AFRICA - House Foreign Affairs Committee Democrats

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On August 29, outside Bunia, UPC members took hostage government Minister
of Human Rights Ntumba Luaba, his assistant, and a local journalist accompanying
them. The UPC demanded the release of nine UPC members detained in Kinshasa
in exchange for the release of the Minister and his companions. On September 1,
the Government flew the 9 UPC members to Bunia; the UPC subsequently released
the Minister and his companions.
e. Denial of Fair Public Trial.—In government-controlled territory, the law provides
for an independent judiciary; however, in practice the judiciary frequently was
influenced by the executive branch. The judiciary continued to be ineffective and
corrupt; however, on April 20, President Kabila issued an executive order replacing
several hundred judges. Although the Government did not cite officially corruption
in the reasons for the shuffle, several judges known to be corrupt were removed.
In July a system of commercial courts, established to reduce judicial corruption, became
operational. On October 12, the Government established the Permanent Commission
for Reform of Congolese Law (CPRDC), a technical body under the Justice
Ministry mandated to review and propose reform of the law and judicial system.
The civil judiciary, including lower courts, appellate courts, the Supreme Court, and
the Court of State Security, continued to be largely dysfunctional.
Civil and criminal codes were 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 often did not
respect these rights in practice. Defendants had 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, except those cases adjudicated
by the special military tribunals, whose jurisdiction is 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.
In practice the Government often did not respect fully these provisions. Corruption
remained pervasive, particularly among magistrates, who were paid very poorly and
only intermittently. The system remained hobbled by major shortages of personnel,
supplies, and infrastructure.
Military courts, which were headed by a military judge and followed the military
code inherited from Belgium, tried military and civilian defendants as directed by
the Government. Military courts tried most high-profile cases with charges related
to state security during the year; the Government claimed that its frequent use of
military courts rather than civilian courts was a result of the ongoing war. The
courts were required to file charges within 48 hours of the arrest; however, long
delays often occurred. The military courts, which were located in all military installations
and in most urban areas, had no appeal process. The Government permitted,
and in some cases provided, legal counsel; however, lawyers sometimes were not
granted free or unmonitored access to defendants. Sentencing guidelines also were
inherited from Belgian military law; however, in practice military courts had broad
discretion to go outside of those sentencing guidelines. In many cases, trials were
open to the public at the discretion of the military judge. In previous years, death
sentences or forced labor were typical punishments; however, no death sentences
were issued during the year.
On September 26, the Government lifted the moratorium on the death penalty.
The official reason given was that criminal activity had risen since the pronouncement
of the moratorium; however, it was believed widely that the moratorium was
lifted in anticipation of the sentencing of the suspects in the assassination of former
President Laurent Kabila.
On March 12, the Government filed charges against Eddy Kapend, FAC General
Yav Nawej, and approximately 130 other persons in connection with the January
2001 assassination of Laurent Kabila, the executions of 11 Lebanese and other persons
following the assassination, and the 2000 coup plot led by Anselme Masasu.
The trial of these suspects opened officially on March 15, but proceedings were postponed
until April 3 to provide sufficient time for defense lawyers to prepare their
cases, since they had not been granted access to defendants until March 12. According
to international observers, the trial, which was conducted by a military tribunal,
followed the correct procedures prescribed by the country’s military and civil code;
however, there were some irregularities, and prosecutors and judges remained subject
to executive influence. The beginning and the end of the trial were public and
open to the press; however, the trial was closed to the public between April 22 and
September 19 for reasons of state security, a decision strongly criticized by NGOs
as hampering transparency.
There were no further developments in the September 2001 case in which civilians
and ex-FAZ soldiers were convicted of coup plotting by a military tribunal in
Likasi. None of the death sentences had been carried out by year’s end.
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