AFRICA - House Foreign Affairs Committee Democrats

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Government soldiers captured by antigovernment forces reportedly were held by
the RCD/Goma or MLC, which reportedly did not permit the ICRC to visit them.
The law prohibits forced exile, and the Government did not use it in practice;
however, the Government did release approximately 3,000 Congolese Tutsis from
detention on the condition that they leave the country through internationally sponsored
relocation programs. These Tutsis freely chose to leave the country rather
than remain in government detention; however, another 300 Congolese Tutsis,
Rwandans, Burundians, and Ugandans remained in the country due to difficulties
in arranging their repatriation to neighboring countries, particularly Uganda and
Burundi. These persons chose to remain under government protection rather than
face possible reprisals abroad.
e. Denial of Fair Public Trial.—The Transitional Act of the Mobutu regime and
Kabila’s Decree Law No. 3 provide for the independence of the judiciary; however,
in practice the judiciary was not independent of the executive branch, which manipulated
it during the year. The Kabila administration continued to refuse to establish
mechanisms to ensure the independence of the judiciary; a judicial reform decree,
reportedly awaiting presidential approval since 1997, still had not been promulgated.
The judiciary also was ineffective and suffered from corruption. For example,
on October 18 and 19, national police arrested military court officials Mwakobila
Itonge, Ambroise Kusa, and Ndaba allegedly for possessing information regarding
government abuses (see Section 1.d.). All three were released on October 25.
The civil judiciary, including lower courts, appellate courts, the Supreme Court,
and the Court of State Security, largely was dysfunctional; during the year, military
tribunals that have been organized since August 1997 tried nearly all cases and sentenced
civilians as well as military personnel to death after summary trials. Defendants
before these tribunals had no automatic right to appeal to a higher court, and
many apparently lacked counsel.
Death sentences and executions resulting from summary military trials became
increasingly frequent as the year progressed. Approximately 200 individuals have
been executed by military courts as of year’s end, including at least several dozen
soldiers executed during the year in relation to a coup plot against the President
(see Sections 1.a., 1.b., and 1.d.); however, during the year, no civilians were known
to have been executed following a death sentence handed down by the military
court. Government military tribunals repeatedly sentenced civilians to death for
nonviolent offenses, including mismanagement of public funds and violations of government
restrictions on private economic activity, such as private distribution of
state-monopolized and state-rationed gasoline. During her visit to the country in October,
Kabila assured U.N. High Commissioner for Human Rights Mary Robinson
that the military no longer would try civilian cases; however, similar promises have
been made previously. Military tribunals also convicted and ordered the execution
of military persons charged with armed robbery, murder, inciting mutiny, espionage,
and looting while in a state of mutiny. Persons convicted by military tribunals sometimes
were executed publicly in ceremonies held in stadiums and presided over by
senior government officials, such as provincial governors; however, it was unknown
whether any public executions occurred during the year.
Civil and criminal codes are based on Belgian and customary law. The legal code
provides for the right to a speedy public trial, the presumption of innocence, and
legal counsel at all stages of proceedings; however, the Government did not respect
these rights in practice. Defendants have the right to appeal in all cases except
those involving national security, armed robbery, and smuggling, all of which are
adjudicated in theory by the Court of State Security, and except those cases adjudicated
by the special military tribunals, whose jurisdiction appears ill defined. The
law provides for court-appointed counsel at state expense in capital cases, in all proceedings
before the Supreme Court, and in other cases when requested by the court.
The Kabila administration still had not stated a position on providing counsel by
year’s end, and had provided it only at its discretion.
Corruption remained pervasive, particularly among magistrates, who were paid
very poorly and only intermittently, and who also were trained poorly. The system
remained hobbled by major shortages of personnel, supplies, and infrastructure.
On January 15, security agents arrested Oscar Mudiayi Wa Mudiayi and Bernard
Tshishimbi, both former employees of the Petroleum Ministry, and brought them before
a military court for allegedly selling petroleum illegally. They were detained in
Makala prison, where they remained until March 10.
On January 28, eight soldiers were executed after a military court found them
guilty of attempting to incite a mutiny in a battalion attached to the Special Rapid
Intervention Brigade.
On February 2, nine soldiers were executed, including four from the Presidential
Guard, on accusations of murder and armed robbery.
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