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DEMOCRATIC REPUBLIC OF CONGO Developing a new strategy for freedom of expression ARTICLE 19 The Global Campaign for Free Expression Journaliste en...
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DEMOCRATIC REPUBLIC OF CONGO

Developing a new strategy for freedom of expression

ARTICLE 19

The Global Campaign for Free Expression

Journaliste en danger Non-governmental organisation for the defence and promotion of press freedom October 2000 English translation November 2000

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ARTICLE 19 ISBN 1 902598 31 8

ACKNOWLEDGEMENTS This report was written by Donat M’Baya Tshimanga, President of Journaliste en Danger (JED), Journalists in Danger, and Carolyn Norris, consultant researcher with ARTICLE 19. It was updated by Mwamba wa Mulamba, JED’s Secretary General. The French text was edited by Ariel Dagre and translated into English by Alison Dilworth. Both texts were designed by Katherine Huxtable. ARTICLE 19 gratefully acknowledges the financial support of the European Commission in the research and publication of this report. The views expressed do not necessarily reflect those of the European Commission.

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CONTENTS Introduction......................................................................................1 I:

HISTORICAL CONTEXT..........................................................6

(i)

A period of failed reforms ............................................................................................... 6

(a)

National Sovereign Conference ......................................................................................... 7

(b)

Communication Summit ..................................................................................................... 9

(ii)

The coming to power of Laurent Désiré Kabila ......................................................... 11

II:

THE CURRENT SITUATION AND ITS IMPACT ON RESPECT FOR HUMAN RIGHTS

15

(i)

Political problems ......................................................................................................... 15

(ii)

Economic problems...................................................................................................... 19

(iii)

Legal problems.............................................................................................................. 21

(iv)

Professional problems ................................................................................................. 28

III:

CASES OF VIOLATIONS OF FREEDOM OF EXPRESSION AND INFORMATION IN DRC

29

(i)

In eastern DRC

29

(ii)

In western DRC

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IV:

RECOMMENDATIONS

(i)

Recommendations for the reform of existing and proposed

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legislation

35 36

(a)

Constitutional provisions

(b)

The press

(c)

Broadcast media

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(d)

National security

44

(e)

Protection of sources

(f)

Defamation and false information 49

(g)

Tolerance and incitement to hatred and violence

(h)

Other necessary reforms 53

(ii)

Recommendations to the Government of the DRC 55

(iii)

Recommendations to the international community 56

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46 52

INTRODUCTION This report is the product of consultations between Journaliste en danger (JED), Journalists in Danger, a Congolese non-governmental organization for the defence and promotion of press freedom, and ARTICLE 19, the Global Campaign for Free E xpression, which took place during two visits by ARTICLE 19 to Kinshasa in April and July 2000. The two organizations finalized the report jointly and agreed on the importance of developing a new strategy for freedom of expression in the context of resolving the conflict in the Democratic Republic of Congo (DRC). New legislation on the organization of the press and broadcasting media, proposed by the Ministry of 4

Information in May 2000, does not meet this need and shows that such a strategy is all the more necessary. In July 2000, participants in a seminar on freedom of expression organized by JED and other Congolese NGOs1, with the support of the International Human Rights Law Group - Kinshasa, agreed on the need to campaign for a relaxing of the laws governing freedom of expression. At least six other African countries have become embroiled in the armed conflict in DRC which started on 2 August 1998, with the result that eastern DRC is now under the control of the Rassemblement congolais pour la démocratie (RCD), Congolese Rally for Democracy, supported by the armies of Rwanda, Burundi and Uganda. Resolution of the conflict on a military level is provided for in the 26 paragraphs of the Lusaka cease-fire agreement, signed in August 1999. Political resolution is also necessary but can only be obtained once the war which continues to devastate the country is over. Freedom of expression and information are key to ending the conflict. The right to know what has happened and to be able to establish the responsibility of the authorities can only be exercised if one can express oneself freely, have access to information on the authorities’ actions, and hold them accountable. In order to promote a calm environment, the framework regulating these issues needs to be reformed. These reforms are the subject of this report which also examines a number of human rights abuses to underline the necessity of such reforms. As any conflict draws to an end, it is essential to revise existing institutions to ensure a durable peace and a credible transition towards democracy. This transition began in DRC in 1990 and took a significant step forward with the Conférence nationale souveraine (CNS), National Sovereign Conference, of 1992. However, the process experienced numerous obstacles and, despite the positive initiatives mentioned below, was not always genuinely undertaken. Information is not a luxury. It is the oxygen of democracy. If people do not know what is happening in their society, if the authorities’ actions are 1

Médias pour la Paix, Media for Peace, Unité de Production des Programmes d’Education Civique (UPEC), Civic Education Programs Production Unit and Union Congolaise des Femmes des médias (UCOFEM), Congolese Union of Women in the Media.

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hidden, the population cannot meaningfully participate in public life. The government must be open, transparent, and accountable for its actions. The media’s role is of the utmost importance in this, since it is the fourth power alongside those of the executive, legislative and judiciary. It acts as a counter-force in a democracy. These ideas are not new either in the world of development politics or in the Congolese political context where they have been raised on numerous occasions since 1990. More recently, the resolutions and recommendations of the Consultation nationale, National Consultation, which took place in Kinshasa from 29 February to 11 March 2000, showed the Congolese people’s determination to end arbitrary arrests of journalists and to immediately abolish special jurisdictions such as the Cour d’ordre militaire (COM), Military Order Court. In his response, the head of state, President Laurent Désiré Kabila indicated his wish for civilians to be tried by “their natural judge, the common law judge, except in exceptional cases expressly provided for in law”.2 Six months on, there are yet to be concrete positive developments on either issue. President Kabila has said nothing about arbitrary arrests and journalist, Freddy Loseke, was tried and sentenced to three years’ imprisonment by the COM for a press offence. As the outcome of a 12-day meeting in which 1,200 delegates from all provinces discussed the fundamental options open to the nation, the Consultation nationale’s recommendations are of great importance. The reality of everyday life proves that their implementation is urgently needed. Journalists should not be tried for press offences by a special military court in violation of Law No 96-002 of 22 June 1996 which lays down the implementing conditions for the exercise of press freedom. This law, however, is rarely used when journalists are on trial. Many judges have heard of the press law but are not familiar with it because they have been unable to obtain the actual legal text. In September 1999, during a JED seminar on “Press Offences and Procedures before the Courts and Tribunals” in Lubumbashi, regional capital of Katanga province, one of the speakers, a public prosecutor, had to ask JED to provide him with a copy of the law. 2

Message from the President of the Republic, Laurent Désiré Kabila, reproduced in Le Médiateur, 6 April 2000.

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Judges in Kinshasa as well as Lubumbashi and Matadi, regional capital of Bas-Congo province, also requested copies. Nearly 150 copies of the law and approximately 100 copies of the April 1999 special edition of the Government Gazette, containing all the international legal instruments ratified by DRC including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), have been distributed by JED. Journalists should not be forced to spend weeks or months in hiding after writing articles which, despite manifest self-censorship, might not be appreciated by the authorities. For over six months, the entire editorial team of Pot-Pourri, a satirical newspaper, has lived and worked in hiding because they have frequently published articles which have displeased particular political or military authorities. Four months after President Kabila came to power, Tshivis Tshivuadi, deputy chief editor of the daily paper, Le Phare, was “forced into internal exile” for six months for having alleged in an article entitled: “Kabila creates his own DSP” that a praetorian guard was being formed. The paper’s editor, Polydor Muboyayi, the first journalist to be imprisoned by the new government, was detained for three months during which time he was regularly beaten. More fundamental reforms are needed if the consolidation of individual and collective civil and political rights, set out in the Plan d’Action National de Promotion et de Protection des Droits de l’Homme en RDC, National Plan of Action for the Promotion and Protection of Human Rights in DRC, is to become a reality. This problem is clearly explained in the JED report, La grande illusion, The Great Illusion, published on 3 May 2000, World Press Freedom Day: The denial of freedom has become the norm, freedom the exception. Private property, the presumption of innocence, freedom of expression, the right to life, human dignity, and so on, are no more than hopeful prayers. This is as true in the East as in the West.

The right to create a paper, a radio or television channel clearly exists. Political

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liberalization3 was accompanied by a media boom, as demonstrated by the 1999 JED annual report,4 which lists some 50 newspapers and approximately 15 radio and 15 television stations as an appendix. The statistics are slightly misleading as the political climate remains difficult and the report also notes a high rate of arrests amongst journalists - 30 in 1999, three times that of the previous year. Although detentions of longer than 48 hours decreased during the same period - 20 as opposed to 31 - arrests and cases of ill-treatment or torture increased alarmingly. The case of Freddy Loseke, director of La Libre Afrique, is illustrative of the situation in western DRC. He was whipped in detention and sentenced to three years’ imprisonment by the COM in May 2000 because of articles he wrote alleging that a coup was being prepared.5

The press has practically ceased to exist in rebel-controlled eastern DRC where the lack of freedom of expression and the level of intolerance is even more striking. The press law was invoked to close Radio Maendeleo, a community radio, in Bukavu in July 1999 and journalists are frequently threatened by the RCD authorities. Kizito Mushizi, Radio Maendeleo’s director, was repeatedly threatened before being arrested. The regional station of Radiotélévision nationale congolaise (RTNC), a state channel, is a mouthpiece of RCD propaganda. Nicaise Kibel’bel Oka, director of Les Coulisses newspaper, continues to publish despite the threats, summons and arrests he has been subjected to by RCD officials.6

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Political liberalization dates from 24 April 1990 when the former President, Mobutu Sese Seko, announced the end of the one-party system and the MPR’s leading role in state affairs, and the inauguration of a multi-party system.

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La liberté de la presse en République démocratique du Congo, Press Freedom in the Democratic Republic of Congo, published by JED in Kinshasa on 10 December 1999. 5

See Section III(b) below for further information.

6

See Section III(a) for further information.

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This report focuses on freedom of expression issues within the political, economic, legal, and professional arenas. In the context of analysing existing and proposed legal provisions, the report makes a number of recommendations for reform which, if implemented, might allow the creation of a climate in which freedom of expression is respected and protected and where the role of the media is tolerated and encouraged in a pluralist system in DRC.

I.

HISTORICAL CONTEXT

(i)

A Period of Failed Reforms

On 24 April 1990, having received a clear message from the recently completed popular country-wide consultations he had organized, President Mobutu Sese Seko announced the end of single party rule and of the leading role of the Mouvement populaire de la révolution (MPR), Popular Movement of the Revolution party, in state affairs, and the inauguration of a multi-party system. The announcement was welcomed with singing and dancing in the streets of Kinshasa and the country’s major towns. Numerous newspapers, completely taken aback by the

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announcements, did not appear the next day. After all, at that time according to the press law (ordonnance-lois Nos. 81/011 and 81/012 of 2 April 1981), a journalist was above all “a MPR activist, responsible for conveying party ideology”. With the demise of the single party, it was clear that the law governing the press had become obsolete in practice and in law, even though the Congolese press remained subject to this anachronistic legislation. However, this did not prevent the right to freedom of expression being openly enjoyed. Previously clandestine opposition political parties began to operate openly followed by hundreds of other political groupings. The press, threatened with extinction through lack of readers, was forced to change its official obsequious style. Sport, the favourite topic of discussion in the media, was almost completely replaced by politics. From that moment, no political subject was considered taboo by the Congolese press. Then, in 1992, the CNS took place.

(a)

La Conférence nationale souveraine (CNS), National Sovereign Conference

This forum, seen by the people as a sort of “open sesame”, declared its belief in freedom of expression and democracy as factors in development. The CNS’s Information, Press and Broadcasting Commission, which met between 22 June and 27 August 1992, strongly condemned, amongst other things, the following media related issues:7 •

The authorities’ confiscation of the rights to freedom of opinion and expression;



Censorship;

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Taken from the Commission’s 27 August 1992 report, signed by Mwanda N’Koli Tala, the rapporteur and Lucien Tshimpumpu, its president. 10



Frequent and abusive use of the notion of state secrets to deny journalists accessto particular sources of information and to hide particular truths from the public;



Falsehoods and the adulteration of the truth;



Bias, manipulation, distortion of information and the failure to address the public’s need for information.

The Commission suggested: •

The modification of legal texts, redefinition of principles and creation of communication structures so they might meet the needs of a democratic society;



The State should set up appropriate and adequate structures to allow citizens to effectively enjoy the right to information.

The Commission proposed the creation of a Conseil National de l’Audiovisuel et de la Communication, National Broadcasting and Communication Council, for the transitional period which would become the Haute autorité de l’Audiovisuel et de la Communication, Supreme Broadcasting and Communication Authority as the new Republic (3rd Republic) dawned. A draft act (a CNS decision) providing for its institution was attached as an appendix to the Commission’s report. The Council’s function was to set up mechanisms to regulate communication between the authorities, the media and the public, for example, to ensure “freedom of expression of all trends of thought and opinion, and equal access by all political parties to state media” (Article 2). The Commission proposed that the Council should be composed of four members designated by the President of the Republic, four members designated by the Haut conseil de la République - Parlement de la transition (Hcr-Pt), High Council of the Republic - Transitional Parliament, four members designated by the Prime Minister, and a lawyer from the Conseil supérieur de la magistrature, Supreme Judicial Council. Law No 96-002 of 22 June 1996 does not incorporate all the fundamental recommendations of the CNS’s Information Commission’s report. The draft law setting out fundamental principles with regard to information and communication, which was

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attached as an appendix to the Commission’s report, was far less damaging to freedom of expression than the law in force. For example, the draft law talks of: •

A State media independent of government;



Setting up an independent structure responsible for ensuring and guaranteeing the independence and impartiality of state media and equal access of all political parties to state media;



From the beginning of the transitional period, radio broadcasts should cover the whole country so that the general public can be better educated and more aware of the political stakes in the forthcoming elections;



The creation of a disciplinary body to monitor the granting of professional identity cards and respect for the code of ethics, and to sanction any breaches.

(b)

Les Etats généraux de la communication (EGC), Communication Summit

In May 1995, one year after the end of the two-year CNS, the various transitional governments had done nothing to organise the EGC, as requested by the Congolese people. Successive Ministers of Information merely tried to create a press law which corresponded to their own personal idea of the press. The press was faced with the threat of being without a legal framework. It was in this context that the EGC’s first meeting was finally held in Kinshasa from 13 to 17 May 1995. This meeting remains, even now, the only credible evidence of the will of journalists as a professional body to organise themselves. Three hundred and twenty national and international journalists, delegates and observers took part in debates on the future of journalism in the then Republic of Zaire. Since the liberalisation of politics in 1990 no

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other journalistic forum had brought together so many media professionals. According to the EGC’s report,8 the forum had three aims: to evaluate the organization and practice of the profession of journalism; to organize the profession legally, statutorily and ethically; and to put in place a body to implement the first EGC’s recommendations and resolutions. On the legal front, to its credit the EGC produced two draft laws, one on the press and another on the status of journalists in the Republic of Zaire. In the draft press law, the EGC opted to replace the need for permission to publish by a declaration to the Clerk’s Office of the Tribunal de grande instance, High Court; to reaffirm the right to information; to accord greater freedom in the creation of press companies and in access to information; to achieve greater responsibility amongst journalists; and to introduce preferential procedures for press offences to reduce the length of detention without trial, and in particular, to ensure that on ethical matters, a journalist was subjected only to the judgment of his peers. The main aim of the EGC in producing the draft law on the status of journalists was to establish some degree of order in the profession by clarifying who was a journalist, and by giving a joint commission the sole power to grant press cards according to strict criteria. In light of their social role, the EGC also wished to provide some protection to journalists with regard to their working conditions. In practice, press cards were granted indiscriminately, even to members of intelligence networks who were then better able to infiltrate the press milieu and track journalists. The EGC also made statements about the creation of an independent Supreme Broadcasting Authority to manage broadcasting frequencies, and about the opening of state media to pluralist opinions. The EGC raised other important options in particular with regard to the creation and management of press companies and distributing services, as well as the separation of journalists’ and press owners’ trade unions. The EGC’s other achievement was the unanimous adoption of a Code of Ethics for the country’s journalists, valid today as then. 8

EGC Report, published on 18 May 1995 and reproduced in the 4 December 1998 edition of Bloc-Notes. 13

However, the work was never finished. Only the press law was presented to the Hcr-Pt, and the EGC Implementation Committee was called on a number of occasions to defend the profession in front of parliamentary commissions. The main point of contention between the profession and the Hcr-Pt was the obligation on journalists to reveal confidential sources, introduced as an amendment by parliamentarian, Lambert Mende Omalanga. For the first time in the history of the Zairian press, journalists unanimously organized a protest march against what was known as “the Mende amendment”. Parliament was forced to retract and to suppress the obligation to reveal sources, replacing it with a more reasonable formula: “The journalist has access to all sources of information.

He is not required to reveal his information sources except in cases

expressly provided for in law”. Law No. 96-002 of 22 June 1996 was passed just four months before the start of the rebellion which brought Laurent Désiré Kabila to power and consequently no further action was taken on the other draft laws put forward by the EGC. The EGC implementation committee has been inactive ever since. In September 2000, one of its members, Dominique Sakombi Inongo, was appointed Minister of Communication in President Kabila’s government. And while Law No. 96002 of 22 June 1996 was passed, the Hcr-Pt had ceased to exist before it could consider the law on the status of journalists.

(ii)

The coming to power of Laurent Désiré Kabila

On 17 May 1997, troops of the Alliance des forces démocratiques pour la libération (AFDL), Alliance of Democratic Forces for the Liberation, under the command of Laurent Désiré Kabila, entered Kinshasa, overthrowing Maréchal Mobutu. Zaire was renamed the Democratic Republic of Congo. The new authorities in Kinshasa lost no time in showing exactly what they thought of the press. Although the profession was expecting mechanisms and guarantees in relation to the freedom to provide and access information, as well as professional regulatory structures,

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the new government spoke openly of “the current social and political context being inappropriate, of serious deficiencies in both substance and form, and of mis-use of freedom of expression”. Draft laws on the press and the status of journalists prepared by the office of the Minister for Information and Tourism, Didier Mumengi, were presented to the profession on 8 May 2000. According to the Minister’s Office, the benefit of the legislation was that it “suppressed all prison sentences for journalists for press offences except in cases provided for by the Penal Code”. However, the Penal Code provides for sentences up to the death penalty for the divulging by journalists of information considered to be defence secrets. The Code, dating from the Mobutu era, includes several other offences such as insult, slander, libel, insulting the authorities and breach of privacy which are also press offences. A judge who refers mainly to the Penal Code will still find valid grounds to imprison journalists. Nothing will therefore change. Worse, in certain aspects, it is clear that the draft reforms initiated by the government are more restrictive than Law No 96002 of 22 June 1996. This is apparent after analysis of only a few Articles of the recently proposed draft: •

Articles 14-18 mean that a declaration is no longer sufficient to publish a paper; a receipt must also be obtained. However, the draft reform does not include a time limit for providing receipts, so the Ministry of Information can effectively indefinitely delay the appearance of a new publication simply by failing to acknowledge receipt of the initial statement. To guarantee freedom to publish, a precise time limit must be established, beyond which, if nothing has been heard, the Ministry’s agreement is taken for granted.



Articles 32 and 33, cover access to information sources and the right not to reveal confidential sources. The stated principle of free access is submerged by dogmatic notions of “state security” and “actions in the public interest”, which distort the principle that sources are protected. The text of the draft law is open to several interpretations, unlike the Journalist’s Charter which is attached as an appendix to the

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law. Articles 32 and 33 are ambiguous. They stipulate respectively: “Access to information sources is free. There can be no restriction except for reasons related to state security or to actions in the public interest which must be kept secret if they are to succeed...”; and “A journalist may indicate the source of the information he is making public. He is only required to reveal identities more precisely in cases set down in law”. •

Articles 46 to 56 on the distribution of newspapers contradict another draft law establishing the Messageries congolaises de Presse (MCP), Congolese press distribution agencies. Article 46 of the draft press law states that “the sale, hawking and distribution in public areas of newspapers or magazines is unrestricted, except where it affects respect for public order. However, the draft law establishing the MCP proposes that the MCP will comprise mixed commercial companies in which both the State and newspaper editors are stakeholders, and that the State, at least initially, will hold the majority of shares. The same text adds that the State will cede parts of its capital “bit by bit to editors until it only holds a minority share, but will retain a minority blocking vote in case of necessity”. Leaving aside the inherent contradiction, how can a distribution agency in which the government has the controlling stake guarantee that all newspapers, whatever their editorial line, will be freely distributed? Newspapers which do not adhere to the government line are already, in fact, prevented from leaving the country and are systematically seized at Kinshasa/N’Djili international airport.



Article 52 of the draft permits the Tribunal de Grande instance to ban the publication of a newspaper. However, unlike Article 44 of Law No 96-002, it does not explicitly set down motivation or grounds for such an action nor guarantees against potential abuse. Given the executive’s interference in the judiciary, it is reasonable to assume that abuses will continue to take place unless precise criteria on the law’s application are set down.

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Articles 64 to 67, which cover liability for press offences, violate the universal legal principal of individual responsibility. In terms of legal liability it is not usual that the author of a contested article is third in line behind the publication’s director and the editor. These articles in their present formulation, also contradict the first commitment of the Journalist’s Charter which states, “I (the journalist) take responsibility for all my articles, even those which are anonymous”.



The executive’s intention to shroud the management of the State in secrecy is made absolutely clear by Articles 70, 71 and 72 (insult, defamation and insulting the Head of State). This would mean a journalist should not criticise anyone in public office. Moreover, defamation as defined in the Penal Code, does not take into account the accuracy or otherwise of a journalist’s information. The person involved has only to declare rightly or wrongly that they have been defamed and exposed to public contempt for a complaint to be lodged. It is therefore evident that any concept of insulting the Head of State must be clearly defined by law and that the law should not provide special protection for either the Head of State or civil servants.



Article 75 provides for the seizure of offending editions and the suspension or banning of a newspaper. The banning of a newspaper except in cases of inciting ethnic or racial hatred, or murder, or defending violence, is an infringement of and an attack on freedom of expression.

In December 1999, the Minister for Human Rights drew up the National Plan of Action for the Promotion and Protection of Human Rights in DRC. This document, which was published in March 2000, reiterates the need: •

to revise national legislation so that it conforms to international human rights instruments;



to create a political framework which encourages freedom of expression and opinion and which promotes an ethical code of practice within the media;9



to strengthen press freedom and to democratise the state media, to develop respect for

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a code of ethics and a sense of responsibility, and to inform the public of the provisions of the press law;10 and •

to reaffirm the sanctity of private life and of the home.11

The Plan of Action states that one of the priorities for the year 2000 is: •

the adoption of other legal and statutory measures in accordance with international human rights instruments for the implementation of the Plan.

The draft law prepared by the Minister of Information contravenes international human rights law and as such does not conform to the Plan of Action’s stated priorities.

II.

THE CURRENT SITUATION AND ITS IMPACT ON RESPECT FOR HUMAN RIGHTS

The lack of respect for human rights in general and freedom of expression in particular, originates from a number of problems which can be divided into four groups:

(i)

Political problems

The Congolese media, in particular the state media, has been used for political ends in ethnic conflicts, which have often been created by politicians. In 1992, when Etienne Tshisekedi was elected prime minister by the CNS, ethnic disturbances broke out between the Katangais and Kasaïens, who had lived for generations in Katanga province. Many Kasaïens were forced to leave Katanga, abandoning their property, much of which was destroyed. Two politicians, Gabriel Kyungu wa Kumwanza, Governor of Katanga Province, and Nguz a Karl i Bond, a former prime minister, were at the forefront of what 9

Chapter II, Section 1.1. Chapter II, Section 1.3. 11 Chapter II, Section 2. 10

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was termed “ethnic cleansing” by the local press. In Kinshasa and Lubumbashi, the Office zaïroise de radiodiffusion et de télévision (OZRT), Zairian Broadcasting Company, (predecessor of the current RTNC), echoed calls for ethnic hatred and for the murder of all those not originally from Katanga, particularly those from Kasaï. This outrage, which the international community failed to react to, resulted in “the longest graveyard in the world”, stretching from Likasi station in Katanga, to Ilebo in West Kasaï,. At least half a million bodies were buried along the track as convoys of Kasaïens were expelled. Many survivors still live in the Tshibombo camps for the displaced in Mbujimayi, East Kasaï. Newspapers such as Ujamaa in Lubumbashi revelled in the hate-ridden speeches of politicians with headlines such as “All Kasaïens must leave” or “Kasaïens chased from Katanga like dogs” or “These dogs without chains”.

On 2 August 1998, war again broke out in DRC involving at least six African countries. Congolese rebel movements, supported by the armies of Rwanda, Burundi and Uganda, currently control the north-eastern part of the country. This war, which has already lasted two years and follows the war which brought Laurent Désiré Kabila to power, has considerably undermined hopes inspired by the fall of Mobutu, that the country would revive. All sectors of national life, both in the east and west, have paid and continue to pay a heavy price. In the name of war, many freedoms have been even more restricted and accusations such as “intelligence with the enemy, demoralising the population or combatants, disclosure of a state or military secret in time of war, or treason” have been frequently used to violate press freedom. Joseph Mbakulu Pambu Diana, a journalist with Radiotélévision Matadi (RTM) was arrested in Matadi on 24 October 1998 by members of the Agence Nationale de Renseignements (ANR), National Intelligence Agency, and transferred by plane the same day to Kinshasa. Mbakulu was held for 34 days in an ANR cell in Kinshasa before being

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brought before the COM on 27 November 1998 and accused of “treason in a time of war”. On 12 December 1998, after being detained for 15 days in a COM cell, he was transferred to Pavillon 1 of the Centre pénitentiaire et de rééducation de Kinshasa (CPRK), Penitentiary and Re-education Centre formerly known as Makala Central Prison. After nearly 13 months’ detention, his trial by the COM began on 18 November 1999. At the start of the trial, the prosecution changed the charge and declared that Joseph Mbakulu Pambu Diana was in fact being charged with “spreading false information”, for “having refused to temporarily close the station and collaborating with the rebels”. He was acquitted on 31 December 1999 by the COM on the grounds that the “charge was not founded in law or in fact”. In an effective democracy, the press is responsible for scrutinising the activities of those in government to enable voters to call on their government to account for its actions. The current political climate prevents the press from carrying out this role.

Laurent Kantu Lumpungu, President of the Association des cadres pénitentiaires, Association of Prison Officers, was detained without trial for seven months following his arrest while working at the CPRK on 29 May 1999. After being tortured at the Inspection provinciale de la police, the Provincial Police Headquarters, he was returned to the CPRK and imprisoned. It appears he was arrested because he criticised conditions of detention in the CPRK during a radio interview on Voice of America (VOA) on 28 May 1999. The press must be able to exercise its role as guardians of the public interest12 and it is therefore essential that their sources of information remain confidential. However, the right to disclose information from government sources if the public interest outweighs the damage such revelations could cause, must also be accepted. The media should play a crucial role during an electoral period and preparation for free and democratic elections should start with reform of the media. 12

Proposed by the Information, Press and Broadcasting Commission (1992). See footnote 7. 20

In June 1999, during a seminar organized by the Kinshasa Institut facultaire des sciences de l’information et de la communication (IFASIC), University Institute of Information and Communication Sciences, Professor Mbelolo Ya Mpiku, Rector of the IFASIC, explained the journalist’s role in this context:13 •

during the preparatory phase, journalists should publicise legal texts (the electoral law, draft constitution, decree on political parties, lists of candidates etc);



during the official electoral campaign period, it is the responsibility of the journalist to ensure coverage of activities of the candidates and political parties, and citizens’ opinions, and to check that the State acts transparently and treats all candidates equally;



on polling day, the press should fulfil the role of privileged witness and remain independent by condemning any fraud or vote rigging, and by encouraging voters to use their right to vote in good conscience; and



after the elections, the press must ensure the public’s on-going education by encouraging acceptance of the election results, if they are not contested, and by developing a sense of tolerance and responsibility, on the basis of objective and measured information.

Although not legally binding, these points highlight the crucial role of the media and journalists in the democratic process, of which elections are an essential part. Another speaker at the seminar, Professor Valère Mulopo-Kisweko, also from the IFASIC, explored the practical aspects of a journalist’s role: how to collect, analyse and publish information during the electoral period. In recognition of the importance of elections, ARTICLE 19 has produced Election Reporting: A practical guide to media monitoring. The guide provides an outline of the human rights principles underlying media independence and pluralism, and suggests how 13

See Etat de droit et élections : rôle des médias, Elections and the rule of law: the role of the media, published in 1999 by IFASIC, Kinshasa. 21

to detect media bias in content, style and language. The precarious state of freedom of expression in DRC derives from these fundamental political problems. According to JED’s second annual report,14 between December 1998 and 10 December 1999: Twenty journalists were detained for varying periods of time then released, usually only provisionally. Thirty others were called in for questioning and held for at least 48 hours. Eight journalists were attacked or subjected to degrading or inhuman treatment and eight were threatened or harassed in the course of their work.

To counter problems of ethnic divisions and the use of the media to incite intolerance, and as part of its national campaign against tribalism and ethnic divisions, Médias pour la Paix, Media for Peace, a Congolese NGO, set up “L’Observatoire du tribalisme et des divisions éthniques en RDC”, DRC Watch on Tribal and Ethnic Divisions. Another organization, Unité de Production des Programmes d’Education Civique (UPEC), Civic Education Programmes Production Unit, set up a media monitoring body after noticing that the growth in cultural associations interested in civic education brought with it “a tendency to promote ethnic, or tribal/regionalist politics, based on the deeprooted hatreds which are often the cause of many ruptures and divisions within communities”.15 In conclusion, the current handling of information is not conducive to democracy because: •

The government’s strategy towards the press is hostile and manipulative;



Criticism is often perceived as demoralising and against the interests of the State;



Freedom of expression is often abused to encourage intolerance and racial hatred; and



There is no general access to official information.

14

See footnote 3. UPEC proposal for the creation of a Unité d’Observation des Médias, Media Observation Unit, within UPEC, 16 August 1999.

15

22

(ii)

Economic problems

Mobutu’s fall from power did not generate an economic revival.

On the contrary,

businesses closed down or were forced to lay off personnel. The most striking example of the economic slump was the laying off by the economic giant Gecamines16 of some 16,000 employees, nearly half its workforce. Katanga province was particularly affected. The slump in economic activity, coupled with the suspension of cooperation with bilateral and multilateral partners, was catastrophic for many other sectors of national life including health and education. Both state and privately owned media have also been seriously affected by the economic crisis. The Congolese press which flourished following the political liberalisation of 24 April 1990, with print runs of around 18,000 copies, is now financially very weak. Circulation figures have dropped sharply and some papers have simply folded. In many countries, a paper’s circulation corresponds more or less to its readership. In DRC, however, every edition is read by dozens of people. Furthermore, by selling photocopies of newspapers, or by allowing them to be read on the spot for a small fee, less than the cost of the paper, street sellers have been able to make a profit at the expense of the press companies. Although this aggravates press companies’ difficulties it does at least show that the public wants to be informed. The current slump in sales is perhaps due to the ever increasing financial constraints faced by potential readers. A poor newspaper cannot be free and is at the mercy of financial and ideological pressures. A colloquium on the “Problems of Financing the Private Press in DRC” organised by JED in March 1999 made the following recommendations:17 •

To create a Supreme Broadcasting Council to regulate broadcasting in DRC and to ensure that everyone has access to the broadcast media; to introduce a radio and television licence fee, of which part of the revenue could be used as a source of funding for the press;

16

Générale des carrières et des mines, Mines and Extraction Company. Rapport général du colloque sur la problématique du financement de la presse privée en République démocratique du Congo, Report of the Colloquium on the Problem of Financing the Private Press in DRC, JED, Kinshasa, March 1999. 17

23



To formally acknowledge the need for universal, irrevocable and visible assistance, noted in the State budget, to assist the private press as a whole, and to prohibit any discriminatory use of public funds, in order to avoid a repetition of the situation where the press is both government client and servant.



To establish a joint commission (State, press owners, journalists and readers) to define the procedures and criteria for the granting of state aid to the private press.



To implement by statute the advantages and facilities provided for by law No. 96-002 of June 1996.

In the words of Professor Mampuya Kanunk’a Tshiabo during the same JED meeting: “...state assistance to the press should be considered not as a right or a favour, but as the collective duty to ensure, for the people’s own benefit, the pluralism which is necessary for democracy. As such, state aid to the press under a dictatorship has no validity, and has something of a predatory element brought about by the idea of patronage or the inheritance of state goods from those who hold power.”

(iii)

Legal problems

Unlike a number of other African countries, DRC has a national and international legal arsenal at its disposal, which should have led to better respect for human rights.

DRC is party to the UDHR and its entire constitutional history since independence underlines its commitment to the Declaration. DRC has also ratified:



the International Covenant on Economic, Social and Cultural Rights;



the ICCPR and its optional protocol;



the International Convention on the Elimination of All Forms of Racial Discrimination;



the African Charter on Human and Peoples’ Rights (ACHPR).

Nationally, Law No. 96-002 of 22 June 1996 on the press contains many of the principles governing modern democracies. However, the discrepancy between words and deeds, the 24

law and its application, remains DRC’s weak point. Despite a number of high profile initiatives, apparently motivated by political public relations concerns, its day to day application shows that not everyone is equal before the law and generates the impression that the law is at the service of the most powerful. Anyone with a little political, economic or military power can call on the assistance of the police, army, security services, even the judiciary, to silence a journalist or solve a personal problem. Below are two examples of the arbitrary use of power:

Achille Kadima Mulamba, director of the weekly publication, Veritas, was arrested by soldiers on 24 August 1999 at around 5pm at the Cercle Elaïs, in Kinshasa/Gombe, on the orders of an ANR agent acting on behalf of Laurent Batumona, Director General of Contributions (Taxes). The journalist was held for 48 hours in the cells of the Kinshasa/Kitambo sub-police station, with the order that he was not to be allowed to speak with anyone, not even his family. The 13 and 20 August 1999 editions of Veritas condemned “Director General Laurent Batumona’s abuse of power which has caused significant deficits at the Treasury”. According to Veritas, Laurent Batumona had illegally authorised dispensations with regard to the registration of tax declarations, and in doing so created a deficit of around 35 billion Congolese Francs. JED Secretary General, Mwamba wa ba Mulamba, who was trying to mediate between the journalist and the Director General, was also arrested and detained in the same cell for over 30 hours.

Dodo Lumingu, Bosange Ifonge Feu d’Or and Kalusha Bokangu, journalists and other members of staff of the L’Alerte Ndule (a music, sport and cultural weekly) were arrested on Monday 27 September 1999 at around 5am in the offices of the Biaka Press printing house in the Kimbangu district of Kinshasa/Kalamu. They were arrested by armed men who claimed to be soldiers of the 50th Brigade of the Forces armées congolaises (FAC), Congolese Armed Forces as they were waiting for the next edition of their paper, due to be on sale by 6am, to be printed. Delly Bonsange, Alerte Ndule’s Publication’s Director told JED that the three men were being held at the home of a

25

FAC general. The journalists were not informed why they had been arrested. However, it subsequently became clear that the kidnappers had confused L’Alerte Ndule with L’Alerte (a general interest weekly), which several months earlier had published information relating to the arrest of General Faustin Munene, the Air Force Chief of Staff. They were released on Monday 4 October 1999 at midday. L’Alerte Ndule was created by former staff of L’Alerte, who were themselves former staff of L’Alarme, a newspaper owned by Bonsange Yema (currently in exile after serving a 12-month sentence for a press offence).

These two examples clearly show that respect for human rights in general, and for freedom of expression in particular, is an illusion in a state where the law is not a universally shared value and where the real power is in the hands of an individual or group of individuals. The principle of the separation of executive, legislative and judicial powers is an essential guarantee in a democracy. However it can only be effective if there is sufficient will. This is not currently the case in DRC. Additionally, since the new government came to power, the army no longer appears to consider itself subject to the authority of the government with the exception of the Head of State. Numerous officials have complained both publicly and privately about this situation. The Minister of Justice, through his private secretary, stated in his closing speech at the seminar on “The Administration of Justice and Human Rights” organized by the Congolese government and the United Nations in August 1999, that “ the organization of a seminar on the administration of justice and human rights is proof, if more is needed, of the Gouvernment de salut public, Government of Public Salvation’s commitment to the ideal of promoting human rights, of which justice is the epicentre”. The judiciary is an important pillar in the protection of human rights and justice is “the barometer of the proper functioning of the state apparatus as a whole and constitutes the last defence for citizens who feel their rights have been infringed”.18 It is common knowledge in DRC that justice remains the weak link of the political system for a number of reasons outlined in the final report of the above mentioned seminar, published in November 1999. These 18

Administration de la justice et droits de l’homme en RDC (Actes de Séminaire), The Administration of Justice and Human Rights in DRC, (Seminar texts), (United Nations Development Program and the DRC Ministry of Human Rights), Kinshasa, November 1999. 26

are: •

Failure to incorporate the independence of the judiciary into law, despite the fact that various constitutions including the 27 May 1997 constitutional decree-law, No. 003, have endorsed it, and the inadequacy of the legal texts which regulate the judiciary;



Judges’ ignorance of international human rights instruments;



Illegal detention and the use of torture in many detention centres with total impunity;



The arrest and detention of people by individuals - currently, agents of the special services - who do not have the authority to act as officiers de police judiciaire (OPJ), criminal investigation officers, or officiers du ministère public, officers of the public prosecutor’s department.

To address the appalling failings of the justice system, the seminar recommended inter alia: •

The re-establishment of the independence of the judiciary, in particular by transferring management of the judiciary, both judges and magistrates, to a body independent of the executive, which is provided with an adequate and autonomous budget, placed under the direct authority of the President of the Republic assisted by three vice-presidents, including the two heads of the Judiciary and a representative of the military Judiciary;



The relaunch of the publication of legal gazettes and the bulletin of Supreme Court decisions;



On-going training of the judiciary and OPJs on international human rights standards ;



Reaffirmation of the principles of freedom and the presumption of innocence;



Reassessment of the principle of reasonable proof of guilt;



The introduction of obligatory weekly visits by an officer of the public prosecutor’s office to inspect detention cells.

The seminar made a number of recommendations in relation to institutional reforms and the revision of legislation, including: 27



Quicker processing of case files;



Education of the general public in the exercise of their basic rights, in particular the right to a judicial appeal against decisions made by the administrative authorities.

In relation to military justice, the seminar requested: •

The COM be abolished;



The traditional system of military justice be restored;



The military justice system be brought into line with national law and international treaties ratified by DRC;



The education and training given to soldiers be strengthened in areas of discipline and respect for the citizen.

On appeals mechanisms: •

Guaranteed appeal mechanisms, both ordinary and exceptional;



Guaranteed right to appeal even in a time of war, while recognising the specific nature of operational jurisdictions which face particular demands, for example, to reach swift decisions and to set examples.

On judicial abilities: •

Respect for the traditional rules of material, territorial and personal competence;



Military jurisdictions should not be competent to try civilians.

Other recommendations made by the seminar to the government included: •

Publication of an Official Gazette of legal texts relating to military justice;



A guaranteed right to legal defence in military courts;

28



Ending the confiscation of property provided for in the Military Code of Justice;



Military judges to be required to justify their judgments;



It should be forbidden to pass a verdict on the basis of a simple pronouncement except in cases of flagrante delicto, and in such cases, there must be the requirement to justify and draft the judgment immediately it has been passed;



Closure of unofficial detention centres;



Abolition of torture, harassment and other humiliation of detainees, and the prosecution of those responsible for such acts;



Restoration of the authority of the Ministère public, Prosecution service over OPJs and the security services;



Re-establishment of the judiciary’s power with regard to opening and inspecting all places of detention.

One year after the seminar, virtually none of the recommendations has been implemented. The major responsibility for reform of the Congolese justice system falls on the government, which has yet to show sufficient political will to make changes. The COM is still as active as it was before the seminar. Journalists and politicians have been indiscriminately tried and sentenced by this court which is the antithesis of universally recognised rules of law and justice:

Aimé Kakese Vinalu, editor of the weekly publication, Le Carrousel, was arrested on 23 June 2000 and appeared before the COM on charges of “treason”. He was informed of the charge against him in his cell at the ANR on Thursday 6 July 2000, after appearing before a military prosecutor. During questioning, he was asked to explain his “intention and source of inspiration” in relation to two articles which had appeared in the edition of Wednesday 20 June 2000 and which were entitled respectively, “Rows between L.D. Kabila-V. Mpoyo and Dictator, who is this?”, and an editorial piece entitled, “Congolese opposition: After three years of resistance, it is time to unite”. According to the military prosecutor, the editorial aimed to “incite the Congolese opposition to rebel against the current government”. The journalist told JED that before his transfer to the CPRK, he was beaten on several occasions while held in a detention centre known as “Kin-Mazière” in Kinshasa/Gombe. Kakese was sentenced by the COM on 12 September to two years’ imprisonment.

29

The COM was created in August 1997, shortly after the fall of Kinshasa, to punish crimes committed by soldiers. Over time, the COM has tried an increasing number of political offences and civil crimes, even though these are outside its jurisdiction and despite President

Kabila’s

declaration

in

response

to

the

National

Consultation’s

recommendations. The new Kinshasa authorities have never hidden their contempt for Law No 96-002 of 22 June 1996. This law was more or less eclipsed by the start of Laurent Désiré Kabila’s rebellion four months after its adoption. Many judges, especially those outside Kinshasa, have never even read it. In Kinshasa, it is rarely used in court, especially if it would be to a journalist’s advantage. Thierry Kyalumba, Publication’s Director of the Vision newspaper, was sentenced by the COM in March 1999 to four years’ imprisonment for revealing state secrets in time of war. Neither the judge nor the prosecution once invoked Law No 96-002 of 22 June 1996 during the entire trial; the Penal Code was the only document used. The COM has often punished journalists or other people deemed to be embarrassing illustrating how journalists are subjected to a judicial system which does not conform to international standards. For example: •

the COM cannot be considered to be “competent, independent and impartial” (Article 14(1) of the ICCPR and Articles 3 and 7 of the ACHPR) as it is composed of judges who are nominated by soldiers, and who include soldiers who have not received any legal training;



according to international standards, any person found guilty of a crime has the right for the verdict and sentence to be reviewed by a higher jurisdiction (Article 14(5) of the ICCPR and Article 7(1)(a) of the ACHPR). There is no right of appeal at the COM with the exception of the death sentence, where the condemned prisoner can seek clemency from the President of the Republic. Despite this safeguard, some prisoners have been executed on the day of their sentencing.

30

Furthermore, some of those tried by the COM have been civilians. The Human Rights Committee, set up by the UN to monitor compliance with the ICCPR, has stated (UN Doc. CCPR/C/79/Add.3, Concluding observations of the Human Rights Committee: Egypt. 09/08/93, paragraph 9): ...military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties.

The fact that some 30 journalists in 1999 were detained for interrogation shows how the rights of many journalists are violated without the judiciary being involved. These practices create a very difficult situation for those who believe they have the right to exercise their freedom of expression and association (see Section III(a) and (b)).

(iv)

Professional Problems

The profession of journalism itself is confronted by problems which can be summarised as follows: Absence of a moral authority capable of assuming the role of regulator in the profession; •

Insufficient financial means to ensure the financial independence of the press;



Lack of solidarity and esprit de corps even when confronted by questions which touch the heart of their professional role to provide information, and exacerbated by the Head of State giving money to newspapers in the form of the Caisse d’assistance et de solidarité pour les professionels des médias (Casprom), Assistance and Solidarity Fund for Media Professionals;



Difficulties with the initial and on-going training of journalists.

Journalists themselves will have to make a concerted effort if these problems are to be resolved. To this end, a seminar on freedom of expression took place in July 2000 involving journalists and human rights defenders. The seminar recommended the

31

coordination of various initiatives to establish a press regulatory body organised by the profession itself and independent of the authorities.

III.

CASES OF VIOLATIONS OF FREEDOM OF EXPRESSION AND INFORMATION IN DRC

This section contains examples of the violation of freedom of expression and information both in eastern and western DRC. Despite certain differences, urgent reforms are needed in both areas.

(i)

In eastern DRC

In this part of the country, currently under rebel control, Law No. 96-002 of 2 June 1996 was invoked to close Radio Maendeleo. Other private stations have also experienced problems after broadcasting information which the authorities have not appreciated. On 1 April 1998, Radio Amani, owned by the archdiocese of Kisangani, was closed on the orders of the government because it rebroadcast the French editions of the British Broadcasting Corporation (BBC)’s news bulletins. In South Kivu, Radio Maendeleo has been suspended since July 1999. This communitybased radio, owned by development NGOs in South Kivu, broadcast news and programmes on development issues, human rights and other subjects.19 On 7 July 1999, representatives of the RCD Department of Information, Press and Cultural Affairs ordered Radio Maendeleo to stop producing its own political news and debates and instead to use those produced by the RTNC, totally controlled by the rebel movement in the eastern part of the country. Radio Maendeleo did not comply with the order. 19

Maendeleo means ‘development in Swahili. 32

On 20 July 1999, the radio broadcast live a public debate during which the crowd insulted Vice-President Jean-Pierre Ondekane. The following day, reportedly on Jean-Pierre Ondekane’s orders, the authorities seized Radio Maendeleo’s equipment and it has not broadcast since.20 On 30 July 1999 the head of the Department of Information, Press and Cultural Affairs officially suspended the station invoking Law No. 96-002 of 2 June 1996, in particular articles 83, 85 and 87.21 The station’s staff have experienced problems since its suspension. On 25 August 1999, Radio Maendeleo’s director, Kizito Mushizi Nfundiko, its head of programs and news, Kamengele Omba and six members of other NGOs were stopped by RCD soldiers as they left a meeting of the Conseil régional des organisations non-gouvernementales de développement (CRONGD), Regional Council of Development NGOs, in Radio Maendeleo’s vehicle. The soldiers had a list of people accused of participating in a “secret subversive meeting”. Kizito’s and Kamengele’s names were on the list. The soldiers arrested all the occupants of the car and took them to the ANR. The six other people were released the same day but the two journalists were placed in detention and accused of intercepting military secrets on their walkie talkies.22 Two days later, the authorities arrested Rafael Wakenge Ngimbi, a member of the Héritiers de la Justice, Heirs of Justice (a human rights organization), team and called one of his colleagues, Pascal Kabungulu, in for questioning. The authorities accused Wakenge of helping the journalists to intercept military secrets and took him to a detention centre on the orders of the military prosecutor. Wakenge, Kizito and 20 See Eastern Congo Ravaged: Killing civilians and silencing protest, Human Rights Watch, Vol 12.No3(A), May 2000. 21 Article 83: Subject to legal proceedings, a member of the government or the regional Executive College responsible for information and the press can: require the seizure of documents, films or video cassettes; prohibit the broadcast of one or more offending programs; suspend a radio or television broadcasting station for a period of no more than three months in the following cases inter alia: refusal to broadcast a right to reply, response or correction as stipulated by this law; distribution of documents, films orvideocassettes contrary to laws, morality and public order. Article 85: In an emergency imposed by public order requirements, the competent administrative authorities are empowered to take protective measures prohibiting the transmission and broadcasting of an offending broadcast or program, on condition that the High Court receives a justified decision within 48 hours. Article 87: Any private radio or television broadcasting company which does not conform with this law will be prohibited from broadcasting in Zaire. 22 See footnote 12.

33

Kamengele were transferred to Bukavu central prison on 28 August where they remained until 8 September, when they were provisionally released. They were required to present themselves at the prison every Friday for several months. Radio Maendeleo is still suspended. In eastern DRC, freedom of association is restricted to the point where members of civil society do not have the right to attend preparatory meetings for the Inter-Congolese Dialogue - a forum provided for in Article III(19) of the Lusaka Cease Fire Agreement: As soon as this Agreement enters into force, the Government of the Democratic Republic of Congo, the armed opposition, namely, the Rassemblement Congolais pour la Démocratie, Congolese Rally for Democracy, and the Mouvement pour la Liberation du Congo, Movement for the Liberation of Congo, and the political opposition, undertake to enter into an open national dialogue. These political inter-Congolese negotiations, also involving the Forces Vives de la Nation, Dynamic Forces of the Nation, will lead to a new political order and to national reconciliation in the Democratic Republic of Congo.

Chapter 5 of Appendix A of the Agreement is dedicated entirely to this national dialogue. Paragraph 5.1 states: As soon as the cease-fire Agreement enters into force in the Democratic Republic of Congo, the Parties agree to do all that is necessary to create a favourable environment for the interCongolese political negotiations which achieve the introduction of a new political order in DRC. (our translation)

Despite these commitments entered into by all parties, there are daily examples of the lack of will to participate in the dialogue stipulated in the Lusaka Agreement. In June 2000, representatives of civil society in the west, who were supposed to travel to Cotonou, Benin, for preparatory work for the dialogue, were prevented from boarding the flight and their passports were confiscated by the security services at Kinshasa/N’Djili international airport. The government’s verbal aggression towards the mutually-accepted facilitator Ketumile Masire, is further proof of the rejection of dialogue. The fact that the facilitator’s office in Kinshasa was sealed off for several days and all the conditions imposed by the government on the quality of dialogue participants are further examples. 34

For Kinshasa, only political parties which have been authorised by the Ministry of Interior in accordance with controversial decree No 194 may take part in the dialogue. At present, no more than five political parties have requested and received this authorisation. All major parties have refused to be bound by this law. In RCD/Goma controlled territory, in late January 2000, the population of Bukavu organized a week-long ville morte, general strike, to protest at the imposition of taxes by the Rwandese authorities and the presence of foreign troops in Kivu. In mid-February, the population of Goma also organized a one-day ville morte. In an interview with Human Rights Watch in March 2000, the commander of a Goma detention centre known as Chien Méchant, Vicious Dog, showed his lack of respect for human rights by openly admitting that the arrests which had taken place in this context were meant to intimidate civil society: We arrested all of these people, and everyone was afraid because they did not know what would happen to them, whether we would kill them or beat them. But they were fine, and we released them the next day. Really this was only intended to intimidate the population.23

The head of the Department of Information, Kin-Kiey Mulumba, former president of the EGC Meeting, which played an important role in the liberalisation of the press in the country, is in regular contact with BBC and VOA correspondents. He forbids them to report certain stories, criticises and occasionally threatens them after reports have been broadcast. In early February 2000 for example, Delio Kimbolumpo contacted the VOA office in Washington about a protest march in Goma, organised by soldiers’ wives who objected to their husbands being sent to the front. Kin-kiey called the office the day after this information was broadcast by VOA and threatened Kimbolumpo with punishment. Kimbolumpo decided to leave Goma temporarily. In February Kin-kiey prohibited reporters from discussing the general strike which had paralysed Goma.

(i)

In western DRC

Three journalists with the daily La Tempête des Tropiques, Martin Mukanya, the editorial director, Dimbuka wa Dimbuka, Chief Editor, and Boniface Lopaka, a reporter, were 23

Human Rights Watch interview, Goma, 9 March 2000. 35

summoned for questioning on 23 June 1999 at 12h45 at the paper’s headquarters on the Boulevard du 30 juin, Kinshasa/Gombe. This was carried out by armed men in uniform under the command of a commandant in civilian clothes, identified as being of the 50th Brigade of the FAC. The journalists were taken in a blue Toyota, registration number KN 2242Y to Kokolo military camp in Kinshasa, the headquarters of the 50th Brigade. The previous day in edition No 1235, La Tempête des Tropiques had published a press statement by a human rights organization, La Voix des sans Voix (VSV), Voice of the Voiceless, entitled, “According to the VSV, former minister Richard-Etienne Mbaya, formerly a minister of Kabila, was arrested on 2 June 1999 by soldiers of the 50th Division of the FAC”. La Tempête des Tropiques was the only paper to publish the press statement. VSV members alerted the soldiers responsible for the former minister’s arrest to his state of health. Instead of releasing him, soldiers filmed the detainee buying medicines with VSV members. The film was shown on national television and Richard-Etienne Mbaya remained in detention for several more days. VSV was summoned to the Presidency and the presidential security forces questioned Micheline Mapangala of VSV for the entire day and insisted that VSV president, Floribert Chebeya, present himself the next day. Although the case was apparently resolved after intervention by the UN, it is clear that the government has no respect for the role of a newspaper in informing the public about an important arrest. On Monday 13 March 2000, Donatien Nyembo Kimuni, a journalist with La Tribune, a weekly published in Kinshasa although its headquarters are in Lubumbashi, was arrested by members of the ANR at 9pm at his home in the Kamalondo area of Lubumbashi, and taken to the ANR cells. He was accused of publishing an article headlined, “Security: President Kabila’s younger brother leaves behind more than good memories”, and “ANR/Katanga: Den of terror, extortion and reprisals...”. The article discussed the abuse of power by Georges Manzila Nfundi, the provincial director of the ANR/Katanga, who died at the end of February 2000, and the Head of State’s younger brother. Brought before Lubumbashi Tribunal de Grande instance,

Nyembo was transferred on

Wednesday 22 March 2000 to Lubumbashi Central Prison/Kasapa. He has stated that he

36

was whipped while detained by the ANR. The Court ordered his provisional release after the journalist’s request during a public hearing, where he mentioned the state of his health. He was forbidden to leave Lubumbashi. Freddy Loseke Lisumbu La Yayenga, editor of the La Libre Afrique newspaper, which is published three times a week in Kinshasa, was arrested at his home on 31 December 1999 by a group of soldiers. According to confirmed information, he was taken to Kokolo military camp, home of the 7th Military Region on 7 January 2000. Loseke was arrested after the publication of two articles on 28 and 31 December 1999 in the paper’s 145th and 146th editions. The first declared “A General from Katanga24 wants to assassinate Kabila” and the second, “The Bedié Effect: A mutiny is being prepared to force Kabila to flee”. In both articles, the newspaper claimed to have “obtained information from American sources” which confirmed that a plot against the president was being prepared. After escaping from detention for a few hours, Loseke was rearrested and brought before the COM for “spreading false information”. He was transferred to the CPRK on 25 February 2000 and in May was sentenced by the COM to three years’ imprisonment for “insulting the army” (Article 199 of the Penal Code). The court did not investigate allegations by Loseke that he had been stripped and tortured during his detention at Kokolo military camp. Furthermore, the prosecution, the Military Prosecutor, changed the charges against Loseke in his closing speech. The COM is a court of first and last instance and Loseke can not therefore appeal against his sentence.

24

President Kabila is originally from Katanga province. 37

IV.

RECOMMENDATIONS

(i)

Recommendations for the reform of existing and proposed legislation

It is impossible to emerge from a period of conflict and to build a secure future unless freedom of expression and information is guaranteed. The right to know what has happened and to hold the authorities accountable for their actions can only exist if it is possible to express oneself freely, to search for truth and to have information on the activities of the authorities. For this to happen, reforms need to be implemented. This report makes a series of recommendations on this issue.

The role of the Ministry of Information and Press needs to be reduced if the independence of the press and journalists is to be guaranteed. Law No 96-002 of 22 June 1996 provides for the creation of a legal structure entrusted with the monitoring and neutrality of state media, in accordance with Article 58(6) of the Acte constitutionnel de transition, Transitional Constitution. This structure has yet to be set up which means that the Ministry of Information and Press retains considerable powers in relation to the media, thanks to the draft law on the press. The draft laws proposed by the Minister do not answer the concerns raised by journalists and, even if they no longer include prison terms, unless the Penal Code, which provides for imprisonment for defamation and spreading of false information, is modified, freedom of expression will remain an illusion. Everyone has the right to freedom of expression. A journalist who exercises this right in the course of his work may be subjected to a code of ethics. The EGC’s recommendation that on ethical matters, journalists should only be judged by their peers is yet to be

38

implemented. Because a journalist is often in conflict with anti-libertarian laws, ARTICLE 19, in collaboration with a group of experts in international law, national security and human rights, basing itself on international and regional law and standards relating to the protection of human rights, evolving state practice (as reflected inter alia in judgments of national courts), and the general principles of law recognised by the community of nations, elaborated The Johannesburg Principles - National Security, Freedom of Expression and Access to Information25 and other principles relating to defamation and freedom of information. These principles and other international standards are referred to in this section of the report. (a)

Constitutional provisions

Law No 96-002 of 22 June 1996 refers to an important definition of Article 18 of the Transitional Constitution: “the press, official and private, is a privileged means of mass communication”. The 19 October 1998 draft constitution of DRC proposed by the current government, guarantees freedom of expression “on condition of the respect for public order and morality” (Article 26) and defines press freedom as follows: Article 27 stipulates: “Press freedom is guaranteed by the State. The implementing conditions are fixed by law which can only limit exercise of press freedom for the protection of public order, morality and for respect of the rights of others”. Article 28 grants the right to information and states that “freedom of information and broadcasting by radio and television is guaranteed”.

25

ARTICLE 19, The Johannesburg Principles - National Security, Freedom of Expression and Access to Information (November 1996, Johannesburg), www.article19.org. 39

Article 60 provides for the possibility of limiting freedoms, including those mentioned above, by indicating that: “In a time of war or serious disturbance which threatens internal state security, the authorities are authorised to take measures which derogate from certain provisions of this act within the strictly necessary limits for the maintenance or re-establishment of peace and public order”. The only reference to international standards is made in Article 266 which states: “International treaties and agreements which have been properly concluded and ratified remain in force”. Recommendation: To ensure maximum protection for human rights, the constitution should clearly state that international human rights standards have precedence over national law on the subject. These provisions should be modified to respect international standards. The Johannesburg Principles establish the basic parameters in this field.

Principle 1: Freedom of Opinion, Expression and Information (a) Everyone has the right to hold opinions without interference. (b) Everyone has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media or his or her choice. (c) The exercise of the rights provided for in paragraph (b) may be subject to restrictions on specific grounds, as established in international law, including for the protection of national security. (d) No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest.26 The burden of 26

For the purposes of these Principles, a democratic society is one which has a government that is genuinely accountable to an entity or organ distinct from itself; genuine, periodic elections by universal and equal suffrage held by secret ballot that guarantee the free expression of the will of the electors; political groups that are free to organize in opposition the government in office; and effective legal guarantees of fundamental rights enforced by an independent judiciary. This formulation is based on a definition of constitutionalism provided by Professor S A de Smith in The Commonwealth and its Constitution (London: Steven & Sons, 1964), 106, augmented by reference to Article 25 of the nternational Covenant on Civil and Political Rights.

40

(b)

demonstrating the validity of the restriction rests with the government. The press

The abolition of censorship was an essential first step towards a free press. However, the threats regularly received by journalists when they write about sensitive subjects means that self-censorship is a daily reality of their professional lives. There is no place in a democracy for a repressive regime towards journalists in their professional work. The sections below on national security, defamation and false information, and the protection of sources discuss this subject in more detail. Terms of imprisonment for particular press offences should be replaced by measures regulated by the profession itself. A Conseil national de presse, National Press Council, independent of the government, and a code of ethics should therefore be established. The EGC suggested that on ethical issues a journalist should be judged by his peers but, according to the latest draft the National Press Council, which would be responsible for ensuring respect for the code of ethics and regulation of the press, would be composed of 23 members in total with the President of the Republic, the Ministry of Information, the Ministry of Justice and the Public Prosecution Department each having the right to have one representative. Its internal regulations would be

approved by the Minister of

Information. Recommendation: Ethical regulation of the press must be the responsibility of the profession itself, and should be in accordance with international human rights standards. A policy of decriminalising press offences should be adopted.

41

(c)

Broadcast media

Radio and television broadcasts are assured by a public service and several private stations, including a number of religious stations. The RTNC is not independent of the government; it is a technical and commercial public company which is financed from the state budget and whose Director General is appointed by presidential decree. Its journalists are state employees and are paid as such. Law No 96-002 of 22 June 1996 incorporates an appendix entitled Cahier des Charges pour les Stations de Radio et/ou Télévision privées”, ”Schedule of Conditions for Private Broadcasting Stations”, the status of which has yet to be clarified. Although private stations have not signed the Schedule of Conditions, it was used by one of former president Mobutu’s last Ministers of Information and by Kabila’s Minister of Information to justify the prohibition of the relaying by private broadcasters of foreign news programmes from stations such as VOA, the BBC, Vatican Radio. A circular (No.0394/CAB/MIN/LT/99, 22 July 1999) signed by the Minister of Information and Tourism, Didier Mumengi, was sent to private broadcasting stations relaying foreign stations’ programmes. The recipients received it on Monday 26 July 1999. In the letter, headed, “The relaying of foreign news programmes is prohibited”, Didier Mumengi wrote, “The report of the inspection of your station has indicated that the Schedule of Conditions is not respected”. The Minister underlined that point 4 of the Schedule of Conditions stipulates “in co-production and copyright, when transmitting or relaying programmes from public or private foreign stations, you are forbidden to transmit news broadcasts”. The minister gave a six-day ultimatum to the companies concerned to stop these transmissions. He warned that “if, beyond this deadline, this letter’s provisions are not respected, coercive and punitive measures will be taken forcefully”. Didier Mumengi ended his letter by maintaining “respect for the legal texts is the sine qua non and the basis of a true partnership between your channel and the ministry”.

42

Radio Elikya was relaying Vatican Radio’s news broadcasts on FM. RAGA FM was relaying VOA and BBC broadcasts and RTKM relayed, on FM, Radio France Internationale (RFI)’s broadcasts as well as France 2’s televised news broadcasts. France 2 was also relayed by Antenne A. The Minister indicated his wish that all foreign stations “do like Africa No 1, which paid the Ministry to set up an antenna in Kinshasa”. It should be pointed out that before recently setting up in Kinshasa, Africa No 1 described President Kabila as “politician of the year”. RAGA FM was prohibited from broadcasting in Lubumbashi where its broadcasts had been heard for a month. The DRC Minister of Communication, Dominique Sakombi Inongo, banned 10 private broadcasting stations from broadcasting by ministerial decree No 04/0001/2000 of 14 September 2000. They were, Radio Elikya (owned by the Catholic Archdiocese, Kinshasa), Réveil FM, Radio Kintuadi (owned by the Kimbanguiste Church), Radio Malebo Broadcast Channel, Radio RTKM, Radio Sentinelle (of the Cité Béthel Church), Antenne A Television, Canal Kin 1 and Canal Kin 2 (both owned by Jean Bemba Saolona, a businessman and former Minister of the Economy with the Kabila government) and Television TKM. Minister Sakombi also justified his decision by referring to the Schedule of Conditions after giving the stations concerned a 48-hour ultimatum. Such acts contravene DRC’s international obligations. Article 19 of the ICCPR states that everyone has the right to freedom of expression “regardless of frontiers”. The Schedule of Conditions includes a broad reference to public order and national security. To protect freedom of expression and the essential elements of democracy, the paragraph below needs to be carefully amended. The broadcaster undertakes to refrain from disseminating programmes, films or documentaries where the content is contrary to the law, damaging to public security, public morality and/or national security.

43

Other restrictions are imposed on private stations by the Schedule of Conditions: Any private broadcasting station is free to relay news programmes (radio or television news programs, press reviews) broadcast by state media. If such programmes are pre-recorded, they should be rebroadcast in their entirety.

This is problematic in that while state media have privileged access to official sources, their presentation of facts is not balanced. The applicant undertakes not to disseminate on his/her radio or television channel political propaganda in favour of any particular views or candidate, in accordance with the Electoral law and Parliament’s internal regulations concerning the re-transmission of parliamentary debates.

The above should be applied to both public and private media. Law No. 96-002 of 22 June 1996 provides for a Commission de Contrôle de conformité des Stations de Radiodiffusion et des Chaines de Télévision publiques et privées, Monitoring Commission for Public and Private Broadcasting Stations, with a structural role allowing the Ministry to authorise the functioning of broadcasting stations and television channels. The Monitoring Commission is mandated to: •

to receive and examine declarations by companies in the broadcasting sector;



to monitor on a continual basis conformity with legal and regulatory provisions; and



in cases where legal and regulatory provisions have been breached, to propose sanctions in accordance with articles 83, 85 and 87 of Law No 96-002 of 22 June 1996 to the supervising Minister.

These responsibilities are worrying given that the Ministry’s General Secretary presides over the Commission and that the ministerial decree establishing the Commission makes no mention of an open procedure for the nomination of its members.

44

Recommendations: The composition of the Monitoring Commission should be substantially modified if its independence in the current political climate is to be guaranteed. In particular: •

the RTNC should be transformed into an independent public broadcasting service, which means specifically that its management bodies must be wholly independent of government and there must be guarantees of editorial independence. Measures should also be introduced to ensure that officials respect these guarantees;



a clause should be introduced stipulating that the public broadcasting service should broadcast balanced and impartial information, particularly in election periods;



public service funding should be guaranteed to prevent the possibility of government interference; and



the Monitoring Commission’s role in relation to the granting of operating licences to private broadcasting stations should be reformed. Any such system should be wholly independent of any governmental control; operating licences should be allocated impartially and on the basis of known criteria intended to encourage pluralism and the right of the public to be informed. Withdrawal of a licence should be a very exceptional measure. If for example a station has directly incited racial or ethnic violence the independent commission responsible for granting licences should have sole responsibility for revoking its licence.

The main elements of Measures Necessary to Protect and Promote Broadcasting Freedom, an ARTICLE 19 publication are shown below.27

27

The full text is available on the ARTICLE 19 website: www.article19.org. 45

Public Service Broadcasting Recommendations: 1. 2. 1.

The independence of the governing body of the public broadcaster should be guaranteed by law. The principle of editorial independence should be guaranteed by law. Public service broadcasting should be adequately funded by a means that protects the broadcaster from arbitrary interference with its budgets.

Private Broadcasting Recommendations: 4. 5. 6. 7.

The process for allocating broadcast licences should be independent and non-discriminatory. Licences must be allocated by a body that is independent of government. Licences should be revoked only in extreme circumstances. Measures to limit concentration and cross-ownership should be adopted to ensure pluralism in information sources.

Other Government Obligations to Ensure Pluralism in the Media Recommendations: 8. 9. 10. 11.

12.

(d)

The government should create a legal climate conducive to freedom of expression. The government should create a favourable economic climate for broadcasting. The government should counter the impact of any “hate speech” by ensuring the maximum diversity of viewpoints on the airwaves. The government must ensure that the public are adequately informed about all matters related to their right to vote effectively. An independent mechanism should be established to ensure that all political parties have equitable access to, and fair coverage in, the public broadcast media during elections. An independent mechanism should be established for responding to broadcasting complaints.

National Security

46

Existing provisions are quite broad. Article 76 of Law No 96-002 of 22 June 1996 provides for various penalties for “anyone who by speeches, written articles, printed drawings, words, images, paintings, emblems or any other medium for expressing the written or spoken word or image, has sold, distributed, broadcast or exposed in public places or meetings, or to the public eye” is an accomplice or co-author of specific offences, including state security offences, according to Articles 22 and 23 of the Penal Code. A distinction is made between co-author - who receives the same sentence as the author - and accomplice - whose sentence will not be more than half that received by the author.28 Article 77 of Law No 96-002 of 22 June 1996, also refers to Article 76 but the scope of offences is even wider to the extent that anyone who has insulted the person of the Head of State could be convicted. The notion of co-responsibility still seems to apply. Article 77 stipulates: Will also be punished: •

whoever has directly incited theft, murder, pillage, arson, any offence against internal or external state security, including cases where the incitement has not been followed by action;



whoever has directly incited discrimination, hatred or violence against an individual or group of people on the grounds of their origin, ethnicity, nationality, race, ideology or religion;



whoever has insulted the person of the Head of State by any of the means set out above;



whoever has by any of the means set out in Article 76, incited members of the armed forces or security services with a view to diverting them from their duties.

Article 78 deals with articles or drawings by journalists which could be considered to be acts of complicity or treason, punishable by death for the author. 28

Article 22, Penal Code: Will be considered to be an accomplice: whoever has ordered the offence to be committed; whoever has knowingly obtained arms, instruments or any other means used in the committing of the offence; whoever, knowing the criminal conduct of those engaged in armed robberies or violence against state security, public peace, the person of citizens or their property, has regularly provided them

47

Will be punished for treason whoever has in time of war by the means set out in Article 76: •

incited members of the armed forces to defect to a foreign power;



consciously taken part in a mission to demoralise the army or population with the aim of damaging national defence;



given (directly or indirectly) a foreign power a piece of information or document, or conduct, which should be kept secret in the interests of national defence.

Recommendations: Even if these provisions are no longer in the draft law proposed by the Minister of Information, it remains essential for the Penal Code to be amended to ensure respect for international standards. The most important elements - taken from the Johannesburg Principles are: •

Any restriction on expression or information must be prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful (Principle 1.1).



Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest (Principle 1.2).



To establish that a restriction on freedom of expression or information is necessary to protect a legitimate national security interest, a government must demonstrate that: (a)

the expression or information at issue poses a serious threat to a

legitimate national security interest; (b)

the restriction imposed is the least restrictive means possible of

protecting that interest; (c)

the restriction is compatible with democratic principles (Principle

1.3). •

A restriction sought to be justified on the ground of national security is not legitimate

with lodging, or a meeting or hiding place. 48

unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government (Principle 2(a)). •

In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest. (Principle 2(b)).

(e)

Protection of sources and access to information

This important issue is mentioned in Article 11 of Law No 96-002 of 22 June 1996: The journalist is free to access all sources of information. He can only be forced to reveal his sources in cases provided for in law.

The phrase “provided for in law” is not sufficiently explicit. International standards recognise that the exercise of the right to freedom of expression is subject to special duties and responsibilities. Article 19 of the ICCPR makes provision for certain restrictions explicitly provided for by law or necessary “for respect of the rights or reputations of others or for the protection of national security, or of public order, or of public health or morals”. Journalists’ rights are much better protected by articles in the Information, Press and Broadcasting Commission’s draft law, published in its 1992 report. For example:

Article 7 of the draft law: ...the journalist has free access to all sources of information and the right to 49

research freely any fact relevant to public life. In this case, access by a journalist may only be exceptionally denied on the grounds of secrecy of state or private affairs and then for clearly defined reasons. Article 8: ...The journalist cannot be forced to carry out a professional act or to express an opinion which is contrary to his conviction or conscience. Article 9: The right to information, free expression and criticism is a fundamental human right of all individuals which vindicates the journalist’s responsibility to the public. It has precedence over all other responsibilities, in particular to his employer and the authorities. Articles 32 and 33 of the draft law state respectively: “Access to information sources is free. The only restrictions can be for reasons relating to State security or in the public interest, for which secrecy is essential to their success.” And “The journalist is free to indicate the source of the information he is publishing. He is only obliged to reveal more precisely their identities in cases provided for in law.”

Recommendation: The law must guarantee protection of sources and free access to State information. More precisely, protection of national security cannot be used as a reason to compel a journalist to reveal a confidential source.29 This principle was reinforced by a 1996 decision of the European Court of Human Rights against the United Kingdom.30 ...Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

ARTICLE 19 produced a set of principles on the public’s right to know, based on international and regional law and standards, evolving state practice and the general 29 30

Principle 18 of The Johannesburg Principles. Goodwin v United Kingdom, 27 March 1996, 22 EHRR 123, para.39. 50

principles of law, recognised by the community of nations. The principles were formally approved by the United Nations Special Rapporteur on Freedom of Opinion and Expression. For this right to be respected, the following amendments are needed.31 Principle 1 Maximum disclosure - freedom of information legislation should be guided by the principle of maximum disclosure. Principle 2 Obligation to publish - public bodies should be under an obligation to publish key information. Principle 3 Promotion of open government - public bodies must actively promote open government. Principle 4 Limited scope of expectations - exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests. Principle 5 Processes to facilitate access - requests for information should be processed rapidly and fairly and an independent review of any refusals should be available. Principle 6 Individuals should not be deterred from making requests for information by excessive costs. Principle 7 Open meetings - meetings of public bodies should be open to the public. Principle 8 Disclosure takes precedence – laws which are inconsistent with the principle of maximum disclosure should be amended or repealed. Principle 9 Protection for whistleblowers - individuals who release information on wrongdoing - whistleblowers - must be protected.

(a)

Defamation and false information

The Ministers of Justice and Information and the State Public Prosecutor made the 31

The full text is available at www.article19.org (ARTICLE 19. The Public’s Right to Know: Principles on Freedom of Information Legislation, London, June 1999). 51

following statement at a press conference on 26 June 1999: From now on, the author of any unwholesome article presented as fact and implicating the Head of State or his government, must prove its veracity, or feel the full weight of the law. Journalists must, therefore, always be ready to produce proof of their allegations.

The Minister of Justice alluded to “the resurgence of a culture of lies, corruption and insults”. He said: In accordance with the Universal Declaration of Human Rights and the different legal texts on the exercise of the freedom of the press, no one has the right to insult, defame or attack the honour or moral integrity of others in defiance of the law, public order and morality... I want everyone to understand that this practice of always wanting to insult the Head of State, supreme moral authority of the State, and other members of the government, which characterises the Congolese press, cannot be tolerated and will be severely punished in accordance with the law.

In this statement he betrayed the spirit of one of the most important international human rights standards. He indicated that his remarks were referring to the arrest of a former minister, Etienne Richard Mbaya (see earlier Section III ii). Article 77 of Law No 96-002 of 22 June 1996 refers to “insulting the person of the Head of State” under the rubric of National Security. Article 71 of the draft law states that in cases of insulting the Head of State, “proceedings will take place automatically at the request of the Minister of Justice”. Contrary to international standards, the Penal Code prevents the free circulation of information and exposes critics of the abuse of the system to penal sanctions, by providing special protection for official bodies.

Article 76: Will be punished by a prison sentence of a maximum of five years and a fine of ... or to only one of these sentences; - whoever has made a defamatory accusation either verbally or in writing to a judicial authority or a civil servant, who has the duty to inform the aforementioned authority;

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- whoever has made defamatory allegations about their subordinate, either verbally or in writing;

The Penal Code’s interpretative note explains the impact of jurisprudence in this field. 2. The fact of asking for the discreet verification of a piece of information, drafted in the conditional tense, even when the information to be verified has not been directed against an individual, does not assume the character of positive and punishable imputation required by the charge of a defamatory accusation. (CSJ. 19.12.1973 - R.P. 76 and 81 - B.A. 1974, p. 166). 3. The offence of defamatory accusation supposes that the false nature of the facts has previously been established; that being the case, the motivation of the judgment, limits itself to appreciating the facts for a hypothetical argument and does not establish this element. (CSJ. 4.7.1975, - R.P. 93 - B.A. 1976, p.167).

Article 199 of the Penal Code in Section I, Threats to Internal State Security, further limits freedom of expression by talking of “false information”. Article 199 (2): Whoever, consciously spreads false information likely to alarm, worry or excite the population against the authorities, will have brought, or sought to bring unrest in the State, and will be sentenced to a term of imprisonment of between two months and three years and a fine of..., or to only one of these sentences. Article 199 (3): Will be sentenced to a term of imprisonment of between one month and one year and a fine of..., or only one of these sentences, whoever, without intending to cause unrest in the State, had nonetheless consciously spread false information of a nature likely to alarm, worry or excite the population against the authorities.

This article was invoked during Freddy Loseke’s trial, although he was subsequently convicted of another charge.

Recommendation: On the international level, the use of criminal law to try people accused of defamatory remarks is an unacceptable practice, serving in general to limit political criticism. The

53

principles developed by ARTICLE 19, which were presented to the Minister of Information, establish inter alia the following goals.32 •

The purpose of defamation laws must be legitimate - defamation laws cannot be justified unless their genuine purpose and demonstrable effect is to protect the reputation of others;



Public bodies of all kinds should be prohibited altogether from bringing defamation actions in recognition of the vital importance in a democracy of open criticism of government and public authorities.



All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.



The procedure in civil defamation suits should respect international standards, and in particular each stage of the proceeding should be conducted with reasonable dispatch, the principle of the protection of sources should be respected and in all cases, a finding that an impugned statement of fact is true shall absolve the defendant of liability;



Even where a statement of fact on a matter of public concern has been shown to be false, defendants should benefit from a defence of reasonable publication.

The decision by the Supreme Court of Zimbabwe in May 2000 in the case of Mark Chavunduka and Ray Choto, two journalists charged with publishing false news, ruled that the provision relating to false news was unconstitutional. The Court declared that false statements were protected by the constitutional guarantee of freedom of expression, 32

See ARTICLE 19: Defining Defamation: Principles on Freedom of Expression and Protection of Reputation (London, July 2000) www.article19.org. 54

and that the provision breached this guarantee in that it was excessively vague, did not pursue a legitimate object of sufficient importance to warrant derogating from a constitutionally protected right and was over broad.33 (g)

Tolerance and incitement to hatred and violence

Recently examples all over the world, including in DRC, show that freedom of expression and the press can be used to further intolerance, call to murder, ethnic or racial hatred and to vindicate crime and violence. In Rwanda, the Radio des milles collines disseminated racial hatred which climaxed in the genocide of Tutsis and moderate Hutus in 1994. On 2 August 1998, the rebellion’s armed forces supported by Rwandese, Burundian and Ugandan troops again attacked DRC. They were to take Kinshasa. At this time the media was used extensively to preach hatred of the “invaders”. People with characteristic Tutsi features were burnt alive in the streets of Kinshasa. Hatred towards Tutsis reached such alarming heights that on 3 May 1999 JED held a one-day conference on hate media. In the editorial of its Bulletin de liaison, Plume et liberté, No 2 of 3 May 1999, JED wrote34 “What do we mean by freedom of the press when our journalists have decided to become politicians and to become the mouthpieces of grotesque and anachronistic ideologies”. JED’s courage in condemning certain parts of the press’s editorial direction, led to its leaders being classed as “dangerous for the country” and treated as “the rebellion’s fifth column” in a number of pamphlets. Nearly one year later, an international arrest warrant was launched by a Belgium judge for the arrest of the Congolese Minister of Foreign 33

See Chavanduka and Choko v. Minister of Home Affairs and Attorney-General, 22 May 2000, Judgment No. S.C. 36/3000 (SC), www.article19.org. 34

Le journal de guerre : information, manipulation et patriotisme. Témoinages : les médias de la haine (JED), War reporting: information, manipulation and patriotism: Testimonies: Hate Media (JED), Kinshasa, 3 May 1999. 55

Affairs, Abdoulaye Yerodia Ndombasi, for inciting racial hatred against Tutsis. Sooner or later, whether we like it or not, Abdoulaye Yerodia Ndombasi, will be forced to defend himself in court. Article 77 of Law No, 96-002 of 22 June 1996 authorises the taking of sanctions according to the Penal Code for “whoever has directly incited discrimination, hatred or violence towards a person or group of people because of their ethnic origin, nationality, race, ideology, or religion. Recommendation: Reform of this important aspect should recognize the role that the media could play in the promotion of tolerance and anti-discriminatory policies. It should also try to prevent the use of the media in inciting violence or racial hatred. While accepting the importance of this problem, a wide-ranging legal provision can allow the repression of minorities and freedom of expression in general. Any repressive measure must show a direct link between the declarations and acts of violence or discrimination. It is not legitimate to silence any demonstration of intolerance. (h)

Other necessary reforms

Information is an essential element of the democratic process and of development. Denied the possibility of knowing what is happening in society, citizens cannot assume their role of holding the government accountable for its actions. As Amartya Sen, the Nobel Prize-winning economist, has observed, there has never been a substantial famine in a country with a democratic form of government and a relatively free press. Governments too often invoke national security constraints to restrict access to information. DRC needs legislation which will guarantee freedom of information. Such legislation should be introduced as a matter of urgency.35 35

See ARTICLE 19: The Public’s Right to Know - Principles on Freedom of Information Legislation 56

The Schéma Directeur du Processus de Démobilisation et de Réinsertion des Enfants Soldats en République démocratique du Congo, Outline of the Demobilization and Rehabilitation Process of Child Soldiers in the Democratic Republic of Congo, produced in 1999 by the Ministry of Human Rights, gives a high priority to raising public awareness. In other words, this means guaranteeing access to the information necessary to help the child soldiers. A law granting freedom of information in this and other fields important for democracy in general and the resolution of the conflict in particular should be promulgated in support of this process. Children have undergone terrible suffering because of the conflict. To help them recover from their trauma and to contribute again to the country’s development, a series of debates should be initiated on the right of the child to freedom of expression, on what this right means for society and the government, as well as for the children who have been denounced as “witches” and subjected to exorcisms. The children’s participation in these debates is essential and must be facilitated by the government. A positive step would be for the government to give its support to the incorporation of the UN Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child into its national legislation, and to the creation of a commission on the protection of children’s rights. Liberalising the right to free expression means that restrictions on freedom of association must also be lifted. Human rights activists and journalists should be able to travel freely, to attend conferences abroad or in one or other parts of DRC.

(ii)

Recommendations to the Government of the Democratic Republic of Congo

ARTICLE 19 and JED believe that a certain number of measures need to be taken to (London, June 1999). See www.article19.org. 57

address the concerns set out above, and to amend Congolese legislation and its enforcement so that it is in accordance with the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. The authorities should in particular: •

organize a meaningful consultation with national and international civil society on all areas of concern, in particular, the new legislation on freedom of expression;



take this report’s recommendations into account with reference to legislation currently under consideration, in particular, the Draft Constitution, Draft Decree-Law No___ on the implementing conditions for freedom of the press in the Democratic Republic of Congo, Draft reform of Ordonnance-Loi No 81.012 of 2 April 1981 on the status of journalists working in the Democratic Republic of Congo, Proposal for the creation, organization and functioning of the National Press Council, Draft Messageries congolaises de Presse (MCP), Congolese press distribution agencies, and the Journalist’s Charter;



ensure that any new regulations relating to public broadcasting comply fully with international standards in this field; and



end the arrest of journalists in pursuit of their work.

(iii)

Recommendations to the International Community

ARTICLE 19 and JED are urging foreign governments, intergovernmental organizations and international institutions, such as the UN Commission on Human Rights and the African Commission of Human and Peoples’ Rights to:

58



encourage all initiatives likely to bring about a relaxing of current legislation on freedom of expression;



encourage all initiative by media professionals to establish an independent mechanism to regulate their profession;



put pressure on the government to stop regulating the media and open the public media to other political tendencies; and



put pressure on the government to stop using special jurisdictions (in particular the COM) and detaining journalists in pursuit of their work.

59