Congo-Kinshasa: Committee Against Torture Examines the Situation in the Democratic Republic of the Congo

Geneva — Introducing the report, Marie-Ange Mushobekwa, Minister for Human Rights of the Democratic Republic of the Congo, said that until 2011, both the 1940 Penal Code and the Military Penal Code had defined torture as an aggravating factor in acts of arbitrary detention and illegal detention. Following the ratification of the Optional Protocol to the Convention against Torture in 2010, the State had adopted a law against torture which strengthened and completed the Penal Code.

It prohibited torture, incorporated the definition of torture as contained in the Convention, and clearly stipulated the sanctions applicable to perpetrators of torture. The National Institute for Judiciary Training, inaugurated in February 2019, would strengthen the judicial capacity to effectively apply the provisions of the Convention and the 2011 law on the criminalization of torture.

This reflected the will of the Democratic Republic of the Congo, as a Member State of the United Nations, to work towards the total elimination of torture in the world. Torture was most practiced in prisons; detainees were victims of torture and cruel and degrading treatment, not only at the hands of prison guards but by other detainees as well. The only way to eliminate torture in prison settings was the sanctioning of all acts of torture commensurate to the gravity of the crime, as well as the prevention of torture through the dissemination of the law against torture in the Democratic Republic of the Congo, concluded Ms. Mushobekwa.

In the dialogue that followed, Committee Experts deplored the deteriorating human rights situation in the Democratic Republic of the Congo and the fact that 63 per cent of the numerous human rights violations were committed by State agents. The suppression of and crack down on human rights defenders, journalists, and political opposition throughout the country was a serious concern, as was the use of force to repress protests and demonstrations.

The national prevention mechanism had not yet been set up and the 2011 law on the criminalization of torture had not yet achieved any impact due to its poor dissemination among key actors concerned, and many magistrates continued to apply the old legislation which considered torture as an aggravating factor rather than a standalone crime. The Experts were concerned about the structural and functional anomalies, and the duplication of power and authority in the judiciary and multiple authorities which had the power to arrest and bring people into custody.

The lack of judicial independence, inefficiency, and judicial corruption seemed to be the order of the day. Arbitrary detention was widespread, and secret detention centres continued to exist in which torture and cruel and degrading treatment was practiced. The delegation was asked about steps taken to establish accountability for human rights violations committed during the recent outbreaks of communal violence in several parts of the country, as well as to investigate and prosecute members of the armed forces for acts of torture and sexual violence.

In her concluding remarks, Ms. Mushobekwa said that the best way to change things was to recognize the weaknesses and that was what the Democratic Republic of the Congo was doing in order to ensure greater compliance with the Convention and the standards of the United Nations.

Jens Modvig, Committee Chairperson, thanked the delegation and said that the Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year.

The delegation of the Democratic Republic of the Congo consisted of representatives of the Ministry for Human Rights and the Permanent Mission of the Democratic Republic of the Congo to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of the Democratic Republic of the Congo at the end of its sixty-sixth session on 17 May. Those, and other documents relating to the Committee's work, including reports submitted by States parties, will be available on the session's webpage. The webcast of the Committee's public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. on Friday, 26 April to conclude the review of the seventh periodic report of Mexico (CAT/C/MEX/7), which it started today, Thursday, 25 April, in the morning.

Report

The Committee has before it the second periodic report of the Democratic Republic of the Congo submitted under the optional reporting procedure (CAT/C/COD/2).

Presentation of the Report

MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, presenting the report, said that until 2011, both the 1940 Penal Code and the Military Penal Code had defined torture as an aggravating factor in acts of arbitrary detention and illegal detention. Following the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2010, the State had adopted a law against torture which strengthened and completed the Penal Code. The 2011 law prohibited torture, incorporated the definition of torture as contained in the Convention, and clearly stipulated the sanctions applicable to perpetrators of torture. It furthermore specified circumstances which aggravated the prohibited acts and rendered the commission of such acts by the public authority not subject to the statute of limitations.

The Democratic Republic of the Congo had submitted its second periodic report to the Committee against Torture in 2017 under the optional reporting procedure, in which the State party had responded to the list of issues raised by the Committee Experts. Since then, a number of new developments had occurred, said the Minister. On 15 February 2019, the National Institute for Judiciary Training had been inaugurated and would contribute to the training of the judiciary personnel and strengthening the judicial capacity to effectively apply the provisions of the Convention and the 2011 law on the criminalization of torture. This reflected the will of the Democratic Republic of the Congo, as a Member State of the United Nations, to work towards the total elimination of torture in the world.

Since 2017, the Ministry for Human Rights had been leading the commemoration of the International Day in Support of Victims of Torture, which was being done in one of the prisons in order to express the Ministry's support for victims of all forms of torture. It was important to remember, the Minister said, that torture was most practiced in prisons; detainees were victims of torture and cruel and degrading treatment, not only at the hands of prison guards but by other detainees as well. At the same time, some inmates reserved those same treatments for penitentiary staff. All this, including sexual violence against male and female detainees, must stop. On 28 June 2017, a capacity building seminar for the judiciary police and the magistrates had been held to strengthen the implementation of the legislation on the criminalization of torture.

Although the 2011 law against torture was being applied and had been appropriated by the judiciary as evidenced by the convictions of the perpetrators, much still remained to be done. The only way to eliminate torture in prison settings was the sanctioning of all acts of torture commensurate to the gravity of the crime, as well as the prevention of torture through the dissemination of the law against torture in the Democratic Republic of the Congo, concluded Ms. Mushobekwa.

Questions by the Committee Experts

SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for the Democratic Republic of the Congo, raised concern about the deteriorating human rights situation in the country despite the high interest of the international community, and asked the delegation to explain measures taken by the new government to address the numerous human rights violations throughout the country, 63 per cent of which were committed by State agents according to the 2018 report by the Office of the United Nations High Commissioner for Human Rights.

The Co-Rapporteur raised serious concern about the suppression of and crack down on human rights defenders throughout the Democratic Republic of the Congo, including numerous cases of arbitrary detention of human rights activists as well as threats against and intimidation of human rights defenders, journalists, victims and witnesses on human rights violations. The human rights liaison entity had been set up in 2009 and the human rights defenders protection cell in 2011 - what were their roles and mandates, and how were they cooperating with civil society organizations?

The 2011 law on the criminalization of torture had not yet achieved any impact due to its poor dissemination among key actors concerned, and many magistrates continued to apply the old legislation which considered torture as an aggravating factor rather than a standalone crime. Could the delegation explain measures to ensure that all judges and magistrates were trained on the matter?

The Co-Rapporteur reiterated the concern expressed by the Human Rights Committee about the very meagre budget allocated to the National Human Rights Commission set up in 2013, which apparently had not received any financing since 2017. The delegation was asked to reassure the Committee that the national human rights institutions had sufficient resources to function and that their decisions were adequately implemented. Furthermore, the country had not set up an effective national prevention mechanism.

Turning to measures taken to protect the civilian population in conflict affected zones and effectively respond to all allegations of violations of international human rights and humanitarian law, including in the Kasai region, the Co-Rapporteur said the Government attributed the significant increase in human rights violations to the increase in the number of militias and armed groups, the intensification of their activities, as well as operations by the national armed forces against those groups. However, he noted that State agents were said to have committed most of the registered human rights violations.

The Committee was also concerned about recent outbreaks of communal violence in several parts of the country, including in the Yumbi territory in December 2018 in which over 500 people had been killed and numerous women and children had suffered abuses and torture. Violence was facilitated by the absence of the State's response despite clear signs of tension, the Co-Rapporteur noted.

The Committee noted with great concern the growing repression of protests since 2015, particularly those organized by the opposition and civil society organizations against the electoral results. The brutal repression of demonstrations and protests and the disproportionate use of force raised important questions about the rules that governed the national security and police forces and the legitimate use of force, as well as accountability of the perpetrators. What concrete steps were being taken to ensure that the operations to maintain public order and security respected the fundamental rights of citizens?

The Commission on Inquiry into human rights violations committed in the context of repression of manifestations had been set up in February 2018; in its report issued in March 2018, the Commission had stated that 14 people had been killed in demonstrations on 31 December 2017 and seven on 21 January 2018, figures much lower than those reported by other sources. What could explain this discrepancy and what follow up had been provided to the Commission's conclusions and recommendations?

Numerous reports noted that secret detention centres continued to exist in the Democratic Republic of the Congo and that the majority of detainees there were victims of torture and cruel and degrading treatment. The delegation was asked to provide statistics on persons in detention and describe measures taken to ensure that all places of detention were under judicial control.

Arbitrary detention was widespread in the country. Individual files of people in detention were often very hard or even impossible to find, and there were documented cases of persons who had been acquitted but were still detained because it was impossible to locate their files. What provisions were in place to ensure that each person deprived of liberty was officially registered and received all fundamental legal guarantees? This was particularly important in the absence of the national prevention mechanism, Mr. Touzé stressed.

While the Convention did not specifically prohibit capital punishment, States parties had an obligation to ensure the dignified treatment of detainees awaiting execution. The situation of those sentenced to death in the Democratic Republic of the Congo raised numerous concerns, as did the fact that there were cases of children who received the death penalty, contrary to the provisions of international law. Was the State party considering the abolition of the death penalty?

ESSADIA BELMIR, Committee Co-Rapporteur for the Democratic Republic of the Congo, noted with concern the structural and functional anomalies and duplication of power and authority in the judiciary of the State party and multiple authorities which had the power to arrest and bring people into custody. The lack of judicial independence, inefficiency, and judicial corruption seemed to be the order of the day.

The reform of the penitentiary system seemed to be ongoing, which was of particular importance since this was where most acts of torture seemed to be committed. According to documented reports, torture had been taking place for a long time in places of detention and was "very much in fashion"; people were being tied, beaten up, and held in secret detention. The national law against torture 2011 was poorly applied and only a handful of people had been tried and found guilty of crimes of torture.

Violence against women was widespread and rape and sexual violence, including mass rape, were endemic, both in the context of armed conflict and situations not linked to conflict. Survivors had shared their testimonies of mass rape. The 2011 law did not recognize all forms of sexual violence and rape as acts of torture.

The Co-Rapporteur raised a number of concerns related to children in conflict with the law and in particular the detention of children, including the prolonged pre-trial detention of juveniles - in Kalemie, for example, children spent on average four months in detention without seeing a judge; in Kinshasa, a child had awaited a decision of the judge for a year because he was unable to pay his legal fees. A number of children associated with armed forces were kept in secret detention.

Turning to the question of accountability for acts of torture against detainees, the Co-Rapporteur noted the very few investigations and convictions and stressed that acts of torture were not subject to the statute of limitations, including those acts committed prior to the adoption of the 2011 law, which meant that the authors of acts of torture against detainees must be tried and convicted.

Other Experts asked the delegation to explain how victims of rape and sexual violence had been successfully included in the definition of victims of torture and how they could effectively access the effective reparation, indemnity, and support services. What legislative and administrative mechanisms had been adopted to effectively protect all children from acts of torture, including sexual violence, and to effectively demobilize and reintegrate all children associated with armed groups?

The delegation was asked to inform the Committee on steps taken to investigate and prosecute members of the armed forces for acts of torture and sexual violence, as well as to eradicate the practice of female genital mutilation.

Replies by the Delegation

MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, responding to questions raised, said that the political context in the Democratic Republic of the Congo had not made it any easier to improve the human rights situation in the country, mentioning in particular the emergence of armed groups in the east; terrorist operations by the Allied Democratic Movement, the National Army for the Liberation of Uganda (ADF-NALU) and Kamuina Nsapu; protests organized by the opposition which were sometimes infiltrated by criminal elements; and the massacres in Yumbi. All those had displaced even more people and many had been killed. In some instances, the perpetrators of crimes had been tried, in others they had been detained but not tried. The country was aware of the great legal challenges it still had to overcome.

The Human Rights Committee was a liaison entity created in 2009; it was led by the Ministry for Human Rights, was made up of representatives of human rights non-governmental organizations and of the United Nations, and was in charge of monitoring the human rights situation in the country. The human rights defenders' protection unit had been created in 2011 and was a part of the Ministry for Human Rights. The two units were not operational at the moment due to the particularly complex situation in the country, since over the past three years, all the Government's efforts, attention and resources had been directed at the organization of the presidential and legislative elections.

The Minister recognized that some human rights defenders had been threatened and intimidated and others had been arrested and even convicted. This was deplorable and no one must be sent to prison for defending human rights. The National Human Rights Commission did not have the necessary resources to fully discharge its duties, but it had its own building which allowed it to operate independently, and had quite a significant budget.

Law 11/008 defined torture as an autonomous crime but eight years after its adoption, it had not yet borne full fruit. An essential step was undertaking efforts to raise awareness of it and to disseminate it among the judiciary, army and the police, stressed Ms. Mushobekwa.

As for the lack of the national prevention mechanism, the Minister said that the Ministry for Human Rights, the National Human Rights Commission, and human rights non-governmental organizations could visit places of detention. The national prevention mechanism would not be needed if the national human rights institution was enabled to fully discharge its mandate.

The Democratic Republic of the Congo was under constant attack by armed groups, foreign and domestic, and this was a great source of instability. As in every war, there was collateral damage and civilians were usually the first victims, including women and children. Ms. Mushobekwa disagreed that State agents were guiltier of human rights violations than members of armed groups. The Interahamwe, the ADF-NALU, and other groups regularly attacked villages, killed men, and took women and girls to serve as sex slaves.

As for the violence in Yumbi in Mai-Ndombe province, a special commission of inquiry led by the United Nations had found that 535 people had died in the communal clashes, while the investigative commission set up by President Félix Tshisekedi had found that 496 persons had died. The violence was something that could have been avoided had the customary chiefs been wiser, Ms. Mushobekwa said, and stressed that after the reports of the two inquiries were published, the Government would take all steps to ensure accountability.

The pre-electoral context in the country had been rather tense, recalled the Minister. Demonstrations challenging electoral outcomes had been organized by some opposition parties and citizen movements. The Constitution guaranteed the right to freedom of opinion and to demonstrate, which nevertheless must be done with full respect for public order. There was no justification for a police officer opening fire on civilians, but civilians too did not have the right to attack police officers or strip them of their firearms. Multiple civilians had been killed during the protests. A commission of inquiry had been instituted, headed by the Minister herself, to shed light on the protests of 31 December 2017 and 21 January 2018. It had worked in a very difficult context and under great pressure, but had discharged its mandate independently. Ms. Mushobekwa wondered where the line was drawn as to the use of force against protesters, noting that this was an open issue in the current yellow vest protests in France.

As for arbitrary detention, the National Intelligence Agency could detain a person suspected of being involved in terrorist activities that threatened the security of the State, in order to obtain more information. But even in such cases, detention had to follow the law and torture was absolutely prohibited. Secret detention was strictly prohibited. The President had ordered the closure of all punishment cells in the country and all those who had been held in those secret cells had been released.

The Ministry, together with the Office of the United Nations High Commissioner for Human Rights, had initiated the examination of files of detainees to identify those who were detained without charges or who had been detained for minor crimes, such as theft of a phone or a chicken. Of the 200 detained children, only 10 had been accused of serious crimes, while all the others had been detained for minor crimes, for example, the theft of a goat.

The Government did not have sufficient resources to provide food to prisoners, who depended on the food provided by their families. The situation was similar when it came to health care: despite its best will, the Democratic Republic of the Congo did not have sufficient means to ensure access to health for all prisoners, and detainees depended on their families for healthcare. On the death penalty, Ms. Mushobekwa remarked that her country had observed a moratorium since 2003 and there had been no executions since then. Most of the country's population was in favour of the abolition of capital punishment, thus it was up to Parliament or the President to put the question in a referendum.

Other members of the delegation remarked that the Democratic Republic of the Congo remained committed to continue institutional development in the area of human rights, and to build on the progress evidenced by the setting up of the Human Rights Committee and the human rights defenders' protection unit, as well as the recognition of crimes of war and crimes against humanity. In this post-electoral period, the time was now right to turn attention to those issues, and the promulgation of the law on human rights defenders was expected soon.

With regard to the application of the law against torture under military jurisdiction, a delegate said that while some members of the armed forces had been tried under this law, a study into the legal compatibility was needed.

MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, added that rape had once been used as a weapon of war but the rate of sexual violence was declining. Female genital mutilation was not a practice in the country. The Government was working on promoting a law prohibiting the marriage of minors.

Follow-up Questions by Committee Experts

SÉBASTIEN TOUZÉ, Committee Co-Rapporteur for the Democratic Republic of the Congo, remarked that the replies provided by the delegation simply repeated what was already known and did not "move the dialogue forward not even an inch". General statements the delegation had given as their replies made it difficult to assess the situation. The Co-Rapporteur recognized that the tumultuous situation in the country certainly had an impact on the implementation of the Convention, but the Democratic Republic of the Congo seemed still to be at the same point as at the time of ratification; clearly, the country did not have the means and resources to implement the Convention.

To combat torture, there must be a mechanism that was at the level of the task; in this, prevention was essential and here was the value of the Optional Protocol to the Convention, which represented the State-level response through the setting up of a national prevention mechanism. The delegation questioned whether there was a need to set up one if the National Commission for Human Rights was already in, but the Co-Rapporteur pointed that it was not fully operational and there was furthermore a need to separate competences for prevention and monitoring.

When there was a protest, how did the authorities ensure keeping public order? Could military forces be deployed for the purpose and could the National Intelligence Service also be involved - if so, what were their regulations for the use of force? Where were detained children held?

ESSADIA BELMIR, Committee Co-Rapporteur for the Democratic Republic of the Congo, reiterated her concerns about structural weaknesses in the judiciary. There were a number of ways in which the population in prisons could be reduced, for example by reducing the use of pre-trial detention. The Democratic Republic of the Congo should ensure that all those who had committed crimes of torture and ill-treatment did not enjoy impunity.

Another Expert asked the delegation to explain the protection in place for over 500,000 refugees, of which over 60 per cent were children.

Replies by the Delegation

MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, stressed that the best way to ensure the implementation of the Convention was to strengthen the prevention of torture. A number of judges indeed abused their power and position despite "knowing better", and it was up to the Government to sanction such judges. The statistics on the number of sentences handed down for the crime of torture would be sent in writing. The statistics on the prison population were not available in all provinces. Four members of the army were serving sentences for crimes of torture, namely rape. This number might not be high enough, but the Government was doing all it could to fight impunity against torture, said the Minister. The new Government was taking steps, but things took time. Detained children were held in adult prisons, but in separate wings. The Minister also said that children held on lesser charges and petty crimes were separated from children charged with serious crimes.

Concluding Remarks

MARIE-ANGE MUSHOBEKWA, Minister for Human Rights of the Democratic Republic of the Congo, thanked the Committee for the opportunity to present the report and noted that the Democratic Republic of the Congo was not in denial. The best way to change things, she said, was to recognize the weaknesses and that was what the Democratic Republic of the Congo was doing in order to ensure greater compliance with the Convention and standards of the United Nations. The Government was furthermore cognizant that positive measures it took would have a good influence on other countries in the region.

JENS MODVIG, Committee Chairperson, thanked the delegation and said that the Committee would select three urgent recommendations for follow up, on which the State party would need to report within a year. All States parties were encouraged to also submit a review of the implementation of the Committee's concluding observations.

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