STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA DEMOCRATIC REPUBLIC OF THE CONGO
DPKO Civilian Police Division
August 2003
TABLE OF CONTENTS
Executive Summary..……………………………………………………………. 1 Introduction.…………………………………………………………………….. 2 Objectives………………………………………………………………………. 2 Current Situation ………………………………………………………………... 3 Key Issues. ………………………………………………………………………. 4 Strategy for Rapid Re-establishment of a Criminal Justice Capacity in Bunia…………………………………………………………………….. 7
Phase 1: Pre-trial Detention Capacity. ………………………………….. 7 Phase 2: Basic Functioning of the Criminal Justice System …………... 10 Recruitment and Training of Local Staff.………………………………………. 11 Rehabilitation of Current Facilities and Provision of Equipment ……………… 13 International Personnel – Advisory and Training Roles.……………………….. 13 Accountability Mechanisms – Code of Conduct and Monitoring.……………… 14 Conclusions.…………………………………………………………………….. 15 Recommendations ……………………………………………………………… 15
Annexes
Annex 1: Individuals and Organizations Consulted Annex 2: Terms of Reference Annex 3: Current Situation of the Police, Judicial and Corrections Systems in Bunia Annex 4: Detention and Review Process Annex 5: Capacity of Military Component for Extraordinary Pre-Trial Detention and Review Annex 6: Rapid Re-establishment of Pre-Trial Detention Capacity – Additional Options Considered Annex 7: Prison Concept of Operations Annex 8: Prison Infrastructure Rehabilitation and Equipment Needs
STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA, DEMOCRATIC REPUBLIC OF THE CONGO
August 2003
EXECUTIVE SUMMARY
The police, judicial and corrections systems in Bunia are not currently functioning. The international civilian and military presences authorized by the Security Council for limited tasks are not able to fill the void and, as a result, there is almost complete impunity for abduction, rape, murder and other serious crimes reportedly being committed there on a regular basis.
This document provides a two-phase Strategy for the rapid re-establishment of the criminal justice system in Bunia. Phase 1 establishes initial local capacity for the pre-trial detention of criminal suspects – including those that might be detained by the international military presence as it carries out its mandate in Ituri. It could be implemented within seven to ten days after a decision to do so and deployment to Bunia of all necessary resources. Phase 2 provides for development of a local police service, expanded judicial capacity – including the capacity to conduct trials – and enhanced prison capacity. This phase builds on Phase 1 but is not dependent on it and could be implemented within twelve to sixteen weeks of the full deployment of the necessary resources to Bunia. It is underpinned by the recruitment and training of local staff, rehabilitation of current facilities, provision of equipment, deployment of international personnel, and implementation of accountability mechanisms including a code of conduct and a human rights monitoring programme.
The Strategy is premised on the resolution of nine strategic issues, key among these are: successful coordination of donor efforts; the selection of police and prison personnel; the quick transfer of judges and prosecutors to Bunia; the payment of local salaries; and, support from the IEMF and/or MONUC’s military component as they work within their mandates to help stabilize the security conditions in Bunia.
Implementation of both phases of the Strategy should begin at the same time. Both should be led by MONUC and will require the active support of the Government of National Unity, the Ituri Interim Administration, and the international community. Effective consultation and collaboration with a full range of professional and civil society actors is also paramount to its successful and sustainable implementation.
INTRODUCTION
This Report is the product of an assessment of the criminal justice system in Bunia conducted by police, judicial and corrections advisors1 from the Civilian Police Division of the UN Department of Peacekeeping Operations (DPKO/CPD) from 8-24 July 2003. (The Assessment Team’s terms of reference are set forth in Annex 1.) The assessment was closely supported by MONUC personnel who organized and participated in the mission, provided insights and guidance, and who participated in formulating the resulting recommendations. The Assessment Team based its recommendations on preparatory work conducted before deployment and on consultations with a wide range of parties – national, international and UN system partners in Kinshasa, Kisangani and Bunia (See Annex 2). The recommendations draw, in particular, on the “Evaluation du Système Judiciare et Pénitentiaire de Bunia” (25 June 2003) prepared by the MONUC/Bunia Human Rights Section, OHCHR’s draft “Projet sur la Restauration du Systeme Judiciaire en Ituri”, and numerous other useful documents from MONUC’s civilian police component.
In the corresponding sections below, this Report: (1) sets forth its two main objectives; (2) assesses the current situation in Bunia; (3) identifies and addresses the key issues faced; (4) offers a two-phased “Strategy for Rapid Re-Establishment of a Criminal Justice Capacity in Bunia”; and (5) provides recommendations on steps needed to implement the Strategy.
OBJECTIVES
The Strategy and Recommendations below are offered to provide technical guidance to the Ituri Interim Administration (IIA), the Government of National Unity, other national actors, and the international community on steps needed to achieve the following two objectives2:
· Quick set-up of a system of arrest and pre-trial detention of those found to have committed a serious criminal offense that threatens the security of the peacekeeping operation or the civilian population; and · Re-establishment of a minimally functioning local police, judicial and corrections structures with capacity to provide basic policing, conduct pre-trial detention hearings, detain prisoners, complete criminal investigations, and hold some criminal trials.
1 The CPD/DPKO Assessment Team consisted of: Mr. Sani Abdoulaye, CPD Desk Officer for MONUC; Ms. Isabel Hight, Corrections Officer in CPD’s Criminal Law and Judicial Advisory Unit (CLJAU); and Mr. Robert Pulver, Judicial Officer in the CPD/CLJAU. The Assessment Team conducted the assessment, developed these recommendations, and drafted this Report with strong substantive support from: Mr. Stephane Jean, Legal Advisor to the MONUC Police Commissioner; and Mr. Benjamin Hounton, MONUC Human Rights Officer.
2 Longer-term strategies are not addressed in this paper, but will be necessary to provide for the complete functioning and development of the criminal justice system in Bunia. As recommended in the Secretary General’s Second Special Report (S/2003/566 of 27 May 2003, para. 72), the European Union, UNDP and OHCHR plan to begin a detailed nationwide rule -of-law assessment as early as September 2003. This assessment is likely to lead to a larger, nation-wide rule-of-law approach being developed in early to mid-2004.
- 2 - CURRENT SITUATION
Bunia is currently without functioning police, judicial or corrections systems and a culture of impunity persists. MONUC’s mandate does not expressly provide for it to undertake executive policing, judicial or corrections responsibilities and the IEMF interprets its mandate to exclude arrest or detention of criminal suspects3. As a result, neither the IEMF nor MONUC are in a position to perform basic policing activity or to apprehend and detain for any period of time those believed to have committed serious crimes, including those caught en flagrante.
Of an estimated 300 police previously stationed in Bunia, approximately 150 have been located and are available for re-engagement. Approximately thirty-five former court officials – including one judge, several judicial police officers, registry officers, process servers and other clerical support staff – are also present and appear eager to take up their positions. (One prosecutor formerly serving in Bunia is also available, but may not have been properly appointed. The same may well be true of some other staff). At least two defense lawyers are also present and appear to be available. Eleven previous prison staff including the management are similarly available for work.
Of the four police stations, three appear structurally sound and warrant rehabilitation, the fifth requires demolition. Of these four, the headquarters building is the least damaged. The tribunal is in good condition and the prison in a state of severe decay and dilapidation. All require reconnection of electricity, water, installation of security grilles and lockable doors at a minimum. The prison requires the most extensive work. Almost all office, security and other equipment necessary to the functioning of the criminal justice system has been looted, lost or destroyed.
According to those interviewed, no staff in Bunia have been paid salaries since July 1998. Many are acknowledged by the local population to have accepted bribes and favors and engaged in corrupt practices, and a number from all three systems are said to have been closely aligned with militia groups. It is widely believed that because of this alignment, or because of the conflict and their own ethnic and other affiliations, the previous judges and the prosecutor may be unable to dispense justice in an unbiased and impartial way.
The majority of police have never received police training and none has been offered since 1997. Judges and prosecutors are said to have received high-level academic preparation but no further training. The court system is seen by some to be a root cause of the conflict, given its reputed role in resolving land disputes through bribery. As a result, current judges and prosecutors are likely to be unacceptable to large portions of the population and their return would signal a continuation of the old system.
3 The IEMF sees its primary functions as securing the airport, ridding Bunia of visible weapons, and thereby preparing for the arrival of the Ituri Brigade (also referred to as Task Force 2). Its mandate, however, is quite broad. Under Security Council resolution 1484, the IEMF is authorized until 1 September 2003 “to contribute to the stabilization of the security conditions and the improvement of the humanitarian situation in Bunia … and, if the situation requires it, to contribute to the safety of the civilian population, United Nations personnel and the humanitarian presence in the town”. It is further authorized “to take all necessary measures to fulfil its mandate” (S/RES/1484 of 30 May 2003 paras. 1&4).
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Prison staff and administrative court personnel are generally in need of education about the basics of their functions and all groups require education in the application of human rights principles, standards and the international conventions.
For additional background on the current status of the police, judicial, and corrections systems in Bunia, see Annex 3.
KEY ISSUES
The following are key strategic issues that need to be addressed to successfully implement this Strategy:
1. Support from the Government of National Unity and the Ituri Interim Administration. One aim of this Strategy is to strengthen the IIA so as to bolster the peace process in Bunia. Because the police, the judiciary and prisons are structures of national character, however, strong central government support for this Strategy is essential to its success. The Strategy provides for the police and prison to operate under the authority of the IIA until the central government chooses to integrate them into national structures. This transition period should be short. It also recommends that judicial and prosecutorial authorities and their staff be administered by central authorities and that judges and prosecutors from other districts be immediately transferred to serve in Bunia. Moreover, national authorities should be committed to quickly begin paying salaries of police, judicial and prisons personnel in Bunia.
Recommended Action: MONUC quickly commence discussions with the Government of National Unity and the IIA to seek support for this Strategy, including support for the interim management of police and prisons by the IIA.
2. Co-ordination of Efforts. All bilateral missions, donors and UN system partners consulted stressed the vital importance of re-establishing police, judicial and prisons functions in Bunia. Several pointed to a lack of donor coordination in the DRC generally and in Bunia specifically. Strong diplomatic and donor support for this Strategy is required, and mechanisms should immediately be set up in both Kinshasa and Bunia to accomplish this. Moreover, while MONUC may itself carry out some parts of this Strategy, the bulk of such efforts should be undertaken by multi-lateral or bi-lateral partners.
Recommended Action: The IIA, with MONUC and/or bi-lateral support, should form a body for the coordination of donor efforts in Ituri. In addition, as recommended in the Secretary- General’s Second Special Report, a multi-disciplinary rule-of-law task force should be established in Kinshasa to ensure coordination of such efforts4. A key initial focus of the task force should be to support rule of law in Ituri.
3. Selection of Police and Prison Personnel. The re-engagement of local police officers and prisons staff by the IIA should be temporary and based on the understanding that these personnel
4 Id. at para. 71.
- 4 - will later be eligible for re-integration into national police and prison systems. The personnel selected should reflect Bunia’s pre-conflict ethnic diversity and appropriate gender balance. Moreover, because of the systemic corruption and serious crimes that may have been committed by some potential recruits, the implementation of a transparent and accountable recruitment procedure – including a vetting committee operating under the IIA – is needed. The recruitment procedure should be developed and implemented by the IIA with the strong involvement and guidance of international advisors5.
Recommended Action: MONUC or another international actor should provide comprehensive assistance to the IIA in the development of a transparent and accountable recruitment policy and procedure. This should include strong support for the operation of an IIA vetting/hiring committee.
4. Re-engagement or Transfer of Judges, Prosecutors and Related Personnel. Because of the constitutional and symbolic significance of the judicial and prosecutorial systems, this Strategy provides for the magistrates (judges and prosecutors) and their staff (e.g., registrars, process servers, judicial police, and other administrative staff) to be administered under the central authority, rather than under the IIA. The overwhelming sentiment that current judges and prosecutors are either unwilling for safety reasons to return to work and/or are too closely associated with sides to the conflict or to past corruption leads to the conclusion that they would need to be transferred to other districts. This Strategy therefore recommends that a new national Judicial Council be quickly convened in Kinshasa and that the President of the Council effect the rapid transfer to Bunia of judges and prosecutors from other districts. The law appears to empower the President of the Judicial Council to make such a transfer for exigencies of service or at the request of the transferee6. Those interviewed believe that other judicial and prosecutorial personnel (registrars, process servers, judicial police, administrative personnel, etc.) could resume their functions without being replaced or transferred, if provided proper oversight and training.
Recommended Action: MONUC and the diplomatic community commence discussions with the Government of National Unity, encouraging the rapid formation of the Judicial Council and appropriate steps by the Council to transfer judges and prosecutors to Bunia on an emergency basis.
5. Payment of Salaries. Donors are traditionally reluctant to contribute to the payment of national salaries. Nevertheless, to strengthen the authority of the IIA, this Strategy provides that salary payment – or a stipend for living expenses – be financed by donors on a temporary basis and paid through the IIA. While national salaries currently paid in Kinshasa are said to range from a base for police of less than $10/month to roughly $18/month for a chief judge of the Cour du Grande Instance, a higher amount is necessary under the dangerous conditions in Bunia.
5 Criteria that might be established to preclude appointment as a civil servant could relate to known involvement in major corruption, violations of international humanitarian law, or other major criminal activity. In addition, the criteria and procedure should be consistent with any applicable civil service legislation.
6 See Article 11, Statute of Magistrates, Ordonnance-Loi No. 88-056 of 29.09.1988, J.O.R.Z. September 1988. Additional legal review should be undertaken in theatre to mo re precisely determine the transfer process.
- 5 - Moreover, a salary sufficient for basic sustenance is a pre-requisite to any effort to combat the corrupt practices that have plagued the DRC. Thus, a graded stipend should be paid ranging from $2/day for base level police and corrections personnel, to perhaps $4/day for the chief judge and prosecutor. Court appointed defense counsel should be compensated on a commensurate basis, consistent with the applicable law. Temporary contracts issued by the IIA for police and prisons personnel should be made consistent with current civil service conditions and relevant legislation so as to maximize subsequent smooth integration into national structures. This will be a key issue in managing the expectations of future employment of the previous work force.
Recommended Action: Donors should channel sufficient funds to the IIA earmarked for payment of stipends to police, judicial and prisons personnel for an interim period of six to nine months. MONUC and the diplomatic community should seek agreement from the Government of National Unity to assume, as promptly as possible, responsibility for the payment of salaries consistent with the national civil servant salary scale.
6. Provision of Security for Local Staff and Institutions. Judicial personnel highlighted security as essential to their ability to fulfill their roles. While the close protection some personnel requested may not be viable given resource constraints, the Strategy provides for concentrated patrolling in the vicinity of the police stations, court and prison, as well as intermittent escorts to and from residential areas for judges and other at-risk personnel when requested by the IIA.
Recommended Action: MONUC and/or donors quickly train and equip local police to provide static security at criminal justice institutions, including the court and prison. The military (IEMF and/or MONUC) concentrate patrolling efforts around such institutions and consider the establishment of checkpoints on key roads near such institutions. The MONUC Force Commander may consider whether the Ituri Brigade could support additional perimeter security at the prison. Similarly, the military may perform escort and extraction tasks for designated criminal justice personnel when authorized by the Force Commander.
7. Other Support from the MONUC Ituri Brigade and/or the IEMF. It is axiomatic that any military component deployed into a security and law enforcement vacuum such as in Bunia must be well equipped to deal with the variety of security threats it will face. The MONUC Ituri Brigade will encounter and be in a position to disarm and detain individuals who, through violations of criminal law, pose a serious threat to the Brigade, to the civilian component of the mission, or to the inhabitants of Bunia. This Strategy, therefore, calls for support from the MONUC Ituri Brigade and from the IEMF where consistent with their mandates, rules of engagement and contractual arrangements with troop contributing countries. Such support to the local criminal justice system is fundamental to the establishment and maintenance of a secure environment in Bunia. DPKO’s Military Planning Section advises that this support be provided subject to consideration of competing mission requirements.
Recommended Action: The IEMF and MONUC’s Ituri Brigade provide as much support to the implementation of this Strategy as their mandates, rules of engagement, MOUs with troop contributing countries, and resources permit.
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8. Possession of Weapons by Police. This is a contentious and difficult issue. Information from a wide range of sources suggests that much of the population in Bunia has access to hidden weapons and, as a result, police will face a particularly dangerous situation when carrying out investigations and other duties. It is recommended that police in Bunia be issued sidearms during the hours of duty under a strict control arrangement which involves close support and monitoring by MONUC civilian police advisors. This arrangement would require the formal issuing and return of the weapon for each officer at the commencement and cessation of duty with each weapon being secured in a locked safe when not issued to an on-duty officer. While the risk remains that these weapons could be commandeered by others, compelling information suggests it is essential that local police be provided with a sidearm for their own protection when carrying out their duties and as a confidence building measure with the local community.
Recommended Action: MONUC civilian police train local police in the use of firearms during their initial training and a firearms policy and strict control procedures be developed and the implementation facilitated and closely monitored by MONUC civilian police.
STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA
The following Strategy is designed to two phases. Phase 1 provides for the rapid development of a capacity in Bunia for the pre-trial detention of criminal suspects. This capacity could be operational approximately seven to ten days after the deployment of necessary resources and staff to Bunia. Phase 2 leads to a more complete functioning of Bunia’s criminal justice system, including the capacity to conduct some criminal trials. This capacity could begin to operate approximately twelve to sixteen weeks after deployment of necessary resources and staff. Elements of both phases should be initiated as soon as possible7.
Recommended Action: MONUC immediately devote two full-time staff members – one in Kinshasa and one in Bunia – to support implementation of both phases of this Strategy.
Phase 1: Pre-Trial Detention Capacity
Creation of Limited Local Police, Judicial and Prison Capacity
This phase relies on current legislation, which provides for officers of the Congolese police service to arrest persons suspected of committing criminal acts. It also relies on the capacity of the IEMF and/or MONUC to inform local police of any incident they observe in which a serious crime may have been committed, and – to the extent permitted under their mandates and rules of engagement – to disarm and hold perpetrators for prompt turnover to police authorities. It provides for pre-trial reviews in accordance with national judicial procedures, commencement of
7 Although the most rapid establishment of arrest and detention capability is achieved through the implementation of Phase 1, it may be determined that it is acceptable and preferable to implement Phase 2 only. This would mean that the prison rehabilitation could be undertaken without the complication of an existing prisoner population being present and the consequent need to manage the security issues which arise when refurbishing a prison in use.
- 7 - investigations, and the detention of suspects under secure and humane prison conditions within the current prison. It does not provide for the hearing of trials.
Local police officers, supported by MONUC civilian police advisors, would be deployed to police headquarters where they would receive and process any criminal suspects detained pursuant to provisions of the local law. After arrest, suspects would be transferred on the day of intake to the prison and the police would transfer the case to the prosecutor for investigation. The prison would be staffed by existing local staff, and an international prisons advisor would support the local staff. Both the police and the prison staff would operate under the authority of the IIA.
Judges and prosecutors – along with judicial police officers, registrars, process servers, and other administrative staff – would deal with pre-trial reviews. They would be under the administration of central authorities but would receive stipends from the IIA. They would be supported by an international judicial affairs advisor and monitored by national and international human rights organizations. Suspects would be entitled to free defense counsel as needed. Judicial police, working in the office of the prosecutor, would undertake the investigations. The judicial review of pre-trial detention would be provided within the prison facility and would occur at the intervals provided for under local law. (Annex 4 describes the detention and review process.)
Local law appears to allow a maximum of 105 days of judicial detention before release or trial. For this reason, the trial capacity provided for under Phase 2 will be quickly required.
This phase requires:
· The IEMF, and subsequently the Ituri Brigade, to advise police headquarters officers of any incident which they observe in which it appears that a serious crime may have been committed. To the extent permitted under their mandates, rules of engagement and agreements with troop contributing countries, IEMF and the Ituri Brigade would also disarm and hold perpetrators for prompt turnover to police authorities.
· The IIA hire twelve previous local police officers from those currently working on per diem contracts at the MONUC compound in Bunia, who would work under the authority of the IIA and be deployed to the existing police headquarters.
· The IIA require the attendance of any eight of these officers from 7am – 7pm seven days per week at police headquarters. Their sole function would be to receive and process any suspects turned over by IEMF, MONUC or others including lodging the suspect in the police headquarters holding cells, notifying the judicial police of the arrest, and arranging the transfer of the suspect(s) to the prison on the same day. These local officers would be supported at all times by four MONUC civilian police mentors/advisors and would operate under the authority of the IIA until absorbed into the integrated national police service.
· The President of the Judicial Council immediately transfer two judges and two prosecutors from elsewhere in the DRC to Bunia. If transfer is not feasible, one judge and one prosecutor currently in Bunia might be utilized (although it appears that the prosecutor was not appointed by the central authority).
- 8 - · Four existing judicial police officers, two registrars, two process servers and any necessary administrative staff should be re-engaged under central authority to begin the investigation and support court processes.
· The IIA engage private defense counsel to represent indigent defendants free of charge, with their payment being made through donor or other funding.
· MONUC and/or donor(s) create a temporary holding capacity within the current prison facility using existing MONUC assets or donor funding.
· The IIA re-engage the eleven existing prison staff to manage the operations of the prison and immediately recruit up to fourteen additional prison staff.
· The military (IEMF and/or MONUC) concentrate patrolling efforts around police headquarters and the prison and consider the establishment of checkpoints on key roads near these institutions. The Sector Six Commander should consider whether the Brigade could support additional perimeter security in the area of the prison.
· MONUC co-ordinate the infrastructure rehabilitation activity, including reconnection of electricity and water at each facility, minor refurbishment of police headquarters and the court, provision of minimum office furniture at police headquarters and the prison and office supplies to police headquarters, the court and prison.
· MONUC and IIA determine payment arrangements for provision of a stipend through the IIA, using funding provided by a donor source for a limited period of time.
· MONUC or an interested bi-lateral or multi-lateral donor publish the transitional constitution, criminal code, criminal procedure code and other relevant legislation for quick distribution to police, judicial and prisons officials in Bunia and elsewhere in the DRC. An initial publication of at least 1,000 copies should be undertaken immediately.
Other Options Considered
As with the IEMF, the MONUC Ituri Brigade will encounter individuals who commit serious crimes against MONUC and who present a continuing serious risk to MONUC. The Ituri Brigade will also be in a position to detain individuals it observes in the midst of committing serious criminal acts against the population. Currently, it appears that both the IEMF and MONUC would disarm and eventually release such individuals, because there are no functioning criminal justice institutions in Bunia to which to relinquish suspects. (For example, MONUC has rescued abducted persons in Bunia, but was constrained to release the perpetrators). The release of criminal perpetrators caught en flagrante sends the signal that the international military presence is powerless to act in such situations, emboldens suspects to perpetrate further crimes, and undermines the international community’s efforts to bring peace and stability to Bunia.
The Assessment Team considered that with the adoption of Security Council resolution 1493 on 28 July 2003, MONUC may wish to take a more pro-active stance in dealing with such
- 9 - situations 8. Thus, the Assessment Team considered at some length the possibility of recommending the development of a capacity within the MONUC Ituri Brigade for the arrest and pre-trial detention of criminal suspects. More recently DPKO’s Military Division has indicated that such option is not feasible given the Brigade’s mandate, rules of engagement, human resources, as well as the current MOUs with troop contributors. While such option may not be feasible for MONUC, Annex 5 provides further general information on the option the Assessment Team considered9.
In addition, the Assessment Team considered at some length two other options for the emergency pre-trial detention of criminal suspects: (1) the arrest and detention of suspects by the IEMF, subject to national judicial review; and (2) IEMF and/or MONUC temporarily holding suspects prior to transfer to national authorities in another district. For the reasons set forth in Annex 6, neither of these options appears to be currently feasible.
Phase 2: Basic Functioning of the Criminal Justice System
As described below, Phase 2 leads to a more complete functioning of Bunia’s criminal justice system, including the capacity to conduct some criminal trials. It, nevertheless, is a short-term, remedial approach that would require later augmentation by national authorities and, perhaps, international assistance providers10.
This phase also relies on current legislation, which provides for the arrest of persons suspected by the Congolese police service of committing criminal acts. It continues to rely on the capacity of the MONUC Ituri Brigade to advise local police of any incident they observe in which it appears that a serious crime may have been committed and/or to temporarily hold individuals for turnover to police authorities. It provides for pre-trial reviews, investigation, and the hearing of trials in accordance with national criminal procedure. It also involves the rehabilitation of the current prison for the pre-trial and post-conviction detention of male detainees (and in extreme circumstances women and juveniles).
Recruitment of Congolese police officers (initially from existing staff) would be quickly completed through a vetting procedure organized by the IIA. These officers would be trained in groups of approximately fifty in anticipation of their eventual integration into the national integrated police service, with eight weeks of training provided over a twelve-week period.
8 MONUC is now empowered to “to use all necessary means to fulfil its mandate in the Ituri district” (S/RES/1493, para. 26). Its role in Ituri includes “helping stabilize the security conditions . . . and if the conditions warrant it, helping to ensure the security of the civilian population and the personnel of the United Nations and the humanitarian organizations in Bunia . . .” (Id. at para. 27)
9 Extra -judicial detentions carried out by the NATO-led military presence in Kosovo and by UNMIK (under executive orders of detention), have been highly criticized by human rights organizations.
10 This Strategy provides for only the basic functioning of the criminal justice system. The full functioning of the system would require additional resources and efforts. For example, preliminary estimates indicate a force of approximately 400 local police may be necessary to meet the policing needs of Bunia in the longer term, and the future structure of the police service will be dependant on decisions by the central government. A fully functioning court system would require additional staffing and the establishment of the Tribunaux de Paix. Accommodating more than 140 prisoners would require additional staffing and support.
- 10 - When deployed to operational duty, the local police officers would be supported by MONUC civilian police mentors/advisors. A number would be deployed to headquarters (as described in Phase 1) and to other duty stations in Bunia. The initial focus should be on the provision of static security at key locations, as well as on other basic policing functions.
The prison would be rehabilitated to accommodate up to 140 adult males, the prisoners managed by local staff and intermittent external security patrolling be undertaken by the military. Prison staff would be supported by an international advisor and training officer.
Court officers would be re-engaged, and judges and prosecutors would be transferred to Bunia. An international judicial affairs officer and court administration expert would work in the tribunal to provide support to the judges, prosecutors and other staff. Court proceedings would be monitored by international trial monitoring programmes.
The key elements of this phase include: (1) Recruitment and Training of Local Staff; (2) Rehabilitation of the Current Facilities and Provision of Equipment; (3) Deployment of International Personnel; and (4) Development of Accountability Mechanisms.
RECRUITMENT AND TRAINING OF LOCAL STAFF
The initial complement of police and prison personnel would be drawn from previous staff and, where necessary, external local applicants – all of whom would be subject to a vetting procedure under the auspices of the IIA.
Police
This Strategy provides for the initial engagement of forty to fifty former police officers through the recruitment and vetting procedure referred to above. These officers would complete an initial training programme comprised of four weeks of the current two-month Police Recruit Training Programme focusing on general police responsibilities, the legal framework, basic investigation techniques, human rights issues and code of conduct. At the fifth week, half the group would be deployed to operational duties in the company of MONUC civilian police officer deployed as on-the-job advisors/mentors. The other half would continue the fifth week of training and alternate weekly between operational duties and the formal training programme until completed after a further eight weeks. Ongoing recruitment and training in this manner is proposed during Phase 2 of up to 250 officers within eighteen months, ensuring ethnic diversity and gender balance.
It is proposed that the timetable of the current programme be adjusted to include firearms instruction during the initial four weeks training, and that this instruction be provided at Kisangani where there is an approved firing range. This would require logistical arrangements for the transport, accommodation and possible payment of an allowance. Weapons training is strongly supported by the MONUC Civilian Police Commissioner and other personnel.
This Strategy accelerates police operational availability and begins to address the preference of the Police Commissioner that all operational police undertake the full two-month training prior
- 11 - to deployment. A local secondary school in Bunia appears to be available for use until late September.
This initial police complement should also include a designated Chief of Police who would not necessarily have been a serving police officer but may have legal or management training. The command structure should be developed as the number of recruits increases, and the structure should be consistent with any national structure developed and implemented by the Government of National Unity for the national integrated police service.
Uniforms are not essential whilst in training for either police or prison staff. Since these staff will potentially become part of the national police and prison services, it is desirable that a donor fund the purchase of uniforms from a DRC contractor and these be provided to police at least when they assume operational responsibilities. In lieu of uniforms, berets or other readily available apparel should be sourced locally.
Judicial and Prosecutorial Staff
A minimum of three judges, two prosecutors, four judicial police, two registrars, two process servers, as well as five administrative personnel in the prosecutors’ office are necessary to provide for ongoing functioning of the courts. Defense counsel would be assigned to represent indigent clients free of charge, with their payment provided for by donor or other funding. It would be necessary for the Government of National Unity to temporarily assign judges and prosecutors, on an emergency basis to Bunia. Other necessary judicial and prosecutorial staff could be selected from the previous staff and provided on-the-job training and support from an international advisor posted in the court.
Given the reported high academic level of judges, prosecutors and defense counsel, they could be provided seminars on specialized topics sometime after they re-commence their duties. These seminars should preferably be led by national legal professionals with the support of international experts. Initial seminars should focus on applicable international pre-trial and criminal standards and should be practice based. Later seminars should be developed with the input of the judges, prosecutors and defense counsel themselves and should cover topics they identify as necessary. Participation in seminars outside of Bunia should also be considered. International NGOs involved in the training of legal professionals in the DRC should be contacted to determine their availability to provide such training in Bunia.
Judicial police officers responsible for criminal investigations would participate in the police training described above and could also partake in relevant seminars for judges, prosecutors and defense counsel.
Prison
A complement of forty to fifty prison staff (including management and administration) will ultimately be required to manage the internal operation of the prison providing for twenty-four hour, seven-day per week management of up to 140 prisoners. An initial complement of eleven staff drawn from the previous staff is proposed will be expanded by the early recruitment of up to fourteen additional prison staff. Any shortfall in available and suitable previous staff could be
- 12 - covered from former court or other civil servants. The returning and new staff would undergo a five-day training course on basic security and prisoner management policies and procedures and human rights and be required to sign a code of conduct. This initial training would be supported by on-the-job training. (For details of the prison “Concept of Operations” see Annex 7.)
REHABILITATION OF CURRENT FACILITIES AND PROVISION OF EQUIPMENT
Accessing donor funding and mobilizing materials and labour is likely to require greater lead time than other components of the Strategy and therefore should be taken up by MONUC simultaneously with Phase 1 implementation.
While the initial police recruits are undergoing the first four weeks of training, the refurbishment of the police headquarters, three police stations, the court and prison could be undertaken. Refurbishment of each facility would include: reconnection of electricity and water; installation of lockable doors and security window grilles; repair of roofs, ceilings, walls and entry stairs; and repair of holding cell floors at police headquarters.
It should be noted that while the prison is in a severe state of decay the majority of it appears to be sufficiently sound to warrant refurbishment. In any event, it is regarded as unlikely that a donor would provide for a new facility at least in the short term. It is proposed that MONUC encourage the donor community to undertake the short-term rehabilitation of the prison and the provision of basic office furniture and supplies at all police stations, the court (minimal furniture needed) and the prison.
In addition, as mentioned above under Phase 1, MONUC or an interested bi-lateral or multi- lateral donor should publish the transitional constitution, criminal code, criminal procedure code and other relevant legislation for quick distribution to police, judicial and prisons officials.
For details of the “Prison Infrastructure Rehabilitation and Equipment Needs” see Annex 8.
INTERNATIONAL PERSONNEL – ADVISORY AND TRAINING ROLES
The involvement of international staff officials in training and advising roles – co-located with national – is a central tenet of this Strategy and is essential to its success. Most of these advisors would ideally be provided by multi-lateral and bi-lateral donors, with MONUC or other UN system partners potentially identifying and filling some gaps if other donors do not come forward.
Thus, this phase contemplates deployment of an initial complement of twenty MONUC civilian police officers to develop and deliver the formal training programme, and to provide on-going advice, on-the-job training, mentoring and monitoring (including provision of administration advice and support to the head of the local police service). On-the-job training would include MONUC civilian police officers undertaking joint patrols with local staff and supporting and guiding the conduct of investigations. MONUC civilian police mentors/advisors should accompany local police in a recommended one-to-four ratio. These officers – which can be provided from within currently vacant MONUC civilian police positions – must be fluent in French, preferably have experience in peacekeeping, and have well-developed training and
- 13 - advisory skills. As additional officers are recruited, the number of MONUC civilian police trainers, mentors and advisors will need to be increased.
A Judicial Affairs Advisor, provided by a multi-lateral or bi-lateral donor or by MONUC is needed to provide advice to the judges, prosecutors and court staff to facilitate smooth functioning of the judicial system and to help increase public confidence in the judiciary. A Court Administration expert, also provided by a donor or MONUC, should also be deployed for two to three months to help ensure the development of efficient court administration systems. Both experts should be fluent in French, have prior experience in the region, and have significant experience in a similar civil law system. Both experts should have offices and work full time in the tribunal with their local counterparts.
An international Prison Advisor is proposed to assist prison officials develop and implement basic security, prisoner management and administration policies and procedures in accordance with human rights principles including development and implementation of recruitment policy and procedures. This officer should have extensive prison management experience, be fluent in French and should have experience of prison reform in developing countries.
Also proposed is a Prison Trainer responsible for developing and implementing formal and on- the-job training programmes, the latter of which would be the primary approach. This officer should have extensive experience in the development, preparation and delivery of prison training programmes both in the classroom and on-the-job in a prison, be fluent in French, and be able to function effectively in minimally resourced conditions 11.
ACCOUNTABILITY MECHANISMS – CODE OF CONDUCT AND MONITORING
The development of a code of conduct is regarded as a key facet of this Strategy. The code should provide unambiguous guidance as to the standard of conduct accepted, and it should result in a strict response (e.g., dismissal) if breached given the culture of corruption that has been graphically described to the team. The code should be developed by the IIA, based on any existing standards, with the active assistance of the international advisors. Each officer should, as a condition of service, sign his/her agreement to the code.
International monitoring of the criminal justice process by OHCHR, MONUC’s Human Rights Section and/or another recognized agency is necessary to encourage fair and impartial dispensation of justice and to begin to build confidence in the judicial system. Police, court and prison monitoring should, therefore, be undertaken by local and international human rights organizations in accordance with their usual mandates to independently monitor and report on individual cases, including pre-trial detention proceedings, and to identify systemic problems and issues in the functioning of the judicial system. While the rights of defendants should be a core focus of the programme, it should also focus on broader issues of the administration of justice. With the exception of matters for which confidentiality is required, reports should be frequent and should be available to judicial/legal personnel as well as the public. Monitors should be
11 Greater efficiency and effectiveness could be achieved if the prison personnel and equipment needs were provided by the same donor, since this would allow sharing of these resources and maximize the likelihood of a consistent prison management approach.
- 14 - guaranteed access to the prison, pre-trial detention proceedings, trials, and other public phases of the judicial process and have access to appropriate documentation.
CONCLUSIONS
The implementation of this Strategy requires the full and active support of national authorities, the IIA, MONUC, other multi-lateral and bi-lateral actors, and the Congolese criminal justice professionals. While MONUC will necessarily play a central role in Kinshasa and Bunia in implementing and guiding its implementation, it is hoped that the bulk of the initiatives described herein will be undertaken and individually led by bi-lateral or other donors and assistance providers.
The most effective approach would likely involve MONUC taking the lead in developing and overseeing an Implementation Plan. This plan should include coordination mechanisms and a public information strategy. Assuming lead responsibility will necessitate the full-time tasking of two MONUC officers, one in Bunia and the other in Kinshasa, to coordinate and manage the implementation of the Strategy.
In the event that this Strategy, or something similar, is not quickly implemented, international peacekeeping efforts in Bunia will be seriously undermined. Military efforts to provide security in Bunia and beyond cannot be fully successful unless complemented by functioning national police, judicial and corrections systems. Thus, in the event that resources are not mobilized to implement this Strategy, serious consideration should be made of a more robust mandate for MONUC, including executive roles in policing and perhaps in the judicial and corrections areas.
RECOMMENDATIONS
It is recommended that:
1. All relevant partners, including the international community, the Government of National Unity and the IIA, support and implement the above Strategy.
2. MONUC immediately devote two full-time staff members – one in Kinshasa and one in Bunia – to support implementation of both phases of this Strategy
3. MONUC quickly commence discussions with the Government of National Unity and the IIA to seek support for this Strategy, including support for the interim management of police and prisons by the IIA.
4. The IIA, with MONUC and/or bi-lateral support, form a body for the coordination of donor efforts in Ituri. In addition, as recommended in the Secretary-General’s Second Special Report, a multi-disciplinary rule-of-law task force should be established in Kinshasa to ensure coordination of such efforts. A key initial focus of the task force should be to support rule of law in Ituri.
- 15 - 5. MONUC or another international actor should provide comprehensive assistance to the IIA in the development of a transparent and accountable recruitment policy and procedure. This should include strong support for the operation of an IIA vetting/hiring committee.
6. MONUC should provide immediate support for the development of a Code of Conduct for police, court administration staff and prison staff by the IIA.
7. MONUC and the diplomatic community commence discussions with the Government of National Unity, encouraging the rapid formation of the Judicial Council and appropriate steps by the Council to transfer judges and prosecutors to Bunia on an emergency basis.
8. Donors should channel sufficient funds to the IIA earmarked for payment of stipends to police, judicial and prisons personnel for an interim period of six to nine months. MONUC and the diplomatic community should seek agreement from the Government of National Unity to assume, as promptly as possible, responsibility for the payment of salaries consistent with the national civil servant salary scale.
9. MONUC and/or donors quickly train and equip local police to provide static security at criminal justice institutions, including the court and prison. The military (IEMF and/or MONUC) concentrate patrolling efforts around such institutions and consider the establishment of checkpoints on key roads near such institutions. The MONUC Force Commander may consider whether the Ituri Brigade could support additional perimeter security at the prison. Similarly, the military may perform escort and extraction tasks for designated criminal justice personnel when authorized by the Force Commander.
10. The IEMF and MONUC’s Ituri Brigade provide as much support to the implementation of this Strategy as their mandates, rules of engagement, MOUs with troop contributing countries, and resources permit. (DPKO’s Military Planning Section advises that this support be provided subject to consideration of competing mission requirements.)
11. The DPKO Civilian Police Division should expedite the recruitment of twenty civilian police officers qualified to provide formal and on the job training for current vacant positions.
12. MONUC civilian police train local police in the use of firearms during their initial training and a firearms policy and strict control procedures be developed and the implementation facilitated and closely monitored by MONUC civilian police.
13. MONUC develop a public information strategy to disseminate information throughout the Ituri District about efforts to establish credible criminal justice institutions in Bunia.
- 16 - ANNEX 1 INDIVIDUALS AND ORGANIZATIONS CONSULTED
Individuals Giorgia Battista Human Rights Officer, MONUC/Goma Edward Bestic Second Secretary, U.S. Embassy Issia Bolosse Inspecteur des Ecoles de Police Rachel Brass Second Secretary, Political Affairs, British Embassy Pierre-Antoine Braud Political Affairs Officer, MONUC Nancee Oku Bright Chief, Humanitarian Affairs Section, MONUC Mathieu Ciowela Katumba Conseiller au Programme, UNDP Mahamane Cisse-Gouro Deputy Director, OHCHR/Kinshasa Karl Dhaene Conseiller Politique, Belgian Embassy Moudjib Djinadou Political Affairs, MONUC Orlando Fachado Principal Administrator, European Union Carlo De Filippe Ambassador, European Union Engulu Bosango Marie Francoise Assistante au Programme Post Conflits, UNDP Francoise Gautier First Secretary, French Embassy Charles Gomis Director, Political Affairs Division, MONUC Jaque Grinberg Deputy Director, Political Affairs Division, MONUC Benjamin Hounton Human Rights Officer, MONUC Stephane Jean Legal Advisor to the Police Commissioner, MONUC Jacques Kabasele President, Cour de Grande Instance, Bunia Pulo Camaragui Vice-President, Ituri Special Interim Assembly Johanna Klinge Child Protection Advisor, MONUC Jean Marie Eley Lofele President Nat. de l’Assoc. International des Avocats, DRC Herbert M’cleod Resident Representative, UNDP/Kinshasa Lt. Col. Nicholas Military Attache, French Embassy Malowa Nidibou Directeur de l`Academie de Police Kalemi Nyassi Vice-President, Ituri Special Interim Assembly Col. Olivier Paulus Chief of Staff, IEMF Kristine Perduto Child Protection Officer, MONUC Roberto Ricci Chief, Human Rights Section, MONUC Floriane de Sadeleer Senior Legal Advisor, MONUC Behrooz Sadry DSRSG, MONUC Monga Sata Directeur des Operations Jennifer Sarvary Political Affairs Officer, MONUC Alpha Sow Chef de Bureau, MONUC/Bunia Lena Sundh DSRSG, MONUC Nishkala Suntharalingalum Political Affairs Officer, MONUC Deborah Tomlinson Deputy Head of Mission and Consul, British Embassy Alessandra Trabattoni Political Affairs Officer, MONUC Vaweke Petronille President, Ituri Special Interim Assembly Sister Claudia Sister Bernadette
Organizations Justice Buisse Representatives Amis de la Prison Vice-Presidents of the Ituri Special Interim Assembly President and Vice-Presidents of the Ituri Interim Executive Body Staff of the Ituri Cour de Grande Instance, Police and Prison
ANNEX 2 TERMS OF REFERENCE
The Civilian Police Divisions Assessment Team – composed of police, judicial and corrections experts – was deployed to the Democratic Republic of the Congo from 8-24 July 2003 to “provide assistance and advice on police, judicial and corrections issues in support of the political process in Bunia and as outlined in the draft Bunia/Ituri strategy document”. (Code Cable from USG/DPKO to SRSG/MONUC of 3 July 2003 (no. 1852)). The team was tasked as follows:
“Working with MONUC colleagues, the team, which will remain in the DRC for approximately two weeks, is tasked to:
a) Familiarize itself with police, judicial and corrections systems in Bunia;
b) Consult the Ituri Interim Administration, UN system partners, bi-lateral missions, and national and international NGOs on ways to help re-establish police, judicial and corrections systems in Bunia;
c) Prepare a project proposal for MONUC and donor assistance to provide emergency support to the police, judicial and corrections systems in Bunia necessary to enable them to immediately restart/strengthen their operations;
d) Provide advice and support to MONUC and to relevant local authorities on police, judicial and corrections issues in Bunia, as these elements are essential for building confidence among the local population and for sustaining peace in the area; and
e) Prepare a report setting forth its findings, conclusions and any recommendations.”
(Code Cable from USG/DPKO to SRSG/MONUC of 3 July 2003 (no. 1852)).
ANNEX 3 CURRENT SITUATION OF THE POLICE, JUDICIAL AND CORRECTIONS SYSTEMS IN BUNIA
1. POLICE
1.1 Infrastructure
There are five police stations within Bunia including the police headquarters. Of these, the headquarters is located near the airport and includes a number of office spaces some containing minimal furniture, a large meeting room and four holding cells and toilets. It is in acceptable condition requiring only limited refurbishment (e.g., installation of lockable doors, window security grilles, reconnection of electricity and water, reconcreting of the floor of the holding cells). There are no security fixtures or equipment.
Three stations appear structurally sound and sufficiently intact to warrant refurbishment rather than demolition. Each requires reconnection of electricity and water, installation of security window grilles and lockable doors, repair of ceilings and some roof areas, and reconstruction of daytime holding cells.
A fifth station at Nyamkau (approximately two kilometers from the headquarters) is in extremely poor condition and will likely require demolition. The attached holding cells have been destroyed.
There was no evidence of either office or security equipment at any of the smaller stations.
1.2 Human Resources
Prior to 1997, 252 police officers were estimated to have been stationed in Bunia and a further 782 stationed in the District. These officers had been drawn from the gendarmerie, civil guard and military to create a national police service in 1997 and have not received training since this time. Of these former officers, 150 are currently in Bunia and are available for work. In addition, sixty to seventy former police from Bunia are understood to be in Beni and may be willing to return to Bunia and become available for work.
MONUC’s civilian police component is currently conducting initial testing of the 150 officers to assess literacy and policing knowledge. Indications to date are that standards of literacy are poor and applicants demonstrate a limited understanding of general police activities. This appears at least partly to be a consequence of the creation of the previous force from three different services, the absence of training since 1997, and lack of salary payments since July 1998. Uniforms were last issued in this district in 1997.
The former police command structure is comprised of the District Inspector (OIC) and Deputy supported by four branches – de Police Territoriale , Police Spéciale de Roulage (Traffic Unit), Police Spéciale de Renseignement et Surveillance (CID) and Police D’Intervention Rapide (Rapid Intervention Unit). The police were administered by the Ministry of Interior prior to the war.
1.3 Legal Framework
Décret Loi No 002/2002 of 26 January 2002, “Portant Institution, Organsation et Foncionnment de la Police Nationale Congolaise”, provides for the establishment and organization of the national police service. Décret No 042/2003 of 11 April 2002, “Instituant Le Port Des Grades Et Insignes Distictifs Au
Sein de La Police Nationale Congolaise”, establishes the command structure of the service, and Décret No 044/2002 of 11 April 2002, “Portant Restructuration Au Sein de la Police Nationale Congolaise”, provides for the appointment of a Chief of Police in each province.
2. JUDICIARY
The court system in Bunia has not operated since March 2003 and, as a result, there is no organ to provide judicial review if MONUC, the Interim Emergency Multinational Force (IEMF), or any other authority were to apprehend or detain criminal suspects. Even before the current crisis, the judiciary was said to be riddled with corruption and to lack public confidence. Many of those interviewed indicated that the corrupt judicial system was a significant factor contributing to – or even the main cause of – the war and violence in the Ituri District.
2.1 Infrastructure
The physical infrastructure of the tribunal – composed of the court building, a hut for temporary detention of prisoners while awaiting hearings, and offices of the judicial police – are in good condition. These structures will require some rehabilitation, such as paint and repairs to doors, windows and locks. Equipment will be quickly needed to support the work of the court and related offices.
2.2 Human Resources
The Prosecutors office, including prosecutors, judicial police, executors, and administrative staff are part of the executive power. They are appointed by the President of the Republic and function under the authority of the Ministry of Justice. Judges, registrars, process servers, and other court staff form part of the independent judicial power, with administrative links to the Ministry of Justice. Judges are appointed by the President of the Republic, after nomination by the Minister of Justice, at the recommendation of the High Council of Magistrates.
In March 2003, prior to the current crisis, the court was said to have functioned to some degree, but was subject to political and militia influence and corruption. Many of those interviewed cited a dysfunctional, biased, or corrupt judiciary as a root cause of the conflict. Judges, prosecutors and court staff are said to have been last paid in 1998.
While those judicial staff remaining in Bunia appear immediately ready to return to their functions and begin work if conditions of work are provided, careful consideration is required by relevant authorities of the DRC as to whether available staff are able to dispense justice in a fair and impartial fashion, or whether they are tainted by past corrupt practices, ethnic ties, and/or pressures from militia factions. The one prosecutor remaining in Bunia is said to have been appointed by a rebel group (this requires further verification). Other court staff may be in the same position.
The Chief Judge of the Court left Bunia for security reasons and now resides in Kinshasa, as do several other judicial staff members. He appears unwilling to return to his former post, and hopes for employment in Kinshasa. He indicates that other court staff that relocated to Kinshasa are well-settled and are unlikely to return to Bunia.
2.3 Legal Framework
The operation of the court system in Bunia, as elsewhere in the DRC, is governed by national legislation most of which was put in force during the time of Mobutu. Of particular relevance to the criminal justice
system are the Penal Code, Penal Procedure Code, Code on the Organization and Competency of the Judiciary, the Statute of Magistrates (Ordonnance-Loi No. 88-056 of 29.09.1988, J.O.R.Z. September 1988) as well as the new Transitional Constitution (promulgated on 4 April 2003).
2.4 Court Organization
The court system in the DRC is composed of: Tribunaux de Paix (Tribunals of Peace) with jurisdiction including for criminal offenses punishable by imprisonment of up to five years; Tribunaux de Grande Instance (Tribunals High Instance) which have jurisdiction including for criminal offenses punishable by five years imprisonment or more; Cours d’Appel (Courts of Appeal); and the Cour Suprême de Justice (Supreme Court of Justice). The Cour de Surêté de l’Etat (Court of State Security) has exclusive jurisdiction over specified infractions relating to state security. In addition, a separate court system handles military justice matters.
The Tribunaux de Grande Instance for the Ituri District is located in Bunia. According to the acting President of the court and court staff, legislation required that Tribunaux de Paix be established in each of seven regions of the Ituri District, but none of these were established. The Tribunaux de Grande Instance in Bunia assumed most of the regular functions of these seven lower instance courts, leaving the Tribunaux de Grande Instance in Bunia as the only formal court in a district of 4.6 million inhabitants.12 Appeals from the Tribunaux de Grande Instance are heard by the Cour d’Appel in Kisangani, capital of the Oriental Province. Appeals from the Cour d’Appel are to be heard in the Cour Suprême de Justice in Kinshasa.
3. PRISONS
3.1 Infrastructure
The official prison in Bunia used until March 2003, is in a state of severe decay. It is reported to have held up to 400 prisoners – assessed as approximately 60% overcrowded when accommodating this number. It is located in a residential area approximately one kilometre from the Cour De Grande Instance and is one of seven official prisons in Ituri. The prison is a simple design being rectangular in shape and is comprised of two sections – the smaller used for female prisoners and the larger for males including juveniles and military prisoners. The external walls of the accommodation areas and office spaces are part of the external wall of the prison. The female section is comprised of two dormitories, a food preparation area, two external toilets and external shower area. There is a small guard station at the front entry to the prison and a mud hut for use by external security officers, and two small concrete structures opposite the prison that have been used as storage facilities.
There are two entrances at the front of the larger section of the prison, one being the entrance to the administration area made up of four office spaces to which electricity has previously been connected and which does not have direct entry into the prison compound. The other is the main entrance to the prison and includes two office spaces, fifteen punishment cells, a room previously used as a dispensary and the sally port area leading directly into the prison compound. Any furniture, fittings, records or other equipment which may have been in this section have been removed.
12 The customary justice system in the DRC is referred to in existing legislation. Those interviewed indicated that these traditional tribunals handle matters of marriage, paternity, some minor offences, as well as matters of sorcery. The acting court president indicated that a traditional justice tribunal for Bunia handled some of the matters that would have been with the regular jurisdiction of the Tribunaux de Paix had it been established.
Inside the compound are six dormitories of varying size, six external showers with running water, a destroyed toilet, and food preparation areas. Internal compound lighting has never been installed. Assessed realistic capacity of five of these dormitories is 140 prisoners. Doors throughout the prison, both external and internal, are wooden and in poor condition, there are no security grilles on windows and, while the condition of the roof was unable to be properly determined, the decayed ceilings in a number of dormitories reveal that the ceilings provide no barrier to escape.
External lighting has never been provided, the surrounding area is overgrown, and there is no obvious indication of the prison boundaries. The closest residences are approximately fifty meters from the prison wall, and it is understood that approximately five acres of vacant land adjacent to the womens' section is prison property.
3.2 Human Resources
Eleven local staff are said to have been formally appointed by previous administrations as part of the national prison service within the Ministry of Interior and have made up the prison staff in the last few years, supplemented by national police who undertook external security duties and court escorts. While the status of this group under the Government of National Unity is unclear, it is evident that this group has expectations that their previous history be acknowledged at least for the purpose of consideration of future employment.
The staff advise that, with the exception of the Director and two Deputy Directors, they have not received training of any kind despite their lengthy service. The staff last received salaries in July 1998 and have not been provided with uniforms since the early 1990’s.
An organizational chart describing a management structure that provides for separation of work between prisoner management and prison administration responsibilities and clear chain of command was provided.
3.3 Legal Framework
An administrative instruction “Code Congolais de Procêdure Penale” governs the management of prisons, both military and civilian. While it could benefit from revision since its provisions fall short of those demanded by the relevant international instruments, it does provide for humane containment. Descriptions of prison practice indicate that it is the practice rather than the provisions of this instrument that have severely violated basic human rights and decency.
ANNEX 4 DETENTION AND REVIEW PROCESS
Temporary Detention Facility Under IIA Authority, Subject to National Judicial Review
1. Military personnel advise police headquarters that they have detained a suspect who may have committed a serious crime and request the local police, accompanied by MONUC civilian police, immediately to attend the scene.
2. Suspect is transported to Police Headquarters and the military authority provides whatever information and evidence they are able which may be relevant to the police investigation.
3. Local Police, in the company of MONUC civilian police: accept the suspect; review evidence and any information furnished by the military; formally arrest and detain the suspect in the holding cell or release.
4. Local police advise the judicial police of the detention and provide them with all reports and advise/handover all known evidence.
5. Evidence is secured in locked cupboard at police headquarters.
6. The detainee is transferred to the prison on the day of arrest and presented for review of continued detention to the prosecutor within 48 hours.
7. The detainee is released or further detained at the prison for up to five days while the alleged offence is investigated by the judicial police and presented to a judge for review. The review is conducted at the prison.
8. The detainee is released or remains in continued detention at the prison and subjected to review of detention at prescribed intervals in accordance with the national legislation each review being held at the prison.
ANNEX 5 CAPACITY OF MILITARY COMPONENT FOR EXTRAORDINARY PRE-TRIAL DETENTION AND REVIEW
Experience illustrates that a military component of a peacekeeping operation (“Military Component”) will likely observe individuals committing serious crimes against the peacekeeping operation, or committing serious criminal acts against inhabitants of the host country. The Military Component should be well equipped, depending on its mandate, to address such situations.
If there is a functioning local criminal justice system, any criminal suspect detained by the Military Component should be immediately transferred to appropriate local criminal justice authorities. The Military Component should generally be prepared to provide all evidence in its possession relating to the alleged criminal act (including testimony of its military staff) and should strive to do so in a form consistent with local procedure.
In the absence of a functioning criminal justice system in the area of operation, however, it may be necessary for the Military Component to consider developing its own system of pre-trial detention, until local justice mechanisms begin to function. It should be stressed, however, that the apprehension and pre- trial detention of individuals by a Military Component should only be considered: (1) when necessary to protect the peacekeeping operation or the public at large; (2) where consistent with the peacekeeping operation’s mandate; and (3) where consistent with agreements with TCCs. Those so detained should be afforded a full range of rights and protections that as closely as possible approximate the rights guaranteed under applicable international standards. Moreover, suspects detained through this process should ultimately be turned over to and processed by the local criminal justice system when functional.
Those developing the mandates for and deploying a Military Component should consider whether it would be necessary or appropriate to deploy and equip a Military Component with a capacity to detain criminal suspects. If this capacity is included in the mandate the mission should consider the following steps:
1. Deployment of a small complement of legal advisors (and perhaps military police) to work with the Military Component, to deal with criminal justice issues.
2. Approval and provision of materials for the construction and operation of a pre-trial detention facility consistent with relevant international standards as an interim measure.
3. Detention of individuals the Military Component encounters in the midst of committing a serious criminal act against the peacekeeping operation or against the civilian population, if the individual presents a threat to the peacekeeping operation or to the public at large.
4. A process for the review of detention, providing the suspect the procedural protections that most closely approximate the protections required under applicable international standards.
5. Handover to responsible law enforcement authorities of any suspects detained through this process, along with all evidence collected, as soon as the local criminal justice system begins to function.
ANNEX 6 RAPID RE-ESTABLISHMENT OF PRE-TRIAL DETENTION CAPACITY ADDITIONAL OPTIONS CONSIDERED
Arrest and Detention by the IEMF Subject to National Judicial Review
This option involves the IEMF arresting and managing the persons their forces detain. The legality and necessity of such detention would first be reviewed by the commanding officer at the site of arrest, and again reviewed by IEMF command, and then subject to review through the national judicial process using re-engaged existing judicial and prosecutorial staff from Bunia.
Comment: Based on the scope of its mandate, its limited duration, and human resource limitations, IEMF has indicated that it is not able to arrest and detain those who perpetrate crimes. This option is therefore not currently feasible.
Temporary Holding and Transfer to DRC Authorities in Another District
This option would involve the IEMF transferring persons it apprehends in the commission of a serious criminal act to another locality in the DRC with a functioning criminal justice system, such as, perhaps, Kisangani or Beni. Given logistical and transportation difficulties, suspects would likely need to be detained on a temporary basis of one or two days until transfer is effected. This would require establishment of temporary holding cells for this purpose, under IIA authority with strong international support.
Comment: MONUC leadership have indicated that the transfer option is currently not politically feasible, but could be re-considered as the DRC moves through the process of integration under the authority of the Government of National Unity. In addition, it is questionable whether the receiving court would have full jurisdiction to entertain the case.13
13 The Code de l’Organisation et de la Competence Judiciaire provides that DRC courts have jurisdiction over cases involving criminal acts committed within their territorial jurisdiction, criminal cases against a resident of their jurisdiction, or over cases involving suspects apprehended in their jurisdiction. See Code de l’Organisation et de la Competence Judiciaire, Article 104. The Code does not appear to specifically provide for the situation in which there is no functioning court in a given district.
ANNEX 7 PRISON CONCEPT OF OPERATIONS
1. OVERALL CONCEPT
Rehabilitation of the current facility to accommodate up to 140 male adult prisoners is proposed as the most expedient short-term approach despite the severe limitations presented by the current condition of the prison.
Prison staff would be responsible for the internal security and prisoner management functions and the Ituri Brigade or national authorities would support external security in the short term. At full occupancy, a complement of thirty-five to fifty staff would be required (including management and administrative staff).
A register of prisoners would be created, and only those prisoners for whom the court had issued a legitimate warrant would be accepted from the police or court officials. Basic medical services, water and food, fresh air, sanitation, and exercise opportunities would be provided. Torture and ill-treatment would end and efforts to work collaboratively with NGOs to support the prison would be undertaken. Regular visits by humanitarian and monitoring agencies would be encouraged.
Up to twenty-five staff members would be recruited from previous local prison staff and from other applicants identified through an open and transparent recruitment process implemented within the framework of the IIA. All applicants would be subject to a vetting procedure signed off by the IIA. All staff would be provided a five-day training programme to familiarize them with basic security and prisoner management policies and procedures and human rights issues and required to sign a code of conduct. This initial training would then be supported by ongoing on-the-job training.
Whilst this minima list approach only begins to address the issues contained in the international human rights standards applicable to prisons, it does address fundamental rights in providing for basic safety and security, food and medical care and ensuring that only those for whom a legal warrant for detention has been issued by the court are accommodated at the prison.
A fundamental premise of the prisoner management approach is that human rights are not a separate activity but rather are embodied in every aspect of prison and prisoner management.
2. FURTHER DETAILS
2.1 External Security
Discussion with the IEMF and MONUC representatives indicated that intermittent patrolling of the perimeter was consistent with the mandate then anticipated for the Ituri Brigade, and could likely be undertaken. External security should be enhanced through the extensive use of razor tape on the perimeter wall, effective and secure locking devices and vigilant staff. In the longer term, the IIA and national administration should determine whether armed police or prison staff should provide external security or whether reliance on physical infrastructure is adequate as the prisoner population grows.
2.2 Escort to Court
In the short term it is proposed that the ‘old dispensary’ located in the entrance to the prison be used as a court room for purposes of pre-trial detention hearings. This reduces the security risks inherent in the
transfer of prisoners to courts and reduces the need for prison transport in the short term.
2.3 Register
Prison staff would be required to create and maintain an accurate register of all prisoners and receive only those prisoners for whom a legitimate warrant has been issued.
2 4 Accommodation
Prisoners would be accommodated in dormitories – the number in any dormitory determined by the number of sleeping mats able to be laid side-by-side. They would be provided access to the main yard for at least four hours per day.
The dormitories would provide the first envelope of security by installing security mesh over the windows and in the ceiling, and installing a security grille at the entrance of each.
Prisoners can be provided equipment to paint and undertake non-security repairs to the prison under staff supervision.
2 5 Internal Courtyard
The open area of the prison is overgrown and, while a security check by staff prior to reception of the first prisoner would be necessary, the clearing and renovation of this area could be undertaken by prisoners.
2.6 Catering
The MONUC/Bunia Chief of Humanitarian Affairs and the WFP Program Coordinator indicate that it is feasible for the NGO currently funded by the WFP to provide IDPs emergency rations to also provide rations and water to the prison for a limited period subject to an agreement being developed with the WFP. A selected group of prisoners would then cook the food for all prisoners.
2.7 Medical Services and Health Issues
Discussion with the Medical Coordinator of Medec indicates that it would be feasible for Medec to provide additional funding to the nearest local health center to enable the regular attendance of a nurse at the prison and the provision of medical supplies. International standards provide for more extensive medical services than those able to be provided under this arrangement in the short term. However, it is envisaged that daily attendance to check any prisoner received in the previous forty-eight hours and those who are ill would be adequate in the short term. Police escort to the local health facility in the event of serious illness is proposed.
2. 8 Staff Management
Recruitment and Employment Conditions – development of a transparent, open and accountable recruitment process by the IIA assisted by an international prison advisor is proposed. Staff would work a standard week, on the national work arrangement if consistent with reasonable work standards.
2.9 Staff Training
Given the lack of prior training and the abuses of the system, all contracted prisons staff will require training prior to commencement of work. It is proposed that a short five-day training programme that
addresses basic prison security and prisoner management and human rights issues be developed and implemented by international staff. Experience in East Timor indicates that such a programme supported by on-the-job advice, training and support is adequate to enable start-up of a prison and that hands on training can be more effective than extended classroom instruction.
Penal Reform International and the International Centre for Prison Studies, Kings College London, both have human rights based prison management training and reference materials readily available in French.
It should be assumed that the initial training would be conducted at the prison in the prison dormitories prior to the reception of prisoners in the event other accommodation in Bunia is not available and subsequently in the larger office area which would double as a courtroom when required.
2.10 Accountability Mechanisms
It is proposed that a package of accountability measures be developed by the IIA with the assistance of the international prison advisor. This will include a Code of Conduct and disciplinary policy and procedures for local staff. Local prison management assisted by the international advisor should also develop a prisoner complaints system, rules for prisoner behaviour and disciplinary procedures for managing transgressions by prisoners.
It is proposed that the MONUC Human Rights Section undertake frequent monitoring of the prison as key element of the accountability platform.
ANNEX 8 PRISON INFRASTRUCTURE REHABILITATION AND EQUIPMENT NEEDS
1. PRISONER ACCOMMODATION
Rehabilitation of five of the six dormitories in the main section would provide accommodation in basic, not overcrowded, conditions for up to 140 prisoners. This would also enable separate management of differing groups as necessary, e.g., by ethnicity, legal status, infectious disease, behaviour, etc. This includes basic rendering of walls and strengthening of cracked areas, filling in of current sleeping trenches to create concrete slabs on which sleeping mattresses/mats could be placed, construction of a privacy screen in each dormitory to enable toileting, installation of security mesh (which does not excessively restrict flow of fresh air) across windows, fitting of security grilles to each dormitory entrance in lieu of a solid door, installation of security mesh in the ceilings of each dormitory, and the refitting of ceilings. Installation of lighting in the internal compound is desirable but not essential in the short term provided sufficient torches and batteries are made available.
2. PUNISHMENT CELLS
This section should be sealed off since it provides inhumane conditions, however, the realities of prisoner management demand some separation space as a management strategy. Therefore, as a staged short-term solution, the first section of five cells could be refurbished when capacity demands in reached in all five dormitories. The remainder of the punishment section should be sealed off or used only as storage space.
3. EXTERNAL AND OTHER SECURITY AND MAINTENANCE EQUIPMENT
Clearance of the vegetation within the prison grounds installation of razor tape around the external wall of the prison and dormitory roof areas and walls that are exterior walls of the dormitories, installation of secure external metal doors and security mesh to all external office windows. Security locks and keys, key chains, handcuffs and radio communications equipment to enable contact with police in the event of an emergency.
Secure transport vehicle adequate to meet the need to humanely contain prisoners for short distances at a later stage. (It is proposed that pre-trial hearings be conducted at the prison obviating the need for immediate transport and eliminating the security risk inherent in transfer of prisoners.)
Basic maintenance equipment to ensure prisoners and staff can attend to general maintenance issues – hammers, nails, hand saws, cement, sand, cutting instruments (for grass), etc.
4. OFFICE SPACES
Provision of basic office furniture – desks, chairs, filing cabinets, lockable cupboards, typewriter and basic office supplies, hard cover Prisoner Register and hard cover books for prison records, paper, pens, rulers, scissors, string, and cellotape. Provisio n of copies of the Prison Regulation for all staff and copies available for prisoners.
Training Equipment – desks/tables (10 – 12), chairs, blackboard, pens/chalk. (NB: Equipment needs assume that electricity supply is not available and that facilities for training are minimal).
5. CATERING
Cooking equipment, charcoal, plates and utensils commensurate with community practices.
6. MEDICAL AND HEALTH SERVICES
Bedding – blankets and straw mattresses/mats commensurate with community standard be provided from NGO servicing IDPs or funded by donor and sourced locally.
Sanitation and Washing Facilities – repair of these facilities for use by prisoners and staff. (ICRC has experience in providing these facilities in African prisons and may be able to offer assistance, but is not currently active in Bunia. This issue should be followed up in Kinshasa.)
7. OTHER
It is desirable but not essential to reconnect electricity. Generator and parts should be provided to support international staff activities if electricity is not reconnected.