Cablegate: Diils Assessment Team Report Lays Bare Congolese

DE RUEHKI #1232/01 3031310
P 301310Z OCT 07





E.O. 12958: N/A



First in a series.


1. A team from the Defense Institute of International Legal
Studies (DIILS) issued a comprehensive assessment of the
Congolese military justice sector in September. Drawing on
visits during the previous month to facilities in several
areas of the country and consultations with a wide range of
officials and experts, the team's assessment defines the
sector's most critical needs, including personnel,
infrastructure, education and material support, and presents
recommendations for possible U.S. assistance. The team's
readout is bleak: military justice in the Congo needs
assistance at all levels. Its institutions are hollowed out
and fragile, and require massive levels of support to perform
even basic functions. Septel reviews the report's
recommendations. End summary.

2. The Defense Institute for Legal Studies (DIILS) has
issued a comprehensive assessment of the Congolese military
justice sector and identified areas for targeted U.S.
assistance, including personnel, infrastructure, education
and material support. The report reflects the conclusions of
three American military law experts -- Capt. Jonathan
Edwards, USN (ret.), representing DIILS; Col. David Engel,
USAF Reserve; and Lt. Col. Amisi "Sam" Mubangu, USA -- who
visited the DRC for two weeks in early August, engaging
nearly every level of the military justice sector and
obtaining unique access to a crumbling system which is
nevertheless central to the fight against impunity and the
development of real security for the Congolese people.
MONUC's Rule of Law Unit (ROLU) provided invaluable
assistance to the team, including facilitating meetings,
briefings, and in-country travel.

3. The team visited prisons, tribunals, and other
facilities; met with military prosecutors, military
magistrates, civilian defense attorneys, and law professors;
consulted with the Attorney General, the Minister of Justice,
and the Minister of Defense; and discussed with experts from
NGO rule of law groups. Their readout, while expected, was
bleak. It confirmed what military magistrates have long told
us: the system needs significant assistance at every level,
and material support "from bricks to paper" (ref A). (Note:
DIILS has provided copies of the report to the Embassy and
the Department. End note.)


4. The team observed major staffing deficits at every level,
from court reporters to judicial police to military judges
and prosecutors. One result: cases can languish for years,
and often come to trial under-documented and
under-investigated. High-profile cases, such as the murder
of Serge Maheshe, a reporter for MONUC's Radio Okapi, are
often pushed ahead of others, although swift attention is no
guarantee of "justice" (ref B). Lower-profile cases often
receive only cursory treatment. At one rape trial the team
witnessed, testimony literally devolved into a "he said, she
said" contest. The case was several years old. Neither
prosecution nor defense presented any forensic evidence, and
there was little sign of any investigation having taken

5. Lack of military magistrates also affects the composition
of courts and quality of judgments. Panels of judges often
include civil magistrates or members with no legal
background. At the lowest courts, the required panel of five
judges is made up of two magistrates and three "assistant"
judges, who often lack any legal training at all. By law, an
appeal can only be heard by a panel of five judges including
three magistrates; in fact, these panels often include only a
single military magistrate. The participation of civil
magistrates is not necessarily negative, as their experience
in similar cases (e.g. rape, robbery, assault, murder) can

KINSHASA 00001232 002 OF 004

help standardize military judgments.

6. Staffing issues are further exacerbated by looming
retirement and lack of discipline. A large number of
magistrates are potentially eligible to "retire," should
"retirement" become a feasible option in the future. In
addition, magistrates may often simply refuse an appointment
to a court in the country's interior, where adequate schools,
medical care, or housing are often lacking. Military
authorities rarely take disciplinary action in such cases.


7. Facilities and infrastructure observed by the team varied
from province to province, but the overall condition was
dismal. At one extreme is Bunia, the capital of Orientale
Province's Ituri District. There, the military tribunal, as
well as magistrates' offices, are housed in buildings less
than three years old. Offices have electricity, plumbing,
and even sport laptop computers with Internet connections.
The "cachot," or holding cell, is new and includes windows
and space for air circulation, although its plumbing is still
rudimentary, and does not include toilets or running water.
In Kinshasa, the offices of the Auditorat General (the chief
military prosecutor and his staff) occupy both a
semi-renovated building and a half-completed new building.
The Chief Prosecutor told us that one donor had begun the new
building but had left when funding ran out. Even so, the
mostly-finished offices have electricity, windows, and air
conditioning. This compound, too, boasts computers,
printers, and reasonable equipment.

8. The offices of the Auditorat in Mbandaka, the capital of
Equateur Province, illustrate the other end of the spectrum.
The buildings are circa 1960, and neither time, the tropics,
nor war have been kind to them. The offices have doors, but
there is little equipment and only intermittent electricity.
Mbandaka lies in the rain forest on the equator, and when it
rains (and it rains often), staff has to move to furniture
and files around to prevent water damage from holes in the
roof. There are no computers; manual typewriters would be an
improvement, since many of the complaints, rulings, and
documentation are written out longhand. The courtroom itself
has a desk for the chief magistrate, but no seats or
furniture for accused, witnesses, or accusers.

9. The DRC has three military prisons, but none is currently
in use. Prisons housing military as well as civilian
prisoners can best be described as completely inadequate.
Many lack the most basic requirements, including beds; in
some prisons, NGOs have provided pieces of foam as
mattresses, but these are the minority. Mosquito netting is
available only if a family provides it. In many prisons,
prisoners eat only if a friend or family member provides
food, and a portion is usually expropriated by guards.
Overcrowding is endemic. Makala Prison in Kinshasa is the
best-maintained in the country. However, it houses over
4,000 detainees (including around 1,800 military prisoners)
in a facility designed for 1,500. In others, infrastructure
is literally crumbling, and breakouts are frequent and
sometimes spectacular. For example, recently in Uvira, South
Kivu approximately 140 prisoners broke out after complaining
that they hadn't eaten in days; the guards were reportedly
too weak from lack of food themselves to stop the escape.


10. Law professors, constitutional professors, defense
counsel, and magistrates themselves consistently pointed out
to the team the continuing need for training and education at
all levels of military justice. Magistrates are generally
hired after completing a bachelor's-equivalent law degree,
and much of the training that follows is on-the-job.
Military magistrates we met at locations outside Kinshasa, as
well as the Minister of Defense, ranked continued legal
education as one of the highest priorities for improving
operational capacity. (Note: This is consistent with
previous field visits by Poloff (ref A) and with the
experience of MONUC's ROLU. End note.)

11. Only in Kinshasa, where facilities are relatively

KINSHASA 00001232 003 OF 004

high-end, and where the elite of the magistrature have a
comfortable living, was there any indication that training
might not be a priority. In fact, two generals -- the First
President of the High Military Court, and the Auditor General
(chief military prosecutor) -- gave us a list that ranked new
offices, new buildings and new courtrooms, along with a new
military justice legal training facility, at the top, and
seminars and courses for specialized legal training at the

12. In fact, training is needed not only for magistrates,
but at other levels as well: for court clerks/reporter, for
courtroom bailiffs, for judicial police, and for guards of
military prisoners. Judicial police, for example, have the
equivalent of three years' academic training; they have no
specialized training in interrogation, investigative
techniques, or forensics. At the height of the Mobutu era,
applicants for the judicial police had to complete a two-year
technical training program at the National Police School.
Since the school closed around 1990, most judicial police
receive only the training they get on the job. Moreover, the
most experienced are poised to retire and leave the system.
The situation is similar for clerks and bailiffs.

Material Support

13. The court system lacks the most basic materials. While
the system could clearly use an enormous infusion of
supplies, ranging from vehicles and fuel to computers and
generators, there are also significant needs that would be
almost invisible to a comparable American court. Manual
typewriters would be an upgrade for many of the tribunals and
courts in the interior. Necessary supplies such as paper,
pens, file folders, and general office supplies are rare in
the provinces. But the most telling lack is the absence of
updated legal texts, legal reference books, copies of
Congolese law and decisions offering guidance for
widely-dispersed practitioners who have no access to law
libraries or even regular professional contacts.

14. In a country the size of the United States east of the
Mississippi, there are around 300 miles of paved road.
Thirty-six garrison-level courts of first instance are
required to provide investigatory support and trials, and the
districts which they cover can be immense. There are 11
Military Courts, or courts of appeal, one in each provincial
capital and one in Kinshasa. The Military High Court, the
supreme military court, is also located in Kinshasa. Each of
these courts has responsibility for investigating complaints,
arresting offenders, and transporting detainees over enormous
distances. Most have no vehicles, no gasoline, and no means
of transport other than bicycles, canoes, and their feet.
The negative impact that this has on investigations, arrests,
and transport of prisoners is incalculable. When one member
of the DIILS team asked the military prosecutor in Bunia if
motorbikes would be useful, he pointed out the incongruity of
transporting a prisoner on the back of the bike.

Congolese Response to the Assessment Visit

15. Congolese response to the DIILS team's visit was
overwhelmingly positive. In almost every case, military
justice officials gave frank and forthright self-evaluations
of the system and their perceived needs. Experts from
outside the government were helpful and supportive as well.
Civilian judicial officials provided thoughtful analyses of
the greatest challenges for their military colleagues and
proposals for areas in which international assistance would
be most useful. With the exception of the most senior
magistrates in Kinshasa, nearly every Congolese interlocutor
the team met was enthusiastic about their visit and potential
partnership with the U.S.

16. Minister of Defense Chikez Diemu was particularly
effusive. In all three meetings he had with the team, he
cited the presence of Col. Engel, who was locked down under
fire with a DIILS team in the Foreign Ministry with no food
and no water during the March 2007 violence as a clear signal
that "the U.S. is with us in this effort." The Minister made
a point of including Congolese colleagues -- Col. Mutombo,
his legal advisor and General Bivegeti, one of the Vice

KINSHASA 00001232 004 OF 004

Presidents of the High Military Court, among them -- who had
shared the ordeal with Col. Engel and helped ensure that the
DIILS team was safely extracted from the building.


17. The DRC has many tools in place to support military
justice: organic laws, international conventions, the
framework of personnel and facilities. However, the
institutions of military justice are hollowed out and
fragile, and will require massive levels of support to
perform even basic functions. In addition, until Parliament
approves organic legislation in line with the new
constitution to limit military jurisdiction to the army and
police, current law will continue to subject certain
civilians to military trial, an inconsistency which raises
regular complaints by human rights activists. In the DRC,
where the "pipeline" is already filled with a plethora of
cases under military jurisdiction and the vast majority of
human rights violations are perpetrated by soldiers
themselves, proper function of the military justice sector is
vital to ensuring long-term peace and security -- regardless
of jurisdictional changes in the future. Septel will review
the report's recommendations for assistance to this sector.
End comment.

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