Misuse of legal proceedings to dismantle democratic process in DRC violated Covenant

Facts

The case is noteworthy as it concerns a high-profile presidential candidate, Mr. Moïse Katumbi, who was excluded from challenging the incumbent President Joseph Kabila during scheduled elections in the Democratic Republic of Congo in 2016. After Mr. Katumbi announced his candidacy for presidency, State officials persecuted his supporters, subjected him to various human rights abuses, and used judicial proceedings to prevent his ability to maintain his candidacy. As a result of the events, no presidential election took place as scheduled in 2016 and Joseph Kabila remained in power until 2019.

The Committee reiterated its interpretation of article 25 as set out in General Comment No. 25 which specifically discusses, inter alia, (1) that any limitations on an individual’s candidacy should be based on objective and reasonable criteria and established by law, and (2) that genuine, periodic elections are essential to the democratic process. The decision rejects the initiation of legal proceedings for the purpose of preventing participation in the electoral process, adding valuable contribution to a growing body of jurisprudence addressing impermissible interference with political candidacy. Finally, the case is notable because the DRC failed to comply with interim measures that would have allowed the author to return to the DRC and participate in the elections.

The author is Moïse Katumbi, a business owner, politician and a national of the Democratic Republic of Congo. In September 2015, President Joseph Kabila attempted to amend the DRC Constitution in order to remain in power beyond his second term as President. In protest, the author left the President’s political party. Several Congolese parties who had also left the presidential majority coalition requested Mr. Katumbi to be their candidate in the upcoming 2016 presidential election.

Thereafter, the headquarters of one of these associations was vandalized and shut down by the police. Also, the author’s former Chef de Cabinet and adviser was arrested by officials without a warrant for “calling to insurrection”, and he was imprisoned for three years after being convicted for illegal possession of firearms. About a month later, the police used violence to prevent a peaceful protest organized by the author’s supporters. Many of those present at the protest were arrested, including a national of the United States of America who was a security advisor to the author. In contrast, cities where other opposition movements were gathering were not subject to police interference, suggesting that the author’s supporters had been specifically targeted. Shortly thereafter, the headquarters of another association represented by the author was set ablaze.

Despite all of the intimidation, the author announced his candidacy for presidency. On that same day, an investigation was initiated against him for allegedly recruiting mercenaries from the United States, including his security advisor. The Embassy of the United States immediately denied the allegations as groundless. The next day, the authorities surrounded the author’s home with the obvious intention of arresting him. Congolese human rights defenders observing the events were arrested and the author’s property was searched without a warrant.

Shortly thereafter, the author was interviewed by a public prosecutor regarding the acts of which he was suspected. On his way to the courthouse for a hearing, he was gassed and intentionally injured in the ribs by the police, requiring his urgent hospitalization. While he was still in the hospital, a warrant for his arrest was issued for “undermining the security of the State.” The next day, he was authorized by the Attorney General to leave the DRC aboard a medical plane owing to serious health problems.

The next month, he learned that he had been accused by a Greek national of signing a false deed of sale for a property located in the DRC. The author states that he had never signed a single document relating to the property. Nonetheless, he was sentenced in absentia to three years’ imprisonment and a payment of the equivalent of $1 million USD in damages. The Ministry of Justice announced that Mr. Katumbi would be arrested and imprisoned upon his return to the DRC. Afterwards, the presiding judge in his in absentia trial stated that the decision had been rendered under threat of removal from the bench, imprisonment and physical and emotional coercion. Moreover, the presiding judge survived an assassination attempt in her home which was tied to threats aimed at the forced adoption of the pre-established verdict. Additionally, the main registrar of the court and the registrar for one of the author’s cases fled the country following threats made by the judicial authorities and the National Intelligence Agency with regard to the case.

The author challenged the decision, but his challenge was declared null and void due to his failure to appear in person at the proceedings. The presidential election scheduled for 27 November 2016 did not take place, and Joseph Kabila remained in power beyond the end date of his second term in breach of the Constitution. Under the aegis of the Episcopal Conference of the Democratic Republic of Congo, the presidential majority and the opposition signed an agreement on 31 December 2016 governing the transition period until new elections could be held by the end of 2017. The conference conducted an inquiry to gather more information and uncovered numerous irregularities in the proceedings brought against the author, as well as in proceedings brought against Jean-Claude Muyambo, another opponent of President Kabila who had been sentenced to 26 months’ imprisonment.

The author claimed that the State party violated his rights under articles 9 (right to security), 14 (fair trial), 17 (right to privacy and reputation and honour), 19 (right to freedom of expression), and 25 (right to participate in political affairs) of the Covenant.

Admissibility

The Committee granted the author’s request for interim measures and requested the national authorities to permit his return to the DRC and his free and safe participation as a candidate in the presidential election scheduled for the end of 2017. The Committee noted that article 25 claims are not limited to political candidates and would be admissible even if, as the State argued, Mr. Katumbi did not qualify as a presidential candidate in the DRC. The State party’s allegation that domestic remedies were not exhausted because cases brought against the author were ongoing did not preclude consideration because the very existence of these cases related to the merits of the communication. The author himself was not arrested or detained, and the Committee determined that he failed to sufficiently substantiate his claims under article 9 of the Covenant. With regard to the author’s claim that the surrounding and search of his home violated article 17, he failed to raise this claim in the DRC and therefore failed to exhaust domestic remedies. The author also failed to substantiate his article 19 claims regarding freedom of expression as he failed to specify in what manner he was a victim of an article 19 violation. The Committee determined that the author’s article 14 and 25 claims were admissible.

Merits

The Committee reiterated that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception. This has both a subjective and objective component; judges must not allow their judgment to be influenced improperly and must also appear to a reasonable observer to be impartial. The Committee found that the judge who was supposed to preside over the case brought by the Greek national against the author survived an assassination attempt at her home and the registrars who were involved fled the country due to pressure exerted by authorities with regard to the case. Moreover, during the proceedings brought by the Greek national, the author’s lawyers were prevented from representing him and he was convicted in abstentia, even though he had been permitted to leave the country by the Attorney General due to health reasons. The Committee stated that the State party failed to demonstrate how the author could have enjoyed a fair trial in that context and that justice was not administered in a way as to guarantee the author independence or impartiality. Thus, the Committee found article 14 violations.

Concerning article 25, the Committee recalled that that article recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. The Committee concluded that violations took place because the period after the author left the majority party and declared his presidential candidacy was strewn with incidents pointing towards persecution of the author by the authorities. A series of acts of intimidation were committed against parties allied with the author, an investigation was initiated against the author just after he announced his candidacy, and his home was surrounded with the aim of arresting him. The State party failed to explain how these facts did not demonstrate intentional barriers to the exercise of article 25 rights. Thus, the Committee found that article 25 violations had taken place.

Recommendations

The State party should take the necessary steps to provide the author with adequate compensation for its violations of articles 14 and 25. The State party is also under an obligation to take steps to prevent similar violations from occurring in the future.

Implementation

Deadline for implementation: 12 September 2023

More information on the case:

— Le Monde Afrique - Moïse Katumbi - Je Demande à Joseph Kabila de Démissionner

— Radio France Internationale – RDC : une juge dénonce des pressions lors d’un jugement contre Katumbi

— Afrik.com – RDC, Juge Chantal Ramazani : “Sous la menace, nous avons violé la loi pour condamner Moïse Katumbi”

— Human Rights Watch – DR Congo: Crackdown on Presidential Aspirant

— Le Monde Afrique – En RDC, la grande marche de Moïse Katumbi trébuche sur la répression policière