submissions within three (3) months.
19. At its 39th Ordinary Session held from 11 to 25 May 2006 in Banjul, The Gambia, the
Commission decided to postpone its decision to the 40th Ordinary Session in the
absence of arguments by the Respondent State on the merits. The parties were
informed about the Commission’s decision by letters dated 30 June 2006.
20. At its 40th Ordinary Session held from 15 to 29 November 2006 in Banjul, The
Gambia, the Commission examined the Communication and decided to defer its
decision on the merits to its 41st ordinary session. The parties were informed
accordingly about the postponement on 7 December 2006 and 10 January 2007
respectively. The Respondent State was reminded to present its arguments on the
merits.
21. At its 41st Ordinary Session held from 16 to 30 May 2007 in Accra, Ghana, the
Commission examined the Communication and decided to postpone the merits of
the case to the 42nd Ordinary Session. The decision on the postponement was
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communicated to the parties by Note Verbale and by letter dated 20 June 2007. The
Secretariat expressly reminded the Respondent State to submit its arguments on the
merits.
22. On 17 September 2007, the Secretariat sent a new Note Verbale to the Respondent
State reminding it that the Commission was still waiting for the submissions on the
merits of the Communication, and that if it failed to react, the Commission would
be compelled to take a decision on the basis of information provided by the
Complainants.
23. At the 42nd Ordinary Session of the Commission held from 15 to 29 November 2007
in Brazzaville, Congo, the Secretariat received the submissions of the Respondent
State on the merits of the Communication. At that Session, the Commission
examined the Communication and decided to defer its decision on the merits to its
43rd Ordinary Session. By Note Verbale and Letter dated 19 December 2007, the
Secretariat acknowledged receipt of the submissions on the merits of the
Communication and transmitted a copy of these submissions to the Complainants.
24. At this consideration stage of the Communication, the Commission requested for
additional information from the parties as to the national court whose decision
constitutes the main source of information of the allegations of violation brought
before the Commission. In the absence of a response from the parties, the Secretariat
forwarded several reminders to the parties before notifying them that at its 50th
Ordinary Session scheduled to be held from 24 October to 7 November 2011 in
Banjul, The Gambia, it will examine the Communication without the aforesaid
decision.
25. On 15 November 2011, the Secretariat informed the parties that the Commission
examined the Communication at its 50th Ordinary Session but as a result of time
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constraints, it had decided to defer the consideration of merits to its 51st Ordinary
Session to be held from 18 April to 2 May 2012 in Banjul, The Gambia. On 31 May
2012, the decision to postpone it once again to the 52nd Ordinary Session was
communicated to the parties.
26. At its 52nd Ordinary Session held from 9 to 22 October 2012 in Yamoussoukro, Côte
d’Ivoire, the Commission examined the Communication and decided to postpone it
again to enable the Secretariat to prepare a draft decision on the merits. The
Secretariat informed the parties about the decision by letters dated 13 November
2012.
THE LAW
Admissibility
The Complainants’ submissions on Admissibility
27. In their submissions on admissibility, the Complainants aver that the contents of the
Communication are actually true and tangible facts: it concerns some minors who
were sentenced by a Court, the rulings of which cannot be appealed against.
According to them, it is not a Communication based on the collection of media
reports but it presents tangible facts that have been proved on the basis of legal texts
and rulings by authorities of the Respondent State.
28. With regard to the requirement for the exhaustion of local remedies, the
Complainants contend that the sentences handed down by the Military Court to the
victims cited above cannot be appealed against. Indeed, according to them, Article 5
of Decree No. 019 of 23 August 1997 establishing the Military Courts stipulates that
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its rulings “can neither be opposed nor appealed against”. The Complainants believe
that remedies are not available, and therefore the Communication must be declared
admissible.
29. On the existence of alternative means of redress such as pardon set out in the
provisions of Article 175 on the Executive Decision on the Organisation of the
Judicial System establishing the Rules of Procedure of Courts, Tribunals and Public
Prosecutors’ Offices, the Complainants believe that it is only a non jurisdictional and
ineffective remedy at the discretion of public authorities. The Complainants refer to
the decision in Amnesty International and Others v. Sudan by asserting that such
remedies are not accepted by the Commission.3
30. On the argument of the Respondent State according to which the complaints lodged
in this Communication are said to have been settled by Decree No. 084/2002 of 2
August 2002, the Complainants aver that the above Decree was issued in August
2002 whereas the sentences handed down to the victims identified in the
Communication date as far back as February 1999 for previous cases and the most
recent ones occurred in April 2001. This Decree, according to the Complainants,
would address the situation of the victims without doing away the serious injury
suffered by the victims for having been tried illegally and sentenced to death by a
law and tribunal under the scope and competence of which they did not fall.
The Submissions of the Respondent State on Admissibility
31. In its submissions on admissibility, the Respondent State contends for its part that
the Communication should be declared inadmissible on the grounds that it does not
3 See Amnesty International and Others v. Sudan Communications 48/90, 50/91, 52/91 and 89/93 (2000)
RADH 323 (ACHPR 1999).
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refer to actual facts but to a collection of media reports and that it deals with an
issue which has already been settled.
32. The Respondent State is also of the opinion that the Communication contains
inaccuracies in that the Complainants aver that the death sentences were commuted
to life imprisonment whereas it was rather otherwise in view of the implementation
of the above-mentioned Decree. Such a situation, according to the Respondent State,
should lead to inadmissibility of the Communication.
33. On the point of exhaustion of local remedies, the Respondent State recognizes that
the Orders of the Military Court cannot be appealed against but submits that a
remedy was always available against its Orders. According to the Respondent State ,
the provisions of Article 175 of the Executive Decision on the Organization of the
Judicial System establishing the Rules of Courts, Tribunals and Public Prosecutors’
Offices4 provides for compulsory appeal for a pardon by the Officer of the Public
Prosecutor’s Office in case the death penalty is handed down as a last resort.
34. The Respondent State further contends that it is in pursuance of this provision that
the Head of State issued a Decree on 2 August 2002 in relation to special measures of
pardon for child soldiers and other minors sentenced to the death penalty and other
repressive punishments. The Respondent State submits that Diyavanga Nkuyu and
Bosey Jean Louis had their death penalty commuted to release for Government
service while the capital punishment handed down to Mwati Kabwe, Mbumba
Ilunga and Banga Djunga were commuted to imprisonment for 5 years. As for
Nanasi Kisala, he is said to have obtained relief from the provisions of Articles 3 and
4 of the above-mentioned Decree by which the death penalty is commuted to time in
a government reform school until the 21st birthday or five years in prison.
4 Order No 299/79 of 20 August 1979.
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35. Finally,
the
Respondent
State
contends
that
Complaints
for
which
the
Communication was filed had already been resolved under Decree No. 084/2002 of
2 August 2002 which, as indicated above, had commuted the death sentences into
measures for release for Government service or time-bound imprisonments. All
these, according to the Respondent State should lead to inadmissibility of the
Communication.
The Commission’s analysis on Admissibility
36. This Communication was filed in accordance with Article 55 of the African Charter
which stipulates that the Commission may receive and consider “Communications
other than those of State Parties”. Under Article 56 of the Charter, Communications
received pursuant to Article 55 must meet the following conditions before they can
be declared admissible:
1. Indicate the identity of their authors even if the latter request
anonymity;
2. Are compatible with the Charter of the Organization of African Unity
or with the present Charter;
3. Are not written in a disparaging or insulting language directed against
the State concerned and its institutions or to the organization of
African Unity;
4. Are not based exclusively on news disseminated through the mass
media;
5. Are sent after exhausting local remedies, if any, unless it is obvious to
the Commission that this procedure for remedies is unduly prolonged;
6. Are submitted within a reasonable period from the time local remedies
are exhausted or from the date the Commission is seized of the matter;
7. Do not deal with cases which have been settled by the States involved
in accordance with the principles of the Charter of the United Nations
or the Charter of the Organization of African Unity or the provisions of
the present Charter.
37. In this Communication, the parties agree that all the conditions prescribed in Article
56 have been met except the one which prohibits the use of information based
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exclusively on the media, and the condition of the exhaustion of local remedies.
Consequently, the Commission’s consideration of the admissibility of the
Communication will focus mainly on finding out if these two conditions have been
met.
38. On the issue of respect for the provisions of Article 56(3) of the Charter, while the
Complainants assert the Communication is based on actual facts, the Respondent
State argues that the information presented is a collection of media reports.
39. In this regard, the Commission notes that the Complainants do not refer to media
sources in their submissions. The requests put forward in their submissions are
supported by legal texts and judicial rulings from authorities of the Respondent
State. For instance, this applies to the capital punishments delivered by the Court
Martial, the legality of which originates, among others, from Executive Order No
019 of 23 August 1997 establishing Military Courts and the Executive Decision on
the Organization of the Judicial System establishing the Rules of Procedure of
Courts, Tribunals and Public Prosecutors’ Offices.
40. By examining the information in the submissions of the Complainants, the
Commission
is convinced that by presenting proof of the capital punishments
handed down to the victims and the circumstances relating to their imposition , the
Complainants did not limit themselves exclusively to information from media
sources. If it had been otherwise, the claims of the Respondent State made on the
basis of the same information as those of the Complainants would also not be
received. By the way, the Commission notes that the Communication is consistent
with the requirements of Article 56(3) of the Charter.
41. With regard to the respect for the provisions of Article 56(5) of the Charter, the
Respondent State considers that the Communication should be declared
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inadmissible as the Complainants have failed to exhaust an existing remedy.
Furthermore, the State of Rwanda contends that the complaints lodged in the
Communication had been settled by the national authorities.
42. The analysis of the arguments presented on this point shows the Commission that
none of the parties disputes the fact that the persons identified in the
Communication as victims were tried and sentenced by a judicial institution of the
Respondent State (the Military Court) the rulings of which cannot be appealed
against.
43. That such a fact has been established does not necessarily lead the Commission to
set aside the submissions of the Respondent State according to which Article 175 of
Decree 084/2002 of 2 August 2002 provides a remedy to the effect that the Public
Prosecutor’s Office has power to apply for pardon for convicted persons, in this case
the victims in this Communication. However, the Commission considers that the
remedy provided in this particular circumstance is not jurisdictional and that its
implementation is dependent on the discretion of public authorities. Such remedies
do not meet the requirements established by the Commission’s jurisprudence which
considers that remedies, the exhaustion of which is required of the Complainant, are
mainly judicial or jurisdictional. The decision of the Commission in Cudjoe v. Ghana
case clearly illustrates this position.5
44. On another aspect of the submission seeking to establish the non-exhaustion of local
remedies to the Commission, the Respondent State argues about the existence of an
alternative remedy, in this case a presidential pardon set out under an Executive
Order 084/2002 issued by the Head of State. To tackle this issue, the Commission
recalls that the local remedies, the exhaustion of which is required from the
Complainant, must meet the criteria of being available, effective and sufficient as seen
5 See Cudjoe v. Ghana Communication 221/98 (2000) AHRLR 127 (ACHPR 1999) para 13.
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in Jawara v. The Gambia.6 In this case, the Commission held that a remedy is
considered available if the petitioner can pursue it without impediment, it is deemed
effective if it offers a prospect of success, and it is found sufficient if it is capable of
redressing the complaint.7 The Commission considers that this is actually not the
case in this particular Communication because the remedy set out in Article 175 of
Executive Order No. 084/2002 of 2 August 2002 is not likely to resolve the alleged
violation by the Complainants. Indeed, the Complainants allege that minors are
presumed to have been tried and sentenced as a last resort by an institution under
the competence of which they did not fall.
45. Rwanda for its part submits that the victims had their sentences commuted to lesser
penalties thanks to the above-mentioned Executive Order and therefore the
complaints referred to in the Communication lose their prospect and relevance.
According to the Respondent State, the implementation of the Order in question
should have provided an avenue for the settlement of the complaints lodged in the
Communication and the Commission should have drawn conclusions from it by
declaring the Communication inadmissible.
46. In this regard, the Commission is rather of the opinion that as the death penalties
imposed unjustly on the victims as a measure of last resort had been commuted to
various terms of imprisonment, it does not in any way settle the violation
perpetrated against the child soldiers, even though it reduces the effects. In this
instance, the principle governing the effectiveness of human rights remedies is that
the violations must be remedied, and the Respondent State cannot be absolved from
this obligation by adopting mitigating measures or alternative measures. The
Commission adopts this principle in Civil Liberties Organisation v. Nigeria by deciding
that “measures on acquittal or repeal of legislation do not in any way affect the
6 See Sir Dawda K. Jawara v. Gambia Communication 147/95-149/96 (2000) RADH 107 (2000) para 31.
7 See Jawara para 32. Emphasis by the Commission.
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violations perpetrated, neither does it absolve governments of their obligations for
the said violations”.8 Though the presidential Decree was unable to resolve the
violations perpetrated before its enforcement, the remedy offered by the said Decree
could not constitute an effective and sufficient remedy under Article 56(5) of the
Charter. The Commission concludes that the Communication complied with the
requirement for exhaustion of local remedies.
47. The Commission notes that the Communication is not based exclusively on news
disseminated through the mass media. The Commission also notes that the victims
were sentenced to life imprisonment by a court whose decisions cannot be appealed
before any other national court. The Commission further notes that as the
subsequent measures taken to mitigate the sentences imposed could not resolve the
alleged violations, they could not be considered effective and sufficient remedies
likely to be exhausted by the Complainants. As such, the Commission concludes that
the Communication meets the conditions under Article 56 of the African Charter.
Decision of the Commission on Admissibility
48. In view of the foregoing, the Commission declares the Communication admissible.
THE MERITS
The submissions of the Complainants on the Merits
49. The Complainants allege that Articles 1, 3, 4 and 7 of the African Charter have been
violated. However, it must be noted that the submissions transmitted by the
Complainants on the merits of the Communication do not directly address the
provisions of the Charter. The Complainants rather attempt to demonstrate that the
8 Civil Liberties Organisation v. Nigeria Communication 129/94 (2000) RADH 190 (ACHPR 1995) para 17.
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facts presented constitute violations of international legal instruments and the
Congolese national legislation.
50. On international legal instruments, the Complainants allege the violation of
children’s rights to special judicial treatment guaranteed by Article 40(3) of the
Convention on the Rights of the Child, set out in Articles 2(1) and 12(1) of the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice and
Article 5 of the Decree of 6 December 1950 on delinquent children. They further
allege that the right of children to judicial assistance stipulated in Article 17(2)(c)(iii)
of the African Charter on the Rights and Welfare of the Child and Article 40(2)(b)(ii)
of the Convention on the Rights of the Child has been violated.
51. The Complainants, under the same instruments, also allege the violation of the
prohibition of the application of juvenile death penalty under Article 6(5) of the
International Covenant on Civil and Political Rights, Article 37(9) of the Convention
on the Rights of the Child and Articles 6 and 8 of the Decree of 6 December
1950. Also alleged to have been violated are the right to the publicity of proceedings,
the right of persons facing the death penalty to judicial assistance, the right to a
second hearing guaranteed by Article 40(2)(b)(v) of the Convention on the Rights of
the Child, Article 17(2)(c)(iv) of the African Charter on the Rights and Welfare of the
Child and Article 19 of the Decree of 6 December 1950.
52. Concerning the issue raised on merits, the Complainants allege that while the DRC
is duty-bound under the terms of Article 1 of the Charter to take all the necessary
legislative measures for the implementation of the rights prescribed by the Charter,
the State did not harmonize its domestic legislation with the international
instruments to which it is a party. According to the Complainants, this failure
provided the grounds for the enforcement of domestic laws that are inconsistent
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with the provisions of the Charter and international human rights law. Such
enforcement was the basis for the sentencing of the victims to capital punishment.
53. Concerning the violation of Article 3 of the Charter, the Complainants did not
provide any submission in support of such an allegation. In respect of allegations of
violation of Article 4 of the Charter, the Complainants contend that the international
instruments, which the DRC is a party to, prohibit the imposition of the death
penalty on persons below 18 years. According to the Complainants, the death
penalty delivered by the Military Court violates the obligations of the Respondent
State under the said instruments.
54. As far as the violation of Article 7 of the Charter is concerned, the Complainants
fundamentally allege that the inability of the victims to appeal against the decision
of the Military Tribunal is a violation of the right of access to remedies. Furthermore,
the Complainants allege under international law and Congolese legislation, these
juveniles should not have been tried by a Military Court which is not competent
under the current circumstances to try the case. In conclusion, the Complainants also
believe that as the victims did not receive judicial assistance in spite of their specific
situation, it violates their right to a fair trial.
The submissions of the Respondent State on the merits
55. The Respondent State did not make any submissions on allegations of violation of
Articles 1 and 3 of the Charter. In respect of Article 4, the State contends that the
victims were child soldiers tried for more serious offences, in particularly criminal
conspiracy, armed robbery and murder, all of which attract the death penalty under
the national legislation. In addition, the DRC reports that the victims fell within the
military jurisdiction. The key submission invoked by the Respondent State is that
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the sentence handed down to them had never been enforced and that the sentences
were commuted thanks to a presidential Decree.
56. On the violation of Article 7 of the Charter, the Respondent State asserts that the
facts fell within the competence of a Military Court established by law. As for the
non compliance with the principle of second hearing, the DRC believes that the
sentences were not eventually enforced as the convicts enjoyed a pardon. On the
issue of judicial assistance, the State contends that the victims received judicial
assistance and called on the Complainants to prove the contrary.
The Commission’s analysis on the Merits
57. On the issue of submissions alleging the violation of the national laws and
international instruments referred to by the Complainants, the Commission would
like to make two preliminary clarifications. Regarding the national laws, the
Commission notes that it is not competent to decide if the actions of the Respondent
State are consistent with its national laws. The Commission is only competent to
verify if the national laws and the Respondent State’s actions are consistent with the
African Charter. Regarding international human rights instruments other than the
African Charter, the Commission notes that States are sovereign entities under
international law. That being the case, the convention of international obligations
establishes that an obligation falls on a State in as far as the latter has acceded to it
by becoming a party to the legal instrument or authorizing a specified entity to take
up the burden of such obligation.
58. In the area of human rights, the sovereignty and subscription to such obligations
often result in the adoption of conventions proclaiming rights and freedoms and
determining their protection mechanism. These mechanisms are formalized by the
establishment of international bodies with a mandate to establish the violation of
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such rights and freedoms by State Parties and to indicate, where necessary, the
measures to be taken to remedy such a violation. For instance, the International
Covenant on Civil and Political Rights instituted a United Nations Human Rights
Committee. Similarly, the African Charter on the Rights and Welfare of the Child
established a Committee on the Rights and Welfare of the Child whereas the African
Charter on Human and Peoples’ Rights created this Commission.
59. Thus, the Commission was specifically established to ensure the promotion and
protection of human and peoples’ rights incorporated in the Charter. The fact still
remains that pursuant to the provisions of Article 60 of the Charter, the Commission
can draw inspiration from the principles of international human rights law, in
particular the ones prescribed in other international conventions. However, the fact
that the Commission is permitted to use these conventions does not provide it the
mandate to ensure the monitoring of its implementation. The relevant provisions of
the Charter must rather be interpreted as a possibility for the Commission to apply
these principles to determine the content and the scope of the rights guaranteed by
the Charter.
60. Consequently, the Commission will not take a decision on the alleged violations of
the above-mentioned conventions and the Congolese legislation, as the follow-up of
the implementation of these standards do not fall under its remit. Additionally, the
Complainants have not established a link with the provisions of the said instruments
and the rights guaranteed under the Charter. In fact, the Commission will determine
whether Articles 1, 3, 4 and 7 of the Charter have been violated based on the facts
and submissions made available by the parties.
61. Under Article 1 of the Charter, “The Member States of the Organization of African
Unity, parties to the present Charter shall recognize the rights, duties and freedoms
19
enshrined in this Charter and shall undertake to adopt legislative or other measures
to give effect to them”.
62. These provisions impose a positive obligation on States Parties to define the legal
framework for the enjoyment of the rights and freedoms contained in the Charter
within the confines of their respective territories. They do not specifically establish
rights and freedoms for individuals. However, the failure of a State to ensure the
implementation of its obligation under Article 1 of the Charter can create an avenue
for the violation of substantive rights or at least limit their enjoyment. The
Commission, in Jawara declared that the violation of any right contained in the
Charter is also a violation of Article 1 in that it shows the failure by a State Party to
take the necessary measures for the enjoyment of this right.9 This means that any
allegation of violation of this Article must be supported with evidence for disregard
of another substantive right guaranteed by the Charter.
63. In the light of the foregoing, prior to the determination of a possible violation of
Article 1, the Commission examines the alleged violation of substantive rights
guaranteed by Articles 3, 4, and 7 of the Charter. The violation of Article 1 will
therefore set off action for the substantive rights protected by each of the abovementioned provisions on the assumption that the Commission will conclude that
these rights have been violated.
64. While Article 3(1) of the Charter stipulates that every individual shall be equal
before the law, Article 3(2) provides that every individual shall be entitled to equal
protection of the law. The facts as submitted by the Complainants do not establish at
any point that a law in the legal framework of the Respondent State treats
individuals differently or protects other categories of citizens more or less better
than others. In their submissions on the merits, the Complainants do not provide
9 See Jawara v. The Gambia Communication 147/95-149/96 (2000) RADH 107 (2000) para 46.
20
any evidence either of any statute or discriminatory treatment before the law. The
Commission therefore notes that Article 3 of the African Charter was not violated.
65. Under Article 4 of the African Charter, “Human beings are inviolable. Every human
being shall be entitled to respect for his life and the integrity of his person. No one
may be arbitrarily deprived of this right”. A literal interpretation of these provisions
suggests that the Charter establishes the sanctity of human life but prohibits only
arbitrary infringements on the right to life and the physical and moral integrity of
his person. It can be inferred that in extreme cases where such a breach is
unavoidable, it must not be arbitrary; this means that it must be consistent with the
law.
66. Even so, such an approach of the qualification of the right to life is both restrictive
and non-objective. The Commission recalls that one of the peculiarities of the
African Charter is that it does not include any general limitation clause. The spirit
behind the absence of such a general limitation must be understood as the desire to
avoid abusive restriction of rights, a restriction which will be applied only under
very limited and legally circumscribed conditions. The proportionality and the
necessity of the limitation are therefore recalled by the Commission, among others,
in the decisions regarding Media Rights Agenda and Others v. Nigeria10 and Amnesty
International and Others v. Sudan.11
67. It is precisely in the light of this meaning to be ascribed to such a legal framework
that the said restriction by the Charter must be understood in relation to the
enjoyment of the right to life and other rights as well. Indeed, the Commission has
recalled time and again that where the Charter prescribes the restriction of the
enjoyment or limitation of a right in accordance with the law, the standard referred
10 Communications 105.93, 128/94, 130/94 and 152/96 (2000) RADH 202 (ACHPR 1998) paras 64-71.
11 Communications 48/90, 50/91, 52/91 and 89/93 (2000) RADH 323 (ACHPR 1999) paras 50, 80, 82.
21
to cannot exclusively be targeted at the domestic legislation of the State. Such a law
is applicable to both domestic legislation and international standards, while bearing
in mind that the domestic legislation itself must be consistent with the international
obligations of the State concerned. Thus, the Commission decided in Malawi African
Association v. Mauritania that the limitations imposed “within the context of the law”
must be in accordance with the obligations under the Charter.12 The Commission
goes much further, among others, in its decision in Amnesty International v. Zambia,
to explain that such limitations must not be at variance with the Constitution of the
State nor international standards.13
68. With particular reference to the limitation of rights applied to the protection of the
right to life in the spirit of the African Charter, the Commission is of the opinion that
the approach to be adopted towards the effective protection of human rights must
be an appropriate and objective one. Such an approach should be a liberal and proactive one. In fact, in addition to establishing the inviolable14 nature of the right to life
in its Article 4, the text of the African Charter does not make any reference to the
death penalty unlike other international instruments such as the International
Covenant on Civil and Political Rights (ICCPR).
69. It can be inferred that the Charter does not allow the death penalty to be imposed
with the exception of the right to life, the inviolability of which is declared. The
Commission however confirms it by taking a position in Interights and Others ( on
behalf of Bosch) v. Botswana, that even though the respect for the rights to a fair trial is
guaranteed in the procedure leading to the imposition of the death penalty , nobody
12 Malawi African Association v. Mauritania Communications 54/91, 61/91, 98/93, 164-196/97 and 210/98
(2000) RADH 148 (ACHPR 2000) paras 102, 104, 113. See also Media Rights Agenda v. Nigeria
Communication 224/98 (2000) RADH 273 (ACHPR 2000) paras 74-75.
13 Amnesty International v. Zambia Communication 212/98 (2000) RADH 359 (ACHPR 1999) para 42. See
also Civil Liberties Organisation (on behalf of the Nigerian Bar Association) v. Nigeria Communication 101/93
(2000) RADH 187 (ACHPR 1995) para 15.
14 Emphasis by the Commission.
22
can in contemporary times overlook the purely abolitionist trend of the States
towards this punishment.15 The Commission, in its decision then, called on
Botswana to take the necessary measures to comply with its Resolution requesting
the Member States to consider suspending the death penalty.16 Significantly, the
Commission based its recommendation for the suspension of the death penalty,
among others, on the universal trend towards abolition, reflected in the adoption of
the Second Optional Protocol to the ICCPR and the constant increase in the number
countries that had become de facto abolitionists.
70. Whatever one may say, the legality of the violation of the right to life through the
imposition of the death penalty cannot be considered as an absolute restriction.
These are evidenced by the specific exceptions provided for on this matter by
international standards. It is on this point that the African Commission can make a
real difference as enjoined in Article 60 of its Charter to draw inspiration from the
other international human rights instruments. In the circumstances of the case, the
Commission deems it appropriate to have recourse to this source of inspiration
particularly with regard to the instruments for the protection of the rights of the
child.
71. In order to carry out this, the Commission notes that many international obligations,
to which the Democratic Republic of Congo has committed itself, prohibit the
imposition of the death penalty on children. We cannot refer to this subject without
mentioning the fundamental standard on this matter which is Article 6(5) of the
International Covenant on Civil and Political Rights expressed in the following
terms “a death sentence cannot be imposed for crimes committed by individuals
15 Interights and Others (on behalf of Bosch) v. Botswana Communication 240/2001 (2003) RADH 57 (ACHPR
2003) paras 42-52.
16 See The African Commission on Human and Peoples’ Rights ‘Resolution requesting the States to
consider suspending the death penalty’ adopted at the 26th Ordinary Session of the Commission held
from 1st to 15 November 1999 in Kigali, Rwanda.
23
who are below 18 years”. Even if it were to be assumed that the concept of
arbitrariness would maintain an open window on the limitation of the right to life
protected by Article 4 of the Charter, one actually realizes that the provisions of
Article 6 of the Covenant, among others, exclude persons who are less than 18 years
from the limitation of the right to life, even legally, from the imposition of the death
penalty. A similar protection is guaranteed by Article 37(9) of the United Nations
Convention on the Rights of the Child which stipulates that “Neither capital
punishment nor life imprisonment without the possibility of release shall be handed
down for offences committed by persons below 18 years”. Needless to strive for the
interpretation in order to observe that the very act of imposing such sentences
against juveniles constitutes an arbitrary interference in the right to life and the
integrity of these persons, an act which is prohibited by Article 4 of the African
Charter.
72. In this particular instance, the State does not dispute the fact that the death penalty
was actually handed down to the victims whereas they were juveniles. Even though
the State shows proof that the capital punishments were subsequently commuted to
lesser penalties, the fact is that this measure will not change the established reality of
a violation of a right to life by the imposition of this penalty. As per the decision in
Civil Liberties Organisation v. Nigeria cited above, the Commission recalls that the
adoption of alternative measures sequel to the violation cannot be used as an excuse
by the State. Based on these considerations, the Commission concludes that Article 4
of the Charter was violated, that is when a cross review is carried out in relation to
Article 60 of the Charter.
73. Though the violation of the right to life has been noted, the parties still do not agree
on the enforcement of the sentence in the case of Joseph Kasongo only a few minutes
after the sentence was imposed. Though the Complainants do not provide any proof
of its enforcement, the Respondent State could also not prove that having been
24
sentenced and the ruling commuted; Joseph Kasongo served his term in a State
institution. The Commission however notes that this Communication mainly alleges
the delivery of a death penalty against individuals below 18 years and not on the
execution of the sentences handed down. There is no doubt that only the sentencing
of Joseph Kasongo to capital punishment, which has not been contested by the
Respondent State, is relevant in this case. The violation of Article 4 of the African
Charter noted above consequently applies to Joseph Kasongo.
74. In respect of Articles 7(1)(a) and 7(1)(c) of the Charter, the violation of which is
specifically alleged by the Complainants, their provisions stipulate that :
1. Every individual shall have his cause heard. This comprises:
(a) The right to an appeal to competent national organs against acts violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulation and
customs in force;
(c) The right to defence, including the right to be defended by counsel of his choice.
75. With regard to Article 7(1)(a), the Commission refers to its Directives and Principles
on the Right to a Fair Hearing in Africa to recall that even though the principle of
second hearing has not become an obligation under international law , the fact still
remains that it is one’s right to be given a fair hearing.17 Similarly, the gravity of the
sentences handed down may render the availability of a second hearing necessary
for an efficient administration of justice. This applies therefore to instances where
the court judgment is the death penalty or life imprisonment.18
76. From established jurisprudence, the Commission considers the right of appeal
against a judicial decision as a fundamental aspect of the rights to a fair trial. The
17 See The African Commission on Human and Peoples’ Rights
‘Directives and Principles on the Right to
a Fair Trial and Judicial Assistance in Africa’ (2001) point A(2)(j).
18 Op. cit. point C(10)(b).
25
Commission affirms such a position in Women’s Legal Aid Center (on behlf of Moto) v.
Tanzania19 but also more significantly in the famous decision in International Pen and
Others (on behalf of Saro-Wiwa) v. Nigeria dealing specifically with arbitrary
deprivation of an inviolable right to life enshrined in Article 4 of the African
Charter.20
77. The Commission is of the view that the established necessity by its jurisprudence of
an indispensable guarantee of the right of appeal and second hearing is still more
urgent in cases where international standards to which the State has an obligation
exempt some categories of persons – particularly children and pregnant women –
from the imposition or execution of these sentences. In the cases involving these
categories of persons, it is necessary for them to be able to challenge the legality of
such sentences when they are handed down by a national judicial organ which rules
in first and last instance.
78. Furthermore, and from a more general perspective, the Commission notes that even
if the Charter does not expressly provide for a right to remedy, such a right can be
generated implicitly and automatically by the numerous rights protected by the
Charter. It is obvious that an instrument cannot protect such a number of rights
without providing a right to a remedy and appeal when established rights are
violated. In the absence of the right to remedy and appeal, the other rights under the
Charter would be sheer illusion and vain proclamations. The only requirement of
exhaustion of existing, effective and satisfactory domestic remedies as a prerequisite for admissibility of the Complaints brought before the Commission is
sufficient to convince oneself of the existence of a right to remedy and appeal in the
Charter.
19 Women’s Legal Aid Center (on behalf of Moto) v. Tanzania Communication 243/2001 (2004) RADH 120
(ACHPR 2004) para 47.
20 International Pen and Others (pon behalf of Saro-Wiwa) v. Nigeria Communications 137/94, 139/94, 154/96
et 161/97 (2000) RADH 217 (ACHPR 2000) paras 88, 91-93. Emphasis by the Commission
26
79. In this instance, the Commission has already concluded that the sentencing of
minors to the capital punishment by a Military Court is a violation of their right to
life guaranteed by Article 4 of the Charter in cross review with other international
obligations binding the Democratic Republic of Congo. The Commission notes that
the parties are in agreement on the right of appeal in this present Communication,
and also on the fact that the decisions of the Military Court cannot be opposed nor
appealed against. It is obvious that the victims did not have the opportunity to
access an alternative remedy before the competent national courts whereas the
provisions of Article 7(1)(a) of the Charter provide them such a right.
80. On this issue, the Respondent State reiterates the possibility of a presidential
pardon. As indicated above, the Commission considers that this pardon cannot be
viewed as a jurisdictional remedy as it depends on the goodwill of the President of
the Republic. The Respondent State further submits that the Military Court was
abolished by Law No. 023/2002 of 18 November 2002 and replaced by military
jurisdictions that conform to the principle of second appeal. However, this abolition,
from the perspective of the Commission, does not also make up for the past
violations actually suffered by the victims. In the light of the foregoing, the
Commission notes that the provisions of Article 7(1)(a) of the Charter were violated.
81. The Complainants also allege that the provisions of Article 7(1)(c) of the Charter
have been violated as it specifies that any individual has « the right to defence ,
including the right to be defended by counsel of his choice ». The Commission
recalls that the right to assistance by a counsel is fundamental to a transparent and
fair trial. In its Directives on the Right to a Fair Trial, the Commission lays particular
emphasis on the urgent need to guarantee the choice of counsel in cases where
27
accused persons face capital punishment.21 This need is one of the anchor points in
the position taken in Purohit and Moore v. The Gambia where the Commission
declared that, in circumstances where the decision has the potential of touching,
among others, the life of persons concerned, the rights to be heard and to be
represented become necessary.22
82. However, such a representation before the court can be illusive in cases where the
accused persons are not in a position to provide that. It is precisely under such
circumstances that the mechanism of judicial assistance comes in at exactly the right
time. The principle which underlines the mechanism of judicial assistance is that it is
the responsibility of the State to provide a lawyer for the defense of persons who are
incapable of paying for such services. In this regard, in its Directives on the right to a
fair trial, the Commission places key emphasis on certain specific circumstances
where judicial assistance is fundamental. The Directive H(c) which governs aid and
judicial assistance prescribes that “the interest of justice always23 requires that the
accused person facing capital punishment be represented by a lawyer”.
83. The Complainants allege that during their trial before the Military Court, the victims
did not receive judicial assistance from a counsel, and much less a counsel of their
choice whereas the crimes for which they were being prosecuted were punishable by
the death penalty. The Democratic Republic of Congo contests these facts, without
providing any proof to the contrary. Additionally, the Respondent State does not
provide any specific reference in respect of provisions on judicial assistance in its
national legislation; neither does it provide any proof that the assistance is
applicable before the Special Court which is the Military Court. Thus, failing to
transmit to the Commission the Order for the automatic appointment of a counsel
21 Directives on the right to a fair trial, op. cit. point H(c).
See Purohit and Moore v. Gambia Communication 241/01 paras 71-72. See also Constitutional Rights
Project (concerning Zamani Lakwot and six others) v. Nigeria Communication 87/93 para 12.
23 Emphasis by the Commission.
22
28
by the President of the Court which tried the case, the Respondent State simply kept
on placing the burden of proof on the Complainants. The Commission is of the
opinion that having automatically appointed a counsel, the burden of proof now lies
with the State.
84. Even assuming that these provisions are available, their accessibility alone cannot
guarantee that the victims in this particular Communication actually received
judicial assistance. On this issue, the Commission recalls that where the burden of
proof lies with the State to discharge an obligation, it is not enough to indicate the
measures taken to that effect. The issue is to show the relevance of such measures
and to prove in what manner they satisfied the specific requirement of the
Complainant, namely the right of accused persons to judicial assistance. The United
Nations Human Rights Committee adopted the same position in Sankara v. Burkina
Faso.24 In this case, the Respondent State could not prove that the persons identified
as victims of this Communication did actually receive judicial assistance. In these
circumstances, the Commission notes that the provisions of Article 7(1)(c) of the
Charter have not been complied with.
85. As indicated above, the violation of Article 1 of the Charter cannot be established
except under the condition of the violation of substantive rights and for the
provisions for which the violation has been noted. As a result of the violations of
substantive rights thus established, the Commission also notes the violation of
Article 1 of the Charter, at least in respect of rights protected under Articles 4,
7(1)(a) and 7(1)(c) of the Charter, the violation of which has been established.
Prayers of the Complainants
24 Sankara v. Burkina Faso Communication 1159/2003 (2006) AHRLR 23 (HRC 2006) para 6.5.
29
86. In their submissions on the merits, the Complainants pray the Commission to
request the State to:
1. Ensure that the ordinary criminal procedure Code is complied with ;
2. Ensure that the Decree of 6 December 1950 on delinquent children is
put into effect, particularly its Article 5 thereof; and
3. Put an end to the activities of the Military Court in its current form and
institute a two-tier judicial system to ensure that juveniles are given a
fair trial.
The Complainants also pray the Commission to urge the Democratic Republic of Congo
to pay compensation to the victims of the alleged violations.
87. The Commission notes that the Complainants are not contesting the fact that the
Military Court has been abolished by Law No. 023/2002 of 18 November 2002 and
replaced with military courts that are consistent with the two-tier judicial system. As
this request has been satisfied, the Commission must set it aside from the
consideration of the prayers of the Complainants.
88. Having concluded on the violation of the provisions of Articles 1, 4, 7(1)(a) and
7(1)(c) of the Charter, the Commission granted the requests of the Complainants. It
is obvious that action must be taken on the various requests, including reparation.
The Commission recognizes the intangible principle of the right to reparation for the
harm suffered as a result of a violation of the provisions of the Charter.25 The
Commission also recognized the need to pay monetary compensation to the victims
should they request for it in this case.26 Nevertheless, it is clear that the assessment
25 See Abubakar v. Ghana Communication 103/93 (2000) RADH 116 (ACHPR 1996) para 17 ; Pagnoulle (on
behalf of Mazou) v. Cameroon Communication 39/90 (2000) RADH 61 (ACHPR 1997) para 31.
26 See Embga Mekongo Louis v. Cameroon Communication 59/91 (2000) RADH 60 (ACHPR 1995) para 2 ;
Antoine Bissangou v. Congo Communication 253/02 (2006) AHRLR 80 (ACHPR 2006).
30
of the quantum of such compensation is at the discretion of the courts and national
authorities of the Respondent State.27
89. Considering the evaluation of damages suffered by the victims of this case, the
Commission notes the unduly long procedures both before the domestic courts and
the Commission. Altogether, about ten years have elapsed since the seizure of the
Commission. Moreover, the lack of communication of evidence and due process on
the part of the Respondent State, prolonged the procedure. The Commission further
notes that the victims were minors at the time of the events and commencement of
the procedure before the Commission. Furthermore, the victims were child soldiers.
Finally, these children had the privilege of being represented by a group of lawyers
who have formed a non-governmental organization in a procedure for which
expenses have been incurred.
90. The Commission notes that under the provisions of Article 112(2) of its Rules of
Procedure, when a decision is awarded against a Respondent State, the parties must
within a period of one hundred and eighty (180) days with effect from the
notification of the decision, inform the Commission in writing about all the
measures taken or which are in the process of being taken by the Respondent State
to give effect to the decision.
Decision of the Commission on the Merits
The Commission,
For these reasons,
91. Declares that Article 3 of the African Charter was not violated.
27 See Kenneth Good v. Botswana Communication 313/05 (2010) AHRLR 43 (ACHPR 2010) para 245.
31
92. Declares that the Democratic Republic of Congo violated the provisions of Articles 1,
4 and 7(1)(a) as well as
7(1)(c) of the African Charter. Consequently, the
Commission:
i.
Strongly recommends to the Democratic Republic of Congo to harmonize its
legislation with its international human rights obligations.
ii.
Recommends specifically to the Democratic Republic of Congo to ensure the
enforcement of the ordinary Criminal Procedure Code and all other legislative
and regulatory texts in line with the African Charter and other international
human rights instruments to which it is a party.
iii.
Urgently recommends to the Democratic Republic of Congo to pay
compensation to the victims, the amount involved to be calculated according to
Congolese legislation by taking into consideration the injury suffered, the
duration of the procedure and the expenses incurred.
iv.
Finally, requests the Democratic Republic of Congo to provide a written report
within one hundred and eighty (180) days of notification of this decision on
measures taken to implement these recommendations.
Adopted at the 14th Extraordinary Session of the African Commission on Human and
peoples’ Rights, held from 20 to 24 July 2011, Nairobi, Kenya
32