Human Rights Committee

Eighty-sixth Session

2344^th Meeting* (PM)

Human rights committee takes up report of Democratic Republic of Congo;

 

Experts say greater effort needed to guarantee fundamental rights

Pay Tribute to Recent Achievements, Including New Constitution;

Issues of Concern Include Torture Definition, Death Penalty Moratorium

While paying tribute to recent achievements by the Democratic Republic of the Congo, including the adoption of a new Constitution in February, members of the Human Rights Committee this afternoon agreed that the country must undertake greater efforts to promote and guarantee respect for fundamental rights.

The 18-member Committee examines compliance with the International Covenant on Civil and Political Rights and monitors implementation of the Covenant’s two Optional Protocols -- the first allowing individuals to submit complaints to the Geneva-based Committee, the second seeking to abolish the death penalty.  The panel of independent experts continued its eighty-sixth session today with a review of the third periodic report of the Democratic Republic of the Congo.

Several experts expressed dissatisfaction with the State party’s report, which had been submitted 15 years after its previous report, with one noting that facts were “pitifully lacking”.  What was important for the Committee, stated the expert from Tunisia, was to determine the extent to which the Covenant was implemented in a country, in terms of initiatives designed and action taken.  While the report showed that the law was consistent, it was the use of the law that mattered.  For example, could the Covenant be invoked in court and had any court applied its provisions?

In addition, experts wondered about the direct applicability of the Covenant in the country, and whether there was a conflict between the Covenant and the laws adopted by the State.  Other issues of concern included whether the Government had taken measures to punish human rights violations; the lack of a definition of torture; the lifting of the moratorium on the death penalty; the distinction between the police force and military forces; and the lack of cooperation by the State party regarding the Committee’s requests for information on cases brought before it by individuals under the Optional Protocol.

Marie-Madeleine Kalala, Minister for Human Rights of the Democratic Republic of the Congo, said her country attached great importance to all international instruments on human rights, in particular on the protection of civil and political rights.  Fundamental human rights could not be derogated, even if the President declared a state of emergency or a state of war.

Acknowledging that the report was not perfect, she stated her Government’s readiness to provide clarifications on the document and to take into consideration any observations made in order to improve its respect for the Covenant.  It should be recognized, however, that efforts had been made to collate as many facts as possible.  She was not trying to hide behind “empty words”, but in light of the circumstances, it was hard to get information regarding events that had taken place in the 1990s.  Also, resources had been looted during the war.

A draft bill on torture, she informed the Committee, was before the National Assembly.  A law that was not enacted could not be applied.  The Assembly had not had a chance to look at the text because it was bound by the timetable for the transition, which was to be completed by 30 June.  She added that, while the moratorium on the death sentence had been lifted in 2002, no one had been executed.

The Committee will reconvene at 10 a.m. Thursday, 16 March.

Background

The Human Rights Committee monitoring compliance with the International Covenant on Civil and Political Rights met this afternoon to begin consideration of third periodic report of the Democratic Republic of the Congo (document CCPR/C/COD/2005/3).

The delegation of the Democratic Republic of the Congo consists of:  Marie-Madeleine Kalal, Minister for Human Rights; Kahama Ngoyi, Magistrate; Kenge Ngomba Tshilombayi, Councillor of the Ministry for Human Rights; and Gatanga Anifa Josée, Personal Assistant to the Minister for Human Rights.

Consideration of Report

Introducing the report, MARIE-MADELEINE KALALA, Minister for Human Rights of the Democratic Republic of the Congo and head of that country’s delegation, said her country had joined six international instruments regarding human rights:  the International Convention on Economic Social and Cultural Rights; the International Convention on Civil and Political Rights and its first Optional Protocol; the International Convention on the Elimination of All Forms of Racial Discrimination; the International Convention on All Forms of Discrimination against Women; the Convention on Torture and Other Cruel, Inhumane and Degrading Treatment; and the Convention on the Rights of the Child and its two Optional Protocols.

She said the third report had been submitted 15 years after the second report, due to the numerous disturbances that had taken place in her country, which had had great impact on the country’s institutions.  The new Ministry for Human Rights had launched an initiative to establish an inter-ministerial committee responsible for drafting reports on human rights.  The current report had taken into account the Committee’s concerns expressed when it considered the second periodical report.  The third report comprised an introduction, general information on the country and addressed necessary measures to be taken to implement the Convention.

She said on 18 February 2006, her country had enacted a new Constitution, and legal texts referred to in the report would be changed to adhere to the new Constitution.  The country attached great importance to all international instruments on human rights, in particular on the protection of civil and political rights.  The Constitution, among other things, guaranteed equality between men and women.  The public authority should take all measures to ensure full participation of women in all aspects of public life.  Women were entitled to equitable representation in national and local institutions.  Fundamental human rights could not be derogated, even if the President declared a state of emergency or a state of war.

She said the Constitutional Court could consider appeals seeking to clarify that a law was not in accordance with the Constitution.  The right to life was guaranteed in the Constitution.  None could be bound to servitude or subjected to forced labour.  Although the moratorium on the death sentence had been lifted in 2002, no one had been executed.  Protection of life also implied the right not to be subjected to torture.  Torture, however, had not been defined in the law.  According to labour laws, all forms of forced labour were prohibited, as well as the worst forms of child labour and all forms of child trafficking and bondage.  Individual liberty was guaranteed under the law.  The Penal Code stated that pre-trial detention was an exceptional matter.  Conditions of detention had also been addressed, in so far that all detainees must get treatment that preserved life and dignity.

Regarding freedom of circulation, she said all individuals on national territory had the right to move freely.  No Congolese could be expelled from the territory or forced to live outside their habitual residence.  Any foreigner legally on national territory enjoyed the protection granted to persons or their property according to the law.  New laws on the status of magistrates were currently being discussed to ensure impartiality of judges.  On the recognition of the legal status of persons, the Constitution provided that all persons were born free and equal.  The family law set out that all enjoyed civil rights from the moment of conception, as long as there was a live birth.  Any person could exercise their civil and political rights.  The Constitution guaranteed, among others, the freedoms of religion, thought, conscience and expression.  The freedom of the press was also guaranteed and there were institutions to promote democracy, known as the “high media authority”.

On the prohibition of propaganda against war and hatred, she said all Congolese had the right to peace and security, both nationally and internationally.  No one could use any part of the national territory for subversive activities against the State or against any person.  Articles 37 and 38 of the Constitution guaranteed freedom of association and trade union activities.  Article 40 recognized every person’s right to marry the person of their choosing of the opposite sex.  The family law and the Penal Code protected the rights of the child.  Primary education was mandatory and free of charge in public schools.  No Congolese could be the object of discrimination regarding access to education and other basic services.  The report was not perfect, she noted, which was why the country was ready to provide clarifications on the document and to take into consideration any observations made to improve its respect for the Covenant.

Replying to written questions submitted by the Committee, Ms. Kalala said customary law had been recognized as a source for law since the country’s independence, in so far as it was in keeping with the written law.  Civil law made reference to customary law regarding engagement and dowry, for instance.  Some people felt that a dowry had to be paid on engagement, and considered the young people married once the dowry was paid.  However, according to civil law, the marriage had to be recorded by law.  Other examples concerned violations of rights between partners, for instance in the case of adultery, recognition of extramarital children and death payments.  Any custom that violated laws pertaining to individual freedoms were forbidden.  Family Law annulled any death payments.

Concerning a second question, on the identity of people responsible for human rights violations and the struggle against impunity, she said that several mechanisms had been set up so that victims of human rights violations were compensated.  A Truth and Reconciliation Commission had been established, as well as a national human rights monitoring institute.  Her country had ratified the Rome Statute by decree and all perpetrators of human rights violations after July 2002 would be prosecuted and victims compensated.  As for crimes committed before 2002, her country had asked for an international tribunal, but no response had been received.

As for domestic justice, she said assistance had been received to rehabilitate the justice system in order to prosecute human rights offenders.  Certain militia leaders from Ituri had already appeared before the court and been sentenced.  A trial was taking place regarding accusations of rape by members of the armed forces.  An international warrant had been issued against a general accused of human rights violations in Bukavu.  Several people had escaped to Rwanda and Burundi, but the country was doing everything it could to bring them before the court.

She then outlined the actions taken by her Government to give effect to the Committee’s views regarding a number of communications presented to it.  She noted that the magistrates in question had been allowed to take up their seats once again and had been compensated.

Turning to the questions posed regarding the equal rights of men and women, she said that in order to harmonize its national laws, the new Constitution had forbidden any type of discrimination against women and had asserted the principle of women’s equitable representation in institutions and mainstreaming gender within those institutions.  As for family law, there was a draft review text that was being finalized before the Reform Committee for Congolese Law to ensure that laws were consistent with the Convention on the Elimination of All Forms of Discrimination against Women.  There was a call for a review of the articles on the age of consent for the girl child, which was currently 15.  The girl child should not be discriminated against, since the age of consent for boys was 18.  There was pressure being put on the Reform Committee so that the age of consent for the girl child could be increased to 18.

There was also a need to eliminate from the Family Code any provisions that were “tainted”, such as saying that a child attained puberty at age 15.  In addition, there was a lack of legal capacity for married women, which should also be pruned from the Family Code.  In the case of the separation of property, the husband had some say in the matter and had to agree with the wife before property could be disposed of.

In response to the question on the school enrolment campaign entitled “Every girl in school”, she said great efforts were made by the Government to close the gap between the educational level of girl and boy children.  On 15 December 2003, the Government had designed a strategy to accelerate the education of the girl child, with the support of the United Nations Children’s Fund (UNICEF).  That strategy included improving the quality of primary education in over 2,000 schools; broadening access; and ensuring that girl children stayed in school.  Efforts were under way to try to change the mindset of parents so that they understood that every child had the right to go to school, whether boy or girl.  In 2005, a meaningful increase had been noted in the overall number of children starting first grade, with considerable improvement in the number of girls. In some provinces, the number of girls in first grade had doubled.

Regarding women in public life, she noted that, in Parliament, there were 70 female deputies out of 500 and 3 out of 120 members of the Senate were women.  When it came to institutions in support of democracy, there were no women present in those bodies.  The membership of the Independent Electoral Commission was 50 per cent male and 50 per cent female.  That constituted one of the first times that gender equality had been achieved.  There were no female provincial governors, but there were four female deputy governors at the provincial level.  There were 37 women among the country’s diplomats.

Turning to the link between discrimination practiced against women in general and the exacerbated violence inflicted on women in time of war, she said that unfortunately, the war that had afflicted her country had not helped improve the situation in any way, given that the majority of the victims throughout the protracted war were women.  Much more needed to be done to change people’s mindsets.  Women had borne the brunt of the violence, certainly sexual violence.  One of the main Government programmes was a joint programme to combat sexual violence, which brought together Government ministries, United Nations agencies and non-governmental organizations, and sought to provide medical care and ensure social reintegration.  Programmes to combat sexual violence were being implemented.  The Constitution contained clear prohibitions regarding sexual violence against women.  Currently, there was a draft bill before the National Assembly on the prohibition of sexual violence, not only against women, but sexual violence in general, since such violence was also committed against men.

In response to the question on legal proceedings taken against police officers at Kalemie, she said that legal proceedings had been launched against one of the officers found guilty of the acts referred to.

Regarding the question on torture, she said that, on 26 June, the International Day against Torture, the Government, in cooperation with non-governmental organizations and international partners, had organized a campaign to make the population aware of the recourses available to them in the case of torture, and provide legal assistance.  With international cooperation, the Government had been able to establish a medical centre to provide assistance for victims.  Regarding ensuring protection of individuals who were suspected of committing crimes, an awareness-raising event was held recently targeting law enforcement and military personnel on ensuring respect for human rights.

On enforced disappearances and summary executions, she said that the goals of the Transitional Constitution were restoration of territorial integrity and restoration of the rule of law over the entire territory.  To meet those goals, several actions were undertaken, including the re-education and reintegration of individuals that were members of armed groups.  Six groups had already been prepared for reintegration.  The reorganization of the military judiciary was also under way.  The military courts, which had previously had their own operating jurisdiction, had been dissolved.  There was ongoing cooperation with the International Criminal Court.  Military operations were being carried out by the national army and in cooperation with the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) to detain militias and armed groups.

Turning to the issue of the moratorium on the death penalty, she said that, in 2002, the war was still ongoing even though the Government had embarked on negotiations.  At the time, the Parliament had chosen to lift the moratorium.  However, she specified that no executions had taken place.  Now, procedures were under way to take up negotiations to gradually abolish the death penalty and remove its application.  She added that slavery was prohibited in the country.  However, during the war, particularly in the Ituri region, there were cases of women and children being kidnapped by armed groups and forced into slavery.  Now, as peace had returned to the Ituri region, there were no longer any cases of slavery.

Regarding a question on the right not to be subjected to arbitrary detention, she said the issue of insufficient nutrition in prisons was a matter of concern for the Government.  In its budget for 2006, the Government had planned an increase of funds to address the problem, but to a great extent, the budget was financed by external partners and there were budgetary constraints.  Her Government would, however, continue to address the problem in cooperation with non-governmental organizations and other partners.  Individuals were arrested for minor offences if there was a risk of flight or the identity of the individual had not been confirmed.  Most individuals, however, got simple fines.

As for excessive pre-trial detention, she said the Ministry of Justice was understaffed and there was an insufficient number of judges.  The lack of judges could lead to long periods of pre-trial detention.  The Ministry of Justice was made aware of all such cases, however, and everything possible was done to ensure that regulations were respected.  Efforts were made to reorganize the judiciary and to recruit new judges, to ensure sufficient resources and to improve their working and living conditions of judges.

A number of complaints had been submitted regarding the involvement of the former Presidential Security Group, she said.  The Ministry of National Defence was undertaking efforts in order to ensure that that form of detention was eliminated and the perpetrators were brought to justice.  Places of detention were visited in order to ensure that all legalities were upheld.  Imprisonment for debt was not frequent, but did occur.  Once such cases were found, the Ministry of Justice would be immediately informed of such irregularities and the authorities responsible for them would be punished.  As it was difficult to differentiate between financial obligations and fraud, judges sometimes chose to address such matters as fraud.

She said her Ministry had also launched an awareness-raising campaign regarding human rights and a compilation of those rights had been published.  Individuals would be provided with information regarding the period of detention and the rights and duties of citizens.  Raising awareness was also taking place in the armed forces and all new recruits received a human rights education.

Experts Comments and Questions

ABDELFATTAH AMOR, expert from Tunisia, said the Democratic Republic of the Congo was a country with tremendous potential, but which faced many difficulties.  He could not but pay tribute to recent achievements, such as the adoption of the Constitution in February 2006.  He hoped the forthcoming presidential elections would be held in good conditions and would represent the passage to a new era.  He was not entirely satisfied with the report, noting that facts were “pitifully lacking”.  What was important for the Committee was to determine the extent to which the Covenant was implemented in a country, in terms of initiatives designed and action taken to contain the infringement of the Covenant and impose respect for its provisions.  While the report showed that the law was consistent, it was the use of the law that mattered.  He wanted to know more about the usage of the law.

Regarding the status of the Covenant in the Democratic Republic of the Congo, he asked whether the Covenant could be invoked in court and whether any court had applied its provisions.  Was the Covenant subject to legislation or to the Constitution, for example in areas where no derogation was permissible?  Under the new Constitution, treaties properly ratified had priority over the law, but were subject to their application by the “other party”.  Did that only apply to bilateral treaties?  Also, what about customary law?  Had there been an attempt to see whether there were aspects of customary law that were consonant with the Covenant?  Many States faced a situation in which there were many customs that violated the law, and such customs were often invoked to set aside laws, particularly as they concerned women.

The State was expected to take measures to prevent discrimination, he continued.  How could a woman be expected to have self-confidence if a girl could not find a place in school?  He wanted more informative statistics on the girl child in school and on policies to prevent discrimination against women.  Women, not just in the Democratic Republic of the Congo, were ill-equipped to face the difficulties of life.  Noting that maternal and child mortality in the Democratic Republic of the Congo was very high, he said the issue of health services also had to be addressed.  In addition, he drew attention to slavery, of which there were many forms.

MAURICE GLÈLÈ-AHANHANZO, expert from Benin, said that he hoped the “awakening” of the country would lead to a brighter future for it.  Having read the report, he was left “a little bit hungry”.  He expressed regret that the Minister was not able to shed more light on what was actually being done in practice, especially since she had plenty of time to prepare a more substantial report.  He hoped the next report would contain more substance.  He noted that there were questions on whether the Covenant was directly applicable in the country.  Was there a conflict between the Covenant and the laws adopted by the State?  According to the Family Code, who held the parental authority in the family?  There were 450 “tribes” in the country.  Who prevailed -- the tribe, society, the individual or the “citizen”?  Was there consistency between national laws and the Covenant?

The Democratic Republic of the Congo, he said, had been accused of institutionalizing impunity to some degree.  He requested information, based on statistics, on the measures taken by the Government to punish human rights violations, committed by the political parties, as well as by members of the armed forces.  According to information from various sources, there were a lot of complaints in that area.

He also wanted to know more about the Government’s appearance before the International Criminal Court.  Why had the Government itself seized the Court concerning crimes committed on its territory?  Also, what had been done about the assassination of human rights defenders?  In addition, he wondered what the Government made of the findings of the Committee.  What status did the Government attach to the findings of the Committee?  Were those findings taken note of, or were they shelved?

HIPOLITO SOLARI-YRIGOYEN, expert of Argentina, said that, although the answers to submitted questions had been very satisfactory, they had not fully put the Committee’s concerns to rest.  There were many inaccuracies in the report and a lack of factual information.  He noted that, with regard to torture, the Transitional Constitution had stipulated that no person could be subjected to torture or cruel, inhuman and degrading treatment.  The new Constitution, however, only addressed cruel, inhuman and degrading treatment.  Why had the text been watered down, he wondered.  He asked for more information in that regard.  He also wondered why, in a country with “hundreds of thousands of cases” relating to torture, only one police officer from the Kalimia region had been brought to justice.

He said concerns had also been raised regarding the rights of the child, as it had been reported by United Nations experts that inhuman treatment was being carried out by law enforcement, teachers and family.   He asked why had the crime of torture not been defined as such, which was an obligation under the convention on the prevention of torture, which the country had ratified more than 10 years ago.  According to non-governmental organizations, a draft law on that issue had been blocked.  He asked for more details.  Although a campaign to raise awareness had been launched, it appeared that efforts were falling short, in light of the many reports of torture.

Although reference had been made to reconciliation efforts, demobilization of armed groups and reorganization of the judiciary was being organized, nothing had been said about enforced disappearances, which was a serious problem.   He asked for information on that as the United Nations Working Group on Forced Disappearances had reported many such cases, including journalists, members of the armed forces and militias.  Non-governmental organizations had informed the United Nations Working Group that enforced disappearances were a repressive policy directed at students and human rights supporters, carried out by intelligence services, armed forces and the police forces.

He also asked why the moratorium on the death penalty had been lifted.  Lifting that moratorium, which had been in place for many years, was a step backwards.  Lifting of the moratorium also contradicted the new Constitution, which guaranteed the right to life.  Why was the moratorium lifted if the death penalty was not executed?  It would be better to abolish the death penalty.

In conclusion, he said that, while recognizing and appreciating the delegation’s resolve to ensure respect for human rights in the Democratic Republic of the Congo, it was clear from the report and other sources of information that the country must undertake still greater efforts to achieve the rights guaranteed by the Covenant.

EDWIN JOHNSON LOPEZ, expert from Ecuador, said there were several issues of concern, such as the right of persons not to be subjected to arbitrary detention.  Over past years, the Committee had received numerous communications from nationals of the Democratic Republic of the Congo containing complaints of violations of rights contained in the Covenant.  There were substantiated complaints stipulating that detainees did not receive food; that police arrests for minor offences often led to excessive periods of detention; that some persons under investigation were detained for long periods while officers ignored the correct procedures for extending detentions; and that some were detained in secret.  Did the State party intend to abolish the military courts?

IVAN SHEARER, expert from Australia, said he had two questions.  The first was on how the State party was implementing the Committee’s views in a number of cases brought to it under the Optional Protocol.  The Government had stated that it had begun to consider the Committee’s views in some of those cases.  He asked for clarification on whether the Government was going to give serious and detailed consideration to the Committee’s views in those cases.  Also, was the Government planning to begin the practice of responding to the Committee’s requests for replies to cases brought before it, in order to make its views known on the admissibility or merits of the cases?

The second question, he said, was on the actions of law enforcement authorities.  Was there a clear distinction in practice between the national police force and the military forces?  There was a clear distinction drawn in the Constitution, but was that distinction always followed?  Was there human rights training for the military forces?  He noted that article 156 of the Constitution had subjected the police to the jurisdiction of military courts only.  That raised the question of possible impunity and possible confusion about the respective roles of the police and the military forces.

AHMED TAWFIK KHALIL, expert from Egypt, said he shared the concerns raised by others that the report did not provide all the necessary information, including on the stage of implementation of the Covenant.  For example, he wanted to know about the progress made in that regard and the problems encountered.  He felt the Committee had not been informed about the serious problems that still persisted.  For example, according to various sources, there were still a large number of child soldiers in the country, among other things.  Such information showed that, despite the end of the war, the country was still confronted by large-scale violations of human rights.  How was the Government addressing those large-scale violations, both in terms of protecting the civilian population and in ensuring that those acting on behalf of the Government did not commit such violations?  Also, what was the Government doing to stop new displacements and protect the human rights of internally displaced persons?

NIGEL RODLEY, expert from the United Kingdom, noted his difficulty with the Government’s definition of torture.  The time had long passed for the gap in legislation on that issue to be filled.  In addition, what future cooperation could be expected from the State party in dealing with individual cases under the Optional Protocol?

RUTH WEDGWOOD, expert from the United States, said there was a certain distance between the Minister’s remarks and the “hell-hole” in the east of the country.  She asked if there was a programme for evacuating civilians subject to human rights violations from areas of immediate conflict and if any kind of programme existed for rehabilitation of victims.  She also wanted more information on the inter-ministerial committee in charge of preparing reports on human rights.  Had ministries most involved in the problems in the east had a chance to participate in that committee?  She also wanted to know if anybody had been punished or reprimanded in the case of the removal of some 300 judges.

Delegation’s Response

Responding to Committee’s concerns and questions, Ms. KALALA admitted that the report was lacking in facts regarding customs and traditions, due to the fact that the report had been prepared in the aftermath of a war.  It should be recognized, however, that efforts had been made to collate as many facts as possible.  The country wanted to be accepted back in the international community on more exemplary footing.  She was not trying to hide behind “empty words”, but in light of the circumstances, it was hard to get information regarding events that took place in the 1990s.  Also, during the war resources had been looted.  She hoped that the newly elected leaders would be more strict in the administration of the country.  She requested more time to find the requested information.

The international instruments ratified by the Democratic Republic of the Congo had the force of law throughout the country, she said.  The negative customary provisions were not accepted anywhere in the country.  For instance, there was no longer any provision for polygamy in law.  There was a Minister for Women’s Affairs during the transition to handle all those matters pertaining to women.  There was, indeed, a lack of legal status for women in the marital regime, as there was a provision that a woman needed her husband’s permission for certain actions.  That was a provision that had to be eliminated.

It was also true that women were underrepresented in the institutions, she continued.  There was a vibrant campaign under way to ensure that there would be more female candidates for the Senate and Assembly, in cooperation with the Ministry for Women’s Affairs.  There had been a request for proportional lists for the next election, even for total gender parity in election lists, the so-called “blocked zebra-pattern list”.  Although Committee members might find it shocking that women lacked self-confidence, it was a fact that not all women were ready to take up the fight for women’s rights.  Nothing would be achieved if the battle in terms of peoples’ mentality was not fought.  There was, therefore, an emphasis on human rights education to children.  As there were 60 million Congolese, of which 50 per cent were illiterate, many people were totally unaware of their rights.

As for figures and statistics, she said gathering data was very difficult in her country.  The Government had been in place for less than three years, with a budget that was subject to conditionalities.  The Government tried, however, to address issues such as health policy, child mortality and combating AIDS.

In closing she said that, despite what non-governmental organizations reported, a draft law on the definition of torture was before the National Assembly.  The Assembly had not had a chance to look at the text, because it was bound by the timetable on the transition, which had to be completed by 30 June.

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*     The 2343^rd Meeting was closed.

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