Democratic Republic of Congo: mobile

courts
With a judicial system that is often far away, temporary courts
bring law to outlying areas, even if they do not meet the highest
standards

Swift justice
Nick Branson

O
ver the past two decades, a series of interconnected conflicts has
blighted the Democratic Republic of Congo (DRC), with a dispro-
portionate impact on women and girls. Combatants from myriad
rebel groups and the Congolese armed forces have used rape as a weapon
of war.
While it is nearly impossible to obtain credible statistics on the number
of victims, several reports have recorded a pattern of sexual and gender-
based violence that has been inflicted on women and girls. Despite nu-
merous peace deals, instability continues to affect the country’s eastern
provinces of North Kivu, South Kivu and Maniema.
Victims of sexual violence often cannot pursue justice against the alleged
culprits because attorneys and courts are many miles away in the DRC’s
provincial capitals. However, since 2004 international organisations have
harnessed an ambiguity in the country’s 1960 constitution to organise mo-
bile courts (audiences foraines) to hear civil and military cases.
Under the mobile courts programme, international donors, such as
Avocats Sans Frontières (Lawyers without Borders) and the American Bar
Association-Rule of Law Initiative (ABA-ROLI), fund the travel of Congo-
lese prosecutors and judges from provincial capitals to remote areas, giv-
ing poor women and girls a chance at justice.
Teams of attorneys help state prosecutors to investigate these crimes.
They interview victims, suspects and witnesses, collect evidence and issue
summonses. The donors fund the legal aid providers, who supply attor-
neys to defend the accused. With the assistance of a registrar and bailiff,

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Swift justice

three judges then hear the case in a temporary court, ideally in a town hall
but often under a tent, in plain view of hundreds of onlookers from sur-
rounding villages.
These low-tech tribunals sit in stark contrast with those heard by the
International Criminal Court (ICC), which has prosecuted several Congo-
lese rebel leaders since the Rome Statute entered into force in July 2002.
In August 2015, the ICC began hearing the case of Bosco Ntaganda at its
seat in The Hague. Following clamours from legal experts and civil society
groups to bring proceedings closer to victims, ICC judges assigned to the
Ntaganda case recommended holding the trial’s opening statements in Bu-
nia in Orientale Province, where the crimes were committed.
Unfortunately, they were over-ruled by the court’s presidency, which
cited concerns regarding potential trauma, security and high costs, and
concluded that the benefits did not outweigh the risks. ICC judges and civil
society plan to call 88 witnesses, so Mr Ntaganda may not be sentenced
until the end of the decade. His compatriots, Thomas Lubanga and Ger-
main Katanga, spent between six and seven years in custody before they
were convicted.
In comparison, lawyers in the eastern DRC move very quickly. On Feb-
ruary 21st 2011, a mobile court in Baraka, South Kivu, prosecuted a local
commander and eight of his subordinates for rapes committed the previ-
ous New Year’s Day in nearby Fizi. Lieutenant-Colonel Kibibi Mutware
became the highest-ranking Congolese military officer to stand trial. His
conviction within eight weeks of the crimes (at a time when the ICC had yet
to issue its first judgement) signalled an end to impunity for local soldiers.
“The untouchable has been touched,” said Thérèse Kulungu, the lawyer
who represented the 49 victims.
Under the DRC’s monist legal system, international treaties ratified by
the government are immediately incorporated into national law. Mrs Ku-
lungu took advantage of this structure and applied the Rome Statute and
other human rights conventions directly in Congolese courts.
At roughly $4,000 per case, according to the ABA-ROLI, mobile courts
compare favourably with the remote, slow and expensive ICC. Itinerant
tribunals hear cases close to where the crimes were committed, making it
possible for poor Congolese women and girls to testify, seek redress and
restore their dignity in front of their communities. Successful convictions
send a message that justice can be done, and potentially deter further

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 Swift justice

rapes and violence.

The programme, however, has its limitations. The mobile courts hear
about 20 cases in a village during an average two-week period. This means
judges spend less time deliber-
ating than their counterparts 3,635 victims of sexual violence, 2010-2013
in the provincial capitals. The
2,648
roving tribunals also report women
much higher conviction rates
than their brick-and-mortar
equivalents, leading to ac- 908
children
cusations of rushed justice.
“Judges face a moral obliga-
tion to convict” because in- 81
ternational donors are paying men

for their services, Nynke Dou-

Source: UN
ma and Dorothea Hilhorst,
researchers at Wageningen University in the Netherlands, argue in a
2012 paper.
It is difficult, however, to compare the two court systems. When on
the road, prosecutors select and thoroughly investigate a few highly cred-
ible cases, whereas in the provincial capitals of Bukavu, Goma and Kindu,
prosecutors may pursue numerous cases but fail to accumulate sufficient
evidence to obtain a conviction. If a verdict is dubious, donors encour-
age the lawyers to appeal rather than to question the competence or in-
dependence of the judges, explains Charles-Guy Makongo, ABA-ROLI
country director.
Mobile courts remain “a work in progress”, writes former acting New
York Supreme Court Judge Mary McGowan Davis in a 2012 evaluation.
They “cannot be expected to meet stringent international due process
standards immediately given the significant constraints under which
they operate”.
Another concern is that Congolese military courts cannot prosecute the
most senior generals because the presiding judge must hold a superior
rank to the accused. The Congolese armed forces are extremely top-heavy
as a result of successive peace deals that included integrating rebel leaders
into the army. This means the “big fish” will escape prosecution, argues
Pascale Kambale, an international human rights lawyer with the Open

December 2015 / January 2016 13

Swift justice

Society Foundations.
But this could be improved if the judicial services commission, rather
than the military command, nominated judges. This would depoliticise the
process and enable the most capable judges to serve across Congolese ter-
ritory, regardless of the officers posted to their jurisdiction. Of course, the
military might resist such an attempt for the civilian legal system to en-
croach on its independence, but this approach remains the only prospect
of addressing impunity.
Justice may be closer and quicker, but victims are rarely compensated.
International donors only fund the trial phase, and lawyers have little in-
centive to pursue reparations given the complexity of the system. For in-
stance in the Baraka case, the judges ordered the payment of $10,000 to
each of the 49 plaintiffs.
The Congolese state argues it lacks the resources to pay compensation
when found liable for the actions of army soldiers on duty. In some in-
stances, convicted criminals have escaped from prison. The frequency of
jailbreaks in the DRC raises fears of reprisals from the convicted soldiers.
Moreover, the future of the mobile courts remains uncertain as long as
they depend on international goodwill. Supporters of the courts argue that
they were never designed to be permanent but rather to provide a tempo-
rary solution to an epidemic of sexual and gender violence. As the conflict
dissipates and security improves, the programmes may be phased out.
Before they are disbanded, the Congolese should consider what lessons
to apply as Joseph Kabila, the president, moves to reconfigure regional
government by replacing the DRC’s 11 provinces with 26 new ones. North
Kivu, South Kivu and Maniema provinces will be spared the axe, having
been one region until 1988. But in the rest of the country, a renewed gov-
ernment mandate provides an opportunity to revisit services the new pro-
vincial capitals should provide. Mobile courts might be one way to restore
faith in the role of the Congolese state.

14 AFRICA IN FACT | ISSUE 35