On Tuesday 4 February 2020, the Bukavu Garrison Military Court (TMGB) handed down its verdict in the case of Jean-Marie Kasula and 7 co-defendants. The defendants, including two women, all members of the indigenous Batwa community of the village of Muyanga, in Miti groupement, Kabare territory, were all convicted. They had been prosecuted on three counts, including illegal possession of weapons and munitions of war, criminal conspiracy and malicious destruction of the Kahuzi-Biega National Park (PNKB).
The Tribunal sentenced each of the 6 Batwa men (including Kasula) to 15 years of penal servitude and a fine of $5,000, to be paid to the Congolese nature conservation authority (ICCN)for damages caused. The two women were sentenced to 12 months of penal servitude, and a fine of 200,000 francs each.
Their expedited trial conceals three fundamental problems:
- Firstly, the conditions for a fair trial were not met.
- Secondly, there are many grey areas surrounding this case, which could only have been clarified in an impartial and independent justice system.
- Finally, the hastily rendered judgment by the TMGB diverts national and international attention from a very different reality: the continuing quest for survival of the Batwa/Bambuti indigenous communities, who were expelled from PNKB in 1975.
Lack of jurisdiction of the military court
The judgment handed down by the Military Tribunal of Bukavu also poses a problem of form. In the sense that a military court should only have jurisdiction to judge offences committed by military personnel. In fact, according to article 122 of the Law on the Military Judicial Code, "the Military Tribunal of Garrison is competent to try military personnel of the Congolese Armed Forces below the rank of Major and members of the National Police and the National Service of the same rank (...)".[i] Yet here it was judging civilians.
Furthermore, the underlying issue in the case is a land dispute that is more than 46 years old and which has set the indigenous Batwa/Bambuti community against the ICCN/PNKB. However, only civil courts and tribunals are competent to hear collective land disputes governed by custom.[ii] The defendants should therefore have been tried by their natural judge - the civil judge.
The conditions for a fair trial were not met
There was no equality between the parties to the proceedings
The presiding judge of the itinerant court did not allow the 8 co-accused to bring any defence against the prosecution case. They weren’t allowed to present evidence, to dispute the evidence presented, or to have time to prepare their own arguments.
Fully considering both sides of a case is, however, an essential guarantee of the right to a fair trial.
Additionally, the main accused referred frequently during the trial to the recommendations of the “High-level Dialogue” on the process of sustainable protection of PNKB and peaceful cohabitation between the park, the Batwa/Bambuti indigenous peoples and the riverside communities, which was held at the Panorama Hotel in Bukavu from 19 to 20 September 2019. This report should have been annexed to the record, and it should have been referred to since it is clear about the Park’s responsibility to address the Batwa lack of land. Lack of action by the Park on what it had agreed to do is the main reason why Kasula and his co-defendants had returned to their lands in the Park. However, there was no exchange of documents (equivalent to filing and service) between the parties.
Furthermore, the staging orchestrated by the ICCN around this case, in particular the presentation of the defendants by the Armed Forces of the Democratic Republic of the Congo (FARDC) to the Governor of South Kivu, as well as a media campaign by the PNKB administration, meant this trial was not happening in a neutral judicial context, and may well have influenced the judge's decision in favour of the prosecution. This also violated the right to the presumption of innocence of the accused. Moreover, with this media offensive, politicians were present in the courtroom, and as a result, this raises questions about political influence on the judgment.
Violations of the rights of the defence
The ex officio appointed counsel should have been given sufficient time to prepare his defence. He was given only one day to examine the file of the 8 defendants.
The defendants had the right to consult and be represented by a lawyer or any other qualified person of their choice at all stages of the proceedings. However, the hearing of the defendants with the Judicial Police Officer took place without the presence of their lawyer. In addition, no witnesses were called to the stand, despite the presence in the public of several members of the Batwa community who had taken part in the Bukavu Dialogue in September 2019. Additionally, in view of the gravity of the sentence incurred,[iii] the accused should have benefited from adequate legal aid.
The defendants (especially the two women arrested) could also have benefited from mitigating circumstances, given their clean criminal record, and their being from a marginalised indigenous minority, given the historical injustice and multiple forms of discrimination suffered by members of the Batwa/Bambuti community.
With regard to flagrante delicto,[iv] it should be noted that under Congolese law, a flagrant offence is only established when the offence is underway at the time when the Judicial Police Officer is notified of it. According to article 2 of the 1978 Ordinance on the Punishment of Flagrant Offences,[v] "a flagrant offence is any offence that is currently being committed or has just been committed. The offence is deemed to be flagrant when a person is pursued by public clamour, or when he is found carrying effects, weapons, instruments or papers which give rise to a presumption that he is the perpetrator or accomplice, provided that he was at some time close to the offence".
The situation described above is certainly not the case of the 8 co-accused, since they were all arrested at 5 a.m. while they were still in bed. Consequently, by presenting the defendants to the Governor of South Kivu in front of the press, the opposing party has thus violated the right to the presumption of innocence of the accused. Moreover, by curtailing the preliminary investigation phase, the TMGB has deprived the defendants of an essential guarantee of the right to a fair trial.
Areas of uncertainty
The eight defendants’ hasty trial did not shed any light on the many grey areas in the file. For example, where do the weapons the defendants are accused of illegally possessing come from? From whom were they able to buy ammunition? What is the registration number of the weapon found in the possession of the defendants? Is it a weapon belonging to the National Police, the ICCN or the FARDC?
The court based its conviction on the purchase of ammunition but did not want to hear from witnesses about the possible suppliers of this ammunition. Curiously, the TMGB did not consider it useful to investigate this issue.
During the presentation of the defendants by the Armed Forces of the Democratic Republic of the Congo (FARDC) to the Governor of South Kivu on Friday, 31 January, FARDC indicated that Kasula and the 7 others had been captured with several weapons. However, during the mobile court hearings on Tuesday, 4 February, only one weapon was presented.
Furthermore, the court did not shed any light on how the group came to have the weapon that the defendants said they had picked up in the forest. The court did not produce any evidence of the use of the weapon or of the Batwas’ collusion with an armed group.
What was the justification for the haste with this case when several other proceedings against the ICCN/PNKB - both before the civil courts and the military court - have been suspended for several years?
This is the case, for example, for the civil compensation action brought by the NGO ERND on 16 August 2010, aimed at obtaining recognition of the rights of indigenous peoples, quashing administrative decisions underlying their forced eviction from the Park, as well as seeking compensation for the damages suffered.
This is also the case for the action brought on behalf of a young Batwa man, Christian Mbone Nakulire, killed in the park in 2017 by an ecoguard, in respect of which appeal proceedings have never begun.
Why is the military justice system so diligent and expeditious when it comes to actions brought by the ICCN and so slow when it comes to cases brought by indigenous peoples? Why the double standard?
In the accused's own words “never has an ecoguard been arrested for the murder of a Batwa”.
This trial was intended to intimidate all other members of the Batwa/Bambuti communities who might resort to returning to their lands in the park as Kasula and his colleagues did. It is targeting not only Kasula, but all the other indigenous peoples in Kabare and Kalehe.
The trees should not obscure the forest
Sometimes presented as a rebel leader, sometimes as a Mai Mai militiaman, Jean Marie Kasula is in reality just a father and a member of the indigenous Batwa community of Muyanga. He took part in the “High-Level Dialogue” on the process of sustainable protection of the PNKB held in Bukavu at the Panorama Hotel from 19 to 20 September 2019 as a Batwa indigenous representative.
What is blamed on Kasula and the seven others is the fact that they "illegally" entered the PNKB to carry out illegal agricultural activities and the exploitation of wood for the manufacture of "makala" (charcoal). However, we must not ignore the reality.
What is really at stake here is not the illegal possession of weapons, or criminal association, or the destruction of the PNKB, but rather the precarious and dramatic condition of a community dispossessed of its ancestral lands and which has been forced to live a life of landless suffering for forty-six years. To approach this case solely from the perspective of the version provided by the ICCN or the judgment rendered by the TMGB would be to show a total lack of objectivity in the analysis of this case. The underlying causes of the ICCN/PNKB - Batwa/Bambuti conflict must be addressed.
Indeed, during the hearing, the defendants acknowledged engaging in some subsistence activities in the PNKB but categorically denied any membership of/or association with armed groups.
As Kasula himself so aptly stated during his trial, his return to the park with 5 other IP community members from the village of Muyanga was motivated by a quest for survival. They have nowhere else to go and are destitute. He admitted that he makes "makala" (charcoal) in the park to sustain himself and his family. The two women arrested with him are his own wife and his granddaughter.
Kasula mentioned the recommendations of the Bukavu Dialogue of September 2019, which essentially boiled down to finding land for evicted indigenous peoples on the periphery of the Park, and deplored that these have never been followed up. This failure among many others may have motivated them to return to live in the Park as they are obviously left without alternatives. As he also reminded the Court, the Batwa/Bambuti indigenous people are the custodians of the forest and that it is God himself who installed them there.
[i] Law No. 023/2002 of 18 November 2002 setting out the military justice code.
[ii] Article 110 of Organic Law No. 13/011-B of 11 April 2013 setting the organisation, functioning and jurisdiction of courts and tribunals.
[iii] By virtue of section 7 of the military criminal code, where several infractions have occurred, the Court should apply the penalty applicable to the most serious infraction.
[iv] This refers to the prosecution of very recent or ongoing offences in a civil law criminal code, called “flagrant offences”. The Congolese judicial system, inherited from the Belgian system, provides for simplified procedures in cases of flagrante delicto. In such cases, the author is brought directly before the court where the judgement is handed down, and the preparatory investigation phase is then cut short. In cases of flagrante delicto, the evidence is said to be acquired. This means that the burden of proof is lower.
[v] Ordinance-Law 78-001 of 24 February 1978 in respect of the punishment of flagrant infractions. Similarly see the Decree of 6 August 1959 on the Code of Criminal Procedure, Articles 4, 5, 6 and 7.