30/32 Situation of human rights and the activities of the United Nations Joint Human Rights Office in the Democratic Republic of the Congo - Report of the United Nations High Commissioner for Human Rights

Human Rights Council Thirtieth session

Agenda items 2 and 10

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Technical assistance and capacity-building

Situation of human rights and the activities of the United Nations Joint Human Rights Office in the Democratic Republic of the Congo

Report of the United Nations High Commissioner for Human Rights

Summary

In its resolution 27/27, the Council invited the United Nations High Commissioner

for Human Rights to submit a report to it at its thirtieth session. The present report on the

situation of human rights and the activities of the United Nations Joint Human Rights

Office in the Democratic Republic of the Congo assesses the progress made by the

Government of the Democratic Republic of the Congo in implementing the

recommendations made by the Office of the United Nations High Commissioner for

Human Rights (OHCHR) and other United Nations human rights mechanisms. The report

covers the period from June 2014 to May 2015.

The High Commissioner commends the efforts made by the authorities to address

the recommendations, which have resulted in important developments, including the

establishment of the National Human Rights Commission and the implementation of the

action plan of the Armed Forces of the Democratic Republic of the Congo (Forces armées

de la République démocratique du Congo — FARDC) on fighting sexual violence. The

High Commissioner also notes progress in the fight against impunity, particularly with the

conclusion of several emblematic trials, including those of two former FARDC soldiers

who were on a list of five senior army officers who had allegedly committed serious

crimes. The list had been handed over to the President, Joseph Kabila, by a Security

Council delegation in May 2009.

Despite such efforts, the High Commissioner points out that the human rights

situation remains of great concern throughout the country. The United Nations Joint

Human Rights Office registered the highest number of human rights violations and abuses,

committed by elements of over 30 armed groups as well as by FARDC soldiers, in the east.

The reporting period was also marked by serious incidents that affected the protection of

civilians in the east of the country.

In the western provinces, particularly in Kinshasa, the deplorable shrinking of

democratic space resulted in serious violations of fundamental freedoms by security forces,

mainly targeting political opponents, human rights defenders and protesters. These

developments are particularly worrisome ahead of the upcoming electoral cycle.

The High Commissioner deeply regrets the October 2014 decision of the

Government to expel the Director of the United Nations Joint Human Rights Office

following the publication of the joint report by the United Nations Organization

Stabilization Mission in the Democratic Republic of the Congo and OHCHR on human

rights violations committed between 15 November 2013 and 15 February 2014, by agents

of the Congolese national police during Operation Likofi in Kinshasa. The High

Commissioner calls upon the Government to reinforce its collaboration with the Joint

Office.

The High Commissioner encourages the Government to implement all

recommendations made in the present report, and reiterates the engagement of his Office to

support the authorities’ efforts to protect and promote human rights.

Contents

Page

I. Introduction ...................................................................................................................................... 4

II. Main human rights developments .................................................................................................... 4

A. Fundamental freedoms and protection of human rights defenders, journalists

and political opponents ............................................................................................................ 5

B. Sexual violence ........................................................................................................................ 7

C. Extrajudicial killings and summary executions ....................................................................... 9

D. Torture and other cruel, inhuman or degrading treatment or punishment ................................ 11

E. Fight against impunity ............................................................................................................. 12

F. Protection of civilians .............................................................................................................. 14

III. Cooperation with United Nations human rights mechanisms and national mechanisms

to promote and protect human rights ............................................................................................... 16

A. Action to implement universal periodic review recommendations .......................................... 16

B. Update on national mechanisms for the protection and promotion of human rights ............... 17

IV. Conclusion and recommendations .................................................................................................... 17

A. Conclusion ............................................................................................................................... 17

B. Recommendations .................................................................................................................... 18

I. Introduction

1. Prepared pursuant to Human Rights Council resolution 27/27 on technical assistance

and capacity-building for human rights in the Democratic Republic of the Congo, the

present report provides an overview of the situation of human rights and the activities of the

Office of the United Nations High Commissioner for Human Rights (OHCHR) in the

country through the United Nations Joint Human Rights Office between June 2014 and

May 2015.

2. The report highlights major human rights developments and focuses on issues

relating to fundamental freedoms1 and protection of human rights defenders, journalists and

political opponents; sexual violence; extrajudicial killings and summary executions; torture

and other cruel, inhuman and degrading treatment; the fight against impunity; and

protection of civilians. In relation to these issues, the report assesses progress made by the

Government in implementing the recommendations of OHCHR and other United Nations

human rights mechanisms.

II. Main human rights developments

3. The Government made considerable efforts to advance the human rights situation

during the reporting period. In particular, the appointment of the members of the National

Human Rights Commission on 1 April 2015 is to be welcomed, as is the adoption, on

29 October 2014, of the action plan of the Armed Forces of the Democratic Republic of the

Congo (Forces armées de la République démocratique du Congo — FARDC) on fighting

sexual violence. Progress was also registered in the fight against impunity, notably with the

conclusion of several emblematic trials, including those of two former FARDC officers

who were on the list of five senior army officers handed over to the President, Joseph

Kabila, in May 2009 by a delegation of the Security Council. These senior officers were

accused of committing serious crimes, including rape and other forms of sexual violence.

4. The human rights situation remains, however, of serious concern throughout the

country. The conflict-stricken provinces of the eastern Democratic Republic of the Congo,

namely Orientale, North Kivu, South Kivu and North Katanga, continued to register the

highest number of human rights violations and abuses, perpetrated by elements of over

30 armed groups, as well as by FARDC soldiers in the context of military operations

against some of those groups. Reprisals for real or perceived collaboration of the population

with other armed groups or with security and defence forces, or grievances along ethnic

lines, were often motives for the attacks. If considered separately among other actors,

FARDC elements have been the main perpetrators of human rights violations for most of

the reporting period, with the Congolese national police overtaking them for the months of

January, February and March 2015.

5. Increasing restrictions on the political space and violations of the rights to freedom

of expression, association and peaceful assembly were mainly registered in the western

provinces, particularly in Kinshasa. Agents of the Congolese national police and FARDC

soldiers (including the Republican Guard) have used excessive force and lethal weapons to

restrict those rights and freedoms during demonstrations and political rallies. The arbitrary

arrest and detention, sometimes incommunicado, of demonstrators also raised due process

concerns.

1 Mainly the rights to freedom of expression, association and peaceful assembly.

6. The Government’s expulsion in October 2014 of the Director of the United Nations

Joint Human Rights Office following the publication of a joint report by the United Nations

Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO)

and OHCHR on human rights violations committed by agents of the Congolese national

police during Operation Likofi was an alarming development and the High Commissioner

urged the Government to investigate continuing acts of intimidation and threats against

United Nations human rights staff, and hold those responsible accountable. As the country

moves towards an electoral cycle, there are serious concerns about further restrictions to

political space and increased human rights violations targeting individuals critical of the

Government.

A. Fundamental freedoms and protection of human rights defenders,

journalists and political opponents

7. The Human Rights Committee recommended that the Government guarantee

freedom of speech and of the press and other media, and ensure that any restriction on press

and media activities be strictly compatible with article 19 (3) of the International Covenant

on Civil and Political Rights (see CCPR/C/COD/CO/3, para. 22). During the universal

periodic review of the Democratic Republic of the Congo in 2009, it was recommended that

the Government develop a legal framework to protect and ensure the security of journalists,

human rights defenders, members of civil society and the political opposition (see

A/HRC/13/8, para. 96 (22–26)).

1. Current situation and action taken by the Government

8. During the reporting period, the Government was responsible for a high number of

violations of the rights to freedom of expression, association and peaceful assembly.

Moreover, there were numerous cases of excessive use of force by security forces that

resulted in extrajudicial killings and other human rights violations mainly targeting political

opponents, human rights defenders and media workers particularly during demonstrations.

In early 2015, political opponents were targeted by security and defence forces, and several

demonstrations were violently repressed, including through lethal force.

9. On 17 January 2015, the lower house of Parliament approved a law containing a

controversial provision, making the holding of the 2016 presidential and legislative

elections conditional upon the conduct of a national census. Many civil society actors

interpreted that as an attempt to delay the elections and thereby to allow President Kabila to

prolong his tenure. That led to widespread discontent, with large demonstrations organized

by members of the opposition and civil society activists around the country in the first

quarter of 2015.

10. On 19 January 2015, the Government deployed riot police and FARDC soldiers,

including the Republican Guard, to respond to the protests, mainly in Kinshasa and Goma.

Disproportionate force was used by national security forces against unarmed civilians.

According to information gathered by United Nations Joint Human Rights Office, from

19 to 23 January 2015, at least 20 persons were killed and 75 injured by the police and the

Republican Guard.

11. In the context of the demonstrations, over 500 individuals were arrested across the

country. Several leaders of the opposition were locked up by the police in their

headquarters on 20 January 2015 in Kinshasa, so that they were unable to join the

demonstrations. On 21 January, in Lubumbashi, Katanga Province, the police reportedly

arrested 13 members of the opposition party, Union pour la démocratie et le progrès social,

at the party’s local headquarters.

12. On 15 March 2015, around 30 civil society activists, including three nationals of

Senegal, one of Burkina Faso, four of France and one of the United States of America, were

reportedly arrested in Kinshasa by officers of the Congolese national police, the National

Intelligence Agency and the military police during a workshop to encourage the

participation of the youth in the democratic process in the Democratic Republic of the

Congo, organized by the civil society organization Filimbi. All were accused of attempting

to organize an insurrection in the country and detained on Agency premises in Kinshasa.

The foreign nationals were released, some were expelled from the country, and at least two

Congolese were still being detained at the time of drafting the present report. In Goma, four

civil society activists of the national non-governmental organization (NGO) Lutte pour le

changement were arrested, on 7 and 8 April, during a public gathering requesting the

release of their colleagues arrested in Kinshasa in the context of the workshop. They were

charged with instigation to disobey public authority and provisionally released on bail by

the Court of Appeal in Goma on 29 April.

13. While many demonstrators were charged with looting, destruction of property and

insurrection, no State agent has so far been investigated or prosecuted for the extrajudicial

executions and other violations committed to control the demonstrations. This raises

questions as to the independence of the judiciary when dealing with cases against political

opponents and civil society actors.

14. On 20 January 2015, the Government blocked access to text messaging services, the

Internet and social media for several weeks to prevent the organization of further

demonstrations. Those services were re-established, respectively, on 7 and 8 February and

in early March. Some radio programmes and stations were also suspended during that

period. For instance, on 17 January, Canal Kin Télévision, which belongs to opposition

leader Jean-Pierre Bemba, and Radio Télé Catholique Elikya were suspended for having

allegedly broadcast inflammatory messages in connection with the draft electoral law. The

radio branch of Radio Télé Catholique Elikya was reopened a few days later but its

television service remains suspended. The signal of Radio France International was

suspended on 21 January.

2. Action taken by the United Nations Joint Human Rights Office

15. The United Nations Joint Human Rights Office followed closely the situation of

civil society activists and political opponents arrested in connection with demonstrations

and meetings in Kinshasa and Goma. For instance, it followed the case of Christopher

Mutanda Ngoy, President of the NGO Synergies for Congo and Human Rights and an

active member of the Save the Congo campaign, who was arrested on 21 January 2015 in

Kinshasa and held incommunicado in the facilities of the National Intelligence Agency for

three weeks before being brought before a judicial official on 10 February. At the time of

writing the present report, he was being held in pretrial detention at Makala prison, in

Kinshasa, facing 10 criminal charges. The Joint Office also followed the case of Fred

Bahuma, the leader of Lutte pour le changement, who was arrested by agents of the

Congolese national police and the National Intelligence Agency on 15 March, in Kinshasa,

during the workshop organized by Filimbi.

16. Among political opponents, the provincial President of the opposition party

Rassemblement congolais pour la démocratie/Mouvement de libération de Kisangani,

Ernest Kyaviro, was arrested on 22 January 2015 in Goma and transferred to National

Intelligence Agency facilities in Kinshasa on 23 January. He was transferred to Makala

central prison in Kinshasa on 20 April, after almost three months in detention, with limited

access to external visitors.

17. The United Nations Joint Human Rights Office also provided legal support and

targeted multifaceted protection assistance to human rights defenders, journalists and

victims and witnesses of serious human rights violations who faced risks of reprisals for

testifying in trials, as well as to human rights defenders and journalists who received threats

owing to their work. It thus dealt with 138 cases of threats and human rights violations

against 86 human rights defenders, 16 journalists and 36 victims and witnesses of human

rights violations throughout the country.

18. Despite extensive advocacy by representatives of NGOs and human rights defenders

in recent years, no significant progress has been made towards the adoption of the bill on

the protection of human rights defenders. On 1 November 2013, with the support of the

United Nations Joint Human Rights Office, human rights organizations, parliamentarians

and representatives of the Ministry of Justice and Human Rights held a technical workshop,

during which participants agreed to changes in the draft legislation. However, the draft was

not submitted to the National Assembly because parliamentarians argued that some of their

peers would consider that it would only grant protection to human rights defenders as a

specific category of people. Consequently, members of civil society have commissioned a

study on the constitutionality of the draft legislation with a view to persuading

parliamentarians to adopt it. The conclusions of the study were presented to the Platform of

Human Rights Defenders on 27 March 2015 and to a larger group of human rights activists

and partners on 17 April in Kinshasa.

B. Sexual violence

19. For many years, successive High Commissioners for Human Rights and

international human rights mechanisms have urged the Government to take more effective

measures to combat impunity for sexual violence. During the universal periodic review of

the Democratic Republic of the Congo in 2014, it was recommended that the Government

improve the implementation of national legislation on sexual violence and ensure that

perpetrators are brought to justice (see A/HRC/27/5, paras. 134.60 and 134.85). The

Committee on the Elimination of Discrimination against Women recommended that the

Government ensure access to justice for all women affected by sexual violence during

conflict by providing appropriate funding to military jurisdictions. It also recommended

that the Government ensure that the justice system be responsive to gender-based violence,

including by increasing the number of women judges dealing with cases of sexual violence

in conflict-affected areas and of judges and prosecutors specialized in sexual violence (see

CEDAW/C/COD/CO/6–7, para. 10 (c)). Other recommendations have been made to

improve victims’ access to comprehensive medical treatment and psychological support

(ibid., para. 10 (f)).

1. Current situation and action taken by the Government

20. Sexual violence remains a major concern in the Democratic Republic of the Congo,

as parties to the conflict continue to use rape as a weapon of war. During the reporting

period, the United Nations Joint Human Rights Office documented 550 cases of rape

throughout the country. Approximately 81 per cent of them (448 victims) were raped in the

eastern provinces of North Kivu, South Kivu and Orientale. Over 44 per cent (243 victims)

were allegedly raped by State agents, including members of FARDC (165 victims), the

Congolese national police (72 victims), the National Intelligence Agency (2 victims) and

other State actors (4 victims). Armed groups were responsible for raping approximately

56 per cent (307 victims) of the total. Among the armed groups, the main perpetrators were

Mai Mai Simba/Lumumba members, who had been identified as responsible for the rape of

80 victims.

21. Survivors of sexual violence still do not have access to legal services, reparation and

remedy. There are no life-saving health and psychosocial services, such as fistula surgery,

access to antiretroviral drugs and safe abortion services, particularly in conflict-affected

areas where State authorities are absent or weak, and the infrastructure is insufficient or

inadequate. Holistic support (legal, medical and psychosocial) can only be found in and

around urban areas, where they are far from adequate or sufficient. In isolated areas where

the justice system is absent or weak, practices such as amicable arrangements are frequently

resorted to, whereby the victim’s family agrees with the perpetrator’s relatives to a financial

settlement or other transactions (including marriage), in order to “close” the case.

22. Nevertheless, during the reporting period, there were landmark advances to combat

conflict-related sexual violence. Military tribunals convicted 30 individuals, including

20 FARDC members, 9 Congolese national police elements and 1 member of an armed

group (a combatant from the Forces démocratiques de libération du Rwanda) for sexual

violence.2 The trials of General Jérôme Kakwavu and Lieutenant Colonel Bedi Mobuli

Engangela, alias “Colonel 106”, took place on 7 November and 15 December 2015,

respectively. Those two individuals were on a list of five senior FARDC officers accused of

rape, among other crimes, which a Security Council delegation provided to President

Kabila in May 2009.3

23. On 14 July 2014, President Kabila appointed a Presidential Adviser on Sexual

Violence and the Recruitment and Use of Children, Jeanine Mabunda, to accelerate

national action on the issue and engage with the international community. Ms. Mabunda

has undertaken field missions all over the country to familiarize herself with the situation

of victims of sexual violence and observe mobile court hearings (supported by the United

Nations Joint Human Rights Office) in Kiwanja, Rutshuru and Matadi. Victims highlighted

to her the hindrances they faced in seizing justice and requested measures to facilitate such

a process. In December 2014 Ms. Mabunda launched a toll-free number that victims,

witnesses and families can call to denounce sexual violence and request assistance. At the

time of drafting the present report, 432 calls had been made using the toll-free number and

50,000 awareness text messages had been sent to the population.

24. On 28 August 2014, the Government, together with the MONUSCO Sexual

Violence in Conflict Unit, the United Nations Joint Human Rights Office and the Office of

the Special Representative of the Secretary-General on Sexual Violence in Conflict,

launched the FARDC action plan against sexual violence. FARDC was directly involved in

drafting a plan for addressing sexual violence committed by FARDC members. The plan

included the creation of a specialized commission and the definition of five priority

activities: prevention, repression, protection, communication, monitoring and evaluation. A

commission was created on 29 October 2014 by a decree of the Vice-Prime Minister in

charge of national defence and former combatants. It includes representatives of

MONUSCO and the United Nations Entity for Gender Equality and the Empowerment of

Women. During her mission to the Democratic Republic of the Congo from 29 to 31 March

2015, the Special Representative of the Secretary-General attended the official ceremony

establishing the commission, during which 10 FARDC unit commanders signed a

declaration reiterating their commitment to eradicating sexual violence.

25. In September 2014, reparations were paid to 30 victims who had been raped in

Songo Mboyo and Equateur Provinces in 2003. The payment of individual financial

compensation to survivors was unprecedented and marked a breakthrough in the

administration of justice. This case points, however, to the length of time the execution of

2 These figures are from June 2014–January 2015.

3 The other three officers were Colonel J. C. Mosala (on the run), Colonel Safari Kizungu (acquitted on

21 October 2011) and Lieutenant Colonel Papy Lungu Mobambo, alias “Pitchen” (deceased in

Mitwaba, Katanga Province in 2012).

an award of reparations can take. The Presidential Adviser on Sexual Violence and the

Recruitment and Use of Children has indicated that clearing the backlog of reparations

awards and establishing a fund for this purpose are key priorities for her office.

2. Action taken by the United Nations Joint Human Rights Office

26. The United Nations Joint Human Rights Office remained occupied with building the

capacity of seven NGOs running legal clinics to improve victims’ access to justice.

Between June 2014 and May 2015, with the support of the Governments of Canada and the

United Kingdom of Great Britain and Northern Ireland, the Joint Office supported the work

of NGOs in establishing 12 legal clinics in the Provinces of North Kivu, South Kivu,

Katanga, Bas-Congo, Maniema and Kinshasa. These clinics provide free legal assistance to

victims of sexual violence and accompany them through the judicial process, starting with

the filing of complaints.

27. Over the reporting period, at least 400 victims of sexual violence received assistance

from the legal clinics, which resulted in 103 sentences being pronounced against the

perpetrators. The legal clinics also established referral mechanisms to holistic services for

survivors to help them receive the urgent medical, psychosocial and rehabilitation services

they need. During the reporting period, the United Nations Joint Human Rights Office

further provided financial and technical support to six mobile court hearings involving

cases of sexual violence — three trials in North Kivu, two in Bas-Congo and one in South

Kivu.4

28. Between April and May 2015, the United Nations Joint Human Rights Office

organized training for 39 medical doctors on forensic expertise on sexual violence and for

49 judicial police officers on handling sexual violence cases, in Kinshasa, Matadi, Kalemie

and Kindu. The Joint Office also contributed to the creation of five mini-libraries in

prosecutors’ offices5 for the special cells aimed at eradicating sexual and gender-based

violence.

29. The United Nations Joint Human Rights Office remained committed within the

framework of the Task Force on Children and Armed Conflict to matters pertaining to the

implementation of the action plan to stop and prevent underage recruitment, sexual violence

against children and other grave child rights violations that was signed by the Prime

Minister of the Democratic Republic of the Congo and the Special Representative of the

Secretary-General for the country and Head of MONUSCO on 4 October 2012.

C. Extrajudicial killings and summary executions

30. The Human Rights Committee recommended that the Government investigate,

prosecute and punish all acts of extrajudicial killings and summary executions, and grant

appropriate reparation to the families of victims (see CCPR/C/COD/CO/3, paras. 10 and

15). The Special Rapporteur on extrajudicial, summary or arbitrary executions also

recommended that the Government implement fully its “zero tolerance” policy and

investigate, arrest and prosecute FARDC members responsible for such killings (see

A/HRC/14/24/Add.3, para. 109).

4 The United Nations Joint Human Rights Office supported one trial in Kiwanja, Rutshuru territory,

North Kivu; two trials in Kitchanga, Masisi territory, North Kivu; one trial in Kasangulu, Bas-Congo;

and the trial of Colonel 106 in Bukavu, South Kivu.

5 In Kinshasa, Matadi, Kindu, Kalemie and Lubumbashi.

1. Current situation and action taken by the Government

31. The United Nations Joint Human Rights Office continued to document extrajudicial

killings by State agents during the reporting period in areas not affected by any conflict.

From June 2014 to May 2015, State agents were responsible for at least 114 cases of

extrajudicial executions targeting 140 victims not affected by armed conflict. In many

cases, the disproportionate use of force and of firearms by FARDC, the Republican Guard

and the Congolese national police has resulted in the killing of civilians.

32. During the reporting period, extrajudicial executions and enforced disappearances

were committed by agents of the Congolese national police, including during Operation

Likofi, conducted in Kinshasa between 15 November 2013 and 15 February 2014 against

alleged street bandits named “kulunas”.6 So far, only one judgement has been rendered by

the Military Garrison Tribunal of N’djili, in Kinshasa, on 24 June 2014, sentencing a chief

superintendent of police to 10 years in prison for abduction, arbitrary arrest and forgery. No

other action seems to have been taken so far by the competent authorities to identify and

prosecute all the perpetrators of the violations committed in the framework of Operation

Likofi.

33. As mentioned above, at least 20 civilians were killed in the context of

demonstrations in Kinshasa and Goma in early 2015. In March 2015, a mass grave

containing 421 bodies was discovered in the Maluku commune, Kinshasa Province. It is

alleged that those corpses might be those of people reported missing in the context of

Operation Likofi7 and after the demonstrations in Kinshasa. The Government of the

Democratic Republic of the Congo has pledged to conduct a transparent and credible

investigation and shed light on the mass grave.

2. Action taken by the United Nations Joint Human Rights Office

34. On 15 October 2014, MONUSCO and OHCHR published a report on human rights

violations committed by the Congolese national police in the context of Operation Likofi,

documenting the killing of at least nine civilians and the enforced disappearance of

32 others, based on investigations conducted by United Nations Joint Human Rights Office.

The report, intended to serve as an advocacy tool, indicated in its conclusions and

recommendations corrective actions the Government could take with MONUSCO support.8

Following the release of the report, the Government declared the Director of the Joint

Office persona non grata.

35. In the framework of its mandate to fight against impunity, the United Nations Joint

Human Rights Office followed up on serious incidents that had taken place in Lubumbashi

and Kinshasa on 30 December 2013, during which at least 70 civilians were killed, mainly

by FARDC soldiers. Those killings took place in the context of defence and security force

operations against followers of political opponent and religious leader Joseph Mukungubila,

who was believed to be behind the attacks against strategic Government installations in

Lubumbashi, Kinshasa and Kindu. In addition, over 60 civilians and alleged coup plotters

were arrested by the security forces between 30 December 2013 and 2 January 2014. The

Joint Office continued to advocate investigations at the local level and with the Minister of

Justice and Human Rights. To date, the Joint Office has no information indicating that an

6 See Report of the United Nations Joint Human Rights Office on human rights violations committed by

agents of the Congolese national police during Operation Likofi in Kinshasa between 15 November

2013 and 15 February 2014, published in October 2014.

7 See paragraph 34 below.

8 As per standard United Nations Joint Human Rights Office practice, the report was shared with the

Government for comments prior to its publication and comments were annexed to the report.

investigation has been opened into the alleged killings by the security forces, nor has it

received any response to a letter it sent on 14 August 2014 to the Minister, concerning the

killings.

D. Torture and other cruel, inhuman or degrading treatment

or punishment

36. The Committee against Torture recommended that the Government eliminate

impunity for alleged acts of torture and other cruel, inhuman and degrading treatment by

carrying out prompt, impartial and exhaustive investigations into all reported cases of

torture and ill-treatment. It also stressed that the perpetrators should be tried and the victims

properly compensated. Furthermore, the Committee requested the Government to ensure

that those who reported cases of torture and ill-treatment be protected from intimidation or

reprisals for reporting such cases (see CAT/C/DRC/CO/1, para. 6). During the 2014

universal periodic review of the Democratic Republic of the Congo, the Government was

urged to initiate investigations to determine responsibilities in cases of allegations of abuse

and torture by security forces — especially in places of detention — and prosecute

perpetrators (see A/HRC/27/5, paras. 134.49–134.50).

1. Current situation and action taken by the Government

37. During the reporting period, the United Nations Joint Human Rights Office

documented 605 violations by torture and other cruel, inhuman or degrading treatment,

affecting 1,191 victims throughout the Democratic Republic of the Congo. Approximately

62 per cent of the violations (377) were committed by State agents — FARDC soldiers,

Congolese national police elements and National Intelligence Agency agents, while 38 per

cent of those violations (228) were reportedly committed by members of armed groups.

38. Some victims were reportedly tied up and beaten by members of the security forces

upon arrest, allegedly for resisting extortion, participating in political activities, failing to

participate in community work, committing petty theft or failing to pay a debt. For

example, on 22 March 2015, in Kalembe, Masisi territory, North Kivu, six men were

allegedly arbitrarily arrested and beaten by soldiers of the 804th regiment of FARDC for

refusing to participate in community work organized by FARDC to build their military

camp. On 2 January, in Buyinga, Lubero territory, two children resisted extortion of their

property by a FARDC soldier and were arbitrarily arrested, tied up and beaten with batons,

hammers and wooden sticks by FARDC soldiers. They were stripped half-naked and left an

entire night tied to poles.

39. Some victims have been subjected to cruel, inhuman or degrading punishment,

which may have constituted torture by security force elements, for taking part in activities

perceived to be in opposition to or critical of Government actions. On 7 April 2015,

Congolese national police elements allegedly arrested four militants of Lutte pour le

changement in Goma during a public rally organized to request the release of civil society

activists detained by the National Intelligence Agency in Kinshasa. The four activists

reported that about 10 police agents had beaten them during their detention. On 13 April

2015, they were transferred to the central prison in Goma. The United Nations Joint Human

Rights Office confirmed reports alleging that they had been subjected to degrading

treatment or punishment during their detention. Prison guards forced them to collect

excrement with their bare hands while cleaning the toilets, and beat them when they refused

to obey. They were provisionally released on bail by the Court of Appeal in Goma on

29 April.

40. Members of armed groups have also subjected civilians to mutilation and cruel

treatment during attacks on villages. For example, on 20 June 2014, in Makumo, Lubero

territory, North Kivu, Mai Mai Lumumba combatants reportedly mutilated the ears of two

civilians and wounded another’s face with a machete for their alleged complicity in the

killing of their leader.

41. The Government of the Democratic Republic of the Congo promulgated a national

law against torture on 9 July 2011, but its implementation has been weak. During the

reporting period, military tribunals convicted at least six individuals for torture — four

Congolese national police agents and two FARDC soldiers — according to the United

Nations Joint Human Rights Office. The low number of convictions may partly be due to a

lack of awareness of the law against torture within the judiciary. More efforts are therefore

required to raise awareness about the law across the country.

2. Action taken by the United Nations Joint Human Rights Office

42. The United Nations Joint Human Rights Office continued to monitor and report on

incidents of torture and other cruel, inhuman or degrading treatment or punishment

throughout the country.

43. Together with the Vice-Minister for Human Rights and United Nations police

officers, representatives of the United Nations Joint Human Rights Office visited places of

detention in Bas-Congo and Bandundu Provinces to evaluate arrest procedures and

conditions of detention, and assess their compliance with national and international human

rights standards. Despite the adoption by the Democratic Republic of the Congo of the

Optional Protocol to the Convention against Torture in 2010, and the sustained advocacy

conducted by the Joint Office, the Government has not yet set up a national mechanism for

the prevention of torture and other cruel, inhuman or degrading treatment or punishment, as

required by article 3 of the Optional Protocol.

E. Fight against impunity

44. The Human Rights Committee recommended that the Government take all

appropriate steps to ensure that all human rights violations brought to its attention be

investigated, and that those responsible for such violations be prosecuted and punished (see

CCPR/C/COD/CO/3, para. 10). During the 2014 universal periodic review of the

Democratic Republic of the Congo, the Government was in particular urged to take the

measures necessary to put an end to impunity in all cases of violence against women (see

A/HRC/27/5, para. 134.61).

1. Current situation and action taken by the Government

45. Positive and significant developments were observed in the fight against impunity,

some of which resulted from activities conducted with the support of the United Nations

Joint Human Rights Office and its partners. During the period under review, according to

information received by the Joint Office, at least 60 Congolese national police agents and

165 FARDC soldiers were convicted throughout the country for various human rights-

related offences.

46. On 15 December 2014, in Bukavu, the Military Court of South Kivu rendered its

verdict in the case of Lieutenant Colonel Bedi Mobuli Engangela, alias “Colonel 106”, who

was charged with crimes against humanity in connection with grave crimes committed in

South Kivu between 2005 and 2007, including rape, sexual slavery and murder. The Court

convicted him of crimes against humanity for murder, rape, sexual slavery, imprisonment

and severe deprivation of liberty, and sentenced him to life imprisonment. The Court also

condemned him, in solidum with the State, to the payment of damages to the civil parties.

On 7 November 2014, the High Military Court convicted General Jérôme Kakwavu for his

individual and command responsibility for rape and war crimes, and sentenced him to

10 years of imprisonment. General Kakwavu was a former commander of the Forces

armées du peuple congolais, a militia active in the district of Ituri between 2003 and 2005.

Despite the length of the proceedings, the convictions of Colonel 106 and General

Kakwavu represent an important step in the fight against impunity.

47. Other developments include the conviction of a former high-level commander of the

Forces démocratiques de libération du Rwanda, Kizimi Lenine Sabin, for crimes against

humanity. He was sentenced to life imprisonment by the Military Garrison Tribunal of

Bukavu on 29 December 2014, after mobile court hearings supported by MONUSCO. On

17 November 2014, in Beni, the Military Operational Court of North Kivu rendered its

judgement in the case concerning the assassination of Colonel Mamadou Ndala after a

series of mobile court hearings held in Beni territory. The Court convicted five FARDC

officers and six commanders of the Allied Democratic Forces-National Army for the

Liberation of Uganda for the assassination.

48. In November 2014, Justin Banakoli, alias “Cobra Matata”, leader of the Forces de

résistance patriotiques en Ituri, indicated that he was going to surrender to FARDC, along

with 812 of his combatants. However, negotiations with the Government failed as Cobra

Matata insisted on a general amnesty for himself and his men, as well as integration of his

forces into FARDC, with recognition of their ranks. He was arrested on several charges,

including that of child recruitment, and transferred from Bunia to Kinshasa Ndolo military

prison on 5 January 2015 with MONUSCO support. He is accused of desertion, forming a

rebel movement, crimes against humanity, war crimes, child recruitment and attempting to

escape from detention.

49. Many challenges remain in the fight against impunity and in the administration of

justice. Several case files considered emblematic owing to the high number of victims or

the nature of the violations and the profile of the perpetrators, remain unresolved due to

lack of action by judicial authorities to hold the perpetrators accountable. OHCHR is

concerned moreover about the lack of appeal for the accused, tried in first instance before

the Cour militaire opérationnelle, the Supreme Court and the Military High Court, as well

as the imposition of the death penalty, despite a de facto moratorium on its application

since 2003.

50. On 2 June 2015, the National Assembly adopted draft legislation on the

implementation of the Rome Statute of the International Criminal Court, which the

Democratic Republic of the Congo ratified in 2002. A large conference organized by the

Minister of Justice and Human Rights was held, from 27 April to 2 May, to assess the

situation of the justice system and suggest reforms. Several important recommendations

relating to the fight against impunity and witness and victim protection were adopted on

that occasion.

2. Action taken by the United Nations Joint Human Rights Office

51. The sentencing of General Kakwavu and Colonel 106 marked the culmination of

years of effort (seven in the case of Colonel 106) by MONUSCO and other national and

international partners in the fight against impunity. The United Nations Joint Human Rights

Office supported the process from the investigation, reporting and advocacy phases to the

judicial investigation process and the trial. The Joint Office also worked closely with the

authorities to set up a witness protection system allowing witnesses to testify without fear

of reprisal and implemented protection measures for victims and witnesses throughout the

pretrial and trial phases, which resulted in pretrial support being provided to 100 victims

and in 80 victims testifying anonymously.

52. The United Nations Joint Human Rights Office continued to assist the judicial

authorities in the fight against impunity by providing, among others, technical and logistical

support to bring investigators and magistrates to sites where human rights violations had

been committed. During the reporting period, the Joint Office was able to support nine joint

investigation team missions,9 conducted by judicial authorities in various parts of the

country.

53. The United Nations Joint Human Rights Office assisted the judicial authorities

through support to mobile court hearings, especially in the east, where the request from

military justice was higher. For example, on 7 March 2015, the military garrison tribunal of

Goma sitting in mobile court hearings in Kitchanga, Masisi territory, North Kivu, convicted

20 State agents for various crimes, including murder, sexual violence, armed banditry and

illegal possession of weapons of war. MONUSCO supported the trial through logistic and

financial support as well as in matters pertaining to the protection of victims, witnesses and

plaintiffs. The Joint Office has also advocated with the Government for the abolition of the

death penalty. Thus, in its work with the Government and civil society to implement a

follow-up plan to the universal periodic review recommendations, it has suggested that

legislation be drafted to abolish the death penalty.

54. In June and July 2014, in Goma, Bukavu, Lubumbashi, Bunia and Kisangani, the

United Nations Joint Human Rights Office organized workshops for civil society

organizations on reform proposals in the area of transitional justice, specifically for the

reorganization of the judiciary to enable it to prosecute serious crimes under international

law. Following those workshops, participants issued collective advocacy letters to their

parliamentarians on the subject. In November, the Joint Office co-organized a workshop

with the International Centre for Transitional Justice on strengthening the judicial

framework and its ability to investigate and prosecute grave crimes in the Democratic

Republic of the Congo, which analysed proposed reforms on transitional justice, including

the possible establishment of specialized chambers to try international crimes.

55. The United Nations Joint Human Rights Office supported the transfer of 29 high-

risk inmates, including Colonel 106, to more secure facilities to address persistent security

concerns in prison. Indeed, 1,510 detainees escaped from prisons during the period under

review. Systematic and mass escapes from prison represent a serious setback to the fight

against impunity. The dilapidated prison infrastructure in some cases, combined with

negligence, and sometimes corruption of prison guards, explain many of the escapes.

F. Protection of civilians

56. The Human Rights Committee recommended that the Government of the

Democratic Republic of the Congo take all the steps necessary to strengthen its capacity to

protect civilians, especially women and children, in zones of armed conflict. It advised that

relevant guidelines be made available to all members of the armed forces and that human

rights training be made compulsory for them (see CCPR/C/COD/CO/3, para. 13). During

the 2014 universal periodic review, the Government was urged to take the measures

necessary to protect civilians in any situation of armed violence (see A/HRC/27/5,

para. 134.163).

9 To South Kivu, Maniema, Equateur and Orientale Provinces.

1. Current situation and action taken by the Government

57. In eastern Democratic Republic of the Congo, civilians remain vulnerable to the

continued armed conflict between the Congolese army and various armed groups. The

United Nations Joint Human Rights Office continued to document the killing and injuring

of civilians, as well as rapes, abductions and looting by armed groups and State agents in

the context of operations against such groups.

58. During the reporting period, military operations to neutralize armed groups,

including Operation Sukola I against the Allied Democratic Forces and Operation Sukola II

against the Forces démocratiques de libération du Rwanda and the Forces de résistance

patriotique en Ituri, seem to have resulted in the radicalization of these groups. All those

combatants targeted civilians in retaliation for the victims’ real or perceived support to

FARDC in military operations against them.

59. On the night of 6 June 2014, 31 civilians were killed by members of a Barundi and

Banyamulenge militia group in Mutarule, Uvira territory, South Kivu, in an outdoor church

service. The FARDC commander stationed nearby had reportedly been repeatedly warned

and informed of the attack by the local population, but failed to prevent or stop the killings.

From 1 October to 31 December 2014, a series of attacks in several localities of Beni

territory resulted in the killing of at least 237 civilians by combatants of the Allied

Democratic Forces. At the request of the Government, the United Nations Joint Human

Rights Office has granted support to the national investigation into the killings.

60. In the context of the drawdown of MONUSCO, it is especially important that State

security forces take the lead in the protection of civilians. To this effect, FARDC and the

MONUSCO force regularly undertake day and night joint patrols in volatile areas. Officers

of the United Nations police also cohabit with Congolese national police agents in

provincial offices of eastern Congo. Provincial officials participate alongside MONUSCO

and other protection stakeholders in the provincial Senior Management Group on

Protection.

2. Action taken by the United Nations Joint Human Rights Office

61. The protection of civilians remains the core priority for MONUSCO and the United

Nations Joint Human Rights Office. Besides various protection mechanisms, in an effort to

be proactive rather than reactive in protecting civilians, the Joint Office spearheaded the

establishment of an early warning alert and response cell, with corresponding provincial

and local entities. MONUSCO also stepped up efforts to protect civilians through increased

interaction with the local population and advocacy efforts with local and national

authorities. It conducted awareness-raising activities on the early warning networks in areas

that could be affected by military operations against the Forces démocratiques de libération

du Rwanda and worked with some 90 communities in North Kivu to improve local early

warning systems. Furthermore, through routine inductions for newly deployed United

Nations police and MONUSCO, the Joint Office has sought to maintain the focus on

protection in eastern Democratic Republic of the Congo.

62. Protection of civilians in the context of the series of attacks by the Allied

Democratic Forces in Beni territory, North Kivu, mainly during the period October-

December 2014, presented some challenges.10 However, in view of FARDC unilateral

10 See Report of the United Nations Joint Human Rights Office on international humanitarian law

violations committed by Allied Democratic Forces (ADF) combatants in the territory of Beni, North

Kivu province, between 1 October and 31 December 2014, jointly published by OHCHR and

MONUSCO in May 2015.

operations against the Forces démocratiques de libération du Rwanda, MONUSCO has

heightened its alert networks in Sukola II areas of operation, namely North Kivu and South

Kivu, to ensure that information and alerts on threats to civilians are properly channelled

and addressed by the MONUSCO force and Congolese authorities. In the light of imminent

heightened operations against the Forces de résistance patriotique en Ituri, the United

Nations Joint Human Rights Office has been engaging MONUSCO in a joint planning

exercise to ascertain whether the plan incorporates appropriate protection concerns.

3. Human rights due diligence policy and the role of the United Nations Joint Human

Rights Office

63. In compliance with the human rights due diligence policy on United Nations support

to non-United Nations security forces, the United Nations Joint Human Rights Office

continued to screen FARDC battalion commanders and Congolese national police agents

for past human rights violations as a condition for any support provided by MONUSCO or

the United Nations country team. During the reporting period, the Joint Office conducted

1,805 screenings for the provision of recommendations to MONUSCO leadership prior to

the provision of Mission support to security forces. While this number comprises personnel

who have been screened more than once, 906 distinct individuals have been screened. More

than 85 per cent of the screened officers are FARDC while the remaining officers belong to

the police. Information collected by the Joint Office through monitoring and investigation

functions remained critical for the Mission’s ability to support joint operations.

64. In January 2015, on the eve of the launch of the planned FARDC-MONUSCO joint

operation against the Forces démocratiques de libération du Rwanda in North Kivu, the

appointment of two FARDC generals as commanders to key positions within the operation

led MONUSCO to withdraw its support. This was due to records of gross human rights

violations for which the commanders allegedly bore direct and command responsibility, as

well as with a view to preventing human rights violations in the context of operations

supported by MONUSCO. None of the FARDC units falling under their command received

MONUSCO support. The Government then decided that Sukola II would be a unilateral

operation. Those developments highlighted the need for improved communication between

MONUSCO and the Government on the human rights due diligence policy.

III. Cooperation with United Nations human rights mechanisms and national mechanisms to promote and protect human rights

A. Action to implement universal periodic review recommendations

65. The United Nations Joint Human Rights Office has been working closely with the

Government and civil society to support implementation of universal periodic review

recommendations made to the Democratic Republic of the Congo in May 2014. On 23 and

24 December 2014, the Ministry of Justice and Human Rights met with various

stakeholders to adopt an implementation plan for review recommendations. The Prime

Minister is to submit the plan to all ministries concerned to start the implementation.

66. In November and December 2014, the United Nations Joint Human Rights Office

and the Ministry of Justice and Human Rights organized training workshops in the

provincial capitals of South Kivu, Orientale, North Kivu and Katanga on the universal

periodic review process and its final recommendations, including the role of each

stakeholder in their implementation. Participants included the entités de liaison, provincial

government officials, and representatives of FARDC, the Congolese national police, the

National Intelligence Agency and leaders of civil society. Thirty-three participants were

trained in Goma, 37 in Bukavu, 38 in Kisangani and 29 in Lubumbashi. The Joint Office

also conducted awareness-raising meetings on the subject for 428 beneficiaries in Kindu,

Kalemie, Matadi, Bandundu, Kinshasa, Butembo, Mbuji-Mayi, Uvira, Dungu and Bunia.

B. Update on national mechanisms for the protection and promotion

of human rights

1. National Human Rights Commission

67. Members of the National Human Rights Commission were appointed by Parliament

on 1 April 2015 and confirmed by presidential decree — over two years after the enabling

legislation was promulgated (March 2013). The United Nations Joint Human Rights Office

had previously engaged with the human rights NGOs’ coordination committee and the

President of the Parliamentarians’ Network for Human Rights, and advocated a consensual

approach in nominating qualified candidates according to the Organic law and the

Principles relating to the status of national institutions for the promotion and protection of

human rights (Paris Principles). On 24 April 2015, the Commission adopted its internal

rules and regulations, which were submitted to the Constitutional Court for review on

30 April. The Joint Office provided technical assistance to the subcommittee tasked with

drafting the rules.

68. One of the 11 candidates to the National Human Rights Commission, who was not

appointed, challenged the designation procedure before the Constitutional Court on 6 April

2015, arguing that the process violated several provisions of the Constitution and of the

internal rules of the National Assembly. At the time of drafting, the Constitutional Court

had not yet answered this claim of unconstitutionality.

2. Entités de liaison

69. No significant progress has been observed during the reporting period to ensure that

the entités de liaison are operational and effective since their establishment by decree

No. 09/35 of 12 August 2009 and their official launch on 17 April 2010. Despite continued

efforts by the United Nations Joint Human Rights Office to advocate that the authorities

make these entities fully operational at the national and provincial levels, they remain

inactive. Some provincial governors complained of not having funds to implement the

mechanism, while other stakeholders considered that the situation was due to lack of

political will.

IV. Conclusion and recommendations

A. Conclusion

70. During the period under review, the human rights situation in eastern

Democratic Republic of the Congo continued to be affected by conflict and violations

committed by armed groups and FARDC in the context of military operations against

those groups. In the western part of the country, the human rights situation was

affected by political factors, with restrictions to the political space and violations of

the rights to freedom of expression, association and peaceful assembly. The

intervention of State agents in the repression of political opponents and other civil

society actors, including excessive use of force against demonstrators, arbitrary

arrests and incommunicado detention, without judicial oversight, are of serious

concern, particularly in the lead-up to the upcoming electoral cycle.

71. The conclusion of several emblematic trials, including of FARDC officers, was

a welcome step forward in the fight against impunity. However, structural problems

in the justice system, particularly its lack of independence when dealing with cases

against political opponents and civil society actors, remain of great concern and have

resulted in the still low prosecution rate of human rights violations.

72. The High Commissioner deplores the expulsion of the former Director of the

United Nations Joint Human Rights Office from the Democratic Republic of the

Congo in October 2014 following the publication of the report on Operation Likofi.11

He notes with concern that the Government had decided, in January 2015, to carry

out the Sukola II operation unilaterally led by two FARDC generals suspected of

having committed gross human rights violations.

B. Recommendations

73. The High Commissioner recommends that the Government of the Democratic

Republic of the Congo:

(a) Establish judicial and non-judicial mechanisms to fight against impunity

for serious past and ongoing human rights violations, committed across the country,

including through the adoption of the law on the specialized chambers;

(b) Take all the legislative measures necessary to ensure that all those

convicted of crimes can appeal against their convictions and sentences to a higher

court;

(c) Ensure that the fundamental freedoms of all people in the Democratic

Republic of the Congo are respected in the run-up to the upcoming elections;

(d) Ensure that the National Human Rights Commission is fully operational,

including through the allocation of appropriate financial and logistical capacity, and

that it works in line with the Paris Principles;

(e) Take all the measures necessary to ensure that the defence and security

forces of the Democratic Republic of the Congo fully respect international human

rights and humanitarian law, including by reinforcing oversight and accountability

mechanisms;

(f) Work towards the full implementation of the FARDC action plan to stop

and prevent underage recruitment, sexual violence against children and other grave

child rights violations in the Democratic Republic of the Congo, and ensure that

perpetrators are systematically brought to justice, and that victims receive timely and

appropriate reparation;

(g) In accordance with the Optional Protocol to the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and with

the assistance of the Subcommittee on Prevention of Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, create a national mechanism for

the prevention of torture independent of the Government;

(h) Establish and empower national institutions and mechanisms for the

coordination and implementation of recommendations of the United Nations human

rights mechanisms;

11 The High Commissioner issued a press release on 19 October 2014 to condemn the expulsion of the

Director of the United Nations Joint Human Rights Office.

(i) Reinforce its collaboration with the United Nations Joint Human Rights

Office, MONUSCO and other partners to ensure better protection of human rights in

the country.