Judicial Body: African Commission on Human and People's Rights

An op-ed by Daniele Perissi

Could the ordeal of Lemera’s victims finally end? An unrelated case before African Commission on Human and Peoples’ Rights may disentangle their situation in unexpected ways.

2009, in the village of Lemera, South Kivu. Seven women, two of which are pregnant, are raped by Congolese soldiers.

November 2014. The NGO REDRESS files a complaint with the African Commission on Human and Peoples’ Rights (ACHPR). The victim they represent, S.A., was also raped by soldiers.

What do these two events have to do with each other? Perhaps surprisingly, the case of S.A. could be instrumental in obtaining reparations for the victims of Lemera – and many others.

 

Shedding a light on DRC’s shortcomings

Today, TRIAL submitted an amicus curiae to the ACHPR on the S.A. case. Meaning literally “friend of the Court”, an amicus is a document submitted by an expert outside a legal procedure to guide the judges in their decisions.

There are numerous factual parallels between S.A. and the women in Lemera: they both concern the rape of destitute women in remote villages by the army. In both cases, Congolese courts have granted the victims reparations. And in both cases, despite the judicial ruling, they received absolutely nothing.

TRIAL turned every stone to obtain reparations at domestic level. Two years and thousands of dollars later, all avenues are exhausted and the women have still not received a penny. Their file is blocked at the Ministry of Justice.

This frustrating experience proves the impossibility to obtain compensation from the State, even in the presence of a judicial ruling – supporting REDRESS’ argument before the African Commission.

 

Reparations are a right, not a privilege

If the African Commission ruled in favor of S.A., it would formally acknowledge the shortcomings of the Congolese justice system. This, in turn, could prompt the national authorities to step up their efforts and redress both S.A. and the victims of Lemera.

This is TRIAL’s first amicus curiae and it embodies one of the NGO’s key fights: the right of victims to access reparations. This vital step towards closure often goes sidelined, and nowhere is it truer than in DRC. With no victim of sexual violence ever redressed, it is high time S.A., the Lemera women and countless other victims obtain their due.

Daniele Perissi, Head of the DRC program

 

In other countries too, TRIAL fights with victims so they can get redressed. Read about our successes in Bosnia and Herzegovina and in Nepal.

 

 

For the second year in a row, 8 Congolese lawyers underwent personalised legal training for a year. From theoretical classes to practical exercises, two participants look back on their experience.

 

TRIAL: Can you please introduce yourselves and explain how you heard about the training?

Ms Ghilaine Bisimwa Naweza: I am a lawyer at the Bar of Bukavu since 2010, specialising in human rights. I am also a member of the Association of Congolese Women Lawyers of South Kivu, which defends and promotes human rights in the region. I had already received training from TRIAL International through this association relating to the documentation of sexual violence. I found it very concrete, so I applied for the year-long training as soon as I heard about it.

Mr Jerry Ntondo Zahinda: I have been a lawyer in Bukavu for almost ten years. I am also a specialist in human rights, so I have done a lot of work related to access to justice and reinforcing the national judiciary system. I heard about this training through a friend working for the ICRC in Bukavu. I was immediately interested by the contents of the training and its methodology, based on the study of specific cases.

 

What challenges do you face in your work as a lawyer?

Ms Ghilaine: There is not only one but many difficulties, and they are mutually reinforcing. At the end of the training, I began to appreciate the degree to which judges are insufficiently trained with regard to international legal instruments. Even when a lawyer invokes them on behalf of a client, judges limit themselves to examining internal norms without any reference to provisions of international law, no matter how applicable these may be.

Mr Jerry: Indeed, national legal texts have serious shortcomings. The Congolese legal arsenal is fragmented and not adapted to the country’s legal realities and practices. You can even find legal texts that contradict one another! We also face difficulties when trying to meet with victims due to poor transport infrastructure and because some routes are unsafe.

Ms Ghilaine: Lawyers are also discouraged by the reigning double standards. Powerful individuals continue to escape justice. Clientelism and influence peddling remain strong, and regular escapes from prison counteract our efforts.

 

As part of the training you had to work on real cases. Can you tell us more about these?

 Mr Jerry: I defended victims in the Mutarule trial. Three military leaders were accused of attacking the village of Mutarule, pillaging houses and committing a dozen murders. Thanks to TRIAL’s guidance, I was able to improve my legal analysis and enrich it with international jurisprudence. From a psychological point of view, the support of an NGO is reassuring, because the trial was marked by very high tension. TRIAL’s support gave me the courage to be significantly more proactive. The judges have yet to pass their judgment, but the fact alone that a trial of this kind was able see the light of day is a victory for us.

Ms Ghilaine: I was given the case of the young Stella (real name withheld), raped at 13 by a judge. Her case had been at a stalemate for over a year because the investigating magistrate was reluctant to pursue his colleague. TRIAL’s training helped me create a precise questionnaire for the victim and thereby obtain more incriminating evidence. We also explored new possibilities for gathering evidence. Thanks to our efforts, a trial began before the Court of Appeal in Bukavu.

 

How did the training change your way of working?

Ms Ghilaine:  Before the training, I had worked on a rape case, but I did not know what questions to ask the victim. Another time, women who had been victims of sexual slavery called on me, but I had no answers to give them. I am now better armed to approach victims in a respectful manner, all the while obtaining incriminating evidence.

 Mr Jerry: Before, I did not have the knowledge to refer to the African Commission on Human and People’s Rights or UN bodies. Several of my cases met the eligibility criteria, but I did not know where to begin. I now also know how to invoke the provisions of the ICC Statute, which I will be able to apply during war crime trials.

 

An interview with Guy Mushiata, Human Rights expert in the DRC

 

TRIAL: Once again, the DRC is making the international headlines. What are your impressions of the current situation?

Guy Mushiata : The context is extremely tense due the uncertainty surrounding the delayed presidential elections. The political situation has reached a dead-end and the human rights situation is far from ideal. Over the last few months, four international researchers investigating the human rights situation have been expelled. The risk of violence is very real. One can only hope that the on-going national dialogue*, though non-inclusive, will find a favourable outcome, ease people’s minds and guarantee every person’s fundamental rights.

 

What difficulties do you face in your everyday work?

The lack of political will is prevalent, but we are also faced with a multitude of structural and logistical problems. The province of South Kivu, where TRIAL International operates, is larger than Switzerland. The villages where the abuses occur are very remote; travelling to those locations can take days and entail security challenges.

Working with the victims also requires a lot of patience. They are often traumatised and fear retaliatory measures. We must approach them with care a slowly develop a bond. The network we have on location is essential in establishing these trust relationships.

 

How do the victims react when you talk about justice?

They are usually doubtful at first. Impunity is so widespread that they do not believe they can get any justice against their persecutors, especially when they are in the national forces or in an armed group. However, our experience proves that their role is crucial to the proceedings.  In the Bolingo case, for instance, the Court would probably have dismissed the case if it had not been for the victim’s testimony. It is important for them to be agents in the proceedings and to tell their story in their own words. This also encourages other victims who remain on the side-lines to come forward.

 

Almost two years after TRIAL’s offices opened in Bukavu, how has your mission evolved?

Since we arrived, we have established partnerships with local and international actors in the field, such as MONUSCO, UNDP, victims’ associations, lawyers’ networks etc. This has enabled us to work complementarily with other organizations, focusing on TRIAL International’s unique legal expertise. We are increasingly thought-after and must now chose which cases to defend.

 

What are the priorities for the program now?

We want to continue working on a national level. Of course, we will still refer cases to the African Commission or the United Nations if required, but changes must come from within the DRC: judges, lawyers, civil society and other local actors have a crucial role to play. For example, the lawyers that we trained can now assist the victims of gross violations of human rights on their own. It is highly gratifying to see the expansion of these good practices.

 

* The national dialogue brings together representatives of the political majority, part of the opposition and of civil society to seek solutions to the current political crisis stemming from the presidential elections, initially scheduled for November 2016.

An EU project, carried out in collaboration with the UNDP, will allow TRIAL International to extend its efforts in the fight against impunity in Eastern DRC.

Thanks to its expertise with regard to access to justice, TRIAL International was approached by the United Nations Development Programme (UNDP) to participate in a project designed to improve the Congolese justice system. The project is carried out together with the European Union, its main contributor.

The project aims at fighting international crime by facilitating victims’ access to justice. It is based on two priorities: on one hand, at the national level, developing the role of civil jurisdictions; on the other hand, promoting the access of victims to regional and international bodies such as the African Commission on Human and People’s Rights and the United Nations Human Rights Committee.

The first stage of the project will run until 2018. Within this framework, TRIAL International, already present in South Kivu, should extend its efforts to the province of Katanga, infamous for the prevailing impunity in the area.

N. was raped at her home in 2014 by a Colonel of the Armed Forces of the Democratic Republic of the Congo (FARDC). He was her husband’s colleague. Like countless victims of rape, N. was place in the dock by her community, leaving her isolated and stigmatized for a crime of which she was a victim.

Despite the pressure put on her, N. had the courage to file a complaint, but the case was put on hold after the perpetrator of the crime – the Colonel – tried to enter into an amicable agreement with the victim to terminate the criminal prosecution. This practice, which is illegal under such circumstances, is all too often used to buy the victim’s silence.

Determined to obtain justice, N. filed a new criminal complaint with TRIAL International’s help, but the investigation is at a standstill. Faced with this deadlock at national level, TRIAL decided to act in parallel at regional level: it filed a complaint before the African Commission on Human and Peoples’ Rights, asking it to acknowledge the violence committed by State agents in the DRC, in this instance by the Colonel.

This case of rape perpetrated by a high-ranking army officer is representative not only of the scourge of sexual violence in the DRC, but also of the military justice system’s inability or unwillingness to punish crimes committed by senior army officers.

 

Civil society seeks justice for the first time before the African Commission for cases of extrajudicial killings that remained unpunished before the national judicial authorities. NGOs have submitted four complaints to the African Commission on Human and Peoples’ Rights. These include several cases of extrajudicial killings committed between 2010 and 2012.

Several extrajudicial killings mainly targeting political opponents have been committed in Burundi between 2010 and 2012. Such violations of the right to life which occurred outside the scope of any legal proceedings and involved State agents (referring here to the internationally accepted definition of extrajudicial killings) still remain largely unpunished. In this context, a group of NGOs composed of ACAT-Burundi, APRODH,FOCODE, FORSC and TRIAL and supported by Human Rights Watch submitted four complaints to the African Commission regarding the extrajudicial killings perpetrated against:

  • Mr. Jackson Ndikuriyo, found dead on August 27, 2010, near the Police station of Musigati, in the province of Bubanza, after being arrested by the police. He had been the subject of death threats emanating from State agents which intensified in the months leading up to his execution.
  • Mr. Audace Vianney Habonarugira, found dead on July 15, 2011 on the hill of Gasamanzuki in the town of Isare, province of Bujumbura rural, after being the target of an attempted assassination in March 2011 and receiving death threats orchestrated by state agents during several months.
  • Mr. Médard Ndayishimiye found dead on October 7, 2011 in the province of Rutana after being kidnapped and severely beaten in Gitega. His body showed signs of torture. He had been intensively harassed by police officers and had received death threats from State agents during the months prior to his execution.
  • Mr. Jean-Claude Ndimumahoro, found beheaded on July 3, 2012 in the town of Bugarama, province of Muramvya, after being detained for several days by the intelligence services in Gitega. He had been the subject of intense persecution and death threats by State agents in the months before his execution.

On behalf of the victims, the civil society seeks justice for the first time before the African Commission for cases of extrajudicial killings that remained unpunished before the national judicial authorities.

In light of the commemoration of the fifth anniversary of the assassination of the anti-corruption activist Ernest Manirumva on April 9, it is all the more necessary to continue the fight against impunity for such human rights violations in order to prevent crimes of this gravity to be committed again and preserve the hard-won peace in Burundi.

These NGOs have formally requested the African Commission to adopt provisional measures to protect the families of victims, witnesses and their supporters. The NGOs also urge the Burundian authorities to duly assume their responsibilities in protecting these people and respect their rights.

Since November 2011, fourteen cases revealing serious human rights violations in Burundi have been submitted to UN treaty-bodies protecting human rights, namely to the Committee against Torture and the Working Group on Arbitrary Detention, due to the passivity of the national judicial authorities to examine the victims’ allegations. While eleven cases are still pending before the Committee against Torture, the Working Group on Arbitrary Detention has already held in 2012 that the detention of Mr. François Nyamoya was arbitrary, thereby requiring that he be afforded a compensation and that other restrictions to his freedom of movement be lifted.

 

Update: Two complaints have been declared admissible by the African Commission on Human and Peoples’ Rights: the case concerning Mr. Médard Ndayishimiye in 2016 and the case concerning Mr. Jackson Ndikuriyo in 2018.