Plans for a hybrid court in Congo - Pascale Kambale

By Richard Lee | March 06th, 2012

(Read the full interview here or download it below) - Pascal Kambale, DRC Country Manager for OSISA

What is the Specialised Mixed Court for the Democratic Republic of Congo?

The Specialised Mixed Court is the result of a long process of consultation and discussion about the best way to prosecute international crimes in the Democratic Republic of Congo (DRC). On November 30, 2010, the Congolese Minister of Justice circulated a bill that would establish special chambers to prosecute these crimes. In that initial draft prepared by the government, the special chambers were intended to function within existing courts. However, the bill did open up the possibility of appointing foreign judges to sit in these special chambers, which would therefore be ‘mixed’ chambers.

No less than 48 Congolese and international organisations – including the Open Society Initiative for Southern Africa (OSISA) and the Africa Governance, Monitoring and Advocacy Project (AfriMAP) – submitted written comments on the bill. The Minister of Justice then called a meeting in February 2011 during which a three-member drafting committee was established to collate all the written submissions. The drafting committee comprised an expert from the ministry, OSISA’s Nick Elebe and Michele Laborde of the European Union’s Mission for the Reform of the Police. On March 1, 2011, the committee submitted its report, which, among other things, recommended the establishment of a stand-alone special court instead of chambers in existing courts. This was later endorsed in the final version of the bill drafted by the Congolese Law Commission – the Commission Permanente de Reforme du Droit Congolais (CPRDC).

Why does the DRC need this special court?

There are two main reasons why a special court is needed. Firstly, the initial bill submitted by the Minister of Justice was the government’s reaction to the ‘Report of the mapping exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003’, which was published in June 2010 by the Office of the UN High Commissioner for Human Rights. The ‘mapping report’ – as it came to be known – concluded that the violations it listed, the impunity enjoyed by their perpetrators, and the poor capacity of the Congolese judicial system underlined the ‘urgency and necessity of adopting an additional justice mechanism, if only to judge the most senior figures responsible for the most serious violations committed’. It further recommended that this ‘special’ mechanism should contribute to strengthening and rehabilitating the national judicial system while prosecuting the grave crimes of the past.

Secondly, the crimes we are talking about – crimes against humanity and war crimes – are currently not defined in the Congolese penal code. Therefore, ordinary courts lack jurisdiction over these crimes. Military courts alone have jurisdiction over these crimes, which considerably limits the scope of possible prosecutions since only military personnel or members of armed groups can be prosecuted by military courts. In addition, there are concerns about the lack of fair trial safeguards in relation to military court procedures – concerns that were highlighted in a 2009 AfriMAP-OSISA report.

Is the Special Mixed Chamber a home-grown concept or has it been imposed on the DRC by external players, such as international non-governmental organisations and western governments?

It is a mixture of both. The internal demand for justice for international crimes committed during the decade-long civil war has been consistently high. Congolese human rights and victims groups have agitated for justice, while a coalition of non-governmental organisations (NGOs) was created to push for a comprehensive transitional justice mechanism. The mapping report was put together by an international team, but the materials they used were mainly drawn from local sources, including reports produced by local NGOs over the last twenty years. It is thanks to the efforts of these groups that the ‘Inter-Congolese Dialogue’, which convened in 2002 in an effort to put an end to the civil war, passed a resolution urging the transitional government that was to be formed to seek the help of the international community in the establishment of an international special tribunal for the DRC.

The initial proposal for the Special Mixed Chamber was put forward by the Congolese government just four months after the mapping report was published. There is little doubt that the government only acted so swiftly because it was aware of the internal pressure for the creation of a justice mechanism to deal with international crimes.

Is it a good idea to have a mixed court, which incorporates international staff? Surely this will negatively impact on the way the court is perceived by the Congolese?

This was indeed one of the main reasons for the rejection of the bill by the Senate in August 2011, even though the concept had been endorsed by both the Minister of Justice and many Congolese NGOs. The Minister of Justice based his justification for the mixed nature of the courts on the fact that the presence of international judges would guarantee greater levels of efficiency and independence. Meanwhile, most of the NGOs that submitted comments supported the idea because Congolese judges are not familiar with cases involving international crimes and would be able to learn on-the-job from their more experienced international peers. However, the Senate took issue with these justifications, which it convincingly argued amounted to a confession of powerlessness on the part of the executive and an admission of the failure of the executive’s plan for training judges.

In addition, in the weeks preceding the debate on the bill on the Senate floor, agitated international NGOs and donors produced a raft of written statements and communiqués urging the Senate to pass the bill. This campaign in favour of a mixed court might well have contributed to the Senate’s unease, since a number of senators felt that the campaign amounted to an international conspiracy against Congolese sovereignty.

There were other weaknesses in the bill that also made it easier for the Senate to attack and undermine the mixed nature of the court. These included the fact that the bill that was eventually introduced by the government – which was different from the one the Law Reform Commission had prepared – failed to make proper connections with other relevant pieces of legislation currently pending before Parliament, such as the bill to implement the Rome Statute of the International Criminal Court. This failure made it appear as if the government was acting precipitously and only because the international community was demanding action.

Why is the government taking such a long time to pass the bill establishing the mixed court?

Actually, the government has dealt with this bill in record time. It took less than a year for the government to draft the bill, seek comments on its contents and introduce its final draft to parliament. As some senators rightly pointed out, a number of other bills have not been so lucky and are stalled in parliament because of a lack of support from the executive. These include the ICC implementation bill, which was drafted by the CPRDC in 2002 and introduced as a private member’s bill way back in 2007.

How far back will the court’s mandate stretch? According to the bill, the court would cover crimes of an international nature committed since 1990. In practical terms, very few – if any – crimes of this nature were committed before that date.

The special court will function as a part of the existing court system but with more budgetary and functional autonomy, especially given the presence of international judges. If – or when – the court is established, it is expected to have a significant impact on the military court system. The existence of a better-staffed and better-equipped special court would ease the burden on the military courts’ shoulders. The court would also observe a more effective respect for the principles of fair trial than is currently the case in the military courts, which would increase the pressure on the military courts to do the same.

Furthermore, the personal jurisdiction of the court would be broader and allow the prosecution of civilians under the doctrine of ‘command responsibility’, which is not the case for military courts.

Do you think that the people of the DRC will welcome the establishment of the SMC?

The people of Congo will welcome the court because it is intended to enhance the rule of law and promote justice but they will welcome it cautiously and will wait to see what – if anything – it actually delivers. However, Congolese lawyers, civil society activists and political leaders have consistently pushed for a judicial mechanism similar to the proposed special mixed court and they will welcome it much more warmly.

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