Statement to the Government of the DRC Condemning the Arbitrary Detention and Mistreatment of Peaceful Activists
SUMMARY
The African Affairs Committee issued a statement on behalf of the City Bar condemning the arrest, detention, and alleged mistreatment of a group of peaceful activists by the National Intelligence Agency (“ANR” per its French title) in Kinshasa on February 3, 2024. The activists were reportedly arrested without being informed of the reasons, detained in an undisclosed location, and subjected to physical abuse, humiliation, and death threats. The City Bar expressed concern over the Government of the Democratic Republic of Congo’s (“DRC”) failure to investigate the circumstances surrounding the incident, noting that the arrests appear to be part of a broader Congolese government practice of suppressing peaceful protestors and is inconsistent with the DRC’s stated commitment to human rights in domestic law and in its international commitments. The City Bar called on the DRC to fulfill its commitment to human rights, which remains a significant concern, and urged it to uphold the rule of law by protecting freedoms of peaceful assembly and expression, which are guaranteed and protected by the DRC Constitution. The City Bar also recommended several measures to improve human rights protections.
REPORT
STATEMENT TO THE GOVERNMENT OF THE DRC CONDEMNING THE ARBITRARY DETENTION AND MISTREATMENT OF PEACEFUL ACTIVISTS
The New York City Bar Association (hereinafter, “City Bar”), through its African Affairs Committee, condemns the arrest, detention, and alleged mistreatment of a group of peaceful activists by the National Intelligence Agency (“ANR” per its French title) in Kinshasa on February 3, 2024.[1] The City Bar calls on the Government of the Democratic Republic of Congo (“DRC”) to uphold its commitment to improve the human rights situation in the DRC, which continues to be deeply concerning.[2] The City Bar urges the government of the DRC to uphold the rule of law and enable peaceful assembly and freedom of expression, which are guaranteed and protected by Articles 23 and 26 of the DRC Constitution.
The aforementioned activists[3] — who include four members of Le mouvement pour le changement (or “LUCHA”) — were arrested during a peaceful rally in Kinshasa organized to draw attention to the security crisis in the conflict-ridden province of North-Kivu and the 600-day violent occupation of Bunagana by Le mouvement du 23 mars (or “M23”). The activists were arrested, held in an undisclosed location, and allegedly subjected to physical abuse, humiliation, and death threats during detention.[4] Although the activists were released after two days for some and three days for others, the February 3rd arrests are not an isolated incident, and the lack of any investigation into the basis for these arrests or the serious allegations regarding the treatment of those arrested while in detention risks further encouraging a culture of impunity.[5]
The case of King Mwamisyo, a law student and activist of LUCHA, is emblematic of the persecution of human rights advocates who exercise their constitutional rights of freedom of expression and assembly. On 2 April 2022, the Police Commander for Goma, capital of the northern province of Nord-Kivu, arrested King. At first he was detained for seven days without being charged with a crime. On 9 April, King was transferred and questioned at the Goma military prosecutor’s office about his social media posts that criticized military and police authorities for failure to protect the people and complicity in the commission of human rights violations. He was then charged with contempt of the army and contempt of public authorities under Article 87 of the Military Penal Code.[6] On 9 December, the Goma military court found him guilty and sentenced him to five years in prison and five years of deprivation of civil and political rights. King Mwamisyo was disenfranchised as he is ineligible to vote or hold public office.
The City Bar is concerned about the lack of any meaningful inquiry into the circumstances surrounding the February 3rd arrests, which appear to be part of a broader Congolese government practice of suppressing peaceful protestors[7] and is inconsistent with the DRC’s stated commitment to human rights in domestic law and in its international commitments.
Domestically, Article 16 of the DRC Constitution posits that “every individual is sacred” and prohibits “cruel, inhumane, or degrading treatment.”[8] Internationally, the prohibition of torture is enshrined in various human rights instruments, such as Articles 4 and 6 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (requiring Party States to “ensure that all acts of torture are offences under its criminal law” and “immediately make a preliminary inquiry into the facts” where torture is alleged) and Article 5 of the African Charter on Human and People’s Rights (prohibiting “[A]ll forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhumane, or degrading punishment and treatment”).[9]
The reported arbitrary arrests, kidnapping, mistreatment and potential torture[10] of activists appear to constitute serious human rights violations and potential international crimes, and are in no event consistent with the rule of law or DRC constitutional principles. Incidents like the February 3rd arrests are also incongruent with President Félix Tshisekedi’s early pledge to reform the ANR. This commitment included a promise to ensure that the ANR (i) cease operations that result in unlawful or inhumane treatment, (ii) close all of its detention centers, and (iii) refrain from making arrests based solely on political opinions.[11]
The Congolese government has a duty to fully investigate the February 3rd arrests and the allegations made by the detained activists, as well as other incidents of alleged civil and human rights abuses by government actors against civilians, in light of the aforementioned treaties, applicable law and President Tshisekedi’s promises to the Congolese people with respect to ANR reforms.[12]
We respectfully urge the Congolese government to take all necessary measures to bring to justice those responsible for these violations, improve protections for human rights defenders and activists, guarantee freedom of speech and assembly in line with domestic and international law, and call for measures to be put in place to prevent incidents, like the February 3rd arrests, from occurring in the future.[13] Such measures should include ratification of the International Convention for the Protection of All Persons from Enforced Disappearance; ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at abolition of the death penalty; ratification of the Amendments to the Rome Statute of the International Criminal Court on the crime of aggression (Kampala amendments); strengthening the domestic legal framework to promote and protect human rights; investigation and prosecution of security forces responsible for serious human rights violations; establishment of a special mechanism focusing on prevention and prosecution of extrajudicial executions and other serious human rights violations; reform of the prison system and the National and the Military Intelligence Agency by ensuring judicial authorities have an adequate mandate to safeguard due process for detainees; and enforcement of laws relating to gender equality and sexual violence, especially in conflict zones.[14]
We respectfully call on President Tshisekedi, as the supervising authority,[15] to establish stricter guidelines governing the ANR’s mission related to state security and protection of the political environment,[16] which currently appears to serve as the basis for arbitrary arrests. We further recommend that ANR agents receive comprehensive training to ensure they perform their duties in full compliance with legal standards and regulations, particularly in relation to arrest procedures and adherence to detention time limits as stipulated by the DRC penal code and the DRC Constitution. Additionally, we encourage greater transparency in ANR operations to address uncertainties surrounding its role and the actions of its agents.
The City Bar remains committed to supporting efforts to promote accountability, respect for human rights, and the rule of law in the DRC.
African Affairs Committee
Melissa M. Verpile, Chair
Footnotes
[1] Reuters, “DR Congo youth group says seven activists abducted by suspected security agents,” available at: https://www.reuters.com/world/africa/dr-congo-youth-group-says-seven-activists-abducted-by-suspected-security-agents-2024-02-04/; See Human Rights Watch report dated March 6, 2024: “On February 3, 2024, National Intelligence Agency (ANR) agents arrested and detained five pro-democracy activists and two other people following a peaceful rally calling for an end to the M23 “occupation” in the eastern province of North Kivu, where the armed group has long been responsible for war crimes and other abuses. They were all questioned about post-election opposition meetings” available at: https://www.hrw.org/news/2024/03/06/human-rights-agenda-democratic-republic-congo; Human Rights Foundation en français, “Le mouvement pro-démocratie @luchaRDC a exprimé son inquiétude quant à la sécurité et à l’intégrité physique de ces membres dont notre ami @fredbauma90. Tous ont été par l’Agence Nationale de Renseignement” posted on their Twitter page on February 6, 2024, available at: https://x.com/HRF_fr/status/1754922211826167987?s=20 (All websites last accessed on Dec. 20, 2024).
[2] Human Rights Watch World Report 2024 on DRC, available at: https://www.hrw.org/world-report/2024/country-chapters/democratic-republic-congo.
[3] The National Intelligence Agency arrested activists Chrispin Tshiya, Jean Paul Mualaba, Bienvenu Matumo, and Fred Bauma, alongside their driver and photographer.
[4] One of these activists, Mr. Fred Bauma, alleged that during his detention in the ANR premises located on Mwene-Ditu Avenue he was forced to undress, was handcuffed, subjected to physical violence, and was threatened to be “exposed to diseases.” See Declaration of Fred Bauma published on his twitter page on February 7, 2024, available at: https://x.com/fredbauma90/status/1755265131490021853?s=20.
[5] See e.g., Human Rights Watch, “DR Congo: 2 Who Criticized ‘State of Siege’ Arrested,” Aug. 22, 2024, https://www.hrw.org/news/2024/08/22/dr-congo-2-who-criticized-state-siege-arrested; Human Rights Watch, “DR Congo: Martial Law Brings Crackdown in East,” Mar. 22, 2022, https://www.hrw.org/news/2022/03/22/dr-congo-martial-law-brings-crackdown-east; UN demands ‘independent’ probe after nearly 50 killed in DR Congo crackdown on rally, 1 September 2023, available at https://www.france24.com/en/live-news/20230831-48-killed-in-east-dr-congo-anti-un-rally-crackdown; DRC: at least 48 civilians killed in crackdown on anti-UN demonstration in Goma, 13 August 2024, available at https://www.africanews.com/2023/09/01/drc-at-least-48-civilians-killed-in-crackdown-on-anti-un-demonstration-in-goma/.
[6] Front Line Defenders, Human rights defender and LUCHA member Mwamisyo Ndungo King charged, 6 April 2022, available at https://www.frontlinedefenders.org/en/case/human-rights-defender-and-lucha-member-mwamisyo-ndungo-king-charged.
[7] See e.g., Human Rights Watch, “DR Congo: Free Youth Activists,” Mar. 15, 2016, https://www.hrw.org/news/2016/03/15/dr-congo-free-youth-activists.
[8] Constitution de la République Démocratique du Congo (modifiée par la Loi No. 11/002 du 20 janvier 2011 portant revision de certains articles de la Constitution de la République Démocratique du Congo) du 18 février 2006.
[9] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (December 10, 1984) to which the DRC acceded on March 18, 1996; African Charter on Human and People’s Rights (June 1st, 1981) ratified on July 20, 1987 by the DRC.
[10] See Declaration of Fred Bauma, February 7, 2024.
[11]Jeune Afrique, https://www.jeuneafrique.com/741859/politique/rdc-felix-tshisekedi-promet-la-liberation-prochaine-de-tous-les-prisonniers-politiques/.
[12] See generally Jean Mobert Senga, “DRC President Félix Tshisekedi must be held accountable for human rights violations,” Amnesty International, Sept. 30, 2024, https://www.amnesty.org/en/latest/news/2024/09/drc-president-felix-tshisekedi-must-be-held-accountable-for-human-rights-violations/.
[13] See e.g., Lisa Schlein (https://www.voanews.com/author/lisa-schlein/y_qqv), “UN Rights Council says human rights in DR Congo on a downward spiral,” VOA News, Oct. 8, 2024, https://www.voanews.com/a/un-rights-council-says-human-rights-in-dr-congo-on-a-downward-spiral/7815258.html.
[14] Cf. Officer of the UN High Commissioner for Human Rights, Universal Periodic Review of the DRC, 5 November 2024, available at https://uprmeetings.ohchr.org/Sessions/47/DemocraticRepublicoftheCongo/Pages/default.aspx.
[15] According to Decree-Law No. 003-2003 of January 11, 2003, which establishes the ANR. This decree was not published in the official gazette but is available online at: https://www.leganet.cd/Legislation/Droit%20Public/Ordre/DL.11.01.2003.htm#:~ =–%20DÉCRET%2DLOI%20n°%20003,l’Agence%20nationale%20de%20renseignements.&text=Art.,%2C%20en%20sigle%20«A.N.R.».
[16] Article 3 of Decree-Law No. 003-2003 of January 11, 2003, ibid.