Congolese civil society alarmed by the lifting of the moratorium on the death penalty

Civil society actors and international human rights organisations working in the Democratic Republic of Congo are very concerned by the decision of the government of Félix Antoine Tshisekedi Tshilombo to lift the moratorium on the execution of the death penalty, communicated by circular note No 002 of 13 March 2024.

The circular note signed by Minister of State Rose Mutombo Kiese, Minister of Justice and Keeper of the Seals, justifies the decision “with a view to ridding the DRC army of traitors on the one hand and curbing the resurgence of acts of urban terrorism resulting in the death of men on the other”.

The signatory organisations deplore this decision, which violates the constitutional principle of the sanctity of human life and constitutes a major step backwards in terms of respect for human rights and democracy.

The death penalty has never been abolished in the Democratic Republic of Congo, although there has been a moratorium on its execution since 2003. During this period, it continued to be handed down by Congolese courts, but was replaced by life sentences.

The use of the death penalty constitutes a violation of human rights, in particular the right to life and the right never to be subjected to torture or cruel, inhuman or degrading treatment or punishment.

The Congolese state recognises in its 2006 constitution and through its signature of the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights that the right not to be subjected to cruel, inhuman or degrading treatment is an inviolable right that should not be infringed under any circumstances.

With this circular, the government is attacking the right not to be subjected to cruel, inhuman or degrading treatment, which capital punishment represents.

This decision irrevocably raises civil society’s concern about the government’s use of opportunistic and inappropriate political measures to respond to serious security problems that require other types of responses. Moreover, there is no empirical evidence that shows that the death penalty is effective in curbing violence, contrary to the arguments put forward by the Congolese authorities.

In addition to questions about the domestic and international legality of the measure, its implementation raises a number of issues, the most worrying of which are :

  • The capacity of the Congolese judicial system to guarantee compliance with fair trial criteria, regarding to :
    – its fragility and major malfunctions ;
    – high risk of miscarriages of justice ;
    – the possible use of the death penalty to settle scores.
  • The terms used in the circular pave the way for death sentences for a wide range of crimes and offences.
  • It questions the Congolese state’s ability to remain a credible interlocutor in terms of international judicial cooperation, at a time when the country wants to embark on an inclusive transitional justice process to consolidate peace and fight impunity for actors inside and outside the DRC who are responsible for serious human rights violations.

The signatory organisations reiterate that capital punishment is not an appropriate response to the challenges facing the DRC; on the contrary, it consolidates the institutionalised use of violence as a response to societal problems and the structural causes of conflict in the DRC, thereby fuelling cycles of violence in the country.

The signatory organisations recommend that the government take appropriate structural measures to foster loyalty within its security forces and to combat urban crime effectively. The signatory organisations urge the government to revoke the lifting of the moratorium and to continue its efforts to abolish the death penalty from the legal system once and for all, as the moratorium should only be a provisional step in this direction.

ExPEERience Talk #14 – Protecting Indigenous Rights to Land and Natural Resources: perspectives on the carbon market in Kenya

  • When? April 18, 2024 – (New York) / (Tunis,Kinshasa) / (Brussels) / (Nairobi, Kampala)
  • Language: English
  • Online event – Mandatory registration

This Justice ExPEERience Talk aims to provide an overview of rights of indigenous communities to physcical and economical access to land and other natural resources, focusing specifically on their intersection with carbon markets land use in Kenya. This is prompted by recent events such as the eviction of the Ogiek people from the Mau Forest in November 2023.

Moderated by Jim India from ASF’s East Africa office.

Indigenous communities in Africa, notably the Ogoni (Nigeria), Endorois (Kenya), and Ogiek (Kenya), have long faced challenges regarding their rights to land and natural resources. The eviction of the Ogiek people from the Mau Forest serves as a significant example of the ongoing struggles indigenous communities face, especially concerning natural conservation projects and the emergence of carbon markets. The intentions of Kenyan authorities to negotiate carbon deals in protected areas further highlight the connection between indigenous rights and carbon markets.

In 2017 the Ogiek won a landmark case against the government efforts to evict them from their ancestral land in the Mau Forest. The African Court of Human and People’s Rights ruled they were entitled to live on the land, and the government had violated their rights by evicting them. In 2022 the court ordered the Kenyan government to pay reparations to the community for the suffering caused by forced evictions. It also ordered the government to consult the Ogiek in respect of any projects on its land.

But despite those victories in court, the Kenyan government has launched a new eviction campaign in November 2023 leaving hundreds without a home and nowhere to go.

  • Provide an overview of the Kenyan context, particularly regarding the protection of indigenous communities’ rights and environmental justice, analyzing recent events such as the eviction of the Ogiek people from the Mau Forest.
  • Examine the impacts of carbon markets in Kenya, but potentially also elsewhere in East Africa, and the interrelation between state responsibility and companies
  • Identify opportunities for the protection and promotion of indigenous rights within carbon  market initiatives in the region.

This talk aims to shed light on the complex relationship between carbon markets and indigenous rights in Kenya, with possible lessons to be learned for other countries in the region, and beyond. By incorporating perspectives from academic researchers and representatives of indigenous communities, the event seeks to contribute to ongoing discussions on environmental justice and human rights in the context of climate change mitigation efforts, which is also increasingly central to ASF’s work on business and human rights.

Improving Access to Remedy for Tanzania’s Extractives Sector

As the extractive sector in Tanzania continues to grow, due to the demand for critical minerals in the energy transition, and as the construction of the East African Crude Oil Pipeline (EACOP) is starting, access to remedy for aggrieved individuals and communities should be key priority for the Tanzanian government and private companies.

The research that led to this report was undertaken in four mineral-rich regions in Tanzania: Mara, Shinyanga, Tanga and Manyara. It focused on three extractive projects, namely Barrick North Mara Gold Mine, Williamson Diamond Mine and EACOP. Despite these projects’ potential benefit for the socioeconomic development of the country, they have been linked to numerous human rights violations, including forced evictions, environmental degradation and violence towards communities, in particular women.

The report provides an overview of how state-based judicial mechanisms (courts), state-based non-judicial mechanisms (state institutions with a human rights mandate) and non-state-based mechanisms (company grievance mechanisms) function. The study then explores the levels of awareness of communities and legal aid providers (LAPs), as well as the barriers they face when attempting to access these different mechanisms.

The study findings show that community members and LAPs often struggled to access courts, due to the lack of financial means or access to a lawyer, even if they have sufficient knowledge on the role of the judiciary. There is, on the contrary, a general lack of awareness among communities and LAPs about most state-based non-judicial mechanisms: they are unaware how these bodies function, how to access them and what kind of remedies they can provide. Affected persons primarily turn to local government authorities before any other mechanism, given the easier access.

The research also analyzed operational grievance mechanisms (OGMs), directly managed by the companies. The research found that companies had not sufficiently engaged with local communities to raise awareness on the existence of these OGMs and had failed to sufficiently consult or involve local legal aid providers in the design of the OGM, which would have contributed to increasing the engagement with these mechanisms.

Based on the conclusions of the research, ASF recommends to all remedy actors to improve awareness-raising about their access and functioning, by putting in place effective and targeted outreach strategies. In order to improve the performance, effectiveness and accessibility of the various complaint systems, these bodies should create regular feedback mechanisms, which can improve the functioning of the remedy mechanisms. The government of Tanzania, in particular, should enhance access to state-based mechanisms and ensure compliance, by both state and non-state actors, with their decisions, to increase the credibility and the confidence of affected communities in the different remedy mechanisms.

Uganda – Knowledge, attitudes and practices on pre-trial detention

ASF just published a report that explores the level of knowledge, the attitudes and practices of key stakeholders towards pre-trial detention under the criminal justice system in Uganda. The survey was undertaken in four locations of Gulu, Arua, Lamwo and Kampala. A total of 405 community members, 96 police detainees, 54 prisoners, and 47 officials from Justice Law and Order sector (JLOS) institutions and legal aid service providers were interviewed, using both qualitative and quantitative methods. The report sheds light on the root causes of violations of procedural and constitutional rights. With this evidence base, the report provides recommendations for action and positive reforms in the area of pre-trial detention.

Uganda has an elaborate legal framework regulating pre-trial detention, which includes detailed provisions regarding procedural and constitutional rights. Compliance with these provisions,however, continues to be a challenge. Many persons going through the criminal justice system suffer violations of their human rights. These include arbitrary or illegal arrests, overstaying inpolice custody, the lack of access to police bond, or violations of the right to mandatory bail. The most vulnerable and indigent are those who suffer most from the lack of compliance with procedural and constitutional rights.

The report findings show that a key challenge which exacerbates the continued violation of rights during detention is the lack of knowledge by the public with regard to their pre-trial constitutional and procedural rights. Only half (50%) of respondents in the community were able to mention some of the rights of people arrested by police. Such rights as (1) the right to be produced in court within 48 hours after arrest, (2) the right to be released on mandatory bail, (3) the right to access a lawyer and (4) the legal provisions related to police bond are not known by a majority of the population (less than 50% of respondents had knowledge of those rights).

The prison inmates interviewed during the survey had slightly better levels of knowledge of their rights, which could be attributed to sensitization meetings held by prison wardens and NGOs.

The lack of knowledge of key procedural and constitutional safeguards, both within the community and in places of detention, is not a surprising finding. However, it re-confirms the importance of dissemination of these technical provisions in order for rights-holders to be empowered to demand respect for their rights.

Regarding attitudes and perceptions, findings show a lack of trust in some criminal justice institutions, in particular in the Uganda Police Force (UPF). Community respondents noted issues such as delays and inefficiency in the treatment of cases, as well as corruption.

Both police detainees and prison inmates reported low levels of trust in the police to handle cases, and mentioned experiences of being asked for bribes.

Such a high level of distrust in the police may impede access to justice and human rights, as communities who do not trust the police will be less likely to report cases or collaborate with the police, and detainees may feel less confident in advocating for the respect of their rights in their interaction with the police.

A consequence of the distrust of the police was also the finding that the majority (57%) of community members trusted local or cultural courts rather than the police to handle their cases, especially in rural areas such as Lamwo and Arua.

Finally, the study also sought to identify prevalent practices with regard to pre-trial detention and the administration of justice, in order to understand how realities may differ from the provisions of the law. Among community respondents, a particularly outstanding finding concerned the prevalence of mob justice, with about 89% of respondents acknowledging its existence in their community. At the level of police detention, a key finding identified from detainee surveys concerned the duration of detention, which averaged 5.3 days, far beyond the legal limit of 48 hours. Finally, an important issue was also raised with regard to legal aid: only 16% of police detainees and 30% of prison inmates had access to a lawyer.

Perspectives and challenges faced by duty bearers

In order to fully contextualize the above findings, the study also sought to gather the opinions of duty bearers on their role in protecting procedural and constitutional rights, and their attitudes and practices within the criminal justice system. Stakeholders from various institutions were interviewed, including the Uganda Police Force (UPF), the Judiciary, the Office of the Directorate of Public Prosecutions (ODPP), the Uganda Prisons Service (UPS), cultural and Local Council leaders, probation officers and the in-charge of a remand home.

Overall, the stakeholders interviewed demonstrated solid knowledge of their role in upholding constitutional and procedural rights and stressed the fact that the execution of their roles is interdependent within the criminal justice chain link (police, prison, judiciary, ODPP). Yet, they identified several systemic challenges which greatly impeded their ability to fulfil their duties. Beyond the expected human resource challenges and inadequate funding issues, stakeholders also discussed coordination gaps amongst JLOS institutions, or dysfunctional checks and balances within the criminal justice system.

Finally, interviews with advocates and paralegals highlighted key issues in legal aid service provision, including the lack of services in rural areas such as Lamwo, and funding gaps. Such findings highlight the pressing need for government to address access to legal aid as a matter of national policy.

Avocats Sans Frontières (ASF), in partnership with the Legal Aid Service Providers Network (LASPNET), implemented a three-year project (2020-2023) entitled “Protecting procedural and constitutional rights through access to justice” in the districts of Kampala, Arua, Gulu, Hoima, Lamwo, Kitgum, Wakiso and Masindi.

No to the introduction of “malicious undermining of State authority” in the Belgian Penal Code

Crédit photo : Justine Dofal
Photo credit: Justine Dofal

On 22 February, the Belgian federal parliament approved the adoption of a new criminal code. A necessary reform, but one in which certain provisions worry the actors of civil society, particularly the one provision concerning the introduction of an offence of malicious attack on the authority of the State. What lies behind this article is the possibility for the State and the magistrates to criminalise the use of a tool that is fundamental to the proper functioning of our democracies: civil disobedience.

This text is part of a growing trend, in Europe and elsewhere, towards the criminalisation of social movements and attacks on the right to demonstrate and freedom of expression.

This article of the penal code on ‘malicious undermining of the authority of the State’ could be used to attack social movements, and its broad definition leaves a lot of room for arbitrariness and the discretion of magistrates.

Such a situation would undermine the principles of legal certainty, legality, equality before the law and freedom of expression, which are essential in any democratic society.

Civil disobedience: a fundamental democratic tool

Civil disobedience is the act of publicly, consciously and non-violently breaking the law in order to denounce and call for the reform of a law or public policy that infringes people’s fundamental rights.

It does not call into question the rule of law, but targets specific legislation or policies. Its aim is to put certain issues back at the heart of public debate, thereby nourishing the democratic life of a state.

Not only is it compatible with democracy, it is essential to its proper functioning, particularly when legal and political avenues have been exhausted.

Combined with other legal means of action, it makes it possible to win battles for rights and justice.

Ituri: Impact of the state of siege on criminal justice

In May 2021, the Congolese state declared an exceptional state of siege in the province of Ituri in an attempt to put an end to more than three decades of wars, insurrections and violent armed conflicts against a backdrop of political legitimacy crisis, identity crisis and regional competition over the exploitation of natural resources.

This combination of crises and armed conflicts has resulted in serious violations of the human rights of the population and a growing weakening of the authority of the State. Since the early 2000s, the country has engaged in political negotiations, diplomatic exchanges, military operations and the organisation of general elections in an attempt to put an end to the various armed conflicts, but has so far achieved little success.

This report takes stock of the implementation of measures relating to the state of siege and its deleterious impact on the rights of the population and on justice, with a particular focus on the province of Ituri. Under the state of siege, all cases handled by the civil courts were transferred to the military courts, which considerably slowed down judicial activity in the region. The military courts, which have very few staff, quickly found themselves overwhelmed by this influx of cases. In addition, the magistrates and judicial staff of the courts and tribunals do not have the necessary skills to deal with civil cases.

The courts and tribunals are also concentrated around major conurbations, which makes it difficult for people from rural areas to get to them, particularly in a region where any travel entails serious risks of insecurity.

The reflections presented in the report are the fruit of observations of the functioning of the state apparatus and the justice system, as well as practices in supporting victims of mass crimes and defendants deprived of their liberty, and of exchanges organised with all the institutional and civil society actors involved in people’s justice seeking journey. It analyses the contours of the execution of state of siege measures and the functioning of the judicial and security system, with a view to proposing a set of realistic recommendations to the authorities and other stakeholders.

ExPEERience #13: Rendering justice without courts? Experiences of community justice in Ituri

  • When? Thursday February 29 – 12pm (Bangui, Brussels, Kinshasa, Niamey, Rabat, Tunis) / 14h (Dodoma, Nairobi, Kampala)
  • Language: French
  • Online webinar – Registration required

At this ExPEErience Talk, Julien Moriceau and Janvier Digital Koko Kirusha from INANGA, and Johnny Lobho Lamula from ASF in the DRC, will present a study on community justice in Ituri, which will be published in the coming days.

The study is part of the National Justice Reform Policy (PNJR) 2017-2026 and the Support Programme for Justice Reform Phase II (PARJ II) managed by the consortium formed by Avocats Sans Frontières, RCN Justice & Démocratie and TRIAL.

The aim of this study is to shed light on the operation of community justice in Ituri and on the links between all actors and stakeholders involved in dispute resolution processes at both community and state level.

In the DRC, the population still relies heavily on community justice to resolve their conflicts despite its ambiguous legal status. This is particularly the case in Ituri, a region marked by lasting conflicts who have contributed to major issues affecting the proper functioning and the activity of the courts and the various state justice mechanisms.

A wide variety of both community and state actors are involved in dispute resolution in Ituri. Each of them has distinct mechanisms with their own procedures. The courts and tribunals as well as the forces of law and order will justify their action by invoking legal procedures and written law while the actors at community level (customary chiefs, religious actors and cultural associations) will resort to sources such as custom, Congolese law or religious values to deal with disputes.

Litigants cite many reasons to explain why they tend to favour community mechanisms rather than civil justice. First of all: proximity. In the Ituri province, and as is often the case in the Democratic Republic of Congo, the courts and tribunals are concentrated in the main cities. People from rural areas therefore often have to travel long distances to access them. This impediment to access to civil courts is all the more significant in Ituri as the persistence of armed conflict makes long journeys particularly dangerous.

Secondly, recourse to community mechanisms is most often free of charge for the population, unlike state justice which, as well as being slow, is often very expensive. Finally, community actors are familiar with local customs, are close to the people, speak their language and tend to find lasting solutions with an emphasis on restoring social peace.

Join us this Thursday 29 February to discuss further the issues raised by the coexistence of this multiplicity of actors active in the resolution of disputes in Ituri.

ExPEERience Talk #12 – Pre-trial detention in Uganda: Learnings from a study on knowledge, attitudes and practices

  • When? Thursday February, 15 2024 – 12pm (Bangui, Brussels, Kinshasa, Niamey, Rabat, Tunis) / 2pm (Dodoma, Nairobi, Kampala)
  • Langage: English
  • Free online event – Registration required

During this ExPEERience Talk #12, ASF’s team in Uganda will present the resutlts of a soon-to-be-published report on knowledge, attitudes and practices about pre-trial detention in Uganda.

Uganda has an elaborate legal framework regulating pre-trial detention, which includes detailed provisions regarding procedural and constitutional rights. Compliance with these provisions, however, continues to be a challenge: many persons going through the criminal justice system suffer violations of their human rights. These include arbitrary or illegal arrests, overstaying in police custody, the lack of access to police bond, or violations of the right to mandatory bail. The most vulnerable and indigent are those who suffer most from the lack of compliance with procedural and constitutional rights.

The report explores the knowledge, attitudes and practices of users of the criminal justice system, namely communities and pre-trial detainees, along with the perspectives of duty bearers, thereby shedding light on the root causes of violations of procedural and constitutional rights. With this evidence base, the report provides recommendations for action and positive reforms in the area of pre-trial detention.

Join us on February 15 to discuss how we can work together to improve the respect of fundamental rights in detention.

Related publications

Report – Protecting constitutional and procedural rights of pre-trial detainees through access to justice in Uganda

Bail in Uganda: A right or a privilege?

Defending the defence: The lawyer faced with the peril of repression

This article is based on the intervention of Bruno Langhendries, head of strategic support at ASF, during the 2023 International Conference of the Bars.

Legal proceedings, harassment, intimidation, deprivation of liberty, and sometimes direct physical harm. Throughtout the world, lawyers working on behalf of human rights, civil society or vulnerable groups are threatened and attacked simply for doing their job.

This is the reality that we and our partners have to face wherever we operate. Our teams report repeated and increasing attacks on lawyers, and more generally on human rights defenders, in a global context of erosion the rule of law, narrowing of civic space and hypertrophy of executive power to the detriment of the legislative and judicial systems.

The perils faced by lawyers as the rule of law crumbles

In the contexts in which ASF works, lawyers face multiple threats:

  • Harassment, threats and intimidation, and in rarer cases, direct attacks on physical integrity. They come from representatives of the authorities or actors who claim to come from civil society but who are often very close to those in power.
  • Prosecution or deprivation of liberty:
    o In the exercise of their profession. Repressive legislation is invoked or the immunity that lawyers are supposed to enjoy is lifted. Defamation, slander or apology for terrorism are then the preferred grounds for prosecution.
    o In their private lives. Lawyers are prosecuted for acts unrelated to their profession.

These repressive tactics are used by authorities when they feel their interests are threatened.

Lawyers find themselves the target of these attacks most often when they :

  • Defend members of civil society, political opponents and people in vulnerable situations, who are often already victims of state repression.
  • Denounce repressive and arbitrary practices of state agents.
  • Denounce reforms that threaten the rule of law.

The aim of the authorities is to prevent the defence from playing its role in supporting civil society and to discourage and isolate those who dare to question their practices.

AS’s teams have witnessed many examples of this dangerous trend.

In Tunisia, Maître Ayachi Hammani was prosecuted for criticising the Minister of Justice after the arbitrary dismissal of more than fifty judges.

Still in Tunisia, Maître Hayet Jazzar and Maître Ayoub Ghedamsi were prosecuted after pleading on behalf of a victim of torture committed by police officers.

In 2022; in the Central African Republic, Maître Manguareka was harassed after defending the interests of an opponent of the regime in court. In the country, all lawyers and their bar associations are branded enemies of peace by groups close to the government.

In Uganda, Nicholas Opiyo, a human rights lawyer, was arrested along with other lawyers and held in detention for several weeks. Initially arrested without charge, he was later prosecuted for money laundering.

In Burundi, 5 members of partner associations were arrested and imprisoned for four months, mainly because they were working with Avocats Sans Frontières.

Unfortunately, there are many more examples we could mention.

It is important to point out that all these cases are different and take place in specific contexts.

However, in all these countries, the intensification of repression against lawyers, and more broadly against human rights defenders, goes hand in hand with the shrinking of civic space that we observe everywhere we work.

What we think is important to note is that :

  • On the one hand, this persecution of lawyers is acompanied by increased repression of other voice-bearers, of human rights defenders, whether they are acting in a professional capacity or as citizens.
  • This narrowing of civic space is the corollary of the rise of populism and continued attacks to the principles of the rule of law.

This narrowing of civic space will most often be used to favor the executive power to the detriment of legislative and judicial powers. This slide towards more authoritarian regimes is often accelerated by the use of states of emergency or states of siege. The supposedly temporary freedom restricing measures are held over the long term and sometimes made into common law. This transition towards more authoritarian regimes can also occur in a more brutal way during coups d’état, as was the case recently in Tunisia or in the Sahel.

In the countries in which ASF operates, the organisation implements programmes to defend human rights in partnership with civil society and the lawyer bars.

ASF, in collaboration with its local partners, mobilises the following approaches to support lawyers and human rights defenders:

  • The development of collectives of lawyers and human rights defenders so that they can assert their rights collectively and react quickly in the event of a threat.
  • Defending lawyers in the event of prosecution or deprivation of liberty. In the event of prosecution or deprivation of liberty, ASF supports the defence of lawyers, in particular by mobilising international actors and urging them to act.
  • Monitoring human rights violations and threats to civic space and human rights defenders, including lawyers. Based on this monitoring, ASF develops advocacy strategies in favour of civil liberties and the defence of human rights defenders and lawyers.

Justice ExPEERience, the human rights network launched by ASF, celebrates its second anniversary

Two years ago, Avocats Sans Frontières launched Justice ExPEERience, a network for the promotion of human rights, as well as an online platform of the same name to support and energise this network. This anniversary is an opportunity for us to look back at the history and mandate of the Justice ExPEERience network and its platform. A report on its first two years of activity has just been published, covering developments since its creation, its key projects and also its development prospects.

The network has expanded significantly since its launch in 2021. It now has more than 600 members working in 52 countries on 5 continents. The network wants to create more links between actors‧rice‧s in the sector promoting access to justice and human rights around the world. The aim is for them‧elle‧s to be able to share knowledge, build capacity and work on joint projects to have more impact.

The Justice ExPEERience platform has also been significantly improved. In 2022, it was equipped with a mobile application that can be downloaded to any smartphone. The platform’s interface has also been translated into Arabic, adding to the languages already available, including English and French. Developments are also underway to improve the fluidity, speed and user experience‧rice on the Justice ExPEERience platform.

Several communities of practice, coalitions and working groups have also emerged on Justice ExPEErience over the last two years. They have shared information and contributed to exchanges in public spaces, but have also been able to work and collaborate in confidential spaces to collectively develop advocacy campaigns, projects to monitor human rights violations, or strategic litigation.