THE DRC WORKING GROUP

FOR RECONCILIATION

Outline

• Context

• Indigenous Processes

• Truth Commissions

• Constitutional Engineering

• Prosecutions

• Reparations

• Conclusions

BBC (2011)INTRODUCTION

Background

• Colonization and Early Independence• Belgian Congo: Map of Africa• In 1960 Belgian Congo gained its

Independence and was renamed the Republic of Congo.

• Joseph Kasabuvu was named President and Patrice Lumumba became Prime Minister.

Era of Mobutu

• Mobutu organizes a coup-d-etat in 1961 and replaces Kasabuvu.

• Lumumba assassinated by Katanga rebels who sought secession.

• Mobutu takes advantage of political chaos and seizes power in 1965.

• He renames the country Zaire.

Political Turmoil

• Mobutu overthrown by Rwandan inspired rebellion.

• Laurent Kabila announces himself President of the Democratic Republic of Congo in 1997.

• In 1998 Kabila tells the Rwandan and Ugandan armies to leave the Eastern region of the DRC.

• Rich minerals resources keep national armies within the DRC

INDIGENOUS PROCESSES

Demographics of the DRC

• DRC population in the region of 62 million.• A large percentage of this population

based in the Northern AND Southern regions of Kivi (10%).

• Over 250 ethnic groups although many share the same culture and language.

• Religion plays a key role in the lives of the Congolese citizens.

Relationship between Hutu and Tutsi’s in the DRC

• Prior to the Rwandan Genocide both ethnicities viewed as similar within the Eastern regions of the DRC.

• Both ethnicities spoke Kinyarwandan as their native dialect

• Hutu extremists incite ethnic hatred among the population.

Hutu Extremists

• The addition of one million Hutu refugees helped Congolese to distinguish between Hutu’s and Tutsi’s

• These camps endured a great deal of violence as the Interahamwe rebels were infiltrated among the refugees.

• Innocent Hutu’s were killed which was continued within the DRC

Political upheaval

• Government backing of Hutu rebels has brought the DRC into disrepute with Rwanda and Uganda.

• Proxy Tutsi forces within the DRC have been set up to counter the treat of the Interahamwee rebels now known as the FDLR.

• Civilian population have endured the consequences of the conflict

Community Action

• The behaviour of rebel groups both Hutu and Tutsi inspired within the DRC community has caused International outrage.

• Mai Mai groups been set up to defend against attacks from undisciplined rebel groups and warlords i.e. Joseph Koni, Habamungu and Nkunda.

• Yet these groups have committed crimes within local communities.

Background International Precedent for Reconciliation

• Rwanda and South Africa.• Gacaca and truth Commissions• Advantages of Rwandan System twofold:• Firstly its can speed up the trial and empty

the prisons and secondly it involves the community in establishing the truth and through that, reconciliation.

Can Indigenous Processes work in the DRC?

• Hutu and Tutsi’s have historically lived in relative peace in the DRC.

• Outside forces, rebel groups and corrupting governing institutions are preventing the opportunity for Indigenous Processes to take place.

• As of today, Indigenous Processes cannot work until law and order is restored in the DRC.

Alternatives to Indigenous Processes

• Banyamulenge Tutsi resettlement plans.• Survivors of the Gatumba Refugee Camp

Massacre 2007 relocated to the United States.

• Negatives of Relocation: Resettlement does not lead to reconciliation as it is not a long term option.

• Integration must take precedence over Segregation.

TRUTH COMMISSIONS

The desire to heal wounds through openly discussing the wrongs of the past.

The Basis for truth Commission’s in the DRC

• The Global and all-inclusive agreement in Democratic Republic of Congo signed in Pretoria SA, stipulated the need for a truth commission.

• Further ratified by article 156 of the provisional constitution of 2002: to promote reconciliation and national unity.

• In 2004 granted the right to operate under a law ratified by Joseph Kabila.

• The idea marred by a lack of Political will and co-operation (Us institute for Peace).

• Political influence, lack of funding and results led to abandonment in 2007.

Role of DRC Truth Commission

• To address wrongs from 1960 to 2003.

• To access wrongs, promote healing and consolidate the national consciousness.

• The Commission was made up of 21 members, led by Bishop Jean Mulemera.

• Commission members religious, civil groups, scientific and eight members of representatives of the different parties affected.

• Described as internally non-democratic, and as a truth Omission rather than a truth Commission (Pan African Voices for freedom and Justice).

• More support for normal judicial procedure, and not as a way for interested parties to allow their henchmen to walk free.

Survey conducted in North Kivi, South Kivi and Ituri Region

‘2008’• The most grievously affected region of the conflict suffering genocide, rape and violence.

• The question should militia leaders be allowed the same rights as everyone else received only 24.3% agreement. The question should former militia leaders be allowed into the national army was higher at 37.6% in agreement (Vinck, Baldo, Pham and Shigekane 2008, p.40).

• The people surveyed also returned by 92% that murder crimes should be held accountable and 70% that sexual crimes should be accounted for. These figures indicate the importance at a local level which people place on the losses which they have suffered.

• A further 22.9% said the Ugandan government, while 36.4% said the Rwandan government should be accountable (Vinck, Baldo, Pham and Shigekane 2008, p.41). The main response on who should hold the perpetrators of the crimes responsible was an 80.1% figure for the government.

• The International criminal court and National judicial systems received 24.2% and 22.2% respectively. The question of what to do with war criminals received a 68.9% majority in favour of punishing them.

• In terms of reconciliation through direct truth Commissions some interesting data has also been collected from the people with some encouraging results. The people were asked would you forgive war criminals if it meant peace, 68% said they would. Another interesting figure was a return of 67.6% of people who said they would forgive the people who directly attacked them if it meant peace (Vinck 2008, p. 47)

Survey conducted in North Kivi, South Kivi and Ituri

Region ‘2008’• The International criminal court and National judicial

systems received 24.2% and 22.2% respectively. The question of what to do with war criminals received a 68.9% majority in favour of punishing them.

• In terms of reconciliation through direct truth Commissions some interesting data has also been collected from the people with some encouraging results. The people were asked would you forgive war criminals if it meant peace, 68% said they would. Another interesting figure was a return of 67.6% of people who said they would forgive the people who directly attacked them if it meant peace (Vinck 2008, p. 47)

The people’s views on truth Commissions

• On the question of what is justice some interesting results were also taken. The figure of 50.8% of people identified it as the establishment of the truth, 48.5% as the application of the law and 47.5% to be just and fair (Vinck 2008, p.43-45).

• The results of these surveys show a sense of the realisation of the importance of reconciliation and the potential for constructive change to take place. The questionnaire also asked was it important for the people to know the truth about what happened in Eastern Congo. The answer was 88.1% said it was.

• The questionnaire also asked what the preferable options for the discovery of that truth were. The results of this were 51.4% said the judicial system while 31.6% said let the people talk freely, 24.3% said have a truth/inquiry Commission, and 24.2% the medium of independent media. The last statistic of importance’ Have you participated in a process to establish the truth at 23.1% and ‘would you be willing to talk about what happened to yourself or your family’ at a figure of 62.5%, (Vinck, 2008 p.45-49).

International Precedent• Successful truth Commission held in South

Africa which promoted impartial healing and reconciliation.

• The DRC conflict still rages so more applicable comparatives could be drawn with truth Commissions in Columbia, Sierra Leone and Sri Lanka in terms of the barbarity and intensity of the conflict which occurred and who also face corruption.

• Despite such encouraging figures taken from the survey of one of the most affected regions corruption and lack of political will or public knowledge of the existence of the commission were to blame for its lack of results.

• The constitutional engineering process is of consideration in the re-establishment of civil society.

Truth Commissions and Amnesties in the DRC

• While the existence of Truth Commissions play an active and important role in the process of seeking the truth, Amnesties have also been part of this process in the DRC.

• The ‘all inclusive agreement for the peace’ suggested the DRC did need an amnesty.

• 20 armed groups in North Kivi and the South Ituri areas were granted one. This included consideration for Laurent NKunda’s rebels, a particulary notorious group.

• International examples of the granting of amnesties with varying levels of success include Chile, Columbia, East- Timor, Mozambique ,Sierra Leone, Uganda and South Africa (Pan African voices for peace and Justice).

CONTINUED

• Mathieu Ngudjolo Chui, Thomas Lubanga Dyilo and Germain Katanga are three leaders who despite having been granted amnesties have faced prosecution by the ICC (Institute for war and Peace Reporting).

Amnesties can have a reconciliatory effect when coupled successfully with Truth Commissions for reintegration. The traditional justice system still tries to capture criminals who the ICC and the DRCs government has revoked their right to amnesty despite granting it to their former commands. One such example is the prosecution of Laurent Nkunda the DRC for crimes against humanity and genocide.

Thus, Truth Commissions if properly managed can provide re-integration for some but never all of those who have committed war crimes.

Recommendations

• The establishment of a democratically elected set of Truth Commissioners free from former military or political association with fair representation from all affected parties.

• The more effective delegation of resources to the bodies which administer truth commissions. The truth commission was under resourced and the population were not aware of its operation. The increased participation of the citizens monitered by the international community.

Constitutional Engineering• Transforming the political landscape in the interests of

reconciliation

• Securing rights and democracy

Brief Historical Context

• Failed Citizenship laws- 70s, 80, and 90’s• Voter Registration- National Census

needed (last occurred in 1981)• DRC beating world record of one

“constitution per year” in its 46 years of independence.

• “Constitutions without constitutionalism”. (Mangu)

• Ill-designed electoral system inherited from colonisation (Kadima 2001)

DR Congo’s Constitution

• Current Constitution approved by 84% in Dec 2005 Referendum, came into effect Feb 2006.

• Positive Elements:

• 1. Never again ruled by life-long dictator. May not rule for more than two 5 year terms.

• 2. Provides for independent ‘ democracy supporting’ institutions to oversee and manage the electoral process.

Recent Developments

Negative Elements: 1. Many Laws that came after are contrary to Constitution. 2. Exposed to political attacks despite legitimacy. 3. Party conventions do not take place.4. Party leadership elections are not held.

Electoral Law 2011

Parliament adopted new electoral law after 3 months debate.

Government’s proposed amendments:

In districts where one list receives an absolute majorty of votes, that list would take all seats.

In districts where no one list attains an absolute majority, PR retained.

Favoured big political parties-reinforce ruling parties grip

All rejected-Sign of times-opposition not standing for it.

Compare this to previous Irish Goverments- Opposition little power.

Recommendations

• Constitutional Commission- Review Constitution

• Citizens Assembly- greater citizen participation in public affairs. Work with CPRDC (Standing Committee on Reform of Congolese Law)

• Constitutional Convention- meeting of delegates to consider new constitution.

• Referendum- Inform public better by setting up Congolese Referendum Commission.

Recommendations

• Increased resources for The United Nations peacekeeping mission in Congo (MONUSCO)

• Retain PR system. • Install Electoral Engineers to consider

setting a reasonably high legal threshold to limit tendency of list PR to encourage mushrooming of political parties.

• 21 political parties- need for move towards merger and grouping of political parties by ideological poles could multiply power of action.

PROSECUTIONS

Prosecutions

• Principle goal is to ‘challenge impunity by bringing victims within the protection of the law and perpetrators under the scrutiny of the law’ (Humphrey 2003, p.498)

• Provide accountability, acknowledgement of wrongdoing, re-establishes the authority of the state, de-legitimises extremists → reconciliation

• Challenges: numerous violations and perpetrators who are both Congolese and foreign; DRC lacks the specialised expertise in investigation and prosecution of main offenders

Current Prosecutions: National

• Military Order Court 1997-2003• Lack of impartiality

• People deprived of basic human rights

• 12 cases in which Congolese courts dealt with international crimes (only 2 prior to 2003) (OHCHR 2010)

• 2010 trial of Bernard Kakado• 1st militia leader jailed for

crimes committed in Ituri

• 2011 Lt-Col Kibibi Mutware sentenced to 20 years in jail for mass rape in eastern DRC• 1st conviction of a

commanding officer for rape

• 2011 trial of Gen. Jerome Kakwavo for rape• Militia leader integrated into

the army

• Challenges• Lack of impartiality

• Lack of capability and resources

• Lack of independence

Current Prosecutions: ICC

• Thomas Lubanga Dyilo• Alleged founder of

UPC and FPLC• War crimes

• Germain Katanga and Mathieu Ngudjolo Chui• Katanga alledged

commander of FRPI• Chui alleged leader of

FNI• War crimes and

crimes against humanity

• Bosco Ntaganda• Alleged Deputy Chief

of General Staff of FPLC

• Alleged Chief of Staff of CNDP

• War crimes

• Calliexte Mbarushimana• Alleged Executive

Secretary of FDLR-FCA

• Crimes against humanity and war crimes

Current Prosecutions: Other

• Universal Jurisdiction• Germany, Spain, Belgium, and

Netherlands issued warrants

Recommendations

• Hybrid Court much like SCSL

• Establishment

• Through a treaty with UNSC

• Negotiate Chapter VII-like powers

• Operate within DRC

• Funding

• Paid for by countries implicated in funding the hostilities both directly and indirectly as well as any other country which wishes to contribute

• The state needs to control its natural resources which should also be used to build the judicial capacity of the country

• Structure

• Indictments to top leaders with most responsibility

• Should have at least 5 years to operate in order to get a sufficient number of perpetrators

• At least ½ of staff and judges should be Congolese

Recommendations Build up the capacity of the Congolese Judicial System

Investment (redirection of development aid) Infrastructure, training, resources

Independence Needs to be able to operate independent of politics

Focus on most responsible

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Net Aid in DRC and Africa

Congo, Dem. Rep. Net official development assistance and official aid received (current US$)Africa Net official development assistance and official aid received (current US$)

Reparations

Reparations

•“the act of making amends, offering expiation, or giving satisfaction for a wrong or injury…

•the payment of damages : indemnification; specifically : compensation in money or materials payable by a defeated nation for damages to or expenditures sustained by another nation as a result of hostilities with the defeated nation” (Merriam-Webster, 2012)

Reparations

•“The UN Basic Principles recognize the following five forms of reparations:

•1) restitution: restoration of a victim’s rights, property, citizenship status;

•2) rehabilitation: psychological and physical support;

•3) compensation;

•4) satisfaction: acknowledgement of guilt, apology, burials, construction of memorials, etc.; and

•5) guarantees of non-repetition: reformation of laws and civil and political structures that led to or fueled violence” (UN Women and UNDP, 2010)

Reparations in Congo Now•“Crimes under international law, including rape and murder, continue to be committed by the Congolese army and armed groups in the east of the Democratic Republic of Congo following decades of similar crimes across the country,…” (Amnesty International, 2011)

•The United Nations Joint Human Rights Office is putting in place a project in close cooperation with UNWOMAN and with funding from the Government of Brazil to devise mechanisms that will enable the State to implement the recommendations. Within the project, particular attention is paid to mechanisms allowing the State to fulfil its legal obligation to financially compensate victims of sexual violence committed by State agents and to pilot projects on reparation to be implemented in local communities.

•The African Union Protocol on the Rights of Women in Africa ratified by the DRC in 2009

Recommended Reparations

Payment of all rape victims.

Treatment of HIV, damaged internal organs, ostracization and depression.

Reparations fund

Restitution – restoration of family life (Counseling), helping victims recover the jobs they have lost, the homes they have lost, the family ties they have lost.

Recommended Reparations

•Compensation – medicines, surgeries, schooling, houses, lost income, property damaged and looted.

•Rehabilitation – medical, psychological

•Satisfaction – Truth-seeking measures, public apologies, sanctions, commemoration, tributes, measures to end continuing violence, arrests, prosecutions, convictions, imprisonment, improvement of resources, infrastructure, detention & court facilities, indemnities, commemorative measures (public recognition),

Recommended Reparations

•Gaurantees of non repitition

•Strengthening & reform of institutions

•Peace and Security

•Addressing the underlying gender dimensions & root causes of Sexual violence

•Congolese Govt. & International community take responsibility.

Recommended Reparations How it fits with Reconciliation•Acknowledging victims

•Creating Awarness

•Reducing and destroying stigmatization

•Compensating

•Rehabilitating

•Creating a “Never Again” attitude.

•Turning something negative into something positive

•Getting back on track

•“Just to cool down their minds”

•Recovery

Conclusions

• Indigenous processes and truth commissions while having potential to resolve the conflict are not conducive to reconciliation in the DRC due to the nature of the conflict, corruption, and lack of political will.

• Constitutional engineering and prosecutions have the ability to enhance the legitimacy of the state which can lead to eventual reconciliation and stability.

• Reparations have the potential to alleviate much of the suffering if properly administered.

Video

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