Open Letter to His Excellency President Joseph Kabila

Published on: Friday, August 13th 2010

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,

 Subject: Call for an Independent Commission of Inquiry into the death of Floribert Chebeya Bahizire
We are writing to reiterate the demand from both Congolese 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 are calling upon you 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 his 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. 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 also know 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 made several notable blunders. Chebeya’s family was, for some time, denied access to his body. 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 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.

During the first few weeks, the Procureur Général de la République, 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. So far there has not been – ensuring that an impartial and transparent investigation will not be possible.

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.

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, and 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 and human rights defenders.

Signatories:

  1. Southern Africa Human Rights Defenders Trust (SAHRDT)
  2. Open Society Initiative for Southern Africa (OSISA)
  3. Africa Awake
  4. Congo Heart of Africa
  5. Wonatwec
  6. Congolese Forum In South Africa
  7. Bourse Okapi
  8. Crilola

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