UNITED

NATIONS A
General Assembly Distr.
GENERAL

A/HRC/13/63
8 March 2010

Original: ENGLISH

HUMAN RIGHTS COUNCIL

Thirteenth session
Agenda item 10

TECHNICAL ASSISTANCE AND CAPACITY-BUILDING

Second joint report of seven United Nations experts on the situation in the
Democratic Republic of the Congo*

*
Late submission.

GE.10-11853
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Summary

This report is submitted by seven United Nations experts pursuant to Human

Rights Council resolution 10/33. The experts find that the human rights situation has not
improved since their initial report and remains serious, including in areas not affected
by conflict. Members of the Armed Forces of the Democratic Republic of the Congo
(FARDC), the National Congolese Police (PNC), the National Intelligence Agency
(ANR) and other intelligence forces have been reported as being responsible for
summary executions, sexual violence, torture and ill-treatment. Armed groups such as
the Lord’s Resistance Army (LRA) and the Democratic Forces for the Liberation of
Rwanda (FDLR) commit atrocities that amount to grave breaches of international
humanitarian law and, in some instances, may also constitute crimes against humanity.

There has been little progress in implementing the recommendations that the
experts made in their initial report. Government efforts in particular have been wholly
insufficient, making it difficult for partners to provide related technical assistance.

Impunity and the continued presence of perpetrators of serious violations in the

security forces remain key concerns. Reforms of the justice and security sectors,
recommended by the experts, have not advanced enough and efforts undertaken are
undermined by a lack of will to implement a declared “zero tolerance” policy in respect
of certain influential individuals suspected of serious human rights violations.

Violence against women, in particular rape and gang rape committed by men in
uniform and civilians, remains a serious concern, including in areas not affected by
armed conflict. Laws and practices that discriminate against women remain in place and,
along with impunity, remain a root cause of violence against women.

Improvements in peace and security have allowed for the release of some child
soldiers from armed groups undergoing integration with FARDC. However, certain
FARDC brigades continue to use and recruit child soldiers, a problem the Government
urgently needs to tackle on the basis of an action plan.

The link between violations and illegal exploitation and trade of natural
resources, and unresolved land conflicts is increasingly recognized. The lack of
transparent and effective Government control over the mining sector deprives the State
of funds it could dedicate to financing its responsibilities with respect to social and
economic rights.

The Government neglects its responsibilities to protect and assist internally

displaced persons and returnees, who therefore have to rely entirely on the support
provided by the international community. In addition, there is a real risk that displaced
populations may not be able to participate in the 2010 local elections.

There has been little progress in moving forward legislation to strengthen State
and civil society structures to promote and protect human rights. There is a worrying
trend of certain officials trying to delegitimize and harass human rights defenders, thus
fuelling the increase in violence against defenders.
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In the light of the seriousness of the human rights situation and the lack of
progress in implementing key recommendations, the experts consider it to be of utmost
importance that the Human Rights Council continue monitoring the situation in the
Democratic Republic of the Congo on the basis of reports provided by OHCHR and its
special procedure mandate holders.

They encourage the Government to continue the positive practice of responding

favourably to requests of individual mandate holders and strongly recommend that the
Government issue a standing invitation to all special procedure mandate holders.

In light of the gravity of the human rights situation, which has not improved
over the course of the last year, the experts recommend that the Council once again
consider the creation of a country-specific mandate, in particular if the level of access
and response to thematic special procedures decreases.
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CONTENTS
Paragraphs Page

I. INTRODUCTION ............................................................ 1-2 5

II. ENGAGEMENT BY THE SEVEN THEMATIC

SPECIAL PROCEDURES WITH THE
GOVERNMENT AND OTHER STAKEHOLDERS...... 3 - 16 5

A. Letters sent to the Government and other

stakeholders ...................................................................... 3 - 11 5

B. Country visits undertaken........................................... 12 - 16 7

III. DEVELOPMENT OF THE HUMAN RIGHTS

SITUATION, PARTICULARLY IN THE EAST ........... 17 - 47 8

A. Overall human rights situation ................................... 17 - 25 8

B. Violence against women............................................. 26 - 34 10

C. Child recruitment and other violations against

children ....................................................................... 35 - 38 12

D. Situation of human rights defenders........................... 39 - 47 12

IV. IMPLEMENTATION OF RECOMMENDATIONS....... 48 - 105 14

A. Fighting impunity and strengthening the law

enforcement and justice sectors.................................. 49 - 62 14
B. Reforming the security sector..................................... 63 - 70 17
C. Preventing the (re-) recruitment of children by
armed actors and socially reintegrating children 71 - 74 18
associated with armed actors ......................................
D. Protecting women’s rights and ensuring gender
equality in law and society ......................................... 75 - 77 19
E. Addressing economic root causes of human rights
violations .................................................................... 78 - 87 20
F. Protecting the rights of the displaced and minorities 88 - 94 22
G. Providing access to health care, especially for
marginalized groups ................................................... 95 - 97 23
H. Strengthening State and civil society structures
to promote and protect human rights.......................... 98 - 105 24

V. CONCLUSIONS AND RECOMMENDATIONS........... 106 - 118 26

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I. INTRODUCTION

1. This report is submitted pursuant to Human Rights Council resolution 10/33

inviting six special procedure mandate holders and the Special Representative of the
Secretary-General for children and armed conflict to report again on the development of
the situation in the Democratic Republic of the Congo. It is submitted by the Special
Rapporteur on violence against women, its causes and consequences, the Representative
of the Secretary-General on human rights of internally displaced persons, the Special
Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of physical and
mental health, the Special Rapporteur on the situation of human rights defenders, the
Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises and the Special Representative
of the Secretary-General for children and armed conflict (hereafter “the experts”).

2. Highlighting the seriousness of the present human rights situation, the experts
explore in the report the extent to which the recommendations made in their initial
report have been implemented.1

II. ENGAGEMENT BY THE SEVEN THEMATIC SPECIAL

PROCEDURES WITH THE GOVERNMENT AND OTHER
STAKEHOLDERS

A. Letters sent to the Government and other stakeholders

3. To follow up the recommendations made in their initial report, on 23 and 24

September 2009, the experts sent letters to the Congolese authorities, the Special
Representative of the Secretary-General in the Democratic Republic of the Congo and
the High Commissioner for Human Rights.

1. To the Government of the Democratic Republic of the Congo

4. The experts requested that the Minister for Human Rights provide information
on the steps taken by the national authorities to implement the recommendations
contained in the combined report, in particular:

- The establishment of a comprehensive and adequately resourced secondary

screening mechanism, where each officer is vetted for his or her past human
rights record and subjected to a determination of his or her ability to command
in accordance with principles of international humanitarian law and the values
embodied in the Constitution;

- The drafting and adoption of a national law on the protection of human rights
defenders, including women defenders;

- The drafting and adoption of a legislative framework and plan of action for
internally displaced persons;

1
A/HRC/10/59.
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- The deployment, at least in conflict-affected provinces, of experienced military

advocates from the militaries of countries contributing peacekeeping troops as
advisers to Congolese military prosecutors and courts;

- The setting up of community-based land commissions to address local disputes

over land;

- The implementation of the plan of action against sexual violence of the Ministry
of Justice and the Ministry of Gender, Family and Children, the Government’s
“zero tolerance” policy on this matter and its National Strategy to Combat
Sexual Violence;

- The immediate abolition of fees for forensic medical certificates for victims of
sexual and gender-based violence;

- The payment of compensation awarded by national courts or the International

Criminal Court to victims of serious human rights violations, starting with cases
of sexual violence;

- The adoption and immediate implementation by the Government and FARDC

Military Command of action plans to identify, release and ensure effective and
sustainable reintegration of all children associated with their forces, to prevent
further recruitment and to address all other grave violations against children (in
accordance with Security Council resolutions 1539 (2004), 1612 (2005) and
1882 (2009)); and

- The implementation of the Extractive Industries Transparency Initiative or

similar accountability mechanisms that will help prevent illegal diversion of
State revenues and increase the resources available to the State.

5. Furthermore, the experts requested information on the mandates, functioning

and activities of the Agency to Combat Violence against Women and the newly
established human rights liaison entity.

6. The experts regret that, at the time of finalizing the present report, no response to
their letter had been received. In this context, they also note that the Government had
not responded to any of the 14 urgent appeals and letters of allegations that thematic
special procedure mandate holders had sent during the course of 2009.

2. To the United Nations Organization Mission

in the Democratic Republic of the Congo

7. The experts wrote to the Special Representative of the Secretary-General for the
Democratic Republic of the Congo, requesting information regarding the technical
cooperation provided by the United Nations Organization Mission in the Democratic
Republic of the Congo (MONUC) to the Congolese authorities in the priority areas
highlighted in the aforementioned letter to the Government.
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8. They further suggested that MONUC should consider deploying experienced

and French-speaking military lawyers and investigators from troop-contributing
countries as advisers to Congolese military investigators, military prosecutors and
military courts, for training purposes.

9. They reiterated their recommendation that MONUC should avoid cooperating

with FARDC commanders and units involved in committing serious human rights
violations and make its support conditional on compliance with international
humanitarian, human rights and refugee law.

10. The experts thank MONUC for its detailed response of 10 December 2009, the
content of which is reflected in the present report.

3. To the Office of the High Commissioner for Human Rights

11. The experts sent a letter to the High Commissioner for Human Rights,
requesting information on support provided by her office to the Democratic Republic of
the Congo, including with regard to the follow-up to the experts’ report, and welcoming
any other information that the High Commissioner considered important to reflect in the
present report. The experts thank OHCHR – which also served as the secretariat – for
the information provided, including reports gathered from other reliable sources.

B. Country visits undertaken

1. Visit of the Special Representative

of the Secretary-General for children and armed conflict

12. From 14 to 21 April 2009, Ms. Radhika Coomaraswamy, Special Representative

of the Secretary-General for children and armed conflict, undertook a visit at the
invitation of the Government to ascertain first-hand the situation of children, as well as
follow up recommendations of the Secretary-General in his report on children and
armed conflict in the Democratic Republic of the Congo (S/2008/693) and
developments since her previous visit in March 2007.

13. The Special Representative met with Government officials, the FARDC Military
Command, MONUC, the United Nations Country Team, representatives of civil society
and children and young people in Kinshasa, Goma, Bukavu, Masisi and Dungu.

2. Visit of the Special Rapporteur on the situation of

human rights defenders

14. From 21 May to 3 June 2009, Ms. Margaret Sekaggya, Special Rapporteur on
the situation of human rights defenders, conducted an official visit at the invitation of
the Government (see her full report: A/HRC/13/22/Add.2). The purpose of the visit was
to assess the situation of human rights defenders in the country.

15. The Special Rapporteur visited Kinshasa, Kananga and Bukavu. She met with
senior Government officials, including the Prime Minister, the Minister for Human
Rights, the Minister of Gender, Family and Children, a wide range of representatives of
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civil society and many human rights defenders. She also met with representatives of
MONUC, United Nations agencies and diplomatic missions.

3. Visit of the Special Rapporteur on summary,

extrajudicial or arbitrary executions

16. The experts note with appreciation that the Government extended an invitation
to the Special Rapporteur on summary, extrajudicial or arbitrary executions, Mr. Philip
Alston, who visited the country from 5 to 15 October 2009. The experts have been able
to draw on findings of the Special Rapporteur in compiling their report.

III. DEVELOPMENT OF THE HUMAN RIGHTS SITUATION,

PARTICULARLY IN THE EAST

A. Overall human rights situation

17. The situation of human rights in the Democratic Republic of the Congo is of
serious concern and continues to deteriorate, especially in the eastern region. This is
also highlighted by the latest reports of the Secretary-General, OHCHR and the Group
of Experts on the Democratic Republic of the Congo of the Security Council’s
Sanctions Committee.2

18. FARDC (including the newly integrated elements), PNC, ANR and other
intelligence services, have committed serious human rights violations and grave
breaches of international humanitarian law. Violations committed by members of State
security forces include: summary executions; sexual and gender-based violence; torture
and other cruel, inhuman or degrading treatment or punishment; arbitrary arrest and
detention; forced labour and extortion.

19. Some of the FARDC violations were perpetrated in the context of Kimia II
operation against the FDLR armed group that started in February 2009. This operation
is being conducted with the logistical and, in some instances, operational support of
MONUC. According to the United Nations Joint Human Rights Office in the
Democratic Republic of the Congo, between May and September 2009, FARDC troops
engaged in the Kimia II operation summarily executed at least 62 people around
Nyabiondo (North Kivu), while at least 8 more people disappeared. As a result, on 1
November 2009, MONUC suspended its support for the FARDC units allegedly
involved in the killings.

20. At the end of his visit, the Special Rapporteur on summary, extrajudicial or
arbitrary executions concluded that “from a human rights perspective, [Kimia II] has

2
Thirtieth report of the Secretary-General on the United Nations Organization Mission in the
Democratic Republic of the Congo, S/2009/623; Report of the High Commissioner for Human Rights on
the situation of human rights and the activities of her Office in the Democratic Republic of the Congo,
A/HRC/13/64; Report of the Group of Experts submitted through the Security Council Committee
established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo,
S/2009/603.
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produced catastrophic results. Hundreds of thousands have been displaced, thousands

raped, hundreds of villages burnt to the ground, and at least 1,000 civilians killed”.3

21. The Special Rapporteur also observed that “the mines in the Kivus have not
been demilitarized and continue to be exploited by armed groups, especially the
FARDC”.4 In this context, the experts are concerned about reports that civilians are still
subjected to forced labour, extortion and illegal taxation, and that sexual exploitation of
women and girls is rife in these mining areas.

22. State security forces frequently carry out arbitrary arrests and detention and
related violations. FARDC and ANR often exceed their powers and mandates. The PNC
arrests individuals not suspected of criminal conduct, e.g., relatives of suspects, debtors
or persons who resist attempts to extort bribes. The United Nations Joint Human Rights
Office regularly documents cases of torture or ill-treatment at all stages of the detention
process (see A/HRC/13/64). Conditions remain inhumane in almost all places of
detention and result in several deaths per month.

23. Grave breaches of international humanitarian law continue to be committed by

non-State armed groups, in particular FDLR and LRA. These range from summary
executions, sexual violence and related atrocities and enforced disappearances to forced
recruitment and pillage. Allegations have also been received indicating that Mai Mai
armed groups are committing serious human rights violations in their areas of operation.

24. In many areas, a humanitarian crisis persists. When this report was finalized,
there were some 1.9 million internally displaced persons in the eastern part of the
country.5 While, in North Kivu close to 500,000 internally displaced persons have
returned as camps in the Goma area were closed, continued LRA attacks in Orientale
province and the ongoing FARDC Kimia II operation and related FDLR reprisals in
South Kivu have created substantial new displacement. In addition, inter-ethnic clashes
over farming and fishing rights in Equateur province in the north-west of the country
displaced about 130,000 persons, including 84,000 who sought refuge in neighbouring
countries. Humanitarian access to displaced and other crisis-affected populations
remains a serious problem, not least because of attacks on humanitarian workers,
committed mainly by criminal gangs. During 2009, there have been 125 attacks on
humanitarian actors in North Kivu, including three murders, while there were 25 attacks
in South Kivu, including one murder.6

3
Special Rapporteur’s statement of 15 October 2009 available at:
http://www2.ohchr.org/english/issues/executions/docs/PressStatement_SumEx_DRC.pdf.
4
Ibid.
5
According to figures from the Office for the Coordination of Humanitarian Affairs of 30 November
2009, the total number of internally displaced persons stands at 1,859,078; of those 709,064 are in North
Kivu, 707,187 in South Kivu, 439,059 in Orientale province (171,376 in Ituri, 216,826 in Haut Uele and
50,857 in Bas Uele), and about 3,768 in Katanga.
6
S/2009/623, para. 38.
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25. Even outside areas affected by conflict, a large majority of Congolese still do not
enjoy their most basic economic and social rights. The World Food Programme has
warned that acute malnutrition is at dangerously high levels in some parts of the country,
exacerbated by the food price crisis.7 These include areas not affected by conflict, such
as Kasai, which benefit from fewer humanitarian interventions. The rights of everyone
to the highest attainable standard of health and to education, including free primary
education, suffer from the fact that the health and education sectors survive only on the
basis of user fees and support from external donors. The Congolese State generates too
little income of its own (notwithstanding the country’s wealth in natural resources) that
actually flows into State coffers, rather than being illegally diverted, and not enough of
this limited income is dedicated to the fulfilment of economic and social rights.

B. Violence against women

26. Alarming levels of violence against women continue to be reported across the
country, particularly in the east, as part of a broader pattern of violence and
discrimination against women and girls. As reflected in the experts’ initial report, forms
and manifestations of violence endured by women and girls in conflict and “peace”
situations are manifold. While most instances of violence, in particular sexual violence,
are committed by various armed actors, many cases are nevertheless reportedly
perpetrated by civilians, both in zones affected by conflict and other parts of the country.
In an increasingly militarized society, impunity, absence of the rule of law and women’s
subordinate social and legal position reinforces a climate of general acceptance and
tolerance for violence against women and girls.

27. In the context of the military operations against FDLR, brutal sexual violence
has been used as a weapon of war by all local parties to the conflict. The United Nations
Population Fund has recorded 7,500 cases of sexual violence against women and girls
across North and South Kivu in the first nine months of 2009, nearly double the figures
for the same period in 2008. An increase in cases of sexual violence is also reported by
health counselling centres near conflict zones. FARDC continues to be the major
perpetrator of sexual violence. In North Kivu, an assistance provider for victims of
sexual violence recorded a total of 3,106 cases between January and July 2009; half of
these cases were perpetrated by FARDC members.8

28. Attacks on the civilian population by armed actors are frequently accompanied
by sexual atrocities. According to documentation and testimonies collected by the
Group of Experts of the Security Council’s Sanctions Committee, a total of 1,199
human rights violations against the civilian population were committed by FDLR
between February and October 2009 in reprisal for attacks perpetrated by FARDC
during the Umoja Wetu and Kimia II operations, including 135 cases of sexual
violence.9 On 27 April 2009, for instance, FARDC attacked a makeshift camp of
Rwandan Hutu refugees in Shalio, North Kivu. Reports indicate that FARDC

7
See http://www.wfp.org/countries/congo-democratic-republic.
8
S/2009/603, para. 339.
9
S/2009/603, para. 347.
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surrounded the camp, shot and beat to death at least 50 refugees and burned the camp to
the ground. Out of 40 women that were abducted from the camp, a group of 10 who
managed to escape described being kept as sexual slaves, gang-raped and mutilated by
the soldiers. On 10 May 2009, FDLR retaliated against the civilian population of
Busurungi and Moka, raping women and children and killing at least 60 civilians,
mostly women and children.

29. Sexual violence against women and girls is also pervasive in revenge massacres
perpetrated against civilians by LRA in Orientale province in the aftermath of the
Government’s military operations.10

30. There are disturbing reports of women and girls being summarily executed and
mutilated after being gang-raped. Some victims had guns, wood, sand or glue inserted
into their bodies. Husbands, parents or children trying to stop the rape of their loved
ones have also been attacked, killed or forced to rape their own family members.
Accounts reveal that women and girls have been abducted and held as sexual slaves
both by FARDC members and other armed actors, and have been subject to collective
rapes for weeks and months, often accompanied by additional atrocities.

31. Subsequent to the experts’ initial report, the Special Rapporteur on violence
against women, its causes and consequences has received disturbing information about
widespread sexual violence against women in prisons throughout the country, mainly as
a result of pervasive corruption among prison management officials and lack of security.

32. Despite the 2009 Child Protection Act outlawing marriage of children under 18
years of age, early and forced marriages constitute a serious and growing concern. In
addition, cases of children, mostly girls, being subjected to torture and ill-treatment on
witchcraft accusations have also been documented.

33. Women human rights defenders, particularly women working in rural

communities on cases of sexual violence and as peace mediators, often fall victim to
reprisal attacks – including sexual assaults – against them and their families, and are
forced to move to safer locations.

34. Noting with appreciation that in November 2009 the Minister of Gender, Family
and Children launched the Government’s Action Plan on Combating Sexual Violence,
the experts call for greater efforts on the ground. For example, the Agency to Combat
Violence against Women, the establishment of which the Government highlighted in its
statement before the Human Rights Council of 17 March 2009, is not operational and
exists only on paper.

10
See MONUC/OHCHR, “Special Report: Summary of fact-finding missions on alleged human rights
violations committed by the Lord’s Resistance Army (LRA) in the districts of Haut-Uélé and Bas-Uélé in
Orientale Province”, December 2009.
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C. Child recruitment and other violations against children

35. In the course of her visit, the Special Representative of the Secretary-General for
children and armed conflict found that, in the first four months of 2009, 1,617 children
had been separated from armed groups during the accelerated integration of the National
Congress for the Defence of the People (CNDP) and other armed groups into FARDC in
North Kivu.11 The Group of Experts of the Security Council’s Sanctions Committee has
verified 2,020 demobilization files of children separated from the armed groups since
November 2008 in North and South Kivu.12

36. Although the process of dismantling armed groups and integrating their
members represents a unique opportunity to systematically identify and release children,
there are grave concerns that many children have passed into the ranks of the newly
integrated brigades and that a number of FARDC commanders have blocked the
separation of children from their troops.13 There have also been new recruitments of
children by integrated FARDC troops. Between January and October 2009, there were
reportedly 107 cases of new recruitment by FARDC; an additional 127 cases were
attributed to the Coalition of Congolese Patriotic Resistance (PARECO), 29 to FDLR,
and 22 to unidentified armed groups.14 In the territories of Masisi, North Kivu, and
Kalehe, South Kivu, a considerable number of children within the FARDC ranks was
reported, as were instances of re-recruitment of children already reunited with their
families in key strategic zones such as Ngungu.15 It is believed that hundreds of children
remain in armed groups despite commitments made by many such groups to address
this issue. The reintegration of children into their families and communities remains
critical for the peace process.

37. In addition to the recruitment of children, FARDC and armed groups continue to
be cited for other grave child rights violations, including the direct involvement of
children on the front lines, the killing and maiming of children and sexual violence.

38. The regional dimensions of the conflict and cross-border concerns continue to
carry significant implications for children, including for the recruitment of children
from neighbouring countries and the issue of repatriating foreign children demobilized
from fighting groups to their countries of origin.16

D. Situation of human rights defenders

39. The situation of human rights defenders, especially in the eastern part of the
country, remains extremely worrying. The Special Rapporteur on the situation of human
11
See the Special Representative’s report, available at:
http://www.un.org/children/conflict/_documents/countryvisits/DRCVisitReport.pdf.
12
S/2009/603, para. 317.
13
Ibid., para. 322.
14
Ibid., para. 317.
15
Ibid., para. 317.
16
See footnote 11; see also S/2009/603, para. 318.
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rights defenders noted that defenders are particularly exposed to threats, attacks,
arbitrary arrest and detention and other serious human rights violations when supporting
victims of grave violations, including sexual violence; when fighting impunity and
supporting the work of the International Criminal Court; and when protecting economic,
social and cultural rights, including denouncing the illegal exploitation of natural
resources.17

40. On 23 August 2009, Bruno Koko Chirambiza, journalist at Radio Star, was
killed in Bukavu in South Kivu by a group of unidentified men. Chirambiza is the third
journalist to be killed in Bukavu in the past two years, allegedly for his human rights
activities, following Didace Namujimbo (murdered on 21 November 2008) and Serge
Maheshe (murdered on 13 June 2007).

41. On 15 March 2009, following a press conference in Kinshasa on the tensions

between political institutions in the country, Floribert Chebeya Bahizire, Dolly Ibefo
Mbfunga, and Donat Tshikaya, three members of non-governmental organizations
(NGOs), together with Coco Tanda, a cameraman, were arrested by members of PNC,
brought to the ANR headquarters and then detained in Kin Mazière prison. Their
computers and video cameras were reportedly seized. They were released two days later.
The aim of this press conference was to announce a peaceful demonstration in front of
the Parliament, with the intention of presenting a memorandum to the Presidents of the
Senate and the National Assembly concerning the “preservation of democracy in the
Democratic Republic of the Congo”.

42. On 24 July 2009, Golden Misabiko was arrested following the publication of a
report by his organization ASADHO/Katanga on the clandestine exploitation of the
Shinkolobwe uranium mine, with the alleged complicity of members of FARDC, PNC
and the military court (“auditorat militaire”). He was later sentenced to one year’s
suspended prison sentence on counts of “threat to national security” and “defamation”.
Emmanuel Umpuda, Timothée Mbuya, Grégoire Mulumba and Dominique Munongo
continue to receive threats from unknown perpetrators because of their endorsement of
the aforementioned ASADHO/Katanga report.

43. As stated earlier, women defenders continue to be most at risk and face sexual
and gender-based violence. On 1 October 2009, for instance, a group of unidentified
armed men threatened to kill and rape Rebecca Agamile, a member of SOFEPADI – an
NGO which promotes and protects women rights in Bunia (Orientale province), and her
16-year-old daughter. Reports allege that the threats are linked to the work of
SOFEPADI in cooperating with the International Criminal Court and sharing
information about human rights violations.

44. The Congolese authorities, as well as non-State actors, have continued to

stigmatize defenders, labelling them as “enemies” or “opponents”. At the end of July
2009, the Minister of Communication publicly labelled three international human rights

17
This assessment is also confirmed by the Committee on Economic, Social and Cultural Rights: see
E/C.12/COD/CO/4 (20 November 2009), para. 12. For detailed analysis of the situation of human rights
defenders in the Democratic Republic of the Congo, see A/HRC/13/22/Add.2.
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NGOs (Human Rights Watch, the International Federation of Human Rights Leagues
(FIDH) and Global Witness) as “humanitarian terrorists”, following the publication of
critical reports by these NGOs.

45. On 26 July 2009, the Congolese authorities interrupted the signal of Radio
France International, accusing the radio of destabilizing the State by broadcasting
“untrue and unconfirmed” information related to the conflict.

46. Journalists and civil society activists who report on conflict-related issues or
criticize the army are also at risk of being tried before a military court under article 87
of the Military Penal Code (“Insult to the flag or to the army”). Anyone convicted faces
a prison sentence of between six months to five years, and loses his or her media
accreditation.

47. Impunity for violations committed against human rights defenders by State
authorities and members of armed groups is widespread. Complaints filed by human
rights defenders are rarely thoroughly investigated and defenders who speak out are not
protected against reprisals by alleged perpetrators.

IV. IMPLEMENTATION OF RECOMMENDATIONS

48. In their initial report,18 the experts identified eight priority objectives for
Government action and related technical assistance needs. They made concrete
recommendations on how to pursue these objectives. The Government has made little
progress in respect of these priority objectives, thereby limiting the opportunities for
partners to provide relevant technical assistance.

A. Fighting impunity and strengthening the law enforcement

and justice sectors

49. The experts note with appreciation that a number of trials have been initiated
against officers and soldiers of FARDC, some resulting in convictions. Overall,
however, impunity remains pervasive, especially with regard to crimes committed by
powerful figures in the security forces. It is regrettable that command responsibility,
while being an essential aspect in this context, is still rarely the subject of investigation
by military prosecutors. Information received suggests that commanders continue to
protect soldiers under their command against investigations and deliberately obstruct the
course of justice. The high numbers of escapes from military and civilian prisons that
have occurred throughout the year – many of them under suspicious circumstances –
continue to be a major challenge in the fight against impunity.

50. The fight against impunity is undermined by an apparent lack of political will to
arrest and prosecute certain high-profile suspects, including Bosco Ntaganda, against
whom the International Criminal Court issued an arrest warrant for war crimes (see also
below, para. 64)

18
A/HRC/10/59.
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51. In May 2009, a delegation of the Security Council visiting the country handed to
the President and other senior officials a list with the names of five high-ranking army
officers accused of crimes of sexual violence. The five have yet to be prosecuted.
According to the latest information received, only two are in pretrial detention, while
two are under controlled supervision in Kinshasa and one is at large.

52. In July 2009, President Joseph Kabila announced a policy of “zero-tolerance”

for human rights violations committed by FARDC members, which would include
holding commanders accountable for the behaviour of their soldiers. While the experts
strongly welcome the announcement of this policy, significant obstacles hamper its
implementation.

53. The serious structural deficiencies of the justice system foster impunity. The
experts are concerned that legislation has not been adopted to establish the
Constitutional Court, the Court of Cassation and the State Council, as required by the
2006 Constitution. Judicial structural reform must be implemented urgently, including
through the establishment of high courts. The Higher Judicial Council, established in
2008 to be responsible for the selection of, and disciplinary measures against, judges is
not fully functional and shortcomings persist regarding its internal organization, human
resources and budget.

54. The State needs to increase the financial, logistical and human resources that it
provides to the justice system. The Government has decreased spending on the judicial
sector to 0.24 per cent of the 2009 budget, which is far below the 2-6 per cent of
national budget that most other countries dedicate to justice.

55. Reiterating their recommendation to expand the State justice system in rural
areas and provide more support to legal assistance programmes,19 the experts note that
the President redeployed more than 600 new judges in July 2009, including to remote
areas. When this report was finalized, a considerable number of them had apparently not
yet reported to their new posts. The Government also launched a competitive
examination, on the basis of which 1,000 magistrates (civil and military) are to be
appointed.

56. In July 2009, the President also dismissed 86 judges by decree. In the absence of
timely replacements, these dismissals have created a critical shortage of judges in some
areas. Furthermore, the dismissals were reportedly made without hearings being held
and did not meet fundamental due process standards. Reportedly, a number of those
judges who were dismissed had disciplinary measures or a criminal sentence
pronounced against them. However, others were promoted even though the facts of their
cases were substantially identical.

57. One step towards greater transparency would be to adopt a code of ethics for
judges. A draft code has been developed by the Higher Judicial Council in cooperation
with donors and the United Nations Joint Human Rights Office and is intended to be
submitted to the General Assembly of the Higher Judicial Council for adoption.

19
A/HRC/10/59, para. 93.
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58. The military justice system retains jurisdiction over most cases involving serious
violations of human rights and international humanitarian law, but remains weak and
susceptible to executive interference by military or political decision makers. The
experts are pleased to note that MONUC began supporting joint investigation teams.
The United Nations Joint Human Rights Office submits information to military
prosecutors on human rights violations by FARDC or PNC and provides additional
technical support to increase the investigative and prosecution capacity of the military
justice system.

59. A project has been developed to establish “prosecution support cells”, operating
in teams composed of a military prosecutor, two military and two civil investigators,
and a judicial investigation expert from MONUC, in order to investigate and prosecute
alleged perpetrators of serious human rights violations. The project, which is still
awaiting approval by the Ministry of Defence, should form part of a wider effort to
strengthen the capacity of the military justice system. Measures should be taken to
guarantee that military courts are sufficiently independent to prosecute even high-level
officers, including through appointment of senior military officers to the military bench.

60. No progress has been made on the experts’ recommendation that the civilian
jurisdiction vis-à-vis military justice institutions should be strengthened by reassigning
criminal jurisdiction over perpetrators from among the police or civilian population to
civilian prosecutors and courts.20 This should be a first step in an effort gradually to
transfer jurisdiction over serious human rights violations committed by members of the
Armed Forces to ordinary civilian courts. For this purpose, the Government should
enact the draft law on the implementation of the Rome Statue of the International
Criminal Court.

61. Victims rarely receive the compensation that the courts order the perpetrators of
human rights violations to pay. This includes cases where the State itself is ordered to
pay for violations committed by State agents. In October 2009, the Minister of Justice
announced his intention to establish a fund to compensate victims of sexual violence, an
initiative that has also attracted donor interest. When this report was finalized, the
envisaged fund had not been established.

62. The experts reiterate the importance of transitional justice measures to address
the massive violations which took place between 1993 and 2003. They recall their
recommendation that joint benches, comprising national and international judges and
sitting in national courts, might be an appropriate transitional justice tool that can be
combined with truth-seeking initiatives.21 In this respect, they are encouraged to note
that the investigative phase of the Secretary-General’s project to map major violations
committed between 1993 and 2003 has been concluded. The experts hope that the
timely publication of the mapping project’s findings and recommendations will provide
new impetus in the quest for justice and institutional reform.

20
A/HRC/10/59, para. 92.
21
See A/HRC/10/59, para. 95.
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B. Reforming the security sector

63. In their initial report, the experts emphasized the need for comprehensive
security sector reform, starting by removing perpetrators of serious human rights
violations identified as such from their posts without further delay.22 However, contrary
to the Government’s “zero tolerance” policy, FARDC officers and soldiers implicated in
human rights violations continue to be present in the Armed Forces, including in high-
ranking positions.

64. In January 2009, Bosco Ntaganda was promoted to the rank of general in the
context of the rapprochement with CNDP, even though nine months earlier the
International Criminal Court had published an arrest warrant for war crimes against
him.23 During the Human Rights Council’s universal periodic review in November and
December 2009, the Government explicitly rejected the recommendation that Ntaganda
should be arrested and transferred to the International Criminal Court.24 Despite
Government assurances that Ntaganda no longer exercises command functions within
FARDC, reports indicate that he remains involved in the FARDC command structure,
including in the context of the Kimia II operation.25

65. In March 2009, the Government appointed Jean-Pierre Biyoyo as a colonel in

FARDC. Two years earlier, Biyoyo had been found guilty of recruiting child soldiers by
a Congolese military court and later escaped from prison.

66. The Government appears unwilling to create structures to identify and remove
perpetrators of human rights violations. In their initial report, the experts recommended
setting up a comprehensive and adequately resourced secondary screening mechanism,
where each officer’s past human rights record and his ability to command in accordance
with principles of international humanitarian law and the values embodied in the
Constitution is subject to review.26 Even though this recommendation mirrors repeated
calls of the Security Council,27 it has not been implemented. The Government explicitly
rejected recommendations to establish an effective human rights vetting mechanism
during the Human Rights Council’s universal periodic review.28

67. Emphasizing the need for comprehensive training programmes that

systematically cover international humanitarian and human rights law, the experts also
recommended that donors make the extension of programmes contingent on serious

22
A/HRC/10/59, para. 97.
23
In August 2006, an International Criminal Court pretrial chamber confirmed the arrest warrant, which
was issued under seal and only made public in April 2008.
24
See A/HRC/WG.6/6/L.7, para. 97.
25
See S/2009/623, para. 43.
26
See A/HRC/10/59, para. 97.
27
See S/RES/1906 (2009), para. 32, and S/RES/1856 (2008), para. 22.
28
See A/HRC/WG.6/6/L.7, para. 97.
A/HRC/13/63
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Government efforts to clean up the ranks of the security forces.29 Various actors have
established training programmes for FARDC and PNC on human rights, international
humanitarian law and the reformed Congolese legislation on sexual violence. The
experts take note of MONUC efforts to facilitate coordination between the many actors
engaged in assisting security reform. However, the Government’s resistance to
instituting real security sector reform, including human rights vetting, creates a dilemma
for many assistance partners considering whether to extend their engagement.

68. While legislation to reform FARDC is currently being considered by the

National Assembly, the experts are very concerned that no process has been initiated to
reform the intelligence services, which are in particular need of reform from a human
rights point of view.

69. Progress has been with regard to the recommended construction of barracks,30
which keep soldiers away from civilian populations. FARDC, MONUC, the United
Kingdom, the International Organization for Migration and the European Union
Mission of Assistance for Security Sector Reform are currently evaluating a total of 25
proposed sites in the eastern Democratic Republic of the Congo. In South Kivu, the
United Nations Development Programme and the International Organization for
Migration have been rehabilitating accommodation facilities to garrison approximately
3,000 FARDC soldiers at Camp Saio.31

70. Having recommended that MONUC should not cooperate with FARDC
commanders and units implicated in human rights violations,32 the experts are pleased to
note that MONUC adopted the policy of not participating in or supporting FARDC
operations if there are substantial grounds for believing that the FARDC units involved
will violate international humanitarian, human rights or refugee law.33 The experts stress
the importance of consistently implementing this policy as a matter of utmost priority.
In this context, they reiterate their concerns about the reported involvement of alleged
perpetrators of serious crimes, including Bosco Ntaganda, in ongoing FARDC
operations.34

C. Preventing the (re-) recruitment of children by armed actors and

socially reintegrating children associated with armed actors

71. As noted above (para. 35), some progress has been made in identifying children
associated with armed groups, although grave concerns persist that other children
remain in the FARDC ranks, including as a result of new recruitments. The Government
29
See A/HRC/10/59, paras. 96 and 98.
30
Ibid., para. 96.
31
S/2009/623, para. 34.
32
See A/HRC/10/59, para. 98.
33
S/2009/623, para. 12.
34
See also the press release of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
Mr. Philip Alston, of 16 December 2009, available at:
http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=9679&LangID=E.
 A/HRC/13/63
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needs to do more to ensure that no children are present within the integrated brigades,
and continue to allow access of MONUC and UNICEF in a timely manner to all units
for monitoring and verification of the presence of children and release of all children
associated with integrated brigades. It must ensure rigorous investigation and hold
perpetrators accountable. Suspected perpetrators of grave child rights violations should
not be simply reassigned, especially to the same locations where the supposed abuse and
violence have taken place.

72. During the course of the visit of the Special Representative of the Secretary-
General for children and armed conflict in April 2009, the Minister for Defence and the
FARDC Military Command, through the Army Chief of Staff, committed to entering
into dialogue with the United Nations for the preparation of a time-bound action plan
for the prevention of child recruitment and identification and release of those children
already present in integrated FARDC brigades, in the framework of Security Council
resolutions 1539 (2004) and 1612 (2005). They also agreed to facilitate the access of
MONUC and UNICEF to the rapid integration process of CNDP and FARDC in South
Kivu for systematic identification and release of children. When this report was
finalized, MONUC was still waiting for the Government to confirm in writing its
commitment to developing an action plan and for meetings with Government
representatives to discuss how to address the continued problem of children within the
FARDC ranks.

73. The experts reiterate their recommendation that the Government and FARDC
Military Command cooperate in elaborating an action plan on recruitment and use of
child soldiers as stipulated in Security Council resolutions 1539 and 1612 on children
and armed conflict.35 This action plan should entail specific measures to prevent
recruitment and use of children, identify and release all children associated with their
armed forces and ensure access for child protection actors for ongoing monitoring and
verification. Cross-border frameworks of cooperation and information exchange must
be established and enhanced to address these concerns, both among United Nations
actors and NGOs and between Governments.

74. Donors should commit to multi-year funding to ensure the sustainability of child
reintegration programmes in line with the Paris Principles on children associated with
armed forces or armed groups. They should ensure that such resource commitments are
flexible and resources are delivered early.

D. Protecting women’s rights and ensuring gender equality in law and society

75. Limited progress has been made in the implementation of the experts’
recommendations on protecting women’s rights and ensuring gender equality
(A/HRC/10/59, paras. 102-104), which therefore remain fully applicable. Given the
shocking levels of violence against women throughout the country, it is important that
the Government and donors continue to address such violence and assistance to
survivors as a matter of priority by building on current initiatives and enhancing
coordination, including with local women’s organizations.
35
See A/HRC/10/59, para. 99.
A/HRC/13/63
page 20

76. Technical assistance for the implementation of the National Strategy to Combat
Sexual Violence and the roadmap against impunity for sexual violence should be
fostered, without detracting from crucial support to local Congolese NGOs for women.
Supporting advocacy and ensuring widespread dissemination of the 2006 Sexual
Violence Act, including by training judicial officials involved in its application, is of
fundamental importance. The United Nations Comprehensive Strategy on Combating
Sexual Violence – the tenets of which are also reflected in the United Nations Security
and Stabilization Support Strategy – offers a good framework to coordinate the response
of the United Nations, the Government, civil society and international donors. The
establishment of benchmarks, in consultation with all actors, should be given priority, as
an important accountability measure and an essential tool in steering donor priorities.

77. Legislation to reform the Family Code and implement the gender equality
provision contained in the Constitution is still much needed. Donors should continue to
support advocacy and awareness-raising programmes to make sure that these reforms
are passed by Parliament and enacted into law.

E. Addressing economic root causes of human rights violations

78. The illegal exploitation of natural resources continues to be one of the main
causes of human rights abuses in the Democratic Republic of the Congo, either directly
through violations linked to the actual exploitation and trade or indirectly because the
proceeds finance unscrupulous armed groups and rogue FARDC elements. Reportedly,
illegal mineral exports to neighbouring States have significantly increased since 2008,
particularly since the rapprochement between Kinshasa and Kigali in January 2009.
Rogue factions of FARDC, other armed groups and traders of casserite, coltan and
wolfram collaborating with them have profited from this increase.36

79. Corruption and other illegal practices in the mining sector deprive the
Government of resources it could dedicate towards the progressive realization of
economic and social rights. In September 2009, the Congolese Senate considered a
report by Senator David Mutamba Dibwe, which found that in 2008 alone the
Government did not receive US$ 450 million in resources it should have reasonably
gained from the exploitation of the country’s natural resources.

80. The Government has made little progress in implementing its commitments
under the Extractive Industries Transparency Initiative (see A/HRC/10/59, para. 105)
and the Democratic Republic of the Congo remains only a candidate country. There is
still a lack of transparent management and reliable statistics; revenues generated by the
exploitation of natural resources are not published and bad governance practices persist.

81. There have been some notable initiatives during 2009. Illicit mineral transfers in
the region were addressed at the Constitutive Meeting of the International Conference
on the Great Lakes Region which took place in Gisenyi, Rwanda from 30 September to
2 October 2009 and brought together representatives of the Democratic Republic of the

36
S/2009/603, para. 299.
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page 21

Congo, Burundi, the Central African Republic, Kenya, Rwanda, Tanzania, Uganda and
Zambia; however, no tangible effects on the ground have been reported.

82. Within the framework of the United Nations Security and Stabilization Support
Strategy, the Government, MONUC and partners have agreed to establish, as a pilot
project, five trading counters in North and South Kivu to bring together all State
services involved in the ore business, in order to improve traceability and provide
counters closer to mining areas. In October 2009, MONUC and the country’s Ministry
of Mines organized joint missions to visit key mining sites in order to assess the security
situation. In addition, MONUC and the PNC continued to carry out random checks at
Goma and Bukavu airports.37

83. While the exploitation and exportation of rare minerals from the Democratic
Republic of the Congo is often conducted outside or at the very margins of the law,
these minerals always surface on the official market at some point. Businesses therefore
need to exercise due diligence to ensure that their use of natural resources does not fuel
human rights abuses.38 All States involved in trading such minerals have to make sure
that they respond fully to their obligation to put in place appropriate policies, regulation
and oversight mechanisms to stop illegal exploitation and trade linked to human rights
violations.

84. The experts welcome that the Security Council has mandated the Sanction
Committee’s Group of Experts on the Democratic Republic of the Congo to produce
due diligence guidelines for importers, processing industries and consumers of mineral
products on the purchase, sourcing (including steps to be taken to ascertain the origin of
mineral products), acquisition and processing of mineral products from the Democratic
Republic of the Congo.39

85. It is important to develop effective and credible monitoring of the supply chain
of minerals from the extraction site to the consumer. This will require efforts by the
Democratic Republic of the Congo, neighbouring states and the companies involved.
The tin industry, for instance, has started promoting a Tin Supply Chain Initiative as
part of an effort to increase due diligence in purchasing practices in the Democratic
Republic of the Congo and other countries. States also need to put in place policies and
regulations with respect to companies subject to their jurisdiction which operate or
intend to operate in the region. They should refuse to extend support (e.g. credit
guarantees) to companies that prove unwilling to comply with due diligence standards.

86. In the context of the ongoing Kimia II military operations against FDLR, it is
important to ensure that rogue FARDC units do not simply replace FDLR and continue
illegal mining operations. This requires the extension of a credible, legitimate and
civilian State authority in the eastern part of the country, in line with the Government’s

37
S/2009/623, para. 36.
38
On the corporate responsibility to respect, see A/HRC/11/13, paras. 45 ff.
39
See S/RES/1896 (2009).
A/HRC/13/63
page 22

Stabilization and Reconstruction Plan for War-Affected Areas and the United Nations
Security and Stabilization Support Strategy.40

87. Highlighting the important role of local conflicts over land, the experts
recommended establishing community-based land commissions involving traditional
leaders, provincial State officials and community representatives or other appropriate
dispute resolution mechanisms.41 While the experts are not aware of Government efforts
to implement this recommendation, they take note of increased activities of international
actors. The United Nations Human Settlements Programme (UN-Habitat) has opened an
office in Goma and, together with the Office of the United Nations High Commissioner
for Refugees and MONUC, launched a programme to establish housing, land and
property mediation mechanisms in North Kivu and Ituri initially, and subsequently in
South Kivu and the Orientale and Katanga provinces. The Norwegian Refugee Council
has established community-based land commissions in the Petit Nord region of North
Kivu that allow the population to access legal counselling on land disputes and submit
specific problems to the commissions for mediation.

F. Protecting the rights of the displaced and minorities

88. As a State party to the Protocol on Protection and Assistance to Internally

Displaced Persons (“Great Lakes Protocol”), adopted at the International Conference on
the Great Lakes Region, the Democratic Republic of the Congo is obliged to incorporate
the Guiding Principles on Internal Displacement into its domestic law.42 In their report,
the experts recommended that the Government should develop a legislative framework,
strategy and plan of action for the implementation of these obligations.43

89. The Representative of the Secretary-General on human rights of internally

displaced persons discussed this recommendation with the delegation of the Democratic
Republic of the Congo at a workshop of member States of the International Conference
of the Great Lakes Region, which was organized by the Conference’s Secretariat, the
Representative and other stakeholders and took place from 9-10 July 2009 in Nairobi.
The Congolese delegation expressed its readiness to prepare laws and policies on
internal displacement and approved a list of detailed recommendations drawn up by
member States delegates on how best to implement the Great Lakes Protocol.

90. When this report was finalized, the Democratic Republic of the Congo did not
have either a draft law or draft policy on internal displacement. The experts are not
aware that any process has been started to develop a law or policy, or that
responsibilities have been clarified within the Government regarding who would be
responsible for the drafting process.

40
See S/2009/623, para. 103.
41
A/HRC/10/59, para. 106.
42
E/CN.4/1998/53/Add.2.
43
A/HRC/10/59, para. 107.
 A/HRC/13/63
page 23

91. The experts are encouraged by the fact that return of displaced persons, their
reintegration and recovery has been designated one of the priorities of the United
Nations Support and Stabilization Strategy. Apart from the 1.9 million internally
displaced persons, there are also more than 200,000 refugees who have returned or are
awaiting return to the eastern part of the country. The experts reiterate the importance of
including host families and communities who receive displaced persons and returnees in
all efforts to provide support for return, reintegration and recovery.

92. In their initial report, the experts highlighted that the National Election
Commission, in cooperation with MONUC and other partners, should ensure
registration of the displaced as voters and that the Commission should be given support
to find ways to ensure (e.g. through provisions on absentee voting) that the displaced
can exercise their political rights. In addition, they recommended launching a campaign
in the eastern part of the country to provide national identification and electoral cards to
anyone qualifying for Congolese nationality under the new Nationality Act of
12 November 2004.44

93. While local elections are still being planned for 2010 and the provision of
electoral cards has started in some areas, sources on the ground are concerned that not
everyone qualifying for nationality under the 2004 Nationality Act is being included.
According to information received, the National Election Commission has not yet
adopted provisions to ensure the registration of internally displaced persons as voters.
The Government officials responsible seem to assume that there will be peace
throughout the country, which would allow all the displaced to return for the elections
and receive electoral cards at their home. In light of the huge number of displaced
persons and the volatile security situation, this approach could mean that a large number
of displaced potential voters will be unable to exercise their human right to vote on an
equal and fair basis.

94. In their initial report, the experts called for local conflict resolution and ethnic
reconciliation initiatives involving all sectors of society, including women, returnees
and internally displaced persons and refugees awaiting their return.45 The fact that the
peace agreement between the Government and CNDP of 23 March 2009 specifically
foresees reconciliation initiatives is positive. However, there have been delays in
establishing such initiatives and related support structures.46 In the meantime, some
NGOs have established smaller conflict resolution and reconciliation projects, which
deserve more donor attention.

G. Providing access to health care, especially for marginalized groups

95. With few Government funds allocated to and reaching health-care institutions on
the ground, the sector relies on user fees, meaning that the poorest sectors of society
cannot access health care. Persistently poor security conditions and, in large parts of the

44
See A/HRC/10/59, paras. 108-109.
45
See A/HRC/10/59, para. 110.
46
S/2009/623, para. 16.
A/HRC/13/63
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eastern region, armed conflict continue to present significant challenges to the delivery
of health care. Some localities are left without any health care or have irregular access
thereto because of the security situation. In addition, where health-care facilities exist,
the need for basic supplies, equipment and medicines often remains unmet.

96. In order to improve access to health care, greater mobilization and allocation of
targeted resources are needed to support the abolition of user fees and an accompanying
increase in public support for improving health-care infrastructure, supplies, equipment,
human resources and medicine supplies. While international humanitarian assistance
continues to meet some of the medical needs of the population, including those
displaced by conflict, a long-term strategy is needed to ensure that health-care provision
will be guaranteed by the Government for all, without discrimination. Immediate action
is still required to ensure that the whole population has access to medical services, safe
water and sanitation to avert an exacerbation of the public health crisis.

97. Thanks to support from Canada and Belgium and in line with the experts’
recommendation,47 fees for forensic medical certificates for victims of sexual violence
in the provinces of Equateur, Maniema, Orientale and in North and South Kivu have
been abolished. However, women in other parts of the country continue to pay for the
processes, examinations and care linked to forensic medical certificates, meaning that
justice remains financially inaccessible for poor victims.

H. Strengthening State and civil society structures

to promote and protect human rights48

98. When this report was finalized, no progress had been made on the recommended
adoption of national and provincial laws on the protection of human rights defenders,
including women defenders.49 During her visit, the Special Rapporteur on the situation
of human rights defenders welcomed that the President of the National Assembly and
the President of the Senate had acknowledged the need to adopt such legislation at the
national level, and was encouraged to have obtained their commitment to having
Parliament examine a draft law during their next session. She welcomed the recent
attempt to adopt a provincial law on human rights defenders in South Kivu at the
initiative of the civil society, and called on provincial parliamentarians to adopt a
revised text. However, at the time of drafting the present report, no steps had been taken
towards the adoption of such legislation. Instead, the experts note with concern that
certain senior figures of authority have publicly sought to delegitimize the work of
human rights defenders, fuelling the increased harassment, intimidation and violence
that defenders face on the ground.

99. The draft law on the establishment of a national human rights commission,
which was adopted by the Senate in July 2008, is reportedly still pending before the
National Assembly. The experts underline that the future institution should be

47
See A/HRC/10/59, para. 111.
48
See also A/HRC/13/22/Add.2.
49
See A/HRC/10/59, para. 114.
 A/HRC/13/63
page 25

established in accordance with the Paris Principles relating to the status of national
human rights institutions.

100. The draft law on the organization and functioning of the Superior Council of
Audiovisual and Communication Affairs was passed by the National Assembly and the
Senate, and is reportedly pending before the Supreme Court of Justice for confirmation.
In addition, a draft law amending Act No. 96-002 of 22 June 2006 on the freedom of the
press has been prepared by the Government and is awaiting its submission to Parliament.
The draft law proposes the decriminalization a number of media-related offences and
reduces the harshness of the sanctions currently applicable.

101. The Ministry for Human Rights still lacks the human and financial resources and
political support required to ensure that human rights concerns are effectively taken into
account in the law- and policymaking processes at the national level. Furthermore, the
work of provincial representatives of the Ministry for Human Rights is not always fully
respected or appreciated by local authorities. The Ministry has reportedly not started
translating the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms into the main local languages, and has not delivered awareness-
raising training on the work of human rights defenders to law enforcement authorities
and judicial officials, as had been recommended by the experts.50

102. Despite meeting all administrative requirements for registration, a number of

NGOs engaging in human rights-related activities are arbitrarily denied legal personality
and are therefore unable to file complaints before courts and receive funding from
donors. The procedure for registration is not well known to NGOs and is often
arbitrarily interrupted by authorities. Therefore, NGOs receive temporary authorization
to operate, but rarely the final decree granting them legal personality and the legal
security that this entails. This situation has reportedly been used by authorities to
discredit these NGOs.

103. The regime of notification governing the exercise of the right to freedom of
peaceful assembly, introduced by the 2006 Constitution, is not fully respected in
practice, and the authorities frequently still require defenders to seek formal
authorization every time they wish to stage a demonstration.

104. The Protection of Victims, Witnesses and Human Rights Defenders programme,
funded by the European Union, was closed in March 2009 and absorbed by MONUC
into the work of the Protection Unit. Between the inception of the programme in June
2007 and June 2009, the Protection Unit assisted 516 victims, witnesses and defenders
in nine provinces, including in the eastern Democratic Republic of the Congo.

105. The experts note that, in August 2009, the Government issued a decree to set up
a human rights liaison entity, which would bring together representatives of the
Government, the United Nations and NGOs to discuss concerns. When this report was

50
A/HRC/10/59, para. 113.
A/HRC/13/63
page 26

finalized, however, the decree had yet to be implemented by the Government and the
liaison entity was not yet functional.

V. CONCLUSIONS AND RECOMMENDATIONS

106. During the course of 2009, peace returned to some parts of the Democratic
Republic of the Congo, while other areas have seen renewed hostilities and violence.
Overall, the human rights situation has not improved and remains serious,
including in areas not affected by conflict. Members of FARDC, PNC, ANR and
other intelligence forces have been cited as responsible for summary executions,
sexual violence, torture and ill-treatment. Armed groups such as LRA and FDLR
continue to commit atrocities, which amount to grave breaches of international
humanitarian law and, in some instances, may also constitute crimes against
humanity.

107. The experts regret that the Government failed to provide any information
on the implementation of the recommendations made in the experts’ initial
report.51 Information received from other sources indicates that there has been
little progress overall. Government efforts in particular have been wholly
insufficient, making it difficult for partners to provide related technical assistance.

108. The reforms of the justice and security sectors have not advanced enough
and efforts undertaken are undermined by a lack of will to implement a “zero
tolerance” policy against certain influential individuals suspected of serious human
rights violations. Impunity and the continued presence of perpetrators of serious
violations in the security forces remain key concerns.

109. Violence against women, in particular rape and gang rape committed by
men with guns and civilians, remains a serious concern, including in areas not
affected by armed conflict. Discriminatory laws and practices remain in place and,
along with impunity, remain a root cause of violence against women.

110. Improvements in terms of peace and security have allowed for some
progress on identifying child soldiers and releasing them from the ranks of armed
groups undergoing integration with FARDC. However, the problem continues to
exist in certain integrated units and requires full Government commitment to
prepare and implement an action plan for the prevention of recruitment and use of
child soldiers.

111. The Government neglects its responsibilities to protect and assist internally
displaced persons and returnees, who therefore have to rely entirely on the support
provided by the international community. In addition, there is a risk that displaced
populations may not be able to participate in the 2010 local elections.

112. The economic root causes of human rights violations, in particular illegal
exploitation of natural resources and unresolved land conflicts, are increasingly

51
A/HRC/10/59.
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page 27

being recognized by international and Government actors, which is a first step

towards addressing the issue. The lack of transparent and effective Government
control over the mining sector deprives the State of funds it could dedicate to
meeting its responsibilities with regard to social and economic rights.

113. The lack of budgetary allocations for the fulfilment of social and economic
rights is reflected in different sectors. Health and educational institutions, for
instance, have to charge user fees to generate income and are therefore not
accessible to the poor.

114. There has been little progress in moving forward legislation to strengthen
State and civil society structures to promote and protect human rights. There is a
worrisome trend of certain officials trying to delegitimize and harass human rights
defenders, which fuels an increase in violence, intimidation and threats against
defenders.

115. Rather than formulating new proposals, the experts therefore reiterate the
relevance and applicability of their existing recommendations52 and urge the
Government and technical assistance partners to prioritize their implementation.

116. They encourage the Government to continue the positive practice of

responding favourably to requests of individual mandate holders and continue to
invite several mandate holders every year. The experts strongly recommend that
the Government issue a standing invitation to all special procedure mandate
holders, as the combined ambit of the experts’ mandate leaves out key concerns
relating to economic, social and cultural rights and political and civil rights. They
urge the Government to respond to mandate holders’ urgent appeals and
communications.

117. In light of the seriousness of the human rights situation, which has not
improved since their initial report, the experts consider it to be of utmost
importance that the Council continue monitoring the situation in the Democratic
Republic of the Congo on the basis of reports provided by OHCHR and individual
special procedure mandate holders.

118. The experts recommend that the Council once again consider the creation
of a country-specific mandate, in particular if the level of access and response to
thematic special procedures decreases.

52
See A/HRC/10/59.