April 25, 2014
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Soldiers in the DRC

KINSHASA, (IPS) – The Democratic Republic of Congo’s parliament this month adopted a bill creating a Specialised Court for serious violations of human rights. The involvement of jurists from outside the DRC in running the court has quickly become a major talking point. The legislation, adopted on Aug. 12, says the new court will deal with cases of war crimes, crimes against humanity and crimes of genocide committed in DRC since 1990. The bill also says that “to guarantee the court’s independence and impartiality, it will function with the assistance of foreign magistrates who have experience handling serious violations of human rights” – which has provoked a lively controversy amongst criminal law experts and members of civil society.

DRC Minister of Justice and Human Rights Emmanuel Luzolo Bambi Lessa told IPS that “the involvement of foreign magistrates will contribute to strengthening the capacities of Congolese investigators not yet accustomed to dealing with this type of crime”. “Further, this court will offer a concrete response to the demands of millions of victims for the restoration of their rights,” said the minister, who is also a professor of criminal proceedings at the University of Kinshasa (UNIKIN), the country’s capital. The minister’s view is shared by Nyabirungu Mwene Songa, professor of criminal law at UNIKIN and a lawyer at the International Criminal Tribunal for Rwanda (ICTR), who believes that “members of the Congolese judiciary will not only benefit from the experience of foreign magistrates, they will also enjoy the same working conditions”.

This opinion is not shared by all Congolese jurists. “Justice is an instrument of sovereignty for states. The admission of foreign magistrates to the functioning of this court is unacceptable, particularly because they will not be working in an international jurisdiction,” says Maurice Mudishi, lawyer and expert in international humanitarian law. “There is also the fact that the government has not explained where the money for the operation of this court will come from, including for these foreign judges who will have to have the same terms of service as in their countries of origin,” says Lucien Busa, an opposition member of parliament who voted against the law. Jean Kahozi, a prosecutor in the high court in Kinshasa predicts: “The presence and privileged treatment of foreign magistrates could be the basis for frustration for the rest of the country’s magistrates, unless they will also work under the same conditions.”

But beyond the logistical and bureaucratic questions, Jean-Luc Kahasha, a resident of Bukavu, in the eastern province of South Kivu, notes that “the biggest problem this new court raises is its distance from the places where the crimes were committed”. The majority of serious human rights abuses have occurred in the eastern part of the country. According to government reports, some seven million people have died due to conflict in DRC since 1990. The United Nations Office of the High Commissioner for Human Rights (OHCHR) estimates that around 20 rapes are committed each week in South Kivu province alone. Two of Kahasha’s sisters were raped and killed by soldiers in 1999 at Walungu, 60 kilometres from Bukavu. Now a human rights activist with the Bukavu-based NGO Haki Na Amani (Swahili for Justice and Peace), Kahasha says that “in line with the law, the court’s chambers will be located in the major cities, although the violations they will pass judgment over were for the most part committed in the countryside.”

The Specialised Court will operate primarily from seats in each of the country’s major cities; it will also have chambers in each provincial capital where decisions may be appealed. The office of the court in Kinshasa will have general oversight. “I doubt this court will go to Walungu to carry out investigations into atrocities which have taken place here. I also doubt its capacity to protect surviving victims against their former tormentors- who are now members of the police or the army,” Kahasha told IPS. “Many reports produced by the government and the United Nations, including that of the ‘Mapping Project’, showed that the Congolese justice system suffers from numerous shortcomings, among them logistical problems,” agreed Luis Buaka, from the OHCHR Office in Kinshasa. But Fernandez Murhola, executive secretary for the National Network for the Defence of Human Rights, is optimistic. “Whether in terms of the provisions for it or the time that foreign magistrates will invest in learning the Congolese law that they will be applying, I think this court indicates a renewed effort in the struggle against impunity. And in this light, it can be supported.”

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