Africa, Crime & Justice, Headlines, Human Rights

DEATH PENALTY: Congolese Minors Sit on Death Row

Anjan Sundaram

MBANDAKA, Apr 26 2006 (IPS) - In a dank dormitory lit only by shafts of sunlight from holes in the roof, a hundred Congolese prisoners lie silently on straw mats and soiled blankets, some of them waiting to die.

The prison in Mbandaka, a western provincial capital, is typical of the Democratic Republic of Congo (DRC). Half its prisoners were gravely ill when an IPS reporter visited in March, but there were no doctors or medicines. Forty prisoners told a reporter they suffered from diarrhea. The inmates defecated into an open metal bucket sitting in the corner. The stench permeated their crowded space.

Among the inmates languishing in prisons throughout Congo are at least ten children, some as young as 15 years old, condemned to death and waiting to be executed, according to a September 2005 letter from the United Nations to the Congolese government.

IPS was not allowed to visit them, but one prisoner documented by the U.N. is 15-year-old Mbeko Banza. A child soldier working with government troops, he was one of 33,000 children recruited and armed during Congo’s 1998-2002 war. In May 2005, a military court sentenced Banza to be executed for homicide, the U.N. letter said.

Minors like Banza sit on death row in DRC often because they cannot prove their age. More often, U.N. workers say, these children lack the funds to pay for adequate legal counsel.

Court-appointed lawyers frequently are too over-worked and under-paid to provide more than superficial service and Congolese judges preside over trials that may not provide a high level of justice, U.N. officials added.

“The trials are usually expeditious without respect for fair trial guarantees for the rights of the accused or victims. Some children condemned did not even have lawyers,” Daniela Baro, a U.N. lawyer investigating juvenile criminals on death row told IPS in an interview.

“Last year, someone was condemned to death in just one day.”

So far U.N. officials say they have gotten no concrete response from the government.

Congo’s new constitution, approved during the country’s first democratic vote in 40 years, in December 2005, enshrines human life as sacred, but it makes no mention of the death penalty.

Still, while Congo’s penal code allows for it under certain circumstances, it is illegal to condemn a person to death for crimes committed when they were younger than 18 years old.

But Congo’s crippled judiciary lacks qualified magistrates, funds and the infrastructure to carry out proper trials and protect witnesses in sensitive cases, such as those dealing with minors, U.N. workers said.

A corrupt 32-year dictatorship under Joseph Mobutu and Congo’s five-year war left the country’s infrastructure, including its judiciary, in shambles. Judges are now paid as little as 10 dollars a month and largely live off underhand payments in lucrative cases such as property disputes, many believe. Few magistrates bother to properly deal with cases involving impoverished minors, the U.N.officials added, because they are unlikely to be paid a tip for their services.

Still, it has been at least five years since anyone was executed in Congo, partly because of a moratorium on the death penalty imposed in 2003 and subsequently lifted in 2004. For minors sentenced to death, this means endless waits in Congo’s decrepit prisons – a de facto life imprisonment.

Though executions have not been carried out, people continue to be sentenced to death, mostly at Congo’s military tribunals. Judges at military courts, where most of Congo’s death penalties are handed out, rarely follow the penal code’s guidelines, observers said.

“Military justice is often unacceptably expeditious, even in condemning people to death,” Luc Henkinbrandt, a senior U.N. human rights official in Kinshasa told IPS.

Moreover, military courts are not even supposed to try minors because the law does not allow children to fight in the army. Still, in most cases magistrates rule that the defendants, especially those who are now adults, do not have adequate proof of age to show they were minors at the time they allegedly committed their offences.

Congolese, including children, rarely possess identity cards or proofs of age. For most citizens, a voter registration campaign in 2005 allowed them to obtain official identification for the first time in their lives.

“Some lawyers are not able to prove the child’s age by lack of resources to obtain alternative proofs of age and the judge then considers them as adults. This means they can impose the death penalty legally,” Baro, the U.N. official, said.

Children who served with armed groups during the war often have been separated from their families for years. Lawyers could travel to the native villages of the children to find evidence of their age, but that would often mean journeying hundreds of kilometres from court proceedings – something few are prepared to do.

The main problem abolitionists of the death penalty face in Congo, explains Henkinbrandt, is that war-weary Congolese public are eager to see their country’s criminals face justice. They believe the orchestrators of Congo’s gruesome massacres deserve poor trials, and that by and large they should die for it.

“Even if the death penalty is not carried out, the population is for expeditious justice and the death penalty sometimes. Abolition of the death penalty is not very popular among people,” Henkinbrandt said.

“Though abolitionist politicians have managed to stop executions, they don’t have the courage to go against clear public opinion and eliminate the death penalty,” he added.

Congo’s war killed nearly four million people, mostly from hunger and disease but also during numerous battles and politically-motivated massacres. Peace deals ended the war in 2002. A new a transitional government was formed that comprises former rebels and warlords, some of whom are said to have participated in the war’s worst killings. Dozens of militia leaders were not involved in the 2002 peace deals however, and they continue to rape, kill and recruit children even after the war ended.

Amnesty International said in a report this month that alarming numbers of children still were being enlisted by militia leaders in Congo’s restive east. Hiding in Congo’s forests beyond the reach of military, these warlords fear harsh reprisals for crimes such as killing civilians, torture, and enslaving children as concubines, porters or soldiers.

Efforts by the 17,000-strong United Nations peacekeeping mission in Congo, the world’s largest, and ill-trained government troops, have managed to rope in some lawless militants like Thomas Lubanga, a former eastern warlord in Congo’s conflicted Ituri territory.

Lubanga is now in The Hague as the International Criminal Court’s (ICC) first case, to be tried for charges including the recruitment of children as soldiers. The maximum sentence allowed at the world’s criminal court is life imprisonment.

Lubanga, therefore, will not face the death penalty if he is found guilty. Most of Lubanga’s wartime accomplices however, including children recruited to fight alongside him, remain in Congo. Tragically, they could face execution.

Some Congolese believe Lubanga has escaped true justice.

“Lubanga is one of Congo’s worst criminals, he is one of the most dangerous people, but because he went to The Hague he will not face the death penalty. That is a shame,” said Ken Ilunga, a 28-year-old computer technician in Congo’s capital, Kinshasa. “But children should not face the death penalty. After all, they were young and only obeyed orders.”

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