16.08.10 Open Letter to His Excellency President Joseph Kabila Chairman of the Southern African Development Community (SADC) and President of the Democratic Republic of the Congo (DRC)
Copy to: His Excellency, Hifikepunye
Pohamba, President of Republic of Namibia, Host country
SADC Human Rights Commission
Windhoek, 16 August 2010
Your Excellency,
We, members of Congolese and regional civil society organisations write to
reiterate our demand to both the Government of the Democratic Republic of Congo
(DRC) and regional and international civil society for a credible, impartial
and independent commission of inquiry to investigate the death of Floribert
Chebeya Bahizire and the disappearance of his driver Fidele Bazana Edadi. We
call upon you Sir, in your dual capacity as Chair of SADC and President of the
DRC to take urgent action and show exemplary leadership in this matter.
Floribert
Chebeya who was the President of ‘La Voix
des Sans Voix pourles Droits de l’Homme’ (Voice of Voiceless for Human
Rights) was found dead in his car on 2nd June 2010, the day after he
had visited the Police headquarters for a scheduled appointment with the Head
of the Congolese National Police, General John Numbi Banza Tambo. Fidele Bazana
Edadi drove Chebeya to the meeting and has never been seen again.
Despite the immediate outcry from local and
international civil society organisations, very little has been done since
then.
We appreciate the fact that the DRC government
let a joint team of Dutch and Congolese forensic experts conduct an autopsy on
Chebeya’s body. As you are aware, the autopsy report noted superficial cuts and
some bleeding around the wrists, forearms and legs caused by an external
source. According to the autopsy report, these lesions were ‘the consequence of
applying an external constraint by clamping, compression or shock, such as a
tight knot, blows, collisions or other forms of mechanical stress’. While the
inconclusive results of the autopsy indicated that the likely cause of death
was heart failure, the probable reasons for Chebeya’s injuries are cause for
real concern – and highlight the need for an independent investigation.
We are also
aware that five officers from the Congolese National Police were arrested soon
after Chebeya’s death and are currently detained at Makala prison in Kinshasa
in connection with the case. In addition, the Minister of the Interior –
considering resolutions taken by the High Defence Council (Conseil Superieur de
la Defense) that you chaired on 5th June 2010 – signed decree
N°25/CAB.VPM/ INTERSEC/106/2010 suspending the Head of the Congolese National
Police, General John Numbi. However, we echo the deep concern expressed by our
Congolese partners about the fact that General John Numbi continues to move
freely across the country, especially between Kinshasa and Lubumbashi, to work
from his residence and to attend some official meetings – in apparent
contravention of his suspension.
Based on the events that have unfolded since
Floribert Chebeya was killed, there is a growing concern that the investigation
launched by the government of the DRC is compromised and may not result in the
prosecution of those who were responsible for Chebeya’s death.
The concern is justified by: (a) the decision
to use the military justice system, which faces deep institutional challenges
that will make it virtually impossible for an independent investigation to take
place into crimes that may have been committed by high profile individuals; and
(b) the deeply flawed conduct of the investigation so far that has raised a
number of crucial questions, particularly in relation to the independence of
the individuals who have been assigned to lead it.
· Institutional challenges of the
military justice system
The military justice system used to deal with this
case faces significant obstacles. A 2009 Africa Monitoring and Advocacy
Programme (AFRIMAP) report on the military justice system noted that ‘military
judges generally do not hold the highest ranks in the military regions or units
under their jurisdiction’. As a result ‘higher ranking officers have
generally escaped prosecution’. There is a real danger that as a General is
suspected of involvement in Chebeya’s death, justice may never be done.
· Deeply flawed conduct of the
investigation
In the days following Chebeya’s death and
Bazana’s disappearance, the state had taken several questionable actions. Firstly,
Chebeya’s family was, for some time, denied access to his body. Secondly,
conflicting reports were given by the authorities about the circumstances under
which Chebeya’s body was found – giving the distinct impression of an attempted
high-level cover-up. And, thirdly, the investigation itself has been characterized
by a lack of communication with the families of both Chebeya and Bazana – and
by confusion about who is actually in charge of the investigation.
During the first few weeks, the Procureur
Général de
Kabange Numbi, made public statements indicating that he was leading the
investigation, while at the same time your Special Advisor for Internal
Security, Pierre Lumbi, suggested that he was in charge. It is worth
noting that both the Procureur Général and Lumbi are extremely close to General
Numbi.
Then on 22nd June 2010, the
Procureur Général transferred the case to the military justice system – to the Auditorat militaire general, led by
General Mukuntu Kiyana, a military magistrate who has been seconded to work in
your office as legal advisor to Pierre Lumbi. As preliminary
investigations pointed to the involvement of General John Numbi and other high
level police officers, it is critically important for there to be clear
leadership in this matter. Under the circumstances, we hold the view that so
far there has not been clear leadership to guarantee an impartial and
transparent investigation.
Given these serious concerns about the current
investigation, we believe that the DRC government needs to urgently establish
an independent commission of inquiry that should be:
1. Created
by a ministerial decree under the authority of the Minister of Justice and
Human Rights and approved by the Council of Ministers;
2. Presided
over by an individual who is independent, of high moral authority and has a
solid background in Congolese law; and,
3. Composed
of members who are appointed on the basis of their recognized impartiality,
competence, integrity and independence as individuals.
In this regard, we propose that the
members of the commission could include:
1. A professor of law or
criminology;
2. A
member of a civil society organization;
3. An
expert from the AU;
4. An
expert from the UN;
5. A
magistrate from the public prosecutor’s office; and,
6. A
military magistrate.
In addition, we recommend that the DRC
government accepts the offer made by the UN Secretary General Ban Ki-moon to
assist in the investigations as well as offers from other governments and from
Congolese and international NGOs, especially Human Rights Watch.
We further recommend that the Commission’s
mandate should include the:
1. Authority to obtain all the
information it needs to clarify the context and the circumstances of the death
of Floribert Chebeya Bahizire and the disappearance of Fidele Bazana Edadi;
2. Power to compel the attendance and
cooperation of witnesses, including officials, and to procure documents,
including government and medical records;
3. Ability to gather inputs from
impartial legal advisors, independent experts and other critical services as
required;
4. Aim to clarify the facts and to
establish both individual criminal responsibility and the responsibility of the
state; and,
5. Need
to identify measures to be taken to avoid a repeat of such incidents in the
future.
We have noted in the past that investigations of cases
involving the murders of human rights defenders and journalists have not been
conducted in a satisfactory and convincing manner. These include the
compromised investigations into the murder of Pascal Kabungulu, a human rights
defender who was killed in Bukavu in July 2005; the murder of a Kinshasa-based
journalist, Frank Ngyeke and his wife Helene Mpaka in November 2005; and the
murder of two Okapi Radio journalists – Serge Maheshe in June 2006 and Dikale
Namujimbo in November 2008.
In view of the above,
we strongly recommend
that SADC and its Member States urge the DRC to act in accordance with its
principles that promote human rights, democracy and the rule of law and its
objectives to promote common political values, systems and other shared values,
which are transmitted through institutions which are democratic, legitimate and
effective (Articles 4 and 5 of the SADC treaty).
And, we strongly appeal to the DRC government to put
in place an independent and credible commission of inquiry so that the outcome
of the process is acceptable to all and, most importantly, that those found
responsible for Chebeya’s death and Bazana’s disappearance are brought to book
so that justice can prevail – and so that we can end the culture of impunity in
the DRC around the deaths of journalists ,human rights defenders and ordinary
Congolese.
Signatories:
1. Abahlali Basimtodolo Movement of
South Africa (ABMSA), South Africa
2. Advocates for Democracy on
Zimbabwe (ADZT), Zimbabwe
3. Africa Awake, South Africa
4. Africa CSO Platform for Principled
Partnership (ACPPP), South Africa
5. Africa Democracy Forum (ADF)
6. Alternative Information and
Development Centre (AIDC), Cape Town, South Africa
7. Bourse Okapi, South Africa
8. Breaking the Wall of Silence
(BWS), Namibia
9. Caprivi for Nadawo, Namibia
10. Center for Human Rights and
Rehabilitation (CHRR), Malawi
11. Center for Mozambican and
International Studies (CEMO), Mozambique
12. Christian Council of Churches
(CCC), Lesotho
13. Citizens Coalition For
Constitutional Culture (4Cs), Kenya
14. Citizens for an Accountable and
Transparent Society (CATS), Namibia
15. Civicus: World Alliance for
Citizen Participation, South Africa
16. Coalition of Concerned Civic
Organizations Swaziland (CCOS), Swaziland
17. Coalition on Gender and HIV/AIDS
Advocacy in Malawi
18. Combined Harare Residents’
Association (CHRA), Zimbabwe
19. Community Youth Council (CYC),
Zambia
20. Congo Heart of Africa, South
Africa
21. Congolese Forum In South Africa
22. Congress of South African Unions
(CSAU)
23. Consel no Cristas de Mocambique, Mozambique
24. Crilola, South Africa
25. Crisis in Zimbabwe Coalition
(CZC), South Africa
26. Crisis Zimbabwe
27. Ditshwanelo, Botswana Center for
Human Rights (BCHR), Botswana
28. Earthlife Africa, Cape Town, South
Africa
29. East and Horn of Africa Human
Rights Defenders Project (EHAHRDP), Uganda
30. Economic Justice Network , South
Africa
31. Fellowship of Christian Councils
in Southern Africa, (FOCCISA), Southern Africa
32. Forum das Organizacoes Nao Governamentais Angolanas (FONGA), Angola
33. Freedom House Southern Africa
(FHSA), South Africa
34. Gender Alliance Southern Africa
(GASA), South Africa
35. Inner City Resource Center SA,
South Africa
36. Insight Namibia
37. International Center for
Not-For-Profit Law (ICNFPL)
38. International Commission of Jurist,
Africa Programme, (ICJ) South Africa
39. Lesotho Clothing and Allied
Workers Union (LECAWU), Lesotho
40. Lesotho Council of NGOs (LCN),
Lesotho
41. Lesotho Trade Union Congress
(LTUC), Lesotho
42. Malawi Congres of Trade Unions
(MCTU), Malawi
43. Namibia NGO Forum Trust (NANGOFT),
Namibia
44. Namibia’s National Society for
Human Rights (NSHR), Namibia
45. NGO Coalition on the Rights of a
Child (NGO –RC), Lesotho
46. Non Governmental Organizations
Coordinator Council (NGOCC), Zambia
47. North West Association of
Development Organisations (NWADO), Cameroon
48. Norwegian Church Aid, Angola
49. Open Society Initiative for
Southern Africa (OSISA), South Africa
50. Passop, South Africa
51. Research And Care for Environment
(RCE), Lesotho
52. SADC Council on NGO, SADC-CNGO,
Botswana
53. Sokwanele, Zimbabwe
54. Solidarity Peace Trust (SPT)
55. South African Council of Churches
(SACC), South Africa
56. Southern Africa Human Rights
Defenders Trust (SAHRDT), South Africa
57. Southern Africa Litigation Center
(SALC), South Africa
58. Southern Africa Trade Union
Coordination Council (SATUCC) present in 12 SADC countries
59. Southern Africa Youth Movement
(SAYM), South Africa
60. Southern African Christian
Initiative (SACHI), Namibia
61. SW Radio Africa, United Kingdom
62. Swaziland Coalition of Concerned
Citizens’ Organizations (SCCCO), Swaziland
63. The Panafrican Lawyers Union
(TPLU)
64. Trade Union Congress, Ghana
65. TRC, Lesotho
66. Trust Africa
67. Voal Environmental Justice
Alliance (VEJA), South Africa
68. Women Across Borders (WAB),
Namibia
69. Women in Law and Development in
Africa (WiLDAF), Ghana
70. Women in Law in Southern Africa
(WILSA), Lesotho
71. Wonatwec, South Africa
72. Yonge Nawe, Swaziland
73. Zambia Council for Social
Development (ZCSD), Zambia
74. Zambia Social Forum (Zamcof),
Zambia
75. Zimbabwe Council of Churches (ZCC),
Zimbabwe
76. Zimbabwe Election Support Network
(ZESN), Zimbabwe
77. Zimbabwe Exiles Forum (ZEF)