SHABA: A REGIONAL PERSPECTIVE
The situation in the mineral rich and historically sensitive region of Shaba was illustrative of both the wide scale repression in Zaire and the lack of political will to implement the transitional agenda without delay. Abuses by the military were so much a part of life that officials justified them as natural and inescapable. In addition, there were no visible preparations for elections: opposition political activity was suppressed while the governor individually censored broadcast announcements and campaigned openly for President Mobutu. There was little comprehension of the role of the electoral commission within the administration, even among members appointed to head it locally who were left without any means to do so, including even texts of the relevant laws. The war further disrupted the fragile equilibrium that existed between the military authorities and civilian administration. Following its outbreak in neighboring South Kivu, fleeing soldiers wreaked havoc in northern towns near the front. Meanwhile, the war served as a pretext for attacks against suspected Tutsis and sympathizers as well as serving as a pretext for further suppression of independent political activity.
The Shaba region, referred to universally as "Katanga" by residents, has been a critical and contested region of the country from independence. It formerly produced between 60 and 80 percent of the country's foreign exchange, primarily through the sale of copper and cobalt. Since a brief period of independence from late 1960 to the beginning of 1963, the renewed threat of secession haunted leaders in Kinshasa. The very name of the region was changed in 1971 to eliminate the vestiges of independence,133 and officials from other regions were sent to oversee the military and administrative control of the province. A massive electrical project, the Inga-Shaba line, was structured to insure that Kinshasa could control electricity provided to the mines. In 1977 and 1978, in the onlyserious threats to the Mobutu regime, the rebaptized Shaba region was the target of two armed rebellions that were suppressed with Western intervention.
The impressive economic infrastructure of Shaba was left to decay in 1980s as politicians extracted the most value possible without reinvestment. One of the principal mines, the Komoto mine, collapsed in September 1991; others are in advanced states of disrepair. The production of copper of nearly 400,000 tons (in the 1980s) fell to almost 30,000 by 1993. As in other parts of the country, army-led looting in 1991 further undermined the modern economy and the confidence of the population, leading to general stagnation.
Due to the mining industry and strong infrastructure which was needed to support it, Shaba developed a high concentration of trained professionals, many of whom had come from the neighboring region of Kasai. Kasaiens were initially brought to Shaba during the colonial period to work the mines. There, they benefited from the education and medical care provided by industry. After independence, they assumed many key positions in the region. The flow of workers from Kasai continued and professionals were joined by large numbers of unskilled laborers and traders who dominated markets across the region.
At the end of 1990 a populist opposition figure, Gabriel Kyungu wa Kumwanza, joined ranks with Nguz Karl-I-Bond, one of the leading Shaban politicians of the Second Republic to form the Union of Independent Federalists and Republicans, (Union des Fédéralistes et Républicains Indépendents (UFERI). Karl-I-Bond broke away from the opposition in November 1991 to become Mobutu's national prime minister, at which time Kyungu became governor of Shaba. Kyungu immediately shifted from criticism of President Mobutu to attacks on local Kasaiens, relying on the strong sense of resentment felt against them by native Katangans to win him popular support despite his new found allegiance to Mobutu. His movement included organized youth bands, the Jeunesse of the UFERI or "JUFERI," who were mobilized to harass and, eventually expel Kasaiens from their homes. At the time, his policies jibed well with Kinshasa and President Mobutu, who was fighting off the opposition movement led by Etienne Tshisikedi, himself from Kasai. When Tshisikedi was named prime minister by the National Sovereign Conference in August 1992, what had been the harassment of Kasaiens became a mass expulsion. More than 200,000 Kasaiens were eventually terrorized into fleeing cities and villages across the region in a chilling parallel to the former Yugoslavia's "ethnic cleansing." Although the inter-ethnic tension has largely disappeared in the interim, at present only Lubumbashi has a substantial Kasaien population.
Governor Kyungu succeeded in building the strongest locally based movement in the country. However, strains began to emerge within the alliance when the promised economic rewards of the Kasaien departure did not appear. In addition, once Tshisikedi's power was checked, Kyungu, who now dared even to confront the local military commander in Lubumbashi, became a threat to the long term control of Shaba by the regime. In early 1995, Governor Kyungu was accused of trafficking in weapons. On this basis, he was summoned to Kinshasa in March 1995 and, effectively, held prisoner at the Intercontinental Hotel until July. Soon afterwards, the military commander of the region, General Mosala Mondja Ndongo was also removed.
In the power vacuum that emerged, there was a growing confrontation between UFERI and the local authorities. The vacuum was filled by the regional director or "Redoc" of the National Service of Intelligence and Protection, SNIP, Sirumuhugo Mate, who, with the support of the Civil Guard, launched a major crackdown on the UFERI. Two UFERI activists were shot and killed by Civil Guards during a street confrontation on March 31, 1995.134 Eighteen youth activists were arrested in July and seriously abused in detention over periods of one to twoweeks.135 The interim leader of the party, Astrid Tshikung, was arrested while holding a meeting in the Kenya district, and subjected to severe physical abuse, including sexual violence; soldiers reportedly shaved her pubic hair with broken glass and inserted gun barrels into her vagina. Later, when Dr. Tshikung brought a criminal complaint against SNIP director Mate and the government of Zaire, Mate refused to appear in court and twice threatened bailiffs who sought to serve notice of the complaint with violence.136
The SNIP crackdown also extended to human rights groups that sought to intervene on behalf of detainees. The Center for Human Rights and Humanitarian Law in Lubumbashi (C.D.H.) was targeted for having sent letters of complaint to authorities in Kinshasa. Amr Razzak, a summer intern from the International Human Rights Law Group in Washington, was arrested on July 14, 1995 and held over night before he was ordered out of the country, on accusations that he was engaged in "arms procurement." Mate also threatened to arrest the head of the C.D.H., Jean Mbuyu, and to close down the human rights organization.
Once the UFERI party was subdued, Mate was replaced as regional director of SNIP. His replacement Mbaliani restored, at least temporarily, SNIP's low profile. The governorship was then temporarily filled by Ngoie Mulume, a career functionary and Mobutu stalwart with little real power who was moved up to fill the post until a permanent replacement was named.
Lubumbashi remained the base for an important contingent of the armed forces: the first division. Its First Military Region, (Prémière Région Militaire), covered all of Shaba and Western and Eastern Kasai. The Ninth Region, (Neuvième Circonscription), was the corresponding command over the same area for the national gendarmerie. The SNIP maintained outposts in all subregions and zones. Each zone had a post for the Gendarmes, and another one for the Civil Guards. There were a half dozen military camps situated in and around the city, including Camps Vangu, Mutombo (near the university), Kimbembe (near the airport), and gendarmerie stationed in the neighborhoods of Kamalondo and Belle Aire (Kampemba). The Special Presidential Division had a base near the zoo in the center of town as did the Civil Guard. The Civil Guard was especially important in recent times, serving as a strike force for political repression led by the SNIP.
The language of the armed forces is Lingala, and not the Swahili spoken by the inhabitants of the region, which reinforces a sentiment that they are there as an occupation force. As one lawyer told us, "they don't like it if you can't answer them in Lingala."
Shaba maintains a strong regional identity despite the potential for divisive factors, especially renewed tension between the south of the province, where the primary mineral sites are located, and the north. In addition, communication within the region is difficult. Most of Shaba does not receive state radio or television. Only the primary mining cities are linked by telephone while the rest must communicate by short wave radio. Newspapers, which are few and of a tiny circulation in the capital of Lubumbashi, are virtually absent in the interior. There has been a fairly dramatic change, however, since a South African firm took over management of the National Railroad which links the major mining areas of the province to the rest of the country. The railroad had ceased reliable operations since 1990, but circulation resumed as soon as management was privatized. The terms of the privatization have never been made public.
As of February 1997, according to Jean Mbuyu, a leading rights activist and scholar, "there were effectively no official preparations under way for elections in Shaba."137 There was no political campaigning, no public education, and no administrative planning for the preparation of voter lists or electoral districts. Creating an enabling environment for elections was to have depended upon the regional electoral commission which was not yet functional. It was also to depend on the local government which, as amply demonstrated by interviews with officials by Human Rights Watch/Africa, had little understanding of such a role or that of the electoral commission.
The regional electoral commission was hastily formed in December 1996 during a nearly unannounced visit from Kinshasa by representatives of the National Electoral Commission. It was then left without instructions, relevant texts or the means of organizing and maintaining contact with Kinshasa. As Abbé Albert Kaumba, the secretary to the commission explained:
In February, there was a call for nominations at the provincial level. In early April a list was provided by political parties. They said [the electoral commission representatives] would come in June but they didn't arrive. In October they sent a written invitation to meet with them, but didn't come. In December they finally arrived-unannounced. Then they left without furnishing any means to the regional commission. They left nothing. They didn't even leave a copy of the laws.
A patchwork of local commissions was also announced in some locations in the interior of Shaba, as well as in Lubumbashi. The National Electoral Commission faced problems creating the commissions due to a lack of cooperation from the local administration and the mysterious absence of many proposed members. As the visiting vice president of the commission reported, "Out of 600 members, [we] could only install about half, most of the others having withdrawn, being absent or simply not existing."138 Of the others named a number were disqualified as having been effectively illiterate.139 The administrative authorities, whose cooperation is essential for the electoral commissions, gave the establishment of the local commissions only passing notice.
Meanwhile, despite the law and the efforts by the National Electoral Commission, the governor continued to deny it a substantial role, insisting that organizing the elections was essentially the task of the local administration. He relegated the commission to the role of election promoters and observers. Governor Ngoie Mulume told Human Rights Watch/Africa, "The National Electoral Commission is supposed to oversee the elections. The organization is the task of the local administration which receives its orders from the Interior Ministry."140 The vice president of the National Electoral Commission denounced this attitude the week before: "Unfortunately, this mission appears to have been misunderstood, particularly by the Territorial Authority and the specialized services which continue to speculate about their respective roles in the election despite the existence of [clear] laws and regulations. . . ."141
The opportunities for promotional activities were limited by the governor's decision to ban public meetings which, he explained, was intended to "put a damper" on political activity during the war. UDPS representatives in Lubumbashi told Human Rights Watch/Africa their meetings have been hampered for the past year and half. The lastUDPS meeting permitted was at the beginning of August 1996. It was originally scheduled for Friday, July 26, 1997 but, according to the UDPS, refused a permit on the grounds that it had informed the local authorities of the meeting rather than applying to request approval.142 The party sought authorization for another event for September. A letter prohibiting this proposed march was delivered to the party minutes before its start, and after supporters had gathered to participate. The urban commissioner banned the march, invoking unspecified security reasons in a letter to the president of the UDPS/Shaba dated August 28. The letter ordered the party not to proceed with its plans for the procession and closed on a menacing note: "I would count on your political maturity to perceive these clear dispositions. Thus, any bad interpretation from your side would have serious consequences for which you will personally assume responsibility."143
The political parties of Shaba, like the organizations of civil society, have few alternatives to public meetings in reaching the general population with their message. The official media, which in any event reach only a small perimeter around Lubumbashi, remain under the overall control of the governor. While human rights activists have on occasion been invited to speak on television, they have been obliged to stick to generalities, and pay for their appearance. As one activist told us, "First, we elaborated on the articles of the Universal Declaration. That was all right. But when we began to apply it to conditions in the country, we weren't invited back."144 It is often a question of the courage of the individual journalist, according to Jean Mbuyu. "These days, the journalists usually insist on recording everything in advance. When you ask why, they tell you about the risks to their job."145
Political parties can post certain announcements on the television and radio, subject to a fee.146 But the announcements are censored, apparently with the involvement of the governor himself. Human Rights Watch/Africa was in Governor Mulume's office as he took what appeared to be a routine call from the radio station regarding a paid political announcement. After hesitating about whether the announcement should run, the governor relented instructing the editor to, "take out the bad parts first." There is a private television station operated by the Salesian Fathers, but its content is restricted to exclude "political" materials.
The vice-president of the National Electoral Commission identified a range of impediments to effective political debate during his visit to Shaba. The lack of political debate, he said, "threatens to undermine the normal development of the electoral process. This has a consequence," he added, "of creating apathy, irresponsibility, brutality [l'abrutissment], panic and even disengagement of people who then fear the reaction of the public authorities or the specialized services, particularly the security forces." The electoral commission then called on the governor to lift the ban on political meetings and open the airwaves to the open public debate.147
There was little indication that the governor intended to change his approach. Opposition groups attributed his resistance to a blatant pro-Mobutu bias within the administration. This was in fact quite overt. Although the state administration was theoretically "depoliticized" in 1990, there was hardly any effort to hide the local government's active promotion of President Mobutu and the ruling MPR. The only political symbols in evidence in the city werethe brightly painted monuments and posters touting the MPR. The governor dismissed these as "vestiges" from the days of the single party, but did not deny openly supporting President Mobutu for election as he traveled across the region, promoting "tolerance." While the local head of the MPR professed embarrassment about these partisan activities in a separate interview with Human Rights Watch/Africa, the governor simply justified this as a personal matter.
Another bastion of political support for Mobutu continued to be the SNIP, which together with the Civil Guard had been used to crush the resistance of UFERI and was suspected of undermining opposition political activity in general. The regional director, Mbaliani, who was from the president's region, saw his role primarily in terms of protecting the state as "incarnated" by President Mobutu. He was not willing to detail the means that the SNIP could use in this pursuit, but insisted that they were not limited by the rules of criminal procedure.148
After arranging and holding a meeting with Mr. Mbaliania, the Human Rights Watch/Africa delegation was summoned to the SNIP headquarters in Lubumbashi late the following evening for questioning. The SNIP agent, who would not give his name, asked questions based on reports he had evidently received from informers. Some of the information was patently untrue, including suggestions that the delegates had communicated with Katangan separatists based in Canada. But even questioning concerning our visit to Lubumbashi this SNIP officer appeared ill-informed or confused. The agent was extremely interested in meetings that we had arranged with political parties and asked repeatedly why the delegation had failed to request a meeting with the MPR. The delegates had, in fact, sought a meeting at the MPR offices, where they had left business cards, a claim he apparently did not believe. When they insisted on their desire to meet with the MPR, he arranged the meeting for us on the spot using his cellular telephone.
In contrast to the government and political parties, NGOs in Shaba were actively promoting voter education in preparation for elections. They had formed an independent electoral body on the model of the Kinshasa-based NGOs in order to oversee the preparation of elections. They had been severely limited in the means at their disposal, however, including documentation for election training.
Repercussions of the War in Shaba
With the outbreak of war, anti-Rwandan protests broke out across the capital of Lubumbashi, as elsewhere. Anyone suspected of contacts with Tutsis was suspect. Although exact figures are not available, students reported that as many as 300 students were pressured out of the university by fellow students. Many of the families of prominent Tutsi figures were harassed and forced to flee, including the Anglican Bishop, the Right Reverend Emmanuel Mbona, a prominent Banyamulenge lawyer named Ruberwa, as well as staff members of the telecommunications company Telecel in Lubumbashi and others. Dozens of others sought to escape but lacked the means to get to the Zambian border.149 During the first phases of war hysteria mobs on the street also attacked people with features identified with Tutsi.
In addition to Tutsis (or Banyamulenge), other perceived sympathizers with the rebels were also harassed. Jean Mbuyu, former head of the Lubumbashi Bar Association and director of the Center for Human Rights and Humanitarian Law, was singled out by authorities for having defended the rights of Banyamulenge in court. He was blocked at the airport when he tried to leave Lubumbashi and later stopped again and threatened with arrest when he arrived in Kinshasa.150
As in similar circumstances of flight, armed forces used the occasion to extort payment and take belongings from those who were fleeing. AZADHO detailed the theft of vehicles, cash, hotel, restaurant and farm items seized from Tutsi businesses, a number of which were ransacked.151 The Civil Guard seized the short wave radio belonging to the Anglican church in the same wave of looting, while claiming that it had not been registered for use on certain wavelengths.152
The security services also carried out a wave of arrests and called in others for questioning after the outbreak of conflict. Those detained included two former "Gendarmes Katangais," a religious figure who had recently visited Kivu, and a number of people apparently seized solely because their name was Kabila. UFERI reported that in November the residents of Ankoro, Kabila's village of origin were forced out of their homes by SARM and FAZ troops accusing them of being rebel sympathizers.153
The northern areas of Shaba were most directly affected by the war. The original rebel targets in South Kivu were 150 kilometers from the border with Northern Shaba. Because of boat traffic along Lake Tanganyika there were close links between Uvira and Kalemie in Shaba, and many of the first soldiers and civilians fleeing Uvira headed toward Kalemie. Soldiers began to arrive on October 20, 1996, "having pillaged their way down," as one area doctor commented. More than 10,000 refugees and displaced persons eventually made their way to Kalemie.
The first of the fleeing soldiers in the city raised the level of tension and insecurity. According to one judicial official, the soldiers set up impromptu road blocks and competed with the permanent military garrison in holding the population to ransom. Some warehouses were ransacked and vehicles destroyed before officials were able to send many of the displaced troops on to Lubumbashi and elsewhere by train.
Fleeing soldiers arrived in Kalemie in some thirty-two cars and jeeps they had seized from humanitarian agencies in Uvira, including Doctors Without Borders, (Médecins Sans Frontières, MSF) and the International Committee of the Red Cross (ICRC). The vehicles were readily recognizable, because their markings had not been altered. After weeks of efforts to reclaim the vehicles, administrative officials told the agencies that it was not possible. The vehicles were not actually under the control of the armed forces, the officials informed them. Rather, "They are in the hands of people who happen to belong to the armed forces."154 At least two vehicles were transferred to Lubumbashi, one of which-belonging to the ICRC-was painted over and converted to the official use of the armed forces. An attempt by the ICRC to bring another vehicle to Kalemie in order to service the displaced and refugee populations, was blocked by troops who simply seized the newly arrived vehicle as well.155
The news from northern towns was sketchy. UFERI claimed that the Zairian military had rounded up the population in several towns, including Kapanga, Sandoa and Dilolo in the District of Lualaba, to use them as "human shields" in the war.156 At the same time, a group of rebels based in the areas of Fizi and Baraka at the southern edge of South Kivu who had once fought for Kabila and the ADFL, were, as of early 1997, according to fleeing civiliansand humanitarian groups, fighting against Kabila and his troops. The group, known as the "combattants," from the Bembe ethnic group, had early in the conflict reportedly disarmed fleeing Zairian soldiers. By early 1997, however, according to the representative of one aid agency, they were being officially supplied with arms by the Zairian armed forces in order to continue the battle.
"Pay As You Go": Justice and General Insecurity
Local human rights groups in Lubumbashi depicted generalized public insecurity as the main human rights problem faced by the population. The chronic failure of the state to pay even the "theoretical" salaries of public servants, provided the background to the varied means by which state employees elicit a steady unofficial income from their work or find sources of alternative income. Judges charge for services and soldiers use the threat of force and detention to extort payment and goods from the population. The result was a profusion of arbitrary and ad hoc "taxes" and an intricate system of payoffs for state services, extending even to the investigation and prosecution of criminal suspects.
At the apex of the system were the armed forces, which were relied upon to enforce private and public claims, for a fee. But they were not a homogenous group. Some, like the Gendarmerie Nationale, the Force Terrestre and the Brigade Routière reported to the local commander of the Ninth Region or the First Military Region. Others, like the Special Presidential Division, the Civil Guard and the SARM had separate command structures and direct links to the president, giving them an even higher authority. They benefited from near total impunity.
Harassment by the armed forces had become almost routine, so much so that people rarely commented on it, except in the case of spectacular abuses or waves of banditry. Everyone we spoke to knew someone who had been held up or "pillaged" within the past year by men in uniform, sometimes in association with "ordinary" criminals. The director of one humanitarian aid program described the blasé manner in which employees reported that their homes had been ransacked by soldiers. There had been three cases among employees within the recent past, the most recent on December 22. Residents of densely populated neighborhoods like Kenya, Katuba and particularly Kampemba, complained of constant harassment from the police and troops from the military camps that surround them.
The Human Rights Watch/Africa delegation documented a typical case during its visit to Lubumbashi: On December 27, Guy Kazadi, a staff member with the C.D.H., was stopped by police at about 11:00 p.m. in his neighborhood, Kenya by a contingent of four policemen. He showed them his identification card but refused to give them any money. The gendarmes searched him thoroughly. They said he must be a suspect to be walking around that late, particularly with a war going on in the east. He resisted them when they tried to take his money. They handcuffed him, beat him severely, then threw him in their jeep and drove around while periodically kicking him. At no point did he tell them he worked for a human rights organization for fear that the soldiers would become even more abusive. Eventually, Kazadi was taken to the police cells in the center of town, after refusing one more chance to pay his way out.
The headquarters of the gendarmerie in Lubumbashi, where Kazadi was held, had five detention cells in all, forming the southern end of the square building, their doors opening into an interior courtyard and with high, barred windows covered with glass panels in the outer walls. These were narrow and badly ventilated two-by-three-meter cells with little light, infested with mosquitoes and fleas. Two were reportedly reserved for detainees of the gendarmerie's Mobile Brigade and two for people detained by the Special Brigade of Searches and Information of the gendarmerie. A fifth cell was reserved for women detainees.
Kazadi was thrown into a cell with fifteen other people in various states of health. "They told me I could pay if I wanted to go into a better cell," he told us. He later learned that he was accused of "resisting authority." Atfive one morning the prisoners were taken out to the courtyard where a trench served as an open sewer: they were beaten with whips and forced to clean it out with their bare hands.
Human Rights Watch/Africa briefly visited to the detention cells after Kazadi succeeded in sending a note to friends and colleagues. Detainees told Human Rights Watch/Africa that a young woman seen weeping against a wall had aborted during the night, probably as a result of harsh treatment by guards and unhealthy prison conditions. She had been detained on the accusation of stealing the equivalent of U.S. $25, and said guards had refused her any medical assistance as she bled through the night. During the same visit, one man was seen emerging from one of the cells covered in blood, and detainees described the systematic torture of two men detained with them who were accused of robbery.
Kazadi was released after the intervention of lawyers affiliated with the C.D.H., though his belongings, including his national identification card, were not returned to him in the days that followed.
Impunity for Abuses
When asked about insecurity, the governor was sympathetic to the situation of the armed forces. "So long as they aren't paid," he said, "there is nothing that can be done." If there were more reported violations in the current period, he added, it was because "soldiers also need a little extra money for the end of the year."157
It is not surprising, under such circumstances, as explained by human rights activists, that most crime goes unreported. In fact, efforts to report and pursue investigation are costly for complainants. In one recent case, a community human rights group sought to pursue the authors of a string of local crimes in Katuba. The account that follows is based on interviews with members of this group and documentation provided by them.
The zone of Katuba was the most populous neighborhood of Lubumbashi. A well-armed gang which operated in the area attempted, on the night of September 9, 1996, to break in the Mama wa Huruma dispensary, a health center serving one quarter in Katuba. Scores of unarmed people came out from their homes and drove the assailants off. The gang returned shortly after and broke into fourteen houses, terrorizing families and robbing them of valuables. Members of two families were seriously hurt. In one case, bandits severed a man's Achilles tendons. Witnesses told Human Rights Watch/Africa that the gang consisted of about twenty people, some of whom were uniformed while others were dressed in civilian clothes but had distinctive army boots. Many were armed with Uzi submachine guns. They reportedly tortured some individuals and threatened to kidnap children if valuables weren't surrendered.
The events of this night provoked an outcry. A community rights group, "La Non-violence Evangelique" collected testimony and pursued the case through the justice system. The group went from house to house to interview victims and witnesses and succeeded in identifying suspects. In concert with other civic and church groups, they stepped up their campaign of pressure on administrative and military authorities in Lubumbashi. Representatives of the Katuba community group and La Concertation, the umbrella organization of human rights associations, met with the governor of Shaba region and the commander of the First Military Region, the highest military authority in Shaba, to denounce the participation of military personnel in armed banditry and to call for improved security. The governor decided to call a special meeting of the security committee of the region three days later, on October 12, 1996, which listened to the grievances of the community representatives and decided to reinforce security patrols in the city and to allow civilian participation in these.
The group told Human Rights Watch/Africa that when eyewitness accounts led to the identification of four suspects four days after the attack, the community had to come up with money to lodge a complaint against the suspects. They paid between U.S. $1.50 and U.S. $4.00 to the gendarmerie for every intervention, and U.S. $25 to the public prosecutor's office to initiate the legal proceedings. Each time policemen moved to the crime scene, La Non-Violence had to provide an incentive payment for their transportation, although in many instances they were within walking distances. The community representatives estimated that a total of twelve million new zaires, or about U.S. $120 were disbursed over three months. They commented that such expenses dissuaded victims of banditry at the hands of the army or security services from seeking judicial remedy: "They would rather submit to these injustices than incur other expenses."158 The only difference in Katuba was the scale of the event, the high degree of mobilization of the community, and the exceptional campaign of pressure led by the local rights groups.
Compromising the Independence of the Judiciary
According to local lawyers and judicial officials, money changed hands in almost all judicial transactions. The salary of the president of a tribunal-if it were paid-would be less than $40 per month. But, this was largely theoretical since no salaries had been paid since May 1996. Judges did receive lodging in some regions as well as a small transport allowance that was equal to about $8 per month at the time of our visit.
Human Rights Watch/Africa asked a number of judges and lawyers how courts could be equitable if judges depended on payments from litigants. Judges and lawyers independently responded that a good judge took payment from the party that had the better case. As the president of one court told Human Rights Watch/Africa in his office, "We examine the file and determine who is right. That is the one we bother a bit."159 "Judges come to see me, often," said one lawyer, "saying, `Maitre, your client has an excellent case. Tell him to come see me."160
The bad judge "eats off of both plates," as one lawyer explained-or puts the case up for auction, as they say locally- "and renders a judgment for the one that feeds him best."161
The relatively constant level of corruption increased markedly in early 1995 when the new minister of justice, N'Singa Udjuu, another long time minister during the Second Republic, appointed a member of his political party to the powerful position of chief prosecutor of the Court of Appeals in Lubumbashi. The position of chief prosecutor is particularly lucrative because of control over investigations into trafficking in minerals and stolen vehicles across the border into Zambia. Trafficking in cobalt alone is officially said to have reached 10 percent of the total production of cobalt and unofficially assumed to be more than twice that amount.
Speaking on condition of anonymity, one magistrate detailed to Human Rights Watch/Africa how, he claimed, the prosecutor, Kikoka Toni Gaytoni, blocked the investigation of the theft of cobalt. In one dramatic case, he said, the prosecutor ordered the arrest of a guard at the Gecamines factory in Lubumbashi who had been instrumental in stopping a spectacular cobalt theft. The evidence was quickly disposed of and no prosecutions were brought.162
The prosecutor's alleged collaboration with traffickers was denounced by the archbishop of Lubumbashi as well as the C.D.H., which obtained detailed information, including telephone numbers and car registrations reportedly used by the prosecutor in the cobalt and stolen car racket. The C.D.H. published the information: although an investigation was subsequently announced, this led nowhere. Relying on his support from the minister of justice, the prosecutor apparently shrugged off the official investigation and reportedly transferred three of the prosecutors suspected of collaborating with the human rights group to distant locations in the province.
In sensitive political cases or cases brought against particularly wealthy clients, judgments were rare, unless they were brought by an equally powerful opponent. Lawyers cited a number of cases that had effectively been frozen, including the case of the UFERI leader Dr. Tchikung against the SNIP soldiers who abused her, 163 and a number of law suits against one of the most powerful businessmen in the region.
The Case of Lieutenant Mukelenge
The overall pattern of impunity appeared to break down only when collusion among the armed forces and political and economic elites was transformed into open conflict. One such case recently occurred in Likasi, a mining center 100 kilometers from Lubumbashi. In the first week of January, the court of Likasi condemned Lieutenant Mukelenge to life imprisonment for armed robbery, heading a criminal organization, and harboring deserters. Two other accomplices received long prison sentences. The ruling concluded a closely-followed, high profile case.
According to judicial officials and businessmen who spoke to Human Rights Watch/Africa, the officer was reportedly involved in profiteering from the illegal export of cobalt stolen from the storehouses of Gecamine, the leading mining company in the country, which dominates cobalt production in Likasi. Part of the spoils was paid as kickbacks to unidentified senior army officers who secured his strategic posting - reportedly a routine practice. Attempts by his commanding officer in the Likasi garrison to check his activities in this shadowy area were foiled when, judges told Human Rights Watch/Africa, he traveled to Kinshasa and returned with an appointment to SARM, the military intelligence branch accountable only to authorities in Kinshasa. Securing a direct line to Kinshasa had placed him beyond the reach of any local authority, military or civilian.
The months preceding the incidents that led to the arrest and trial of Lieutenant Mukelenge had witnessed a sharp deterioration of public security in Likasi. To stem the theft of cobalt, Gecamine had engaged the consulting services of a South African security company. The actual guarding of the company's warehouses was, however, left to the Civil Guard. While cobalt continued to "leak" steadily from the warehouses, the intervention of the Civil Guard reportedly disrupted long established practices of profit sharing between other soldiers from the local garrison and some businessmen known locally as the "Cobaltistes." Soldiers who were edged out of the cobalt traffic as well as civilian criminals reverted to preying upon the population. A magistrate from Likasi, who talked to Human Rights Watch/Africa on condition of anonymity, said that commanders of the various regular forces told other officials that it was difficult for them to discipline their troops as "they were starving."164
Lieutenant Mukelenge reportedly operated a gang of armed robbers composed of deserters, soldiers and civilians. The gang reportedly carried out three spectacular armed robberies on the night of 10 to 11 July, 1996, targeting wealthy businessmen of Likasi. They stopped their first victim as he drove into the garage of his house and ordered him to give them the U.S. $4,800 they knew he had in the car trunk. While they were discussing "whether to kill him," according to sources close to the investigation, he managed to escape from them. They went from there to the house of another "economic promoter," and opened fire with the intention of killing him. He returned their fire,fatally wounding one of his assailants, who was reportedly the personal bodyguard of the lieutenant. The other bandits carried the body to the house of the officer and left it there.
Following the raids, the business community of Likasi, dominated by European businesses, a number of which are implicated in the illicit cobalt trade, declared a strike, paralyzing the city. Under pressure, the SARM abandoned the lieutenant and he was turned over to local authorities. Lieutenant Mukelenge was charged subsequently with armed robbery, heading a criminal organization, harboring deserters, and wasting war munitions. The intervention of members of a privileged and influential sector of the population, usually isolated from the general insecurity of petty banditry, was certainly decisive in bringing about this rare prosecution.
Civil Society-Human Rights NGOs
The human rights groups in Shaba had come to play a pivotal and dynamic role in society by late 1996, at least in the major city of Lubumbashi. There they became accepted mediators between the abused and the authorities. At times, they were called upon by the authorities themselves for the objective stamp which they are perceived to yield. What was distinctive about them are their local roots and means of support. With the exception of AZADHO, the local branch of the Zairian Association for the Defense of Human Rights, they emerged entirely from the community-primarily the legal community and the churches-and supported themselves almost entirely from local funds.
The premier human rights NGO in the region, the Center for Human Rights and Humanitarian Law (C.D.H.), was founded in 1992 by a number of lawyers, including Jean Mbuyu, a young lecturer at the law faculty who was later elected to head the local bar association. During the Kyungu period, the C.D.H. fought vigorously against the expulsion of Kasaiens. Later, the C.D.H. defended the rights of UFERI loyalists under attack from the SNIP and Civil Guard. As a result, they were targeted by the SNIP chief and Maitre Mbuyu was threatened with arrest. Maitre Jean-Claude Muyuambo, interim director of the C.D.H., was, however, subsequently invited to serve on the independent commission to investigate the March 31, 1995 confrontation between JUFERI and the Civil Guard. In the recent past, the C.D.H. has acted to expose and campaign against corruption in the judiciary, focussing on the prosecutor general appointed by the Kengo government.133 Other names were also changed at that time, but only colonial names which were perceived as "unauthentic." Katanga is a local name with historic roots in the region near Lubumbashi. "Shaba" means copper in Swahili. 134 "Rapport de la commission d'enquête independante sur les incidents de la zone de Katuba", La Voix du C.D.H. no. 7, Lubumbashi. 135 La Voix du C.D.H. no. 9. 136 Human Rights Watch/Africa interview with Jean Mbuyu, then Chair of the Bar Association of Lubumbashi, February 9, 1997. 137 Human Rights Watch/Africa telephone interview, February, 1997. 138 Kasongo Nyamvie Tambo, vice president of the National Electoral Commission, press statement delivered in Lubumbashi, December 21, 1996. 139 Ibid., p. 6. 140 Human Rights Watch/Africa interview, Kinshasa, January, 1997. 141 Press Statement of the vice president of the commission, Lubumbashi, December 21, 1996. Page 3. 142 Human Rights Watch Africa interview with UDPS representatives in Lubumbashi, December 1996. 143 Letter from the urban commissioner of Lubumbashi to the president of UDPS/Shaba, dated August 28, 1996, copy made available to Human Rights Watch/Africa by the UDPS/Shaba. 144 Human Rights Watch/Africa interview with Maitre Mbanza, Lubumbashi, December 24, 1996. 145 Human Rights Watch Africa interview with Jean Mbuyu, February 1997. 146 The fee is the equivalent of U.S. $12 for a brief radio announcement. 147 Op. Cit., Kasongo Nyamvie, press statement. 148 Human Rights Watch/Africa interview, Lubumbashi, December, 1996. 149 Human Rights Watch/Africa interview with woman who helped several Tutsis escape, Lubumbashi, December 1996. 150 Human Rights watch/Africa telephone interview, February, 1997. 151 AZADHO, Représentation du Shaba, "Liste indicative des personnes attaquées en raison de leur origine Rwandaise ou de leur morphologie nilotique." (Information collected between 28 October and 7 November 1996) 152 Human Rights Watch/Africa interview with church officials, Lubumbashi, December 1996. 153 UFERI, "Violation des droits de l'homme Novembre - Décembre - Janvier 1997." 154 Human Rights Watch/Africa interview, Lubumbashi, December 1996. 155 Ibid. 156 UFERI, "Violation des droits de l'homme Novembre-Decembre-Janvier 1997". 157
Human Rights Watch/Africa interview, Lubumbashi, December 1996.158 Human Rights Watch/Africa interview, Lubumbashi, December, 1996. 159 Human Rights Watch/Africa interview, Likasi, December, 1996. 160 Human Rights Watch/Africa interview, Lubumbashi, December, 1996. 161 Ibid. 162 Human Rights Watch/Africa interview, Lubumbashi, December, 1996. 163 Human Rights Watch/Africa interview with Me. Nkulu, Lubumbashi, December 1996. 164 Human Rights Watch/Africa interview, Likasi, December 1996.