THE RIGHTS DENIED

As the institution of the state under Mobutu virtually collapsed, one of the remaining functions the military continued to exercise was the police function. The population was, however, deeply affected by the rampant criminality of the military, the main perpetrator of violence in the society. In addition, the frequent involvement of military and security forces in abuses of basic political freedoms offered little prospect of their political neutrality in the transitional process. Units from the army and various security services were often involved in the violent dispersal of peaceful marches, the harassment of opposition leaders and human rights advocates, and the arrest of journalists.

Freedom from Arbitrary Arrests and Detention

Zaire has ratified the major international human rights instruments protecting individuals from arbitrary arrest.92 Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Zaire is party, provides that:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

The Transitional Act asserts the rights of arrested and detained persons in Articles 13, 14 and 15. Zairian law no. 78-289 of July 3, 1978, governing arrest and detention procedures, provides for specific protections of these rights. The law allows arrest without warrant for serious offenses, defined as those punishable by more than six months ofimprisonment, when "serious incriminating evidence" has been presented, or when there is fear that the suspect may escape or there are doubts about his or her identity. Law enforcement officers are required to bring suspects before a magistrate within forty-eight hours. The law empowers only those law enforcement officers with judicial police officer status (Officier de Police Judiciare, OPJ) to make arrests.

In spite of these legal safeguards, law enforcement officers often carry out arbitrary arrests and illegal detentions with impunity. Adding to the extent of the practice is the fact that the law provides a wide range of military as well as civilian officials with the status of "judicial police officer," either in a general or restricted capacity. For example, officers and noncommissioned officers of the National Gendarmerie and its specialized brigades are judicial police with general powers. The gendarmerie was created in 1972 to replace the national police and is present throughout the national territory. Police powers are also given, by virtue of a 1984 law, to senior officers of the Civil Guard.93 Senior officers of the SNIP, the National Service of Intelligence and Protection, are also invested with limited judicial police powers. On the civilian side, the Ordonnance-Loi no. 82-006, dated February 25, 1982, invests the general powers of judicial police in communal chiefs, zonal commissioners and their assistants and regional and subregional commissioners and their assistants. A law dating back to the colonial era (Ordinance of March 21, 1924), which is still in force, empowers senior agents of practically all government administrations to assume limited judicial police powers. These include officials of the national agriculture, commerce, industry, labor, customs, hygiene, post and telecommunications, finance and economic affairs, aviation, and justice services.

Two recent official notes offered an unusually frank condemnation of the rampant use of arbitrary detentions and ill-treatment of detainees by all categories of judicial police. In an inaugural speech for a training session for judicial police held in Kikwit from April 27 to 29, 1996, a senior magistrate of the ministry of justice pointed to several categories of violations of human rights that judicial police (OPJs), specially those of the gendarmerie, committed routinely. These were summarized as follows by a participant:

1. Arbitrary arrests, including in purely civil affairs. At the lodging of a complaint, the judicial police of the gendarmerie arrest the accused persons without giving them a hearing or informing them of the motive for their arrest. A variant of these arrests is to arrest family members as hostages if the accused person was absent.

2. Torture "in certain detention places in town," to obtain confessions or releases against payment of money.

3. Systematic imposition of fines, accompanied by "confiscations."

4. Falsification of records of interrogations with a view to misleading magistrates.94

The official also blamed the judicial police officers in his speech for being "allergic" to inspection of places of detention by officials of the Ministry of Justice and of obstructing the release of detained persons ordered by the ministry.95

In response to similar practices in the capital Kinshasa, the minister of justice issued a circular in December 27, 1995 ordering the closure of twenty-six out of seventy-three official detention centers in the capital. The minister said in justification of this decision that the detention centers were singled out by a joint military and civiliancommission of inquiry which found conditions in them "incompatible with human dignity." The minister also noted that,

Numerous provisions of law no. 78-289 of July 3, 1978 governing the exercise of the authority of officers and agents of judiciary police in common law jurisdictions are systematically violated with impunity by several judicial police officers, and without any reaction from the competent Ministry of Justice officials. More seriously, some of these officials themselves are known to have perpetrated such violations. The provisions which are violated more frequently are the ones related to arrest, detention and fines.96

The circular enumerated the following widespread violations:

1. Many judicial police officers detain arrested persons beyond forty-eight hours, sometimes keeping them in detention for weeks in violation of Article 73 of [law no. 78-289];

2. Several detained persons are denied the right to be examined by a doctor as soon as they express the desire to as prescribed by the law;

3. In numerous places of detention, men and women are locked together;

4. Many judicial police officers who carry out arrests violate the obligation that the law imposes on them of immediately informing family members of the arrested individuals;

5. Several judicial police officers frequently arrest and detain family members of a suspected person as a means of ensuring that the said suspect would turn himself in without being questioned about this conduct;

6. Officials of the ministry of justice are no longer visiting places of detention regularly and at all times to ensure that such places remain healthy and to check on the material, legal, and moral conditions of detained persons.97

Conducting an independent inquiry five months later, the leading rights group Voix des Sans Voix found that out of the twenty-six detention places ordered to be closed, eleven continued to function in total disregard of the ministerial directive, and three functioned partially, closing at night.98

Freedom of Association and Peaceful Assembly

A major obstacle in the path of political participation has been the government of Zaire's restriction of the freedoms of association and peaceful assembly. The right to free association appears in Article 22 (1) of the ICCPR which provides:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

The permissible limits on the right to association appear in Article 22 (2):

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or publicsafety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. . . .

Article 21 of the ICCPR provides:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order ( ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.99

The freedom to associate and to assemble is guaranteed under Article 10 of the Transitional Act which subjects the exercise of these and other individual and collective freedoms to "the respect of law, public order and good morals."100

Although political parties, trade unions, and NGOs were for the first time permitted to register and acquire legal status after 1990, public assemblies by such organizations continued to require permits under a restrictive colonial law applying to all public meetings. Such permits, moreover, were often denied or, even when issued, disregarded by security forces bent on disrupting protest.

The Emerging Civil Society

Human rights and pro-democracy organizations and other civic groups since 1990 were able to function in Zaire in a manner which was inconceivable during the twenty-five years of the one party state. In many regions, the first human rights associations emerged from churches, following the successful organization of nationwide protests on February 16, 1992 by the churches to call for the reconvening of the National Sovereign Conference. Justice and Peace Commissions of the Catholic Church, the Non-Violence Evangelique, and the Commission for the Popularization of Fundamental Rights of the Evangelical Lutheran Church in Zaire are representative examples of this historic link. Because of these links, church-based human rights activism has developed a grassroots structure modeled on the parishes and is able to organize the population at neighborhood levels to confront such problems as public insecurity or the generalized practice by corrupt state agents of overinflating public utilities bills. Professional groups, such as the Association Zairoise de Defense des Droits de l'Homme, the Voix des Sans Voix, and Shaba's Centre de Droits de l'Homme et du Droit Humanitaire, tend to be membership organizations, recruiting from an urban professional base, with a leadership mainly from the academic and legal professions.

The territorial coverage is still limited. Some national groups, like the AZADHO, branched out in several regions, while V.S.V. developed formal exchanges and partnership links with regional groups which preserved their own structures and programs. The human rights movement remains largely urban, with timid attempts to establish programs and a presence in the countryside.

Human rights groups are able to independently investigate abuses and to publish reports critical of the government. One routine form of their campaigning is letter writing to senior military and civilian authorities to document and denounce violations of basic rights by government officials. Rights groups also issue regular press releases and conduct public awareness activities both at grassroots level and through the broadcast media.

Such activism has invited occasional retaliation against monitors and activists by angry civilian political authorities and unbridled security forces who sought to harass and intimidate them. The governor of Maniema region, for example, refused to authorize the local AZADHO chapter to organize a conference on human rights in mid-1995 and threatened to close it down.101 More recently, on October 28, 1996, agents of military intelligence, SARM, arrested the chairman of V.S.V., together with the coordinator and a consultant when they arrived for a scheduled meeting with the legal adviser of SARM to inquire about the situation of detained rebel fighters. Instead, they were detained for six days on suspicion of espionage, and thrown in the same cells with prisoners from the war zone as well as other categories of detainees.102

In the national and regional capitals, church and rights groups, developmental NGOs and unions come together regularly for the exchange of information and coordination of activities in an umbrella forum called, appropriately, "Civil Society." In a number of regions, human rights groups maintain parallel coordination forums which aim to exchange information and coordinate initiatives and campaigns. These have served as a vehicle for the emergence of a dynamic and vocal constituency advocating democratic rights and pressing for elections to take place. The activism of civil society has translated into extensive programs aimed at propagating a democratic culture, voter education, and training of independent monitors. In reaction to their exclusion from the National Elections Commission, civil society groups organized a parallel structure, the Independent Elections Commissions, and pressed ahead with active preparation of the population for the elections. The independent commissions were initially viewed with suspicion by the national electoral commission and the government, but initiatives were undertaken to bridge the trust gap and to clarify the role of the respective actors in the electoral process.

Restrictions on Assembly

Prior to the imposition of an outright ban on public demonstrations throughout the country in mid-February 1997, the government had issued authorizations only sparingly, and in some cases duly authorized marches were broken up by baton-wielding security forces. In Shaba, students of the University of Lubumbashi organized a peaceful march in the city center on January 13, 1997 to reject the imposition of a U.S. $160 tuition fee per semester. Armed policemen broke up the procession, beating protesters severely and arresting others; some police, in turn, were overpowered and beaten by protesters.103 On February 14, the governor of Kinshasa banned a demonstration which a group for the defense of students' rights, (Ligue Zairoise pour les droits des étudiants et des élèves), was planning to organize to protest the government's decision to recruit fifteen-to-eighteen-year-olds for the war. Previously, some thirty soldiers of the Civil Guard broke up a peaceful march organized in Kinshasa by the Solidarity trade union on October 18, 1996. Directed by a major, the soldiers were unnecessarily violent and reportedly stole money and other valuables from demonstrators. Two union leaders arrested were detained at a Civil Guard camp where a rights group reported they were subjected to harsh and degrading treatment.104

The war provided an added excuse for the government to tighten existing controls on the freedom of assembly, and ultimately to ban public demonstrations altogether throughout the country. The immediate trigger for the ban was a day of successful civil disobedience on February 10 called for by the opposition USORAL. This waswidely supported by the population in the major urban areas in Zaire, particularly in the capital Kinshasa.105 The mass action called for a negotiated settlement for the war in the east and sought the resignation of the prime minister over his conduct of the war effort and the stalling of the electoral process. USORAL also called on the population to boycott the newly introduced bank notes of 100,000, 500,000 and one million new zaires. The protest took the form of a "ghost city" operation that lead, much to the government's irritation, to the paralysis of most activities in the public and private sectors.

In an attempt to quell public unrest and mounting pressures for a negotiated solution to the war, the cabinet met on February 14 and issued a ban on all public demonstrations and "ghost city"- style general strikes throughout the republic of Zaire. Jean-Claude Biebie, the official government spokesman, gave the following report on the cabinet meeting to the national radio, Voice of Zaire (Voix du Zaïre):

The prime minister's report focused on the prevailing situation in the eastern part of the country, and its repercussions on the rest of the country. In this respect, and in connection with reports of imminent public demonstrations and ghost city operations in Kinshasa, the government wishes to draw the attention of our compatriots to the fact that our country is currently facing a war inflicted upon us by aggressors from some neighboring countries. It is, therefore, inconceivable that we should allow public demonstrations with all that they might imply. For this reason, and in accordance with previous decisions, the government declares that no public demonstration of any kind shall be authorized anywhere on the national territory during the war period. Whosoever flouts this decision will be considered an enemy collaborator, and shall face the full rigor of the law. In the same vein, the government wishes to draw the attention of heads of public services, administrations, and state companies to their duty of ensuring that workers who are under their authority report for duty every day from Monday to Saturday. . . .106

The government statement threatened absent workers with dismissal.

In the wake of the government ban on public demonstrations, the transitional parliament adopted a new law in mid-February 1997 that abrogated the highly criticized colonial law often cited to ban demonstrations. The new legislation, which remains to be tested, replaces the requirement of prior official approval with a simple eight-day advance notice to the authorities of the intention of the organizers to hold a demonstration. Meanwhile, heavily armed Civil Guards on March 7, 1997 used batons to disperse hundreds of demonstrators who responded to a call by Zaire's main opposition party, the UDPS, to gather for a march calling for a negotiated settlement of the war. According to witnesses, Adrian Phongo, the party's secretary, and several other party leaders, were beaten and arrested by security agents as they approached the gathering place to lead the march. Government officials said the march was dispersed because it defied the ban on public demonstrations until the end of the war.107

On the day of the successful "ghost city" campaign, the Attorney General, the highest legal authority in the government, addressed a letter to the transitional parliament in which he demanded the lifting of the parliamentary immunity of Joseph Olenga Nkoy, chair of the parliamentary opposition group of USORAL, who was viewed as the principal organizer of the protest, so that the government could bring legal charges against him. Government security agents sprang into action, however, before receiving the response of the parliament. On February 16, sixteen soldiersof the SARM stormed into the house of Olenga Nkoy only to find out that he had managed to escape across the river Congo to Brazzaville in neighboring Congo Republic to avoid arrest.108 From his hideout, the self-exiled parliamentarian stated to Africa No. 1 radio:

Articles 10 and 18 of the Transitional Act give each citizen the right to protest and clearly express his opinion. We simply exercised this right by calling a ghost city operation to see if the people really have confidence in the government or not. [. . .] Each time you defend people's interests, they send soldiers to pick you up. With such moves, the crisis will deepen in the country.109

Aziz Kundeli, Prosper Ndumbe, and Lisanga Bonganga, three other opposition parliamentarians who were also actively sought for by military commandos for their role in the protest campaign, were forced to go underground.110 The protest also led to the detention of two militants from the opposition Parti Lumumbiste Unifié (PALU), Jean Mazulu Metila and Edison Ndeke, who were arrested in Kinshasa by gendarmes on February 12 while they were informing small groups of the public about their party's stance on the war and its impact on the electoral agenda.111

Freedom of Expression

Freedom of expression is guaranteed by Article 19 of the ICCPR. Article 19 (2) provides that,

Everyone shall have the right to freedom of expression; this right shall include 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 of his choice.

Article 19(3) of the ICCPR sets forth that limitations on this right are permissible only when they

are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The interpretation of Article 19 over the years has led to a consensus that the peaceful criticism of governmental policy and practice does not amount to a threat to national security.

Article 18 of the Transitional Act provides that "[e]very Zairian has the right of freedom of expression. This right includes the liberty to express his opinion and feelings, namely orally, in writing or by images," and subjects its full exercise to the respect of "public order, the rights of others and good morals."

Attacks on the Media and Journalists

While there were significant advances in the respect of freedom of expression in Zaire since 1990, the government consistently sought to reign in critical reporting by the media and to limit the access of political parties to public and private broadcasting. The government has yet to meet earlier promises that it would create an independent media commission to oversee the media and guarantee fair access to all parties.

Print media

Vibrant political debate in Kinshasa and some provincial capitals should not obscure the real limits on debate that remain in the country and would have impeded the election process even had the war in the east not set in motion the collapse of the old regime. Debate in Kinshasa, for example, was largely limited to the print media. Crowds that gathered in front of the newspaper stalls to read the headlines-each paper costs about $.50-attested to the interest which these hold. But newspapers only reach a small percentage of the literate population, and few reach the interior. Moreover, some subject matters remained largely taboo both for the newspapers and other forms of public discourse. "We can say who did what to whom," said Jose Ndjomote of AZADHO, "but we can't put the system in question."112

The war in the east ultimately served as a pretext for the government to decree an outright ban on free speech and public demonstrations. It expanded the list of topics the government considered as sensitive. Minister of Defense Gen. Likulia convened a meeting with newspaper editors and officials of private radio and TV stations on February 10 which coincided with a successful opposition strike that paralyzed business in the capital and major cities. He exhorted them to "involve themselves in the defense of the homeland," noting that "while we make ourselves available to the press for all useful information," the media would have to be responsible. He said he did not want to "hear or to read lies, wrong information or information of a nature to demoralize the army and the population, or reports to misinform international opinion or to praise the enemy, by hiding news of the atrocities of all kinds [the rebels] commit."113

Local rights groups in January 1997 reported the arrest of journalist Emanuel Kachunga. He had denounced abuses committed by the Special Presidential Division in Kasai region in an article published in the newspaper La Tempête des Tropiques. A unit of the same DSP arrested him and tortured him before pressure from rights groups secured his release.114 In a statement issued on February 12, 1997, V.S.V. said Zairian journalist Nepa Bagili Mutita, who was the national president of the Mouvement National Congolais-Lumumba, was arrested on February 11 on charges of spreading false rumors about the war and could face up to three years in jail. Mutita's monthly La Voix de l'Islam, Voice of Islam, had published what it called a list of people wanted by the rebel leader Kabila which included the names of the president and the prime minister.115

In its vicious drive to intimidate and humiliate independent journalists, government security agents had in a number of cases detained their family members, and in one case, the daughter of a targeted journalist was reportedly raped. The U.S.-based Committee to Protect Journalists (CPJ) protested in a January 30, 1997 letter addressed to the Prime Minister Leon Kengo wa Dondo about the arrest of Jean Mbenga Muagianvita, an independent freelance journalist with the privately-owned papers La Tempête des Tropiques, Umoja and L'Exemple. Soldiers of the SARM raided the house of journalist Muagianvita on January 23, reportedly on the orders of General BolozeiNgbudu, and detained him at the headquarters of SARM at Kitambo, reportedly in retaliation against an article on President Mobutu's political lobbyists in the United States. Later on the day of the arrest, seven SARM soldiers returned with Muagianvita to his house for a search, and reportedly raped his fourteen-year-old daughter in his presence.116 CPJ also protested with a letter to the prime minister on the same day about the arrest three weeks earlier of the wife and three young children of an exiled journalist Benjamin Sham Sham Lapong in connection with articles that the independent La Tempete des Tropiques had published for him. Authorities continued to refuse to reveal the whereabouts of the family of the journalist three weeks after their detention.117

A number of foreign correspondents covering the war were arrested and expelled for their reporting. For articles portraying the demoralized state of the Zairian army in the region of Shaba, a Swiss journalist, a correspondent of the French daily Libération, was expelled from Zaire on February 23, 1997. He was arrested in Lubumbashi, capital of the Shaba region, three days earlier and sent to Kinshasa on the next day for expulsion. Officials told him that he "had not respected the proper protocol," and accused him of telling lies.118 He had described in a report broadcast by the BBC World Service the flight of FAZ soldiers from northern Shaba as the rebels advanced in the region and a rash of looting the soldiers reportedly committed in villages along the track of the train they rode in their flight from the front. Ten days earlier, the correspondents of Radio France Internationale and Le Monde were expelled from Kisangani, then the staging ground of the Zairian army's counteroffensive.

Broadcast media

The government owns the national radio and television networks. However, reception of both is limited largely to the capital Kinshasa due to the advanced stage of disrepair of the systems in place. Regional radio and TV stations are jealously controlled by regional authorities. As could be expected in a vast country with poor communications and with a high illiteracy rate, the population relies mainly on the radio for the reception of national news. Regional and international broadcasts in French, transmitted by the popular Gabonese Africa No. 1, Radio France Internationale, VOA and the BBC, are closely followed.

Broadcasters on state-owned radio and TV stations who gave access to the opposition or rights groups were often subject to disciplinary measures according to an independent inquiry conducted in mid-1995 by Voix des Sans Voix. In Equateur region, for example, a radio journalist was dismissed for having conducted a live interview with the chairperson of the local umbrella organization of rights groups.119 According to another inquiry by the same rights group, in Upper-Zaire region, José Menga, a radio journalist, was disciplined for having read a statement by the UDPS concerning the new banknotes. Another journalist was suspended for having, while on the air, wished a happy Easter to the president of the UDPS in Kisangani.120

Private radio and television stations, a largely new and developing phenomenon, are still tightly controlled. Most are owned by churches or by business people linked to the regime. The radio stations in Kivu, in contrast,currently occupied by rebel forces, were beginning to explore more active reporting of human rights and election-oriented issues.

On February 15 the Zairian minister of information and press issued a decree banning private radio and television stations from "producing, broadcasting or relaying political programmes." The decree also banned the private electronic media from broadcasting radio and television newscasts and press reviews. The government quoted the war situation and the need to stem enemy propaganda to justify these drastic measures.121

The private television station Tele-Kin Malebo (TKM) defied the ban by continuing its popular programs of political debates involving politicians from across the political landscape, and its broadcasts of news and press reviews, all of which was reportedly considered as politically loaded by Zairian officials. On March 3, the minister of information and press signed an order slapping TKM with a three-month suspension. The owner of TKM, Ngogo Luwow, who is also a member of the transitional parliament, told reporters that he considered the ministerial order illegal and intended to ignore it.122

Confiscation of Political Literature

One of the most telling limits on political debate concerns access to the reports and conclusions of the National Sovereign Conference, which even the Transitional Act treats as the basis for the laws of the transition. The Transitional Act requires the transitional parliament to follow up and supervise the execution of the acts of the National Sovereign Conference and requires the government to "execute the acts of the National Sovereign Conference and the laws of the Republic."123 Nevertheless, most of the documents from the National Sovereign Conference are virtually unavailable to the public, including the draft constitution and reports of the various working groups. In fact, efforts to reproduce and distribute the materials have been blocked by security forces who treat them as subversive texts. The most flagrant example of this occurred in 1995 when the Belgian government attempted to sponsor the translation and distribution in local languages of the constitutional texts proposed by the National Sovereign Conference.

On November 14, 1995, agents of the military investigation unit SARM seized the translations of the draft constitution and all accompanying materials including computer disks. According to a detailed report made by V.S.V., President Mobutu's son Kongolo Mobutu was directly involved in the seizure. At the time the documents were seized, agents arrested M. Kabila Kakule, an employee of the National Library who was involved in the project and happened to be in the office at the time. Mr. Kabila was questioned by the head of SARM, General Bolozi, a relative of the Mobutu and member of his inner circle. He was allowed only visits from his wife, who was required to pay for this access, until December 26 and then released. During that time, according to the V.S.V., the transitional parliament acknowledged responsibility for the records project and intervened with SARM to no avail. After the intervention of the parliament, SARM officers seized the remainder of the documents as well as the printer's plates from a commercial printer, on the basis of a summons issued by the Attorney General, the highestranking civilian prosecutorial official.124 The documents, printing plates and computer disks have never been released.

Freedom of Movement

Article 12 of the ICCPR establishes freedom of movement as a fundamental human right:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Travel and movement are still effectively restricted, despite the constitutional provision, under Article 10 of the Transitional Act, which guarantees freedom of movement. The government of Zaire requires nationals, residents, and refugees to carry identity cards, although the zonal offices mandated to deliver these are often in short supply of new ones. Citizens who fail to procure a card through no fault of their own are nevertheless liable to harassment and fines. Soldiers guarding checkpoints at ferry ports, roadblock and airports, together with other categories of civilian agents who may be present, often threaten passengers, sometimes at gunpoint, into paying them in cash or in goods as outright extortion or with the pretext of settling imaginary taxes and fines, with no official receipts delivered. Failure of the state to meet the payment of the meager salaries of soldiers and other agents for months at length has led to the development of a situation where they came to depend on this practice for a living. The killing of Zairians who failed to produce identity documents demanded by mercenaries in Kisangani area, before the capture of that city by the rebels in mid-March, is discussed above.

In the region of Upper-Zaire, a 1995 report by Voix des Sans Voix noted that "villagers who attempt to go to Kisangani to sell their products do not have easy access to the town. Roadblocks and harassment of all kinds are so frequent that they avoid leaving their boats [ . . . ] out of fear of being arrested or of having to submit to extortion."125 In the southern region of Shaba, units of the Zairian navy which patrolled lake Tanganyika out of Kalemie, prior to the fall of this important port city of north Shaba to the rebels, reportedly extorted payments from fishermen on the lake or as they disembarked to sell their catch.126 A Human Rights Watch/Africa investigation of the human rights situation in the town of Kikwit, Bandundu region, noted that there was a checkpoint at the bridge on river Kwilu:

Women returning from the fields outside town are held for ransom, and even children are not spared. At Kilomba, some ten kilometers to the southwest of Kikwit, those who pass must surrender a quarter or even half of what they are transporting to the FAZ commandos and infantry of Colonel Ebeya camp. Those who have nothing to give to the soldiers are often made to stand in the sun for forty-five minutes in punishment. In Idiofa zone, each vehicle is made to pay the equivalent of three dollars, without any receipt. Other checkpoints are erected at river passages. If the river separatestwo zones, then two envelopes must be prepared. On the Loango which separates Bandundu and Western Kasai regions, a percentage in kind is collected from merchandise (for example, six cups of rice from each bag). All illegal taxes are collected by the gendarmes of the Road Brigade, SNIP and other state agents. On the border post between Tembo and Angola, one must pay $100 to cross the border.127

Similarly, a recent report from Shaba region by the Lubumbashi-based Center for Human Rights and Humanitarian Law noted that between Kolwezi and Lubumbashi, a distance of 250 kilometers, there were six roadblocks where passengers and transporters were made to pay exorbitant amounts to corrupt officials, both military and civilian.128 A prosecutor from Kalemie told Human Rights Watch/Africa about the harsh and degrading treatment that individuals who refused to pay risked at checkpoints. Two judges, who were stopped by soldiers at a roadblock for driving during the night without lights, refused to pay them to be allowed to leave. They were reportedly held at the checkpoint for hours, during which time two other men and a woman were also detained for having failed to pay their way through the checkpoint. The two other men detained were stripped naked in punishment.129

The Right to Nationality

The Universal Declaration of Human Rights guarantees the right of every person to a nationality and provides that no one shall be arbitrarily deprived of his or her nationality.130 This right is binding on all nations as a matter of customary international law. The 1961 Convention on the Reduction of Statelessness provides an authoritative interpretation of the right to a nationality set forth in the Universal Declaration, and provides guidance as to the specific measures that states should adopt in order to reduce statelessness. Relevant provisions of the convention include the following:

* "A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless." Article 1.

* "A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless." Article 8(1).

* "A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds." Article 9.

The nationality issue demonstrates the intricate ways in which the dynamics of political transition and war are intimately interlocked. As explained above, at the root of the explosion of armed rebellion in eastern Zaire in late 1996 was the denial of the nationality of the Banyamulenge, a group of ethnic Tutsi whose forbearers had lived in the province of Kivu for generations.

The build-up to democratic elections in the early 1990s had sharpened political rivalries between the various groups in the Kivu region, both north and south. The National Sovereign Conference had made the orderly identification of nationals, a census of the national population and the registration of eligible voters preconditions for free and fair elections. A decree adopted by the transitional parliament in August 1996 stipulated that the establishment of voters lists, the definition of electoral boundaries and the determination of the numbers of seats perconstituency for the constitutional referendum and the elections would be based on the outcome of a combined operation to conduct a census, issue identity cards, and to register the population.131 Article 23 of the decree provides that to be identified as Zairian a person should meet one of the criteria set forth in the restrictive 1981 nationality law. In addition, the claim of nationality should be confirmed by the head of the local community or village or area of residence. Article 6 required as proof of identity either the Zairian nationality certificate or the identity card for citizens.

Applied to the Kivu region, the provisions of the August 1996 decree on the identification of citizens, national census and voter registration would have the obvious result of eliminating the Banyarwanda--the Tutsi and Hutu living in Zaire-- from the voters lists. This would constitute a violation to their rights to nationality and their voting rights as mandated by the Transitional Act and stipulated in Article 25 of the ICCPR . The Banyarwanda had voted in the municipal elections of 1957-58 and in the general elections that led to the independence of Zaire in 1960. Some of their number were elected to parliament and others came to occupy prominent position in the independent state. After the enforcement of the 1981 nationality legislation, however, the ethnic Tutsis of South Kivu were denied the right to stand for office or to vote in both the 1982 and 1987 parliamentary elections. This led to the first incidents of outbursts of popular protests in Mwenga zone in 1982 and in Uvira and Fizi towns in 1987, during which ballot boxes were burnt.132

AZADHO, "Nouvelles du Zaire," an AZADHO update, Kinshasa, February 20, 1997.