Death sentences surge as DRC lifts execution ban

In March, the Democratic Republic of the Congo (DRC) government announced it was ending a 20-year moratorium on executions for those sentenced to death. A circular from Justice Minister Rose Mutombo Kiese declared that, effective immediately, the death penalty would be imposed and carried out in cases of treason, war crimes, crimes against humanity, espionage, rebellion and criminal conspiracy, among other offenses.

In the circular, the government of President Felix Tshisekedi justified the decision "with a view to ridding the DRC army of traitors on the one hand and curbing the resurgence of acts of urban terrorism resulting in the death of men on the other."

Following the announcement, approximately 80 people were sentenced to death between May and August, sparking an outcry from human rights groups.

"With this circular, the government is attacking the right not to be subjected to cruel, inhuman or degrading treatment, which capital punishment represents," said a statement issued by more than 50 Congolese civil society actors and international human rights organisations working in the DRC when the announcement was made in March.

"This decision irrevocably raises civil society’s concern about the government’s use of opportunistic and inappropriate political measures to respond to serious security problems that require other types of responses. Moreover, there is no empirical evidence that shows that the death penalty is effective in curbing violence, contrary to the arguments put forward by the Congolese authorities."

Tigere Chagutah, Amnesty International’s regional director for East and Southern Africa, expressed regret at the decision, saying it endangered the lives of hundreds of people who have been sentenced to death, including those who were put on death row following unfair trials and politically motivated charges.

"The government’s decision to reinstate executions is a gross injustice for people sentenced to death in the Democratic Republic of Congo and shows a callous disregard for the right to life," Chagutah said. "It is a huge step backwards for the country and a further sign that the Tshisekedi administration is backtracking on its commitment to respect human rights.

"Whether those who have been sentenced to death are in the national army or police, in armed groups or have been involved in gang violence, everyone has a right to life and for that right to be protected."

A flurry of capital sentences

However, the pleas from human rights groups were ignored as, starting in May, Kinshasa’s military courts began sentencing mostly members of the security forces, along with political dissidents, to death.

Reports from the Congolese capital showed that on 3 May, eight soldiers who were accused of cowardice for allegedly fleeing from enemy forces were sentenced to death after a summary trial. This was followed by the sentencing to death of another 50 in June and July, while 26 political dissidents were also sentenced to death by a military court in August, 21 of them in absentia. 

Although the country’s constitution clearly states that military courts can only try members of the army and police force, they have arbitrarily extended their jurisdiction to prosecute individuals outside the security forces. This has raised additional concerns from lawyers representing some of the accused.

"With an inefficient and ineffective justice system, which President Tshisekedi has himself described as ‘sick,’ the government’s appalling move means many innocent people are now at risk of execution," Chagutah said, adding that this is even more concerning given the ongoing crackdown on political opponents, human rights activists and journalists.

The statement by human rights groups added that in addition to questions about the domestic and international legality of the measure, its implementation raises a number of issues, the most worrying of which included questions about the capacity of the Congolese judicial system to guarantee fair trials for those caught in the dragnet of a wide range of crimes and offences that now carry the death penalty.

"The signatory organisations reiterate that capital punishment is not an appropriate response to the challenges facing the DRC; on the contrary, it consolidates the institutionalised use of violence as a response to societal problems and the structural causes of conflict in the DRC, thereby fuelling cycles of violence in the country."

Human rights groups maintain that the protracted war is not a valid reason for the restoration of the death penalty.

The DRC has been embroiled in tribal and resource conflicts for the past 30 years, with over 120 armed groups operating in its mineral-rich eastern region. Some of these groups are reportedly backed by neighbouring Rwanda and Uganda, regional powers accused of exploiting the country’s vast mineral resources.

‘Risk of Extrajudicial and Arbitrary Executions’

Dr Chairman Okoloise, a human rights lawyer, said the move by the Kinshasa administration significantly increases the chances for gross violation of human rights.

"The removal of the moratorium significantly increases the risks of extrajudicial, summary and arbitrary executions by law enforcement officials and security personnel in stark violation of the Constitution and regional as well as international human rights law," Okoloise, a former senior legal expert for the African Commission on Human and Peoples’ Rights (2021-2023), told FairPlanet.

"The lifting of the moratorium is a slap in the face of international human rights law and significantly undermines the tireless efforts of African and UN human rights bodies to persuade other states that have not yet done so to abolish the death penalty."

He emphasised that, regardless of the situation in the DRC, there is no compelling justification for resorting to the death penalty. Echoing rights groups, he argued that there is no evidence, either historically or in the present, that supports its effectiveness as a tool for criminal deterrence or retributive justice.

"Challenges with addressing prison congestion, social pressures, armed conflicts and the limited capacity and resources of government to implement life sentences in a meaningful way may have been other factors that could potentially influence policy changes.

He added, "Regardless of what the primary motivations of the government may have been, they do not excuse any violation of its international human rights obligations."

‘A Retrogressive Move’

Lloyd Kuveya, assistant director at the Centre for Human Rights at the University of Pretoria in South Africa, said the move by the DRC was unjustifiable. 

"My view is that the move by the DRC is retrogressive in light of the progress being made towards abolition of the death penalty in Africa," Kuveya told FairPlanet.

He cited several initiatives across the continent aimed at ending the death penalty, including the Pan African Parliament's adoption of a resolution in June this year calling for its abolition. He also mentioned that the African Commission on Human and Peoples' Rights has passed resolutions urging states to impose moratoriums on executions and take steps towards abolishing the death penalty.

Currently, a protocol to the African Charter on the abolition of the death penalty in Africa is in the drafting process.

"The death penalty and its manner of execution violates the right to life, human dignity and freedom from torture, inhuman and degrading treatment," Kuveya said. "There is no justification for the death penalty. Even during periods of armed conflict, the use of the death penalty is not justifiable."

Political Opponents Caught Up in Dragnet

The most recent group of convicts includes Corneille Nangaa, the leader of the Alliance Fleuve Congo (AFC), a political-military movement he launched in December with the goal of uniting armed groups, political parties and civil society against the government.

Nangaa, the former president of the DRC’s electoral commission, along with other members of his group, was found guilty of war crimes, participation in an insurrection and treason. They were sentenced to death in absentia.

Tshisekedi has accused his predecessor, Joseph Kabila, who is currently in exile in Zimbabwe, of orchestrating an "insurrection" through the AFC. Reports indicate that several members of Kabila’s People’s Party for Reconstruction and Democracy (PPRD) who joined the AFC have been arrested and are awaiting the verdict of a military court in Kinshasa, where they also face the death penalty.

While most of those sentenced to death by the military court are given only five days to appeal, their fate remains uncertain after that period.

"The DRC judiciary is subject to interference from the executive and there is therefore no guarantee that perceived enemies of the state may have death sentences imposed should they be arraigned before the criminal justice system," Kuveya said. 

"Undemocratic states have invariably used the judiciary to persecute people with opposing or dissenting voices and disproportionate, and oppressive sentencing is normally used by executive-minded judges."

According to the Death Penalty Project, in 2023, 33 people were sentenced to capital punishment in the DRC, with approximately 800 others already on death row. In the DRC, executions are carried out by firing squad for those convicted by military tribunals and by hanging for those convicted by civilian courts. The Penal Code permits the president to determine the method of execution.

Until now, the DRC was considered one of Africa's de facto abolitionist countries, as it had not carried out any executions for over two decades, with the last one occurring in 2003.

Image by Karsten Winegeart.