Towards a renewed transitional justice in the D.R. Congo
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No. 34
April 2021
#1
September 2009
Towards a renewed transitional justice in the D.R.
Congo
Dr. Mutoy MUBIALA
statement in which he expressed his
This paper examines the efforts by the commitment to launch a transitional justice
current Congolese Government to (TJ) process to address past and current mass
relaunch a transitional justice process human rights violations committed
to address past and current throughout the country. This public
widespread and mass crimes declaration reaffirmed the decision already
perpetrated in the DRC. The agenda taken by the Council of Ministers in August
for a renewed transitional justice 2020 to consider the adoption of official texts
coincides with the celebration of the regulating TJ in the DRC. These new
10th anniversary of the United developments at official level occurred at a
Nations’ 2010 report mapping human time when increased initiatives, both private
rights violations in the DRC and official, were taken in and outside the
committed between 1993 and 2003 country to encourage the implementation of
(‘Mapping Report’). The brief the 2010 OHCHR Mapping Report, which
examines and explores the prospects documents more than six hundred serious
for a renewed transitional justice crimes perpetrated in the DRC between
process in the country, while March 1993 to June 2003. These initiatives
included the public campaign for the
identifying internal and external
celebration of the 10th anniversary of the
opportunities and the challenges
publication of the Mapping Report (alongside
ahead.
the continuing advocacy by Dr Denis
Mukwege, 2018 Nobel Peace Prize Laureate
from the Panzi Hospital); the adoption by the
INTRODUCTION European Parliament of a resolution calling
On 6 December 2020, President Félix for the establishment of an ad hoc
Antoine Tshisekedi of the Democratic international criminal tribunal for the DRC as
Republic of the Congo (DRC) made a well as the arrest of a former rebel leader
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September 2009
Roger Lumbala by the French judicial building a new constitutional and political
authorities, on the basis of information order. As in several other African countries,
included in the Mapping Report. including the Republic of the Congo
(Brazzaville) and Niger, the Congolese CNS
In this new context, three civil society established, inter alia, a Commission des
organisations, namely the Consortium des assassinats politiques et des biens mal acquis that
organisations de la société civile pour la justice produced a list of individuals who were
transitionnelle (under the leadership of two allegedly responsible for political
major religious umbrella organisations, the assassinations and theft of public money or
Conférence épiscopale nationale du Congo and the goods during Mobutu’s rule. However, as in
Église du Christ au Congo), Trial International other areas discussed by the CNS, no action
and the Club des Amis du Droit du Congo (CAD- was taken against these individuals. This
Congo) seized this momentum to convene an instance nonetheless constituted a precedent
expert roundtable to examine and discuss the for the establishment of future TJ
appropriate modalities for a TJ process in the mechanisms for the DRC.
DRC, taking into account the country’s
specificities. This expert roundtable that took In 2001, the Inter-Congolese Dialogue
place in Kinshasa on 26-27 January 2021, process was launched, under South Africa’s
provided the opportunity to bring together all mediation, to put an end to the civil and
the Congolese actors working in the field of regionalised wars experienced by the DRC
TJ in the DRC as well as bilateral and since 1998. This resulted in the signing of the
multilateral partners, foreign academics and 2002 Global and Inclusive Agreement in Sun
experts. In light of the outcome of the expert City (South Africa) by Congolese conflict
roundtable, the aim of this paper is to actors and representatives from the political
examine and evaluate the recent and current opposition and civil society groups. The
dynamics towards a renewal of TJ in the peace accord recommended, inter alia, the
DRC. It will start by briefly laying out past creation of an ad hoc international criminal
transitional justice efforts in the DRC. The tribunal for the DRC and a truth and
brief will then proceed to examine current reconciliation commission. The Congolese
transitional justice processes. Finally, it will government’s request to create an ad hoc
conclude with some reflections on the international criminal tribunal was
opportunities and challenges for transitional unsuccessful at the UN Security Council, as
justice in the DRC. the latter was reluctant to establish such a
costly tribunal and because the International
PAST TRANSITIONAL JUSTICE EFFORTS Criminal Court (ICC) was already involved in
The decline and collapse of Mobutu’s the situation in the DRC. A truth and
dictatorship at the end of the 1980s paved the reconciliation commission (CNVR) was
way to hold the Conférence nationale souveraine established in 2003 (the law was adopted in
(CNS), an inclusive consultation aimed at 2004). According to its rules of procedure,
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September 2009
the CNVR, among others, was tasked with of international humanitarian law that could
examining human rights violations; amount to crimes against humanity, the
supporting the prevention and resolution of Mapping Report recommended setting up
inter-communal conflicts; serving as a new TJ mechanisms to address impunity for
platform for peacebuilding, justice and these crimes. The proposed mechanisms
reconciliation; and contributing to healing encompass both retributive and restorative
and trust building among the Congolese. For measures, including special chambers in the
many reasons, including the politicised Congolese judicial system, a hybrid court
membership of the CNVR, its complex including foreign magistrates, the establishment
mandate and mismanagement, the of a new TRC, reparations, judicial reforms and
commission was unable to successfully vetting of the security services.
complete its missions and activities.
Nonetheless it was eventually involved in However, the Congolese Senate rejected a
settling some local conflicts among rival draft proposal for the establishment of
communities in eastern DRC. Despite the criminal judicial bodies including foreign
failure of the CNVR, the creation of a new magistrates. The main reasons for this were
truth and reconciliation commission, among political, including concerns over the
others, has been recommended in many presence in Congolese public offices of
instances and reports, including the Mapping several personalities presumably involved in
Report. the crimes documented by the Mapping
Report and the opposition of some countries
In 2008, the UN Secretary-General requested in the region, in particular Rwanda, whose
that the Office of the UN High troops were allegedly involved in the
Commissioner for Human Rights (OHCHR) perpetration of these crimes. In the
take the lead in mapping the alleged meantime, the only TJ mechanism that has
international crimes perpetrated in the DRC been permanently involved in the DRC has
from 1993 to 2003. The objective of the been the International Criminal Court (ICC).
mapping exercise was to document the Over the past two decades, the ICC has
alleged crimes perpetrated before the period investigated and prosecuted several key actors
excluded from the temporal jurisdiction of involved in commissioning international
the ICC, whose jurisdiction in the DRC is crimes committed in the DRC. These
limited to the period after the entry into force proceedings have resulted in the arrest and
of the Rome Statute for this country (2003). conviction of Ituri rebel leaders Thomas
The OHCHR concluded this investigation in Lubanga, Germain Katanga and Bosco
August 2010, in close cooperation with the Ntaganda, the acquittal of Ituri rebel leader
UN Department of Peacekeeping Operations Ngoudjolo Chui, and the rejection of charges
(DPKO) and UNDP. In addition to the against FDLR rebel leader Callixte
documentation of more than six hundred Mbarushimana.
serious human rights violations and breaches
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CURRENT TJ INITIATIVES AND PROCESSES mid-2020 thirty-eight judgments had been
While progress on transitional justice in the issued by the criminal courts, mostly
DRC has been slow and impunity for human convicting the members of the National
rights violations remains a key challenge, a Armed Forces of the DRC (FARDC). About
variety of TJ initiatives have been initiated in USD 27,000,000 in reparations have also
the DRC in recent years. These have included been awarded to nearly 3,300 victims.
both formal and informal mechanisms, the However, effective disbursement of these
best known being the military courts dealing reparations has only occurred in one case,
with international crimes and the local peace thanks to political interference of a minister.
committees (mostly in eastern DRC).
As illustrated by the above-mentioned
International Crimes before the evaluation, the military courts have had a
Congolese Mobile Military Courts limited impact in the field of TJ. This is why
the participants in the Kinshasa expert
In eastern DRC and several other regions, the roundtable of 26-27 January 2021
military courts have been conducting recommended, inter alia, the establishment of
prosecutions and trials of the presumed further retributive TJ mechanisms such as a
authors of international crimes, in accordance hybrid court to try the presumed authors of
with the Congolese Criminal Code. They international crimes perpetrated since 2003
mostly operate through mobile courts in and/or an ad hoc international criminal
order to guarantee better access of victims tribunal for the DRC. Participants in the
and witnesses to the courts. According to the roundtable also recommended to address the
Plan of the Joint Committee of Justice (2007) problem of constitutional immunities, the
and the Ministry of Justice’s Roadmap (2009), high cost of criminal procedures as well as the
the national justice reform programme is need to outline the interaction of criminal
aimed at promoting local participation and trials with other TJ measures and
ownership of transitional justice by the mechanisms, including a truth commission
affected population with the objective of (transfer of its files to the hybrid court),
bringing justice closer to the population to reparation programmes, the vetting of former
strengthen the fight against impunity and the civil servants, etc.1
credibility of the justice system.
Local Peace Committees
Avocats Sans Frontières (ASF), an international
non-governmental organisation working on In several African countries, particularly in rural
access to justice and the rule of law, has areas, communities facing violent conflicts or
observed the proceedings of the military emerging from war have developed indigenous
courts, in particular with regard to the issue peacebuilding mechanisms, generally inspired by
of reparations. In a recent policy brief African dispute settlement mechanisms. They
published in October 2020 it stated that by provide good offices and mediation to local
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communities involved in intercommunal role in intercommunal reconciliation after
tensions and/or conflicts, particularly regarding conflicts has been crucial in preventing the
land properties and/or customary ruling. They resumption of violence. Local peace committees
are respected among the population that has are thus able to complement the healing function
greater confidence in these processes than in of the truth and reconciliation commissions,
official or formal justice institutions. The ultimate which are curative rather than preventive
goal of their intervention has been reconciliation mechanisms.
between the concerned communities. They are
often backed by international humanitarian PROPOSED NATIONAL AND PROVINCIAL TJ
NGOs. For example, in Ivory Coast the « comités MECHANISMS
de paix » recently played a critical role in The most notable recent initiatives on TJ in
intercommunal reconciliation processes, in the DRC are, on the one hand, the draft
particular in the western part of the country governmental decrees on the establishment
which faces a situation of state vacuum. They of a National Transitional Justice and
succeeded in addressing local conflicts, including Reconciliation Commission (NTJRC) and a
deadly land disputes. In the Central African Reparations Fund for Victims of mass crimes
Republic (CAR), similar « comités de paix » were (hereafter: Reparations Fund) and, on the
established in Bangassou (in the préfecture of other hand, the proposed creation of a
Mbomou) and in Bria (eastern CAR) in the provincial truth, justice and reconciliation
aftermath of 2012-2013 with the support of commission (PTJRC) for the Central Kasaï.
Search for Common Ground and Caritas.2
Draft Governmental Decrees on TJ
In eastern DRC, communities at conflict have
also established such local peace committees. A In 2020, the Congolese government initiated
recent study looking at these practices in Burundi the drafting of two decrees providing for the
(Cibitoke Province) and eastern DRC (Uvira establishment of a new truth and
Territory) points out the challenges faced by the reconciliation commission and a reparations
members of local peace committees, who fund for the victims of mass crimes.
generally have to operate in conflict According to Article 2 of the draft decree
environments. Moreover, due to the involvement establishing the NTJRC, the proposed
of political actors in the local conflicts, they have national commission would be tasked, ratione
been unable to address the structural or materiae, with a wide-ranging mission
underlying causes of the latter, including, for including: (i) the investigation of serious
example, the widespread presence of arms in the human rights violations; (ii) the prevention
Ruzizi Plain. and management of intercommunal conflicts
through mechanisms such as community
Despite the above-mentioned limitations, local mediation to foster reconciliation; (iii) the
peace committees have the potential to provision of responses to the trauma caused
strengthen the preventive dimension of TJ. Their by the above-mentioned violations; (iv) the
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identification of the victims of these support, satisfaction, restitution, collective
violations; (v) the elimination of tribalism, reparation and the development of memorial
intolerance, exclusion and all other forms of sites.
hate; (vi) the contribution to healing among
the perpetrators and victims of human rights The Kinshasa expert roundtable discussed,
violations; and (vii) proposing guarantees of among other issues, these two draft
non-recurrence measures. governmental decrees on TJ. The main two
criticisms that were formulated relate to the
Ratione loci, the mandate of the proposed legal framework and composition of the
national commission extends to the entire proposed mechanisms. Participants were of
territory of the DRC (Article 3). At the view that the proposed mechanism, in
institutional level, it would consist of a pilot particular the National Commission on
committee and operational commissions Transitional Justice and Reconciliation,
(Article 4). The former would be composed should be established by law rather than
of representatives of the relevant ministries through a decree (administrative act). In
and civil society organisations (Article 5). The addition, they rightly pointed out the over-
operational commissions would be tasked representation of political bodies in its
with the mandate to conduct field missions in membership. In order to improve the existing
order to evaluate the damages caused to the draft decrees, several recommendations were
victims and to report it to the reparation fund made: (i) the adoption of a national TJ
through the pilot committee. The operational strategy before the establishment of the
commissions, which could include national proposed national commission; (ii) the
and foreign experts, would be appointed by establishment of the latter through a
the Minister of Human Rights (Article 7). legislative act and not a decree; (iii) the
handing over of the files reviewed by the TRC
As far as the draft decree on the to justice institutions after the truth
establishment of a reparations fund for processes; (iii) the limitation of the duration
victims of serious crimes is concerned, it of the proposed commission to ten years; and
includes a set of provisions dealing with (iv) the establishment of the reparation fund
organisational and financial factors after the truth process. In the author’s view,
(establishment, composition, operation, recommendations (iii) and (iv) should be
funding, in Sections II, III, IV and V). The open to discussion in the light of the practice
draft does not address substantive issues. It is and lessons learned from comparative
expected that once established, the first experiences and in view of the average life
leaders would adopt guidelines and rules of expectancy in the DRC. There is a risk that
procedure dealing with legal and procedural most of the victims could die before the end
aspects of the reparation that goes beyond of the commission’s work if they have to wait
financial compensation and encompasses until it is concluded for reparation.
other important factors such as moral
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The Provincial Truth, Justice and communities. This recommendation echoed
Reconciliation for the Central Kasaï those made by the Conference on Peace,
Reconciliation and Development in the Kasaï
In 2016, a violent conflict occurred in the region convened by the national government
province of Central Kasaï between several in Kananga from 19 to 22 September 2017.
opposing communities about the inheritance
of customary power. This Kamuina Nsapu For its part, the UN team of experts
conflict spread through the Central Kasaï organised a workshop on reconciliation in the
province and its neighbouring provinces Kasaï regions, held in Kananga, on 17 and 18
from 2016 to 2018 and involved several April 2019. Participants in this workshop
militias from local communities. The conflict recommended the adoption of several
resulted in mass atrocities causing thousands measures by the national and provincial
of killings and looting of property in all authorities, including the prosecution and
communities. The UN Human Rights trial of the presumed authors of the crimes
Council set up and deployed a team of experts perpetrated during the Kamuina Nsapu
mandated to investigate the human rights conflict, the creation of a ministry of national
situation and to assist the national and reconciliation and the establishment of TJ
provincial authorities as well as stakeholders mechanisms comprising a truth and reconciliation
to address the lingering consequences of this commission in each of the five provinces in the
conflict. According to the team of experts, Grand Kasaï area (Kasaï, Central Kasaï, Eastern
the conflict resulted in the death and/or Kasaï, Lomami and Sankuru). A peacebuilding
injury of several thousands of people, the project named «Paix, Justice, Réconciliation au
disappearance of many others, sexual Kasaï Central» (PAJURR) was also developed,
violence, and about 1,4 million displaced with funding from the UN Peacebuilding
persons as well as 35,000 refugees in Fund and the National Special Fund which
neighbouring Angola. The conflict also led to was initiated by the Congolese Government
the forced enrolment of 1,220 young boys and implemented with the support of UNDP
and 658 girls in the Kamuina Nsapu militias. and the UN Joint Human Rights Office.
While 416 schools and 224 health care centres
were looted and/or burnt. Based on these With the support of this project and in
findings, the UN team of experts concluded accordance with the Central Kasaï provincial
that the human rights violations and breaches government’s action plan for the period
of international humanitarian law perpetrated 2019-2024, in August 2019 the latter was able
in this context could amount to crimes to hold provincial consultations on the «Need
against humanity and recommended, inter for Justice, Reparations and Prevention of
alia, the establishment of mechanisms to New Conflicts in the Kasaï Province». The
address impunity for these crimes while also report of these consultations recommended,
setting up processes to promote inter alia, (i) to the Head of State, to ensure
reconciliation among the affected the implementation of the report’s
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recommendations; (ii) to the Central Government, region; (iv) the absence of a national strategy to
to provide support to the TJ process in the Kasaï; fight impunity; as well as (v) the insufficient
and (iii) to the Provincial Assembly of the Central protection of victims and witnesses.
Kasaï, to formally adopt an act establishing the
proposed provincial truth and reconciliation In addition to the above-mentioned challenges,
commission. The Kinshasa expert roundtable of the Kinshasa expert roundtable identified as
January 2021 also discussed the issues pertaining other constraints the multiplicity of TJ initiatives
to the proposed provincial TRC for the Central and the lack of a clear vision on the part of the
Kasaï. The experts questioned whether the national authorities (as illustrated by the
Provincial Assembly has the legal authority
controversial draft decrees on TJ as well as the
under the Congolese constitution to create
absence of a national comprehensive strategy in
such a commission. Eventually, they
this field). The latter is a prerequisite for a reliable
recommended that the proposed commission
and consistent TJ process. To address these gaps,
act as a building block in the development of
the experts recommended holding a symposium
a decentralised TJ system in the DRC.
and commissioning a mapping study on the
OPPORTUNITIES, CHALLENGES AND PROSPECTS various existing TJ initiatives in the DRC. Both
OF A NEW TJ PROCESS IN THE DRC the symposium and the study would pave the way
There is a momentum for the renewal of TJ in for holding the Etats généraux de la justice
the DRC. This momentum proceeds from transitionnelle under the Congolese government’s
several factors, most notably the change in leadership as it did for the justice reform in 2015.
national political dynamics since the election of The outcome of these Etats généraux would
President Félix Tshisekedi and the readiness of inform the national authorities and stakeholders
the international community to support the fight about the adoption of a national strategy or policy
against impunity and corruption. The latter is also on TJ. Possible strategic axes of this policy
at the top of the agenda of the new Congolese include: (i) the mapping of past and current TJ
political leadership. The latter has clearly taken a initiatives with a view to developing a consistent
position for TJ in response to the prevailing and comprehensive approach in this field; (ii) the
insecurity in eastern DRC. Despite these positive decentralisation of TJ; (iii) defining the interactions
developments, there are still several challenges of TJ with the national justice reform policy; (iv)
and constraints to move the new agenda forward the promotion of interaction between the
for TJ, several of which were identified by the proposed TJ in the DRC and the Belgian
government itself in its 2017 Politique nationale de commission on the colonial past, as far as colonial
réforme de la justice. These include: (i) the weak abuses are identified as one of the root causes of
judicial response to the widespread commission the deadly conflicts, in particular in eastern DRC;
of international crimes; (ii) the inadequate and (v) the national leadership and ownership of
criminal legislation in place in the DRC in light of the TJ process.
international standards and norms; (iii) the lack of
judicial cooperation with the countries from the
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CONCLUSION Thirdly, the national leadership and
The above analysis provides a basis for three ownership of the new TJ in the DRC should
conclusions. First, the current formal (ICC be at the heart of the process. In this regard,
and military courts) and informal (local peace there is a need to develop a shared and
committees) TJ initiatives and processes common vision on TJ among the national
constitute building blocks for the adoption of authorities and stakeholders, including civil
a holistic approach to TJ in the DRC. To society organisations and victim associations.
address the existing gaps and weaknesses in To this end, the international community,
this field, there is an urgent need to adopt a including the African Union, the European
national comprehensive strategy on TJ and to Union and the United Nations should continue
hold the États généraux de la justice to provide support for strengthening the national
transitionnelle for this purpose. capacities for a stronger ownership and the
sustainability of the process.
Secondly, because of the multiplicity of TJ
initiatives and the diversity of conflict Dr Mutoy Mubiala is a former Human Rights
dynamics in the country, more consideration Officer with the Office of the United Nations
should be given to a decentralised approach High Commissioner for Human Rights
to TJ, rather than the establishment of (OHCHR), where he worked from 1994 to
2019. He is currently an associate professor of
national mechanisms. The Congolese
international human rights law at the
government seems to have reflected this
University of Kinshasa (DRC) and an
factor in its draft decree on the proposed independent human rights and rule of law
NTJRC. The approach adopted in this draft expert (consultant).
decree as well as the proposed TRC for the
Kasaï could be a good basis for the
decentralisation of TJ. This trend does not
exclude the possibility of establishing
umbrella structures to support coordination
and the sharing of good practices and lessons
learned at the national level.
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Endnotes
1«Rapport général de la Table ronde d’experts sur la justice transitionnelle en République démocratique du Congo, Kinshasa,
26-27 janvier 2021», Kinshasa, 2021, p. 6 (Unpublished document; copy on file with the author).
2Testimony by Abbé Alain Bissialo at the Justice and Reconciliation Commission of the Bangui National Forum for Peace and
Reconciliation in the CAR, 25 May 2015. The present author acted as a member of this Commission, on behalf of the United
Nations.
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