2 August 2018

Congo-Kinshasa: Impact of the Bemba Acquittal Already Seen in the Democratic Republic of Congo

Photo: CPI
Jean-Pierre Bemba.

The return of Jean-Pierre Bemba to the Democratic Republic of Congo (DRC) on Wednesday has once again generated attention on the militia leader-turned-politician. His return is less than two months after judges at the International Criminal Court (ICC) acquitted him for the rape, murder, and pillage committed by troops in his Movement for the Liberation of Congo (MLC) in the Central African Republic (CAR). The legal aspects of his acquittal have been the subject of substantial discussion, with commentators pointing out its implications for future accountability for sexual and gender based violence, for the role of the ICC Appeals Chamber and its implications for victims.

However, the reaction in the DRC has received less attention, despite the fact that it has serious implications for both the overall credibility of the ICC in the DRC and the upcoming electoral process. This blog conveys some of the key currents of discussion in reaction to the court among Congolese activists and others with a view to enhancing the understanding of the reactions to the decision on the ground and informing strategies of engagement, but it does not claim to be any sort of scientific or definitive assessment of opinion.

Rehashing Old Credibility Questions

Although the ICC has enjoyed a good deal of support in the DRC, it has also been subject to sustained and regular critiques of its credibility. In the context of mass impunity, the ICC has been a beacon of hope for some. Indeed, polling data indicates that a substantial majority (68 percent) support the court. On the other hand, there has been significant criticism of the court, including by some who remain supportive of the institution overall, for its slow pace and perceived lack of independence and impartiality.

This criticism has been particularly intense around the prosecution of Bemba, whose trial was widely seen as the result of political meddling. As the International Refugee Rights Initiative and Congolese organization APRODIVI noted in 2012, the ICC's decision to target Bemba "fed the impression that the Court process is politicized... and many Congolese see [Bemba's] arrest as evidence that the Court is being used as an instrument by the Congolese government to undermine its rivals." Another consistent criticism has been the court's failure to prosecute Ange-Félix Patassé, the Central African president who invited Bemba and his troops to repel a coup attempt and whose troops fought alongside Bemba's MLC. Pursuing the one without the other seemed, to some Congolese, evidence that the charges were politically motivated. These critiques of the process have reverberated through the reactions to the acquittal.

Regardless of where they came down on the verdict, many were surprised. In the words of one anonymous Congolese lawyer: "I was very surprised considering the gap between a guilty verdict and a sentence of 18 years in prison and an acquittal on appeal."

The surprise, however, did not necessarily mean disapproval. The same lawyer said, "Like many others, I found the decision to be well reasoned." He had expected a reduction in sentence rather than an outright acquittal. In his opinion, the "18 years in prison for passive responsibility was very severe."

More forcefully, another Congolese activist said, "Justice was finally done. I had followed this case right from the beginning, and I have never thought Bemba should have been brought to court for the crimes he was brought to court for - and certainly not at that particular time. This was not a prima facie case of command responsibility, and one needed not be a lawyer to smell a rat right from the beginning."

More commonly, the decision accorded with popular Congolese views. According to Jason Stearns, a former member of the UN Group of Experts on the DRC, quoted by RFI: "Congolese never believed in [Bemba's] guilt. According to a 2016 poll, only 33% of Congolese thought that his punishment was just [after the initial conviction and sentence now overturned], and in the north of the country where he is from, it was only about 10%."

For many Congolese, Bemba's conviction was the result of outside intervention. Although advocates of the court argue that the appeal decision is evidence of the impartiality of the court and of due process at work, at least some in Congo see the appeals decision rather as evidence that the "puppet masters" have changed their minds.

One activist argued that for many Congolese the acquittal "is the confirmation that Western powers, who sent Bemba to The Hague in the first place, have turned their back on [Joseph] Kabila [the current Congolese president], and so they are sending Bemba back to do the job Kabila can no longer do for them."

This is not a view that is limited to the common Congolese person; it is discussed among the elites as well. Another activist agreed, saying that Congolese public opinion "thinks that really the arrest and conviction of Jean-Pierre Bemba served some political interest, and his acquittal serves the same logic." If not, they ask, why was Bemba only acquitted after Kabila's mandate was over? And why is it coinciding with increasing Western pressure on Kabila to step down? While advocates of the court would argue that the timing is merely determined by the length of proceedings and court calendar, the prevalence of these questions within DRC show the challenges of instilling faith in these processes.

The sense that the process has been politically manipulated was further reinforced by the fact that Ambassador Herman Cohen, a former US Undersecretary of State for African Affairs, weighed in just days prior to the decision in a letter to the ICC calling for Bemba's release. Although Cohen states in the letter that he believed that the conviction was legitimate, he called for Bemba's sentence to be reduced to time served so that he could "assume his political leadership," which was "badly needed at this time of political tension and regional violence" in the DRC."

Although was working as a consultant at the time that he wrote the letter, he is still widely seen as reflecting the position of the US government, and in the words of Pascal Kakoraki, an activist in Bunia, "The letter, being from a political figure, is proof of the interference of the political in justice." The real impact of the letter is questionable, but it is clear that it created a negative impression.

Some see the ICC as trapped by its prior failings. Although, as noted above, advocates see the reversal as evidence of impartiality, for some Congolese the acquittal merely highlights what in their minds is the injustice of the original decision. In the words of one Congolese activist, "The court risks losing its credibility following this decision for the sole reason that it is recognizing its mistakes and thereby reinforcing the impression or sentiment that it was out to get Bemba."

In other words, the very process of correcting prior missteps has, at least for some, not attracted praise for the correction but rather simply confirmed the misdeed. In the words of another activist, "As an instrument of impartial and independent justice, the court has work to do to restore its image."

On another note, those concerned with the fate of victims are concerned about the implications of the decision on that group. Kakoraki said, "The victims have been abandoned to their sad fate," explaining that the lack of a conviction would mean that there would not be any reparations, although the Trust Fund for Victims has made provisions for assistance.

Political Impact

Bemba's acquittal could play a major role in the upcoming elections, which after several postponements are now scheduled for December, less than five months away. The elections are already controversial as their delay has resulted in President Kabila staying in office past the expiration of his previous mandate in December 2016. Furthermore, Kabila has not ruled out an attempt at a third term, despite constitutional term limits.

Prior to his imprisonment by the ICC, Bemba was a major player in Congolese politics. Originally a leader of the rebel MLC movement, he was made a vice president in the transitional government set up in 2003. In 2006, he ran for president, coming in second to Kabila, and in 2007, he was elected as a senator. He still enjoys significant support, particularly in certain regions of the country, with recent polling data showing him in a dead heat with the other two leading opposition candidates, Moise Katumbi and Felix Tshisekedi (the son of long time opposition leader Etienne Tshisekedi who passed away in February 2017). In the words of one activist, "Bemba's return has a potentially huge, tsunami-type impact on the political process - but I don't think anybody knows as yet exactly what impact nor in which direction."

Unsurprisingly, Bemba's supporters were overjoyed by the acquittal. According to Desk Eco, members of his party responded to the news with improvised songs and dances. A man commenting on a Congolese website said: "Today it is a miracle that the majority of the appeals judges (3 of 5) had sufficiently cool heads to avoid the intoxication of the court as happened in the first instance judgment." A party member said: "I am crying for joy. Jean-Pierre Bemba was a dead man, and now he has been resuscitated." In the words of Jason Stearns, "For many Congolese, justice has finally been done, and Jean-Pierre Bemba can return, in a way, as a hero."

Although some celebrate, not all welcomed the news. In the words of one activist, "If in the west and center of the country the decision was well received, in the east of the country, many still hold on to the very bad memory of Operation Wipe the Slate in Mambasa, which seriously tarnished the image of the rebel MLC troops." During Operation Wipe the Slate, according to Human Rights Watch, "MLC forces were accused of committing numerous crimes against civilians, including rape, summary executions, and looting."

The ruling party has also criticized Bemba. An advisor to Kabila commented to Le Monde that Bemba could challenge but that "this time, he won't have arms or militia. The Congolese will not choose a new Mobutu, because that is what he is, even worse."

For others, however, it is less a question of supporting Bemba than opposing Kabila. In a context in which Kabila is exceedingly unpopular and the opposition is weak, some see Bemba as the only viable alternative. In the words of one activist, "His liberation is welcomed by the Congolese people for the sole reason that there is no other politician who can mobilize the population, especially in this election period, and they have had enough of this government, which is incapable of doing good for its population."

In the words of another, "With the disappearance of [the elder] Tshisekedi, Bemba is the only opposition politician today who is experienced and has not worked with the regime. In the words of yet another, the "religious, non-politically active but strongly anti-Kabila ones (i.e., the vast majority) would utter some variation of, 'This is an act of God, proof that God has not forgotten His people whom He wants to liberate from Kabila's tyranny.'"

Others of this general view point out Bemba's flaws explicitly. One commentator on a Congolese blog said: "Bemba is not an angel who totally merited being absolved/acquitted for the misdeeds of his troops in the Central African Republic, there was at least criminal negligence. Nor is he the dream leader to lead the country tomorrow, as was the case, for example, with a Mandela ... but in the current state in the DRC of divided opposition ... can he not be seen as an asset against this tough opponent?"

It is not clear, however, whether or not the standing conviction of Bemba on charges of witness tampering would be enough to exclude Bemba from the vote. The ICC has reportedly said that they cannot express an opinion on this point and that it would be a matter left to Congolese law. The ruling coalition, however, has expressed the view that he should be barred by a provision of the electoral law excluding those convicted of corruption and arguing that witness tampering is a form of corruption. This view has also been argued by Professor Emeritus of Criminal Law Raphaël Nyabirungu mwene Songa.

Even if he is not allowed to run, however, Bemba could make a significant impact by endorsing another candidate. He has said that he will work with the existing opposition parties to promote a unified opposition candidate. Another leading opposition figure, Moise Katumbi, has expressed openness to cooperation. It seems likely that Bemba will play a critical role, but how exactly remains to be seen.

Olivia Bueno is an independent consultant who has reported on the impact of the International Criminal Court in the DRC for several years. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

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