Committee against Torture
22 November 2005
The Committee against Torture this morning heard the response of the Democratic Republic of the Congo to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Monday, 21 November, the delegation, which was led by Marie-Madeleine Kalala, Minister for Human Rights, said the Democratic Republic of the Congo was greatly attached to republican values, and had been trying to create institutions that would support this democracy. A very close eye was kept on the violation of human rights, but regarding statistics, the Democratic Republic of the Congo was a country that was rebuilding itself, and had great difficulties in this regard. The Ministry for Human Rights was only five years old, and it had been doing its best for two years to create an administration in the east of the Congo, which was the area which had been occupied by the rebellious forces.
Work was underway to reform public services, but in many cases civil servants had not received the proper training. Work was being done to restructure the administration as well as the judiciary and the army, the security services and police. The decree for the amnesty law had been negotiated and was aimed at protecting political personalities who were part of the past rebellion. It had been necessary to create peace, bringing all to Kinshasa and allowing them to participate in the country. The decree was issued to guarantee the rebels amnesty, but in the text it said that the law applied to certain crimes, and there were exceptions, namely war crimes, crimes against humanity, and genocide.
The Committee will submit its conclusions and recommendations on the report of the Democratic Republic of the Congo towards the end of the session on Friday 25 November at 10 a.m., when it will hold its next and final public meeting.
As one of the 140 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Democratic Republic of the Congo is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
Response of the Democratic Republic of the Congo
Responding to a series of questions raised by the Committee Experts on Monday, 21 November, MARIE-MADELEINE KALALA, Minister for Human Rights of the Democratic Republic of the Congo, said on a question on how the authorities were ensuring that they complied with article two of the Convention, namely that exceptional circumstances did not justify torture, that the Transitional Constitution of the Democratic Republic of the Congo clearly stated that nobody could be subject to torture or to cruel, inhuman or degrading treatment, and the Military Penal Code equally prohibited torture. With regards to the right not to be tortured during a state of emergency or any other exceptional circumstances, the Transitional Constitution stated the rights of citizens during war on the national territory under an organic law and other provisions. Regarding the definition of torture, the current Code stipulated that this meant any act according to which any moral or physical torture or pain was inflicted on an individual in order to obtain information from them or from third parties. Intimidation exercised on a third party was also included, as was any reason based on discrimination, when such suffering was inflicted by any public official, their agent, or with their express consent. It could also be carried out by a person who was not a public official. The Criminal Code would be re-worked via a draft bill.
Concerning specific implementation, as regards to the normative side, there had been an evolution, Ms. Kalala said. Torture was not banned as the Convention could wish. It was difficult to provide the Committee with statistics. She did not wish to claim that acts of torture were not happening today; there were many organizations which could testify to the will of the Democratic Republic of the Congo to repress or punish any acts of torture. The Ministers themselves attached great importance to this, and sanctions and penalties were applied. The Democratic Republic of the Congo was greatly attached to republican values, and had been trying to create institutions that would support this democracy. The Minister for Human Rights was responsible for drafting policy, but the Observatory or monitoring centre was the body that was responsible for surveying the implementation of the conventions that the country had entered into. A very close eye was kept on the violation of human rights, but regarding statistics, it was a country that was rebuilding itself, and had great difficulties in this regard. The Ministry for Human Rights was only five years old, and it had been doing its best for two years to create an administration in the east of the Congo, which was the area which had been occupied by the rebellious forces. It was therefore extremely difficult, both practically and financially, to build statistics. However, torture was considered an aggravating circumstance.
In response to a question concerning the judiciary and the legal authorities, which were the backbones of the workings of justice of any country, Ms. Kalala said they were the third power of the country. In the Democratic Republic of the Congo, the judiciary was independent and autonomous, as set out under the Constitution. In practice, magistrates were not sufficiently independent, and as for torture, there was a draft bill which should be adopted by Parliament, which was currently being discussed therein, the aim of which was to cover the statute of magistrates. Huge efforts were being made to improve the levels of independence and to ensure that they were independent from the executive powers, by giving them the necessary budget and improving living and working conditions, including by improving wages. For the time being, the military courts followed the Military Penal Code, which had been revised in order to remedy the many complaints made by other Committees regarding the jurisdiction of such courts.
The new Code of Justice and Penal Code of the Military was the result of various criticisms that were addressed to the military courts, the delegation said, some of which referred to the sad history of the country. Military justice was rather extensive and dealt with four different stages. At the top was the Military Supreme Court, below which was the Operational Military Court, then the Garrison Military Courts, then the Military Police Courts at the bottom. If decisions at the lowest levels were not accepted, there was a possibility of appeal to a higher level, and accused could have their own lawyers present, and could be provided a lawyer if they could not afford one. Civilians were still appearing in military courts, although it was an exception. There were only four cases where a civilian could be judged by a military court: firstly if they incited or provoked a military coup, secondly if they damaged the goods or image or honour of the army, third if they committed a misdemeanour in a military installation, and fourthly if a civilian accompanied the army in a military operation. The military had been innovating with regards to its judgements. Minors could not serve in the army below the age of 18, and military justice was there to ensure that this did not happen, and to examine the case of those who were under 18. A civilian before a military court could be either a national or a foreigner.
With regard to a question on amnesty and its implication with regards to impunity from torture, Ms. Kalala said a decree dealt with essentially military acts and political infractions committed over a certain period. The decree for the amnesty law had been negotiated and was aimed at protecting political personalities who were part of the past rebellion. It had been necessary to create peace, bringing all to Kinshasa and allowing them to participate in the country. The decree was issued to guarantee the rebels amnesty, but in the text it said that the law applied to certain crimes, and there were exceptions, namely war crimes, crimes against humanity, and genocide. On the status of human rights defenders, it was true that over the last few months the authorities had to deplore the assassination of a human rights defender, and the presumed assassins were in the hands of the military prosecutor, and the investigation was still continuing, and was being closely monitored by the Ministry for Human Rights. To this date, there was no law which gave outright protection to a human rights defender, although this was being discussed. The protection of the rights of human rights defenders was a daily matter, although it was already difficult to protect the members of the judiciary, and it would be difficult to defend each defender, but the authorities were thinking of what could be done.
The Democratic Republic of the Congo was a country that was rebuilding itself, and rebuilding its institutions, Ms. Kalala said. Work was underway to reform public services, but in many cases civil servants had not received the proper training. Work was being done to restructure the administration as well as the judiciary and the army, the security services and police. Efforts were being made to integrate the previous rebel forces within the army, and work was being done to eliminate those with a negative past, but as the Democratic Republic of the Congo needed an army, it was having to make do with the weaker points within its army. A lot of work was being done, but violations of human rights were somewhat inevitable, as living conditions were not the best, and a lot of people depended heavily on the State budget, and Ms. Kalala appealed for help in paying the armed forces. There was a continuous combat against impunity, she said, to provide the military with proper rules, and investigations were underway to identify who was guilty of bad governance within the army in order to punish them appropriately. Existing violations had been brought to the attention of the international community, which could help in improving conditions.
The act of torture had always been decried by the Democratic Republic of the Congo, the delegation said. Individuals had raised cases that went back 60 years, where there had been problems with individuals and settlers who had tortured peasant farmers in the Congo. There had been terrible acts of torture, and jurisdiction at the time had condemned the settlers, and there was therefore case law going back that far.
With regard to the training of individuals, there was no specific training organised in the country, and in order to identify possible acts of torture there were specialised doctors who were able to identify these. Interrogation practices had to be in line with the Constitution, Ms. Kalala said. Confessions that had been extracted under torture were rejected as being unacceptable. Guards in prison institutions could only imprison inmates if there was a paper coming under the necessary article of the Prison Code. Registers were held, but the prisons were in an extremely dilapidated state, and the best thing would be to demolish them and rebuild modern ones. It was a main concern in the Ministry for Human Rights and of the Government to improve the conditions in which inmates were living, and a report containing recommendations in this regard had been written and communicated with other parts of the Government. However, funding was required in order to build new prisons.
On detention of minors, Ms. Kalala said they were separated from minors under the law of the Democratic Republic of the Congo, although that provision was not always respected, but efforts were made to remedy this situation. Women were not imprisoned in the same areas as men either. Statistics would be provided in writing at a later date. On detention centres which fell outside the control of the public prosecutor's office, these had been prohibited, but there were some that perhaps fell outside administration control, as there had been so many concealed prisons in the east of the country to which access had been denied. More visits and bodies working in the east should help to improve the situation. There was no impunity, and the former President of the Military Courts, who had been charged with murder, was currently in prison and waiting for the results of his appeal against condemnation, and there therefore was progress.
Torture, the delegation said, was not an autonomous act in the Democratic Republic of the Congo, it was an accompanying act. The decree on amnesty made an exception with regards to crimes against humanity. The Democratic Republic of the Congo had ratified the Rome Statutes, and ipso facto it was part of the national jurisdiction, and the authors of acts of torture would be subject to proceedings against them. However, for the time being, the Code had envisaged sanctions for such acts. If the accused were members of the military, then they had to be treated in the military courts. However, torture was not considered an autonomous felony. The Draft Bill was before Parliament, and it was as yet unclear whether it would decide whether to perpetuate this perception. On sanctions for rape, Ms. Kalala said the Government was combating the impunity of sexual violence, and the war had led to many such cases, as sexual violence and rape were used as a method of warfare, and as armed groups still existed, rape still continued on the territory of the Democratic Republic of the Congo. The Government did what it could to repress this. The new Draft Constitution would contain a particular provision on sexual violence and would sanction it clearly. The political will was clear to not tolerate this form of behaviour.
The Democratic Republic of the Congo had had to establish priorities, Ms. Kalala said, and due to budgetary constraints, it had not always been able to implement the recommendations of the treaty bodies. There was a whole series of legislation which remained to be examined by Parliament in order to respond to the expectations of the country, and it was hoped that these would be passed soon in order to improve the situation of human rights in the country, including the rights of children and women.
GUIBRIL CAMARA, Committee Expert serving as Rapporteur for the report of the Democratic Republic of the Congo, said he thanked the delegation for its frank response. What had been said was very interesting, particularly as Ms. Kalala came from civil society, and Mr. Camara admired that very much, saying it was good to see a member of civil society in such a post, expressing his admiration and esteem, encouraging Ms. Kalala to be true to herself. In final conclusions, there would be reference to military justice. The Committee, with the experience it had accumulated, was somewhat hesitant about the role of military justice in some instances. The competence of military justice needed to be restricted to purely military violations, and not to military staff who had committed common-law offences nor to civilians, irrespective of the nature of the facts or charges. The Committee was aware of the conditions surrounding the visit, and that it had been very difficult for the delegation.
Other Committee members then made other brief comments, saying, among other things, that the answers had been very frank and full, and corroborating Mr. Camara's comments on military justice.
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