DR Congo's death penalty revival: A dangerous shift

In early March, the Democratic Republic of the Congo (DRC) announced its decision to lift a 20-year moratorium on carrying out the death penalty. President Felix Tshisekedi's government justified the decision as necessary to purge the DRC army of "traitors" and to curb the resurgence of "urban terrorism" leading to loss of life.

Following that decision, dozens of people have been swiftly sentenced to death, with many others awaiting their fate.

Most recently, 37 individuals, including three American citizens, were sentenced to death by a military tribunal for their alleged involvement in a failed coup attempt.

This move has sparked alarm among human rights organisations both within the DRC and internationally. 

FairPlanet interviewed two Congolese human rights advocates - Dismas Kitenge, chairman of Groupe Lotus, a DRC-based NGO working to eliminate torture, and Jean-Claude Katende, the chairman of the African Association for the Defence of Human Rights (ASADHO) – about the implications of this move.

For a deeper look into the reversal of DRC's death penalty ban and its consequences, explore Cyril Zenda's full report here.

FairPlanet: How do you think this decision has impacted the continent's resolve to abolish the death penalty?

Dismas Kitenge: It’s a step backwards for the abolitionist movement and for the continent as a whole, which is already engaged in a process of abolishing the death penalty. Many countries have already abolished the death penalty, such as Rwanda and Togo. These countries have made progress, but today the DRC is taking a step backwards.

Although the death penalty was not abolished, the moratorium was a first step towards abolition. The government is backing down, citing reasons linked to the armed conflict in the East, saying that there are traitors in the army and in society; that they are betraying the interests of the country and must be punished, and punished severely. But putting the death penalty back in place, executing it and enforcing it will not solve the problem of the conflict.

It could lead to other countries finding themselves in the same situation as the DRC. Countries facing armed conflict and invasion of their territory by other African states. This may encourage them to reinstate the death penalty in their legal framework. 

The case for a legal moratorium

What, in your view, can be done to steer the government in a different direction? And what has been the public's response to the move? 

This is a major step backwards that must be condemned. That’s what Congolese civil society is doing, and it’s what international civil society, which is the first to lend its support, is doing. So we must denounce it and put a lot of pressure on the Congolese government not to apply this decision, to reinstate the moratorium, but also to go beyond that.

We must not limit ourselves to a de facto moratorium, we must move towards a legal moratorium and then really move towards the abolition of the death penalty. If the death penalty is abolished in the DRC, which is a giant country that shares borders with nine African countries, the DRC could become a model country in terms of human rights.

The introduction of the death penalty violates the right to life, the first right that must be protected. African states must [therefore] put pressure on the DRC through various mechanisms, in particular the African Commission on Human and Peoples’ Rights, to say that the DRC is taking a major step backwards and that it should be encouraged to move towards towards ratification of the Optional Protocol to the International Covenant on Civil and Political Rights, which abolishes the death penalty. 

Moreover, other instruments that the DRC has ratified also abolish the death penalty, so this contradiction must be highlighted. On the one hand, the DRC wants to reinstate the death penalty and, on the other, it has already ratified instruments that abolish it, such as the Rome Statute of the International Criminal Court. The DRC was one of the first African countries to ratify it. 

Jean-Claude Katende: Some African countries, faced with political and security challenges, have abolished the death penalty, while others have maintained it. We call on African countries that have signed and/or ratified international human rights instruments to end the death penalty. 

Under international and domestic laws, does war provide sufficient legal grounds to reinstate capital punishment?

Dismas Kitenge: No! War is not a good enough reason to reinstate the death penalty. War can be ended by other means, but the death penalty encourages war to continue. With Rwanda having invaded the DRC and supporting the armed groups in the East, there is a way of stopping the war through diplomacy. 

However, the DRC justifies the return of the death penalty by saying that it is unable to stop the war and that there are traitors who are helping to perpetuate the conflict. That has nothing to do with it, nor can it encourage an end to the war. On the contrary, the risk is that all those who would support the war would be led to think in the following way: "There's still the death penalty, so we’re obliged to maintain our position."  

The DRC must be resolutely committed to respecting human rights, to ratifying all documents abolishing the death penalty, and to giving priority to human rights diplomacy, including diplomacy between states, in order to put an end to this external invasion it is undergoing. 

Jean-Claude Katende: War is no justification for reinstating the death penalty; we can put an end to it by working on other things. For example, the army. There is a a need for increased discipline, and people who don’t respect discipline need to be punished and dismissed. But the death penalty does not discourage people from going to war. 

Absence of fair trials 

Does the DRC have a robust and independent judicial system capable of ensuring that the death penalty does not exacerbate the human rights situation in the country?

Dismas Kitenge: No, our judicial system is under construction. As the President of the Republic has said, the Congolese justice system is "sick." It suffers from a lack of independence, from interference by the executive. It also suffers from a lack of sufficient resources to enable the judiciary to play its role. Magistrates are in conditions that need to be improved.

As a result, the Congolese [justice system] cannot guarantee a fair trial. It is in danger of being further exploited by the application of the death penalty. 

And the examples are clear. The trial against the leader, or accomplices, of the Alliance Fleuve Congo, Corneille Nangaa, an ally of the M23. In Kinshasa, we saw how they were massively sentenced to death, and the trial did not meet all the international standards for a fair trial.

The trial was criticised on several counts. So, they were quickly sentenced simply to punish Nangaa of the rebel movement and his accomplices in Kinshasa.

In this case, the presumption of innocence was flouted, as were the principles of independent investigations to establish the guilt of those present, and even the right to appeal was curtailed.

These trials remain overly political, and the application of the death penalty further encourages the existence of these political trials. 

Jean-Claude Katende: One of the reasons why we condemn the reinstatement of the death penalty is our system. Article 61 of the Constitution prohibits infringement of the right to life at any time - even during a state of siege.

Another reason for condemning the reinstatement of the death penalty is the fact that the judicial system is corrupt; we cannot leave the death penalty in the hands of corrupt judges. Decisions are made on the basis of personal considerations and money. 

Picture by Elie Bantsimba