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IV.       Obstacles linked to security conditions

Security in Ituri is still very precarious.  The program was based on the assumption that the security situation would gradually improve and allow the judicial system to function normally.  That has not been the case.  Security was mentioned by the judges as one of the most serious obstacles they face.  “The judges are uneasy,” the prosecutor told the press, adding that he had received threats himself.²²

The judges recently criticized the poor security conditions in Bunia in a joint memorandum handed to the Réseau Citoyens Network (RCN) on May 22, 2004.²³  The memorandum points out that the judges and judicial personnel “are working in a total psychosis relating to the numerous threats to their physical integrity, made against them by extremists on all sides, formerly active members of the various armed groups, several of whose leaders are under arrest, awaiting judgement as the instigators or perpetrators of the orchestrated massacres in the District [of Ituri].”²⁴

• A wide impunity gap

In Bunia, the presence of MONUC has contributed to improving a dire security situation.  It has had a substantial deterrent effect on the armed groups, which were not disarmed.  Patrols are organized regularly in some quarters of the town to reassure the population.  Outside the town, however, the situation is less rosy.  MONUC's control is limited to the immediate outskirts of the town of Bunia and a number of larger towns in the interior, leaving entire areas of the Ituri district to the control of armed groups.  MONUC’s control over the town of Bunia itself is neither total nor entirely effective.  The town is still subject to sporadic security breakdowns and whole neighborhoods are still under the effective control of armed groups.

Therefore, MONUC faces tremendous difficulties in serving warrants issued by the prosecutor or conducting investigations in these no-go areas.  The judges have still not begun investigating in some areas within Ituri and will probably not be able to do so in places where MONUC is not able to patrol.²⁵

An impunity gap is opening up between crimes committed in Bunia, which are mostly within the reach of the investigations of the court, and those carried out in the remainder of Ituri, which escape prosecution.  According to a local organization, “the Tribunal de grande instance of Bunia, which by definition has competence for offences committed in the whole Ituri district, only exercises its powers in the town of Bunia.  Residents of the territories of Aru, Mahagi, Irumu and Djugu know that the court exists, but are unaware of its action in their everyday lives.”²⁶

• Afraid to testify

Due to the precarious security situation, the judiciary in Bunia cannot rely on effective cooperation from the population.  Potential witnesses refuse to make statements, citing the limitations of MONUC and its inability to establish security throughout the Ituri district.  They also mention threats made against the judges themselves, like those contained in a document delivered to the offices of the judges promising that they would die and describing plans to set fire to the court building.²⁷  Fear of testifying is therefore depriving the judges of the means to investigate crimes committed in Ituri.  According to one judge, the majority of the victims who make statements then refuse to sign them, making them useless in court.  Additionally, when witnesses are summoned, many insist that they will only talk to the investigative judges on the condition that they are not called to testify in court.

The fear of testifying is justified by the still very active presence of armed groups.  At the same time that the judges have succeeded in imposing relative discipline in the courtroom, armed groups have stepped up their activities outside the trials.  Acts of intimidation have been reported by potential witnesses and the families of victims.  One manager of a local public-sector company received phone calls containing death threats while he was preparing to testify against Aimable Rafiki.  Some of the individuals issuing threats openly identified themselves as members of the UPC or said they were calling on behalf of Thomas Lubanga, president of the UPC.²⁸  The judges have criticized the fact that they have no means of protecting witnesses.

Fear of testifying could explain, in part, the acquittal of Matthieu Ngunjolo by the court on June 3, 2004.  Ngunjolo was prosecuted, among other charges, for the kidnapping and murder in September 2003 of a UPC sympathizer who had been sent to the headquarters of the FNI to negotiate with FNI leaders and invited them to a meeting organized by MONUC.  While he appeared very confident at the start of the trial,²⁹ ultimately the prosecutor was only able to produce one prosecution witness.  The other witnesses who had made statements during the investigation withdrew them and refused to appear in court due to pressure from the leaders of the FNI.  The sole prosecution witness only testified at the court’s first hearing, before refusing to appear at subsequent sessions, citing increasingly insistent threats by FNI supporters.  In the end, the prosecution had nothing left to support its case and the only option left to the court was to acquit Matthieu Ngunjolo due to lack of evidence.

• Relocating the trials

Referring to the threats and the climate of insecurity, the prosecutor proposed that the cases be investigated locally, but that the trials take place elsewhere.³⁰  The idea that certain trials should be held outside Ituri as a possible solution to the lack of safety for witnesses was endorsed by MONUC, which submitted the proposal to the Minister of Justice.³¹  The Minister of Justice seems to be in favor of the idea that Kinshasa host certain trials.  A list of accused that could be transferred to Kinshasa to stand trial was under preparation at the Ministry of Justice, even though some of the minister’s advisers claimed that there were constitutional obstacles to relocating the trials.³²

The relocation of certain trials offers some advantages.  In Kinshasa, some witnesses might be less fearful of pressure and threats from the armed groups.  The protection of witnesses by the police or MONUC in Kinshasa could also be easier than in Bunia.

However, conducting investigations in Bunia and holding trials in Kinshasa seems like a poor compromise between witness safety and effective prosecutions.  Verbal testimony is just as necessary – if not more so – during the investigation than at trial.  The safety of witnesses at a trial only makes sense if the investigation phase reflects the same safety measures.  However, if investigations take place in Bunia, they will continue to be negatively affected by witnesses’ fear of giving testimony.  If they take place outside Ituri, the investigations will be made inefficient due to their distance from the place where the crime was committed.

Some judges in Bunia would prefer to see the trials held locally.  According to one judge, “the crimes were committed here, so it is important that the perpetrators should be tried here.”³³  Another expressed the fear that the transfer of the most important cases to Kinshasa might harm the prestige and the authority of the local judicial system.  According to him, transferring cases to Kinshasa could lead to doubts about the deterrent effect of the judicial process: “The arrests that we have made so far have started to be a deterrent here.  We saw that the leaders of the armed groups were weakened by the judicial system.”³⁴

Human Rights Watch believes that systematically transferring all or most of these trials to Kinshasa could establish an unfortunate precedent and divert the government from its obligation to take all necessary measures for the protection of witnesses.  It appears reasonable to explore all the possibilities available and take any measures that could allow the trials to be held in the place where the crimes were committed and only relocate the trials as an absolutely exceptional measure.