Whither the fight against impunity in the Democratic Republic of Congo?
Patryk I. Labuda*
Earlier this month, the National Assembly in the DRC passed legislation domesticating the Rome Statute. After a brief debate on 2 June 2015, Congolese parliamentarians voted unanimously to introduce a series of technical reforms in the domestic legal order of the most active ICC state party. Civil society and advocacy groups promptly celebrated this as a milestone in the DRC’s fight against impunity. For instance, the Coalition for the ICC announced on its blog that the Congolese parliament had voted to implement the Rome Statute, which was “a long awaited measure that will allow it to fulfil its obligation to prosecute grave crimes domestically”. In the same vein, the Case Matrix Network suggested that the law “would give full effect to the principle of complementarity and will, moreover, facilitate cooperation between the ICC and the DRC”.
While the National Assembly vote is significant in a variety of ways, it is important to clarify what actually happened and why this is newsworthy at all.
First and foremost, contrary to most media reports, the parliament did not actually domesticate the Rome Statute. The DRC has a bicameral system in which both chambers of parliament endorse legislation, so the National Assembly vote merely transfers the bill to the senate, the upper chamber of parliament. This is not just a run-of-the-mill procedural hurdle. Unlike some constitutional systems, the Congolese senate wields real legislative power and must usually approve draft bills before they become law (Art. 135, 2006 Constitution). Moreover, the Senate has in the past exercised its prerogative to torpedo legislative measures aimed at fighting impunity in the DRC.
Despite the efforts of several advocacy groups, the senate did not take action in the week after the National Assembly vote. The spring legislative session expired on June 15, and parliament is now set to reconvene on September 15 for the fall legislative session. However, efforts are already underway to place the Rome Statute implementing bill (in reality, four distinct legislative bills) on the agenda of an ‘extraordinary’ summer parliamentary session, which would convene presumably in July. Eager to capitalise on the momentum generated by the National Assembly vote, civil society is doing everything in its power to get the draft legislation through the senate as quickly as possible. But what explains this haste?
This brings us to why the June 2 vote is a newsworthy event in the first place. In most countries, passing legislation in one chamber of parliament would elicit little (if any) domestic coverage, let alone spark international attention. But Rome Statute implementing legislation in the DRC is different. It has a long and convoluted history. Discussed as early as 2002 (when the Congolese President, Joseph Kabila, ratified the Rome Statute), various legislative proposals have failed to gain traction with the Congolese political establishment. Due to resistance within the military and key political factions, it has proved difficult to even bring draft bills to a vote in parliament. As a result, over a decade after it was first considered, the Rome Statute – its definitions of crimes, procedural guarantees, and a cooperation regime between the Congolese authorities and the ICC – has yet to be integrated into Congolese law.
It is no secret that the ‘fight against impunity’ is a contentious topic in the DRC. On one hand, the ICC appears to be remarkably active in the country. The Congolese are the most represented nationality in the dock at The Hague, and domestic military tribunals have used the Rome Statute and international criminal standards in dozens of trials. On the other hand, it is well known that Joseph Kabila and his successive governments have shielded political allies, especially high-ranking members of the Congolese armed forces, from prosecution. Despite the ICC’s presence in the DRC, it appears that certain categories of perpetrators remain ‘untouchable’, prompting criticism from human rights groups that the prosecutor has sacrificed impartiality on the altar of political expediency and cooperation with the Kabila regime.
The future of this cooperation depends on the outcome of the 2015-2016 election cycle. Though he is constitutionally barred from running, whether Kabila will actually seek a third term in 2016 is the subject of much speculation in Kinshasa and beyond. Significantly, Kabila has repeatedly refused to rule out this possibility, triggering protests and violence in the country as recently as January 2015. Similar attempts to gain a third term in office are underway in neighbouring Rwanda and – most notably – in Burundi, where weeks of protests culminated in last month’s failed coup and have left dozens dead.
It is against this tense pre-electoral backdrop that one should view the decision to domesticate the Rome Statute. After over a decade of prevarication, on 2 June 2015 the Congolese National Assembly agreed unanimously to align the domestic legal order with international standards concerning the repression of international crimes. The timing is significant. The Congolese parliament has a pivotal role in preparing the coming elections, which makes the National Assembly vote all the more remarkable and explains the need for prompt action in the senate. Simply put, the political winds can shift very quickly in the DRC. As the fight over Kabila’s third term intensifies and the legislative agenda becomes increasingly contentious, little appetite may be left for divisive topics such as the ICC and criminal accountability.
Hybrid judicial system
Whatever the outcome, it remains to be seen whether domesticating the Rome Statute will herald a breakthrough in the DRC’s wider anti-impunity agenda. Though long overdue, reforming the law on the books can do only so much to address the country’s impunity gap, especially with respect to international crimes committed before the entry into force of the Rome Statue in 2002. A hybrid judicial mechanism, with retroactive jurisdiction to try such crimes, has yet to be established, notwithstanding the lobbying of international actors and local civil society groups. Despite the appointment of a new justice minister and the country’s first 'États généraux de la justice’ since 1996, it is still unclear whether the ‘specialised chamber’, which would comprise international and national judges and prosecutors, will be high on the government’s list of priorities in the coming months.
All in all, the Congolese National Assembly’s decision to domesticate the Rome Statute remains an important symbolic achievement. A minor procedural step for the time being, the vote may still portend a broader shift in the DRC’s fight against impunity. Advocacy groups must now mobilise support in the senate to finalise the process of adjusting the domestic legal framework, before turning to the divisive task of establishing a hybrid judicial mechanism for past crimes. If the 2011 elections are any indication, it is important to capitalise on these gains while the political climate is auspicious and well before pre-electoral horse-trading drowns out support for other legislative initiatives.
*Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked on domestic judicial reform in the Democratic Republic of Congo.