COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF THE DEMOCRATIC REPUBLIC OF THE CONGO

The Committee on the Elimination of Racial Discrimination has considered the eleventh to fifteenth combined periodic reports of the Democratic Republic of the Congo on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Presenting the report, Eugène Lokwa Ilwaloma, Minister for Human Rights of the Democratic Republic of the Congo, said that, as everyone knew, the Democratic Republic of the Congo was a post-conflict country, one which had endured recurring conflicts over the past decade that had given rise to massive and flagrant violations of human rights and fundamental freedoms, as well as of international humanitarian law. To put an end to that tragic situation, the Congolese people had embarked on negotiations leading to the setting up of a Transitional Government. That Government had held free, transparent and democratic elections that had led to the establishment of new political institutions in which human rights and fundamental freedoms had pride of place. The inter-ethnic and tribal conflicts mentioned in the report had eased notably, particularly in Ituri, following the surrendering to the International Criminal Court of Thomas Lubanga, one of the warlords, and the implementation of phase III of the national programme for disarmament, demobilization and reinsertion. However, the security situation in the east of the country remained worrisome, in particular in the provinces of North and South Kivu, where clashes between armed groups had led to population displacements of some 700,000 persons fleeing the human rights violations being perpetrated by such groups.

In preliminary concluding observations, Fatima-Binta Victoria Dah, the Committee Expert serving as country Rapporteur for the report of the Democratic Republic of the Congo, noted that the interactive dialogue – which had been wide-ranging and frank – had been largely positive. The Committee looked forward to the continuing entrenchment of peace and stability in the Democratic Republic of the Congo, in particular through a continuing commitment to human rights.

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, details about the reinstatement of the Human Rights Monitor, and what were the specific provisions for it in the new Constitution; the contradiction between statements that the Constitution did not recognize minorities, on the one hand, and that minorities were protected, and that special measures could be envisaged to assist them, on the other; statistics on representation of minorities in public life and government spheres; information on the varying levels of development and access to services of the various minorities in the country; reports of human trafficking; and whether the Pygmies had been compensated for the land concession rights granted to the forestland that traditionally belonged to them. Numerous concerns were voiced by Experts about the situation of the Pygmies, including reports of evictions, substandard living conditions, lack of access to services, including healthcare, and a fear that their very existence was threatened if measures were not taken to address their situation. In particular, Experts were eager to know if Pygmies were regarded as indigenous peoples by the Government, and accorded special measures.

The delegation of the Democratic Republic of the Congo also included the Director of the Cabinet, Basile Olela-Okondji, a member of the Interministerial Committee for the Preparation of Periodic Reports, and other Government representatives.

The Committee will present its written observations and recommendations on the eleventh to fifteenth combined periodic reports of the Democratic Republic of the Congo, which were presented in one document, at the end of its session, which concludes on 18 August.

When the Committee next reconvenes in public, at 3 p.m., on Wednesday, 8 August, it is scheduled to take up the combined initial to third periodic reports of Indonesia (CERD/C/IDN/3).

Report of the Democratic Republic of the Congo

The Democratic Republic of the Congo pursues a policy of integrating all the racial groups into the life of the nation, in particular through recruitment into the administration and participation in public life. The combined eleventh to fifteenth periodic reports of the Democratic Republic of the Congo (CERD/C/COD/15) says this political commitment was reaffirmed by the participants in the Inter-Congolese Dialogue, who adopted a resolution on the protection of minorities in April 2002, which, among other provisions, envisaged temporary incentives to accelerate and promote the equality of communities, particularly the most backward or disadvantaged. Article 14 of the transitional Constitution provides that “all ethnic groups and nationalities whose persons and territory constitute what on independence became the Congo (now the Democratic Republic of the Congo) should benefit from equality of rights and protection under the law as citizens". Article 13 of the Constitution provides that no Congolese might, with regard to education or access to public service, or in any other matter, be subject to discrimination on the grounds of religion, sex, family origin, social status, race, ethnic group, tribe or cultural or linguistic minority, among others. And Article 66 provides that “all Congolese have the duty to respect and treat their fellow citizens without any discrimination whatsoever and to maintain relations with them that safeguard, promote and strengthen national unity and mutual respect and tolerance”.

As to tribal and ethnic conflicts, ethnic conflicts in Ituri alone have caused the deaths of over 20,000 people, and some 500,000 have been displaced. Among the root causes of were the traditional rivalry between the Hema and Lendu ethnic groups, the ideology of xenophobia and ethnic hatred, the problem of land distribution, existential fears linked to the dread of extermination of one community by another, and manipulation by politicians. To arrive at a lasting solution, the President convened a peace conference in Kinshasa in 2002. Several paths to peace were outlined as a result, including the establishment of an international criminal court to try all offences committed before the setting up of the International Criminal Court. Regarding the conflict in Nord- and Sud-Kivu, there were serious clashes in June 2004 in Sud-Kivu and Kamanyola between the Congolese armed forces and the forces of Colonel Mutebutsi and General Nkunda, on the pretext of protecting the Banyamulenge community from extermination. At the root of this conflict were claims to Congolese nationality from Tutsis living along the Congolese border. The bulk of these persons obtained Congolese nationality thanks to a 1972 law on Zairian nationality, and lost it under a June 1981 law, as well as decree-law No. 197 of June 1999 which set out that persons descended from tribes that had settled on the territory by 1885 were Congolese by birth. In the light of this decree-law, the groups of Rwandese origin, known as Banyamulenge, could not claim Congolese nationality, as they arrived in the Congo after 1885. This led to the adoption of a new law on Congolese nationality, enacted on 12 November 2004.

To enable the Congolese people to exercise their right to culture without discrimination, a decree of 16 September 2005 assigns the following tasks to the Ministry of Culture: promotion and development of cultural and artistic activities; protection of sites, monuments and the cultural and artistic heritage of the nation; management of bilateral and multilateral cultural relations; and management of archives, national libraries and national museums, among others. Aside from education and instruction, the purpose of which is the harmonious moulding of the Congolese personality, its cultural policy consists of promoting and preserving the cultural identity of each of the country’s tribes and ethnic groups, and preserving their languages.

Presentation of Report

EUGÈNE LOKWA ILWALOMA, Minister for Human Rights of the Democratic Republic of the Congo, said that, as everyone knew, the Democratic Republic of the Congo was a post-conflict country, one which had endured recurring conflicts over the past decade that had given rise to massive and flagrant violations of human rights and fundamental freedoms, as well as of international humanitarian law. To put an end to that tragic situation, the Congolese people had embarked on negotiations leading to the setting up of a Transitional Government. That Government had held free, transparent and democratic elections that had led to the establishment of new political institutions in which human rights and fundamental freedoms had pride of place.

Here, Mr. Lokwa Ilwaloma recalled that, at his investiture speech, President Joseph Kabila Kabange had declared respect for human rights, along with democracy and good governance, to be one of the three pillars of the administration of any modern State.

The new, post-election political and institutional configuration had established a climate that would be favourable to a declaration under Article 14 of the Convention, recognizing the Committee's competence to hear communications from individuals claiming that their rights under the Convention had been violated, Mr. Lokwa Ilwaloma noted.

Turning to the country information provided in the first section of the report, Mr. Lokwa Ilwaloma said that, in 2003, the population of the Democratic Republic of the Congo was estimated at some 60 million inhabitants, divided into over 450 tribes, which could be classified in major groups: the Luba or Baluba (18 per cent); the Kongo (15 per cent); the Mongo (13.5 per cent); the Zande (6.1 per cent); the Mangbetu, the Hema, the Lendu and the Alur (3.8 per cent); and the Pygmies (less than 0.5 per cent). As for languages, aside from the official language – French – four national languages were spoken: Swahili (40 per cent); Lingala (27.5 per cent); Kikongo (17 cent); and Chiluba (15 per cent).

The economic situation of the country had deteriorated considerably, Mr. Lokwa Ilwaloma observed, owing to, on the one hand, a breakdown in bilateral and multilateral cooperation assistance which seriously afflicted the country in the beginning of the 1990s and, on the other hand, the wars that the Democratic Republic of the Congo had known over the past decade. It should be noted, however, that there had been a significant improvement in that situation since 2001. That trend was gaining ground following the holding of transparent, free and fair elections last year.

Concerning the legal framework for human rights guarantees, the Democratic Republic of the Congo had ratified 16 international and four regional human rights instruments.

The Ministry for Human Rights was the Government structure that advised the Government in the field of the promotion and protection of human rights, Mr. Lokwa Ilwaloma said. Together with the Ministry of Human Rights, during the transition there had been a National Human Rights Monitor, an independent public institution mandated to hear complaints of human rights violations and competent to promote and protect human rights. That institution had been dissolved following the end of the transitional Government, but work was being undertaken to reinstate it, in accordance with the provisions of the new Constitution.

Concerning the issue of nationality, the Democratic Republic of the Congo had promulgated a new nationality law on 12 November 2004, which integrated modern norms and international law concerning nationality, in particular the Convention on the Reduction of Statelessness, in order to avoid a return to certain situations that had been dealt with in numerous previous laws on the subject, in particular the laws that did not allow groups that had arrived in the Congo after 1885 to be considered nationals. In that context, the inter-ethnic and tribal conflicts mentioned in the report had eased notably, particularly in Ituri, following the surrendering to the International Criminal Court of Thomas Lubanga, one of the warlords, and the implementation of phase III of the national programme for disarmament, demobilization and reinsertion. However, the security situation in the east of the country remained worrisome, in particular in the provinces of North and South Kivu, where clashes between armed groups had led to population displacements of some 700,000 persons fleeing the human rights violations being perpetrated by such groups.

Turning to statistics, Mr. Lokwa Ilwaloma said that the Constitution did not recognize minority groups, enshrining as it did the principle of equality of all Congolese before the law and a formal prohibition against discrimination in any form.

There was almost no jurisprudence on the topic of racial discrimination that had been developed by the courts of the Democratic Republic of the Congo, Mr. Lokwa Ilwaloma observed. That was owing to the fact that complaints of discrimination before the courts were rare.

As far as the exclusivity of nationality was concerned, it was important to note that, with reference to the law of 12 November 2004 on Congolese nationality and article 10 of the Constitution, that the unity and exclusivity of Congolese nationality was justified by the necessity to ensure the allegiance of the citizens to the State and the legitimate concern to ensure that a dual citizenship holder did not sacrifice the interests of the Congo by that dual citizenship, Mr. Lokwa Ilwaloma said. By virtue of articles 12 and 13 of the Constitution, which enshrined and guaranteed equality to all Congolese before the law and the principle of non-discrimination, the Democratic Republic of the Congo did not recognize distinct rights of separate categories of citizens.

With regard to the land issue, which was an important one, it should be noted that all the constitutions of the country since 1967 had declared that the soil and subsoil of the country was the exclusive property of the State and could only be subject to concessions as set out by law. The Constitution of 18 February 2006 was no exception.

Turning to the early warning and urgent action procedure case brought by non-governmental organizations concerning the situation of indigenous peoples in the Democratic Republic of the Congo, Mr. Lokwa Ilwaloma recalled that all the land in the country belonged to the State. Nevertheless, the right of peoples to use of that land was recognized. It was a question of land that had been lived on, cultivated or exploited by them according to custom and local usage. Contrary to what had been stated by the various non-governmental organizations in their complaint, the land law, in cases of asking for concession grants, first required an inquiry into the nature and extent of claims on the land by third parties, with a view to their compensation. According to the law, only after such payment or indemnity was made could the land be considered free and unencumbered.

As for the forest moratorium decreed in 2002, Mr. Lokwa Ilwaloma said it was worth noting that it had been extended by decree in 2005, setting out the methods by which conversion of old forest titles into forest concessions and continuing the moratorium on granting of forest concessions. However, despite that moratorium, forest exploitation had continued apace, to the detriment of local populations. The reason for that was that, during the war, the Government in Kinshasa had lost effective control over a large part of the national territory. The moratorium had not been in force in areas under rebel control. It was for that reason that, since the reunification of the country, the Government had decided to convert all former forestry titles to forestry concession contracts, which had meant that all new contracts were suspended during the moratorium. It was in that context that the Minister of Environment, by his decision of 13 June 2007, had annulled 12 titles accorded to companies which had not requested title conversions, as well as 9 other titles that had been awarded following the 24 October 2005 decree extending the moratorium. Those measures had allowed the State to recover some 3 million hectares of forestland.

Oral Questions Raised by the Rapporteur and Experts

FATIMA-BINTA VICTORIA DAH, the Committee Expert serving as country Rapporteur for the report of the Democratic Republic of the Congo, noted that the report had been rather incomplete, and could have included more of the information relevant to the new Constitution promulgated in 2006, which had so greatly changed the human rights landscape in the country. The Democratic Republic of the Congo had just passed through one of the most difficult periods in its history. While peace had not returned to all areas, the worst years were behind them and the return of the rule of law was a reality for its inhabitants.

The natural resources available to the Democratic Republic of the Congo would entitle it to be called one of the richest countries in the world. Unfortunately, owing to a lack of infrastructure, that was not the case today. It was clear that the Democratic Republic of the Congo was engaged in a long-term effort, the results of which the Committee might hope to see in the next periodic report, Ms. Dah commented.

Ms. Dah, noting that much geographical, demographic and political information had been included in the report, stated that a country presentation, or core document, had never been submitted, and she wondered if one would be forthcoming. She would also appreciate further information on how the report had been drafted. In that connection, it was to be regretted that non-governmental organizations had not been involved.

What was the scope of the Convention and its implementation, Ms. Dah wondered. Noting that there were some 450 groups, in particular, the report's comment that the major groups each lived in particular regions, she drew the conclusion that there were indeed "minorities" in the Democratic Republic of the Congo, even if the Constitution did not recognize them. Also, she wondered if the breakdown given in the report meant that no ethnic groups, in particular, the Pygmies, were considered to be indigenous.

Furthermore, how did the Government ensure that the cultures and languages of those groups enumerated in the report were preserved? Ms. Dah asked. In that context, the need for a census was critical. Estimates from other sources showed the pygmy population to be much larger than in the report, for example, as much as 10,000 or 20,000.

Applauding the frank coverage in the report on the situations of ethnic conflict in Ituri, South and North Kivu, Ms. Dah said the situation bore still further scrutiny, and she would appreciate any extra information on that subject. As far as the criminal court that had been set up, and the expressed intention to prosecute all perpetrators of crimes in the context of the inter-ethnic conflicts, did that extend to all violators? In particular, she was concerned about sexual violence that women had been subjected to, as they were often the victims of multiple acts of discrimination.

Concerning the statement that there were very few cases of racial discrimination coming before the courts, Ms. Dah wondered if that was owing to a number of factors other than a lack of discrimination, including a lack of dissemination of the Convention's provisions, a lack of awareness of what recourse there was for such violations, and fear of reprisal.

As to the exclusivity of citizenship in the Democratic Republic of the Congo, that could give rise to discrimination against groups like the Hutus, who lived in the border areas.

Ms. Dah was also concerned about the Pygmy population, in particular because of their isolation. How did the Government ensure that they had access to health care, as well as their rights to preserve their language and culture, for example. As for land, she noted the statement that the Government had the absolute right to the land in the Democratic Republic of the Congo. In that connection, was the Pygmy land registered, and was their right to collective land tenure recognized? Was the Government considering imposing a moratorium on the use of forestlands until it set up a mechanism for consulting Pygmies on the use of that land?

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, more details about the reinstatement of the Human Rights Monitor, and what were the specific provisions for it in the new Constitution; the contradiction between statements that the Constitution did not recognize minorities, on the one hand, and that minorities were protected, and that special measures could be envisaged to assist them, on the other; statistics on representation of minorities in public life and government spheres; information on the varying levels of development and access to services of the various minorities in the country; reports of human trafficking, which an Expert noted was essentially modern day slavery; whether the Pygmies had been compensated for the land concession rights granted to the forestland that traditionally belonged to them, and examples of surveys undertaken to assess the Pygmies rights to the land. An Expert was particularly concerned by reports that, following evictions of Pygmies, and other indigenous groups, from their lands, they were living in substandard and slavelike conditions. He was further concerned that a prohibition against tribal political parties could be used against groups of indigenous peoples who wished to vindicate their rights. An Expert was particularly concerned, with regards to the Pygmies, at the lack of a well thought out resettlement policy. An Expert noted that for the Pygmies, who were hunter-gatherers, and whose whole lifestyle was under threat by the modern world, their lands had not just a greater importance in maintaining their lifestyle, but, indeed, in maintaining their identity.

Response by Delegation to Oral Questions

Responding to questions, EUGÈNE LOKWA ILWALOMA, Minister for Human Rights of the Democratic Republic of the Congo, said that, as to comments that the report had included country information that should have been contained in a core document, that a core document had now been completed and would be sent to the Committee upon the delegation's return. Future periodic reports would therefore no longer contain general country information.

As to the working methods of the Interministerial Technical Committee charged with drafting periodic reports, that Committee was composed of 35 members representing the 17 Government ministries that had a direct or indirect connection to human rights. The reports are drafted in subcommittees, and then submitted to the plenary of the Committee for comment and amendment. At that stage, the draft is sent to non-governmental organizations, whose written opinions and recommendations are solicited, Mr. Lokwa Ilwaloma said. Finally a second plenary is convoked, to which non-governmental organizations are invited to make oral interventions, after which the final draft is adopted definitely, as amended.

In that connection, with regard to the non-participation of non-governmental organizations in the drafting of the present report, in the case of this particular report, contrary to usual practice, none of the non-governmental organizations invited had accepted the invitation to do so, Mr. Lokwa Ilwaloma pointed out.

The term minority was reflected in the Constitution, Mr. Lokwa Ilwaloma confirmed. It referred to those ethnic groups that were not large in number, as was the case of the Pygmies who accounted for only 0.5 per cent of the population. In other words, when the Government talked about minorities, that was a reference to numerical terms. Some tribes accounted for 18 per cent or 15 per cent of the population, whereas the Pygmies were only 0.5 per cent, so the Pygmies were clearly a numerical minority.

It was true that certain international instruments recognized the Pygmies as an indigenous people, Mr. Lokwa Ilwaloma conceded. However, it should be noted that in the Democratic Republic of the Congo, as elsewhere in Africa, the concept of indigenous people was a highly volatile one. In Africa indigenous people were considered to be those peoples who had been on the continent before the arrival of the colonisers. And it appeared that one Committee member had accepted that position. What did indigenous really mean in Africa? Indigenous compared to what? And if one group was identified as indigenous, who then were the other people?

On the question of frontiers, and land ownership, community ownership of land and subsoil was not a concept that existed, Mr. Lokwa Ilwaloma reiterated. The State exclusively owned the land and the subsoil, and those who used it could only be acknowledged as individual users. No tribe could claim a part of the land or subsoil, as that was simply not a viable concept in their legislation.

In terms of education, the Government had recently taken measures to ensure that primary education was provided free to all children, without exception, Mr. Lokwa Ilwaloma stressed.

On penalties or sanctions for hate speech, in the context of the last elections, the candidates who had made discriminatory statements about their opponents had been sanctioned by the High Media Authority. Those candidates had been temporarily barred from broadcasting in the media, and a temporary ban had been imposed on the media outlets that had broadcast those statements. As far as he knew, no legal proceedings had been taken against those candidates, Mr. Lokwa Ilwaloma said. In that connection, it was worth observing that one saw all sorts of things in an election, even here in Europe.

In terms of measures to reduce poverty, the Government had developed a Poverty Reduction Strategy Paper, and the programmes it established applied to all Congolese without discrimination.

As to languages, there were absolutely no restrictions imposed on the use of one's mother tongue, with some 250 dialects or languages in the country. There was total freedom in this area, Mr. Lokwa Ilwaloma insisted.

Regarding the division of the country into 11 provinces, and further into districts, as set out in the Constitution, that had not been done with considerations of tribe or ethnicity in mind, but was simply an administrative division, to allow for the proper government of the various areas of the country, Mr. Lokwa Ilwaloma explained.

The situation in North and South Kivu was still quite disturbing, Mr. Lokwa Ilwaloma said. The Government was looking to make peace between the two factions, sending an assessment mission to the area in preparation for a meeting of the leaders of all the factions in that area.

Nationality was one and exclusive in the Democratic Republic of the Congo, the Minister emphasized. As for the Banyamulenge and the Banyarwanda, the Intercongelese Dialgoue and the law of 12 November 2004 had resolved that issue. There was no nationality issue as far as those groups were concerned. The present trend now was to accept the fact that some people had several nationalities, that might be something that the Democratic Republic of the Congo could look at in the future.

Turning to the question of the National Human Rights Monitor, it was one of the five institutions referred to as "democracy support bodies" established under the Transitional Constitution. The new Constitution envisaged the setting up of that same "democracy support" structure. In accordance with that provision, there was a draft bill to establish a National Human Rights Commission, in conformity with the Paris Principles, Mr. Lokwa Ilwaloma said.

With regard to nomenclature of the Pygmies, in the Democratic Republic of the Congo they were called Batwa or Bambute, depending on where they lived. Those in the east were Bambute, and those in equatorial province the Batwa.

Further Oral Questions Posed by Experts

An Expert noted that the concept of multiculturalism had to change from country to country. He acknowledged that perhaps it was difficult to identify who was and was not indigenous in the Democratic Republic of the Congo, and that there were special historical considerations that made it particularly important for the Government to try not to separate out the various ethnic groups in the country for differentiated treatment. However, that did not mean that things such as special measures were not a good thing in other contexts, and in other countries.

An Expert noted, with regard to the impact of the mining and logging on certain indigenous areas, that the World Bank had undertaken a study on that topic in February 2007. Had the delegation been made aware of the results of that study, and had they formulated any measures in that regard?

An Expert wondered if any groups had come into conflict with the State over the land law, and had challenged the Government's position that it alone had ownership of all the land in the country?

Replies by the Delegation

Responding to those questions and others, turning to the issue of the law against tribal political parties, Mr. Lokwa Ilwaloma noted that the raison d'être for that law was to broaden the platform of political parties so that they were necessarily national, and to prevent tribalism and regionalism. Another member of the delegation noted the need to strike the balance between the need to guarantee freedom of association and freedom of political expression, and the need to ensure that political groups did not become split down ethnic lines.

On the issue of forests, the delegation said that this was indeed a complex question. For example, under international agreements, certain animal species were required to be protected, while those same animals were ones that the local population traditionally ate. Also, only a small percent of the country was on the electricity grid; the rest used firewood. If the Government were to ask those people not to use firewood, another solution would have to be found. Those were some of the kinds of dilemmas the Government faced in managing these areas. As to concessions to forestland, the law equally provided for the local population to apply for concessions to use the land traditionally occupied by their ancestors.

Preliminary Concluding Observations

In preliminary concluding observations, FATIMA-BINTA VICTORIA DAH, the Committee Expert serving as country Rapporteur for the report of the Democratic Republic of the Congo, noted that the interactive dialogue – which had been wide-ranging and frank – had been largely positive. She did not wish to put forward any proposals for conclusions at this stage. The Committee's concluding observations would be useful for the Democratic Republic of the Congo, not just to overcome difficult situations at present, but as a basis for future progress and action. The Committee looked forward to the continuing entrenchment of peace and stability in the Democratic Republic of the Congo, in particular through a continuing commitment to human rights.

For use of the information media; not an official record

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