Front Line Mission report on the case of Pascal Kabungulu

6 February 2006

Pascal Kabungulu - findings & recommendations of Front Line/Amnesty International mission in DRC: 1 – 11 November 2005

People interviewed:

Lt. Col. Majaliwa Mulindwa (Auditeur Supérieur or Military Prosecutor): Président de la Commission d’Enquête [phone interview]

Meli Meli Idumbo (Avocat Général): Vice-Président de la Commission d’Enquête

Anicet Muhimuzi Rutebuka (Major P2): Membre de la Commission d’Enquête

Didace Kaningini, Gouverneur (p.i.) de la Province du Sud-Kivu

Lt-Col Thierry Ilunga (Commandant de la 105e Brigade)

Maître Bisimwa (lawyer for the wife of Pascal Kabungulu)

Maurice Bahati, Chargé de l’Administration & Finances, Héitiers de la Justice

Maître Roger Muchuba (Héritiers de la Justice)

Roger Anderson (“petit frère” de Pascal Kabungulu)

Facts relating to the case:

· Pascal Kabungulu’s house is located about halfway down a hill (approximately 50 metres) & is accessed by a steep muddy footpath from the upper road. The track continues down to a lower road. · There are a number of other private houses in the same area. None is protected by a fence or other barrier. · There have been a number of instances of break-in & robbery in the general area. · There is a military encampment about five minutes from PK’s house along the upper road. · The perpetrators broke in through two barred metal doors which are normally bolted top & bottom. The inner door has glass panes, one of which was broken (presumably to reach the keys on the inside). The family is unable to explain how entry was obtained. · Three (3) men entered the house around 03h.30 on 31 July 2005. Two were described as in military uniform. The third was wearing sports clothes. · There was at least one who was armed with a gun, while another was reported carrying a machete. · One man stayed in the living room while the other two entered the bedroom of one son & asked where his father was. · They continued down the corridor at which point PK came out of his bedroom. His offer of money was ignored & he was shot once in the stomach. · The three men left taking with them a laptop computer, a television set, a VCR, a pair of shoes, & about $20. · They went down the hill firing shots as a warning to neighbours. · PK’s wife called a family friend (Pasteur Bulambo, a vice-president of Héritiers de la Justice) who in turn called the Gouverneur Didace Kaningini. · They both went to the house & took PK to the hospital. He was reported to have said only: “Jésus je meurs. Pardonne-moi.” He was dead on arrival at the hospital. · Among those who were at the scene very quickly were two members of the MONUC “Pak-Bat” who appear to have carried out some investigation. · The Auditeur de Garnison also carried out an early investigation at the site of the killing. · PK’s wife & six children left for Kampala five days later & are still there. · PK’s “petit frère” (Roger Anderson) has remained at the house where he runs a small business (financed in part by PK). · Other family members (including PK’s wife’s sister) have also remained in the house. · Within a few days, a cordon & search operation in the surrounding area turned up at least one weapon & five magazines (one with a bullet missing). · Three soldiers were arrested within 4-5 days. According to the Auditeur Supérieur there are seven people in detention (as of 10 November 2005).

Theories relating to the case:

FDLR (Front Démocratique de Libération du Rwanda): the FDLR had sent a threatening letter earlier in 2005 attacking Héritiers de la Justice for their reports on violations committed by the FDLR.

LDGL (Ligue des Droits de l’Homme dans la Région des Grands Lacs): there were rumours (fuelled by anonymous letters) that LDGL was a hot-bed of rivalries & jealousies reflecting a power struggle within the organization. PK, who had served on the Board of the LDGL, was in the process of taking up a staff position as responsible for organizational development (as of 9 June 2005).

HJ (Héritiers de la Justice): suggestions that HJ was going through financial difficulties & that PK was leaving the organization because of irregularities. This was further aggravated when Maurice Bahati (financial administrator) was arrested on 7 October 2005 by order of the Auditeur Supérieur & held pending a “confrontation” with a witness. “Evidence” was presented in the form of a forged letter bearing Maurice’s “signature” purporting to congratulate a Major Clovis on carrying out the killing. The “witness” (Jean-Marie Katula, a student but also in the military) retracted his statement during the “confrontation” & said that the Gouverneur Didace had put him up to it. Maurice was freed provisionally on 10 October & continues to report twice weekly to the military authorities. Major Clovis & Jean-Marie Katula are assumed to be among those still in detention.

Gouverneur Didace Kaningini: made remarks at PK’s funeral suggesting that the guilty were to be found among those attending the funeral, implying within PK’s own family or within the organization of HJ. He was known to be involved in a public feud with HJ. The Gouverneur & PK were of the same ethnic group. It was reported that the Gouverneur was unable to return to his own village & that people generally assumed that he was somehow involved in the killing.

Lt.-Col. Thierry Ilunga: made public death threats against PK in 2003 following a report from HJ that named Ilunga in a corruption scandal relating to mineral resources. The threats were made in the office of the Auditeur Supérieur (predecessor to the current one). Ilunga himself claims that the matter had long been forgotten & was not an issue between him & PK. More seriously, Ilunga, accompanied by another military officer, went to the Central Prison in Bukavu & at gunpoint demanded the release of the three soldiers being held as suspects in the case. Ilunga claimed that he did this because he felt that the arrests were an insult to his authority. Although the soldiers were subsequently returned to the prison, the Auditeur Supérieur indicated that Ilunga will be called to account.

Armed robbery: it is possible that the killing occurred in the process of an armed robbery. This theory does not exclude any of the previous theories, notably the possible involvement of Lt.-Col. Ilunga.

The Commission d’Enquête

· The impetus to establish the Commission (6 August 2005) came following international pressure at the highest level (including demarches by embassies & meetings with Vice-President Riberwa). · There was an assumption of military involvement from the beginning. This was clear from the text of the decree establishing the Commission which refers to “tenue militaire”. · The problem of resources for the proper functioning of the Commission (“à la charge du Gouverorat de Province”) was never resolved. · The mandate of the Commission was to “rétablir l’ordre public, garantir la justice et la paix sociale, et mettre fin à l’impunité dans la Province du Sud-Kivu”. · There was a built-in ambiguity inasmuch as the chair of the Commission (the Auditeur Supérieur) was carrying out his own investigation under military law, while theoretically pursuing the inquiry through the Commission. This twin-track approach left the Commission without effective authority. · The Commission has barely functioned. The Avocat Général absented himself from the Commission from the start & has never participated. · The Commission is required to report to the Conseil Provincial de Sécurité. This appears improbable, if not impossible. · On the other hand the Auditeur Supérieur has indicated that the first hearings under military law will be held in January 2006.

Recommendations

· There is no purpose to calling for a strengthening of the Commission d’Enquête or for any replacement of or addition to its members.

· The only way forward at this point appears to be through the military investigation which is now nearing completion.

· It will be important for international pressure to be maintained to demand that the military investigation be impartial, exhaustive & effective.

· Assuming that a military trial of some sort takes place, it will be important to ensure that the trial itself is impartial, public, transparent & fair. International observers should attend. Given that military trials in DRC take place quickly & over a short time span, it will be essential that there be due process & that the death penalty not be imposed.

· The experience of this particular Commission d’Enquête suggests that due caution needs to be exercised when & if similar commissions are established by DRC authorities to investigate other high-profile killings.