Tactics and tools for the protection
of Human Rights Defenders

6 February – 21 May 2008

Case: Prosecutor vs. Bokungu Bokombe at al, RPA 060

I. Executive Summary

1. Serge Maheshe, an editor of Radio Okapi in Bukavu and a member of MONUC’s national staff, was killed on 13 June 2007 in Bukavu in South Kivu Province. Following this assassination, lower court trial proceedings were held before the Tribunal Militaire de Garnison of Bukavu (Military Garrison Court) and appeal proceedings were held before the South Kivu Military Court.

2. The United Nations Joint Office for Human Rights (UNJHRO) observed these two proceedings and, after the lower court trial, published an observation report on 29 January 2008 on the action against the alleged perpetrators of this assassination.

3. At the end of the appeal proceedings which were held from 6 February to 21 May 2008, the South Kivu Military Court acquitted two civilian friends of Serge Maheshe and sentenced three other civilians to death, two of whom had already been sentenced to death at the lower court trial.

4. During its observation of the appeal proceedings, the UNJHRO noted that all the guaranties for a just and fair trial were not respected by the South Kivu Military Court. In spite of some positive points that were noted, the appeal proceedings were generally marked by irregularities similar to those observed during the lower court trial, principally:

• the Military Court’s refusal to investigate other credible leads and motives likely to shed more light on Serge Maheshe’s murder;
• the persistent inadequacies in the criminal inquiry;
• the absence of an independent and impartial inquiry into subornation charges brought against two military magistrates;
• a climate of intimidation and threats against the defence lawyers and observers of the lawsuit;

 5. This report formulates recommendations for the attention of Congolese authorities and the International Community. Some of the recommendations are specific to the case of Serge Maheshe’s assassination, while others, of a more general nature, relate to military courts.

II. Introduction

6. Serge Maheshe, an editor of Radio Okapi in Bukavu and a member of MONUC’s national staff, was shot on 13 June 2007 on Avenue Saio in the Commune of Ibanda in Bukavu while he was in the company of two of his friends. The following day, the national police arrested two soldiers suspected of having committed the assassination.
Two civilians were also arrested after verification of phone calls made from the SIM card that belonged to the victim. Serge Maheshe’s two friends who were with him at the time of the events were also arrested.

7. In accordance with an accelerated procedure, the Bukavu Garrison Court was immediately convened with charges of assassination against all the suspects and dissipation of war ammunition against one of the military defendants. The first hearing was held the day following the assassination. The lower court trial took place from June to August 2007. On 28 August 2007, the Court pronounced death sentences against the four civilian defendants, including Serge Maheshe’s two friends, the only eye witnesses to the assassination. One of the military defendants was acquitted while the second was sentenced not for the assassination, but for the destruction of a weapon.

8. Both the defendants and the prosecution appealed and the appeal proceedings occurred from 6 February to 21 May 2008 before the South Kivu Military Court. At the end of the appeal proceedings, the South Kivu Military Court acquitted Serge Maheshe’s two friends and sentenced three civilians to death, two of whom had already been sentenced to death at the lower court trial. These civilians retracted their accusations against Serge Maheshe’s two friends, while raising serious allegations against two magistrates of the military prosecutor’s office at the Garrison Court who were pressing them to claim Serge Maheshe’s two friends were the people behind the assassination.

9. The UNJHRO observed the whole process from the lower court trial through the appeal proceedings to verify that international, regional, and national human rights norms guaranteeing the right to a fair trial, and the principles ensuring the protection of human rights defenders, were respected. These principles are notably included in Article 14, Paragraphs 1 and 2 of the International Covenant on Civil and Political Rights4.

“1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. (…)

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

10. The lower court trial as well as the appeal proceedings were marked by numerous breaches of the fundamental guarantee of the right to a fair trial. The observation report on the appeal proceedings highlighted the Court’s refusal to investigate other credible leads and motives for the assassination, the Court’s refusal to order further investigation, and the Court’s refusal to order an autopsy or a ballistics test. These refusals occurred in spite of MONUC’s repeated offers of facilitation. The report also noted the absence of an independent and impartial inquiry into subornation charges brought against two magistrates by the alleged perpetrators and noted a violation of the principle of equality of means between the parties.

11. In addition to the breaches and irregularities pertaining to the right to a fair trial, the NGOs that observed the trial were threatened and intimidated by military magistrates who prohibited the NGO’s from making any press declarations by threatening legal proceedings. Some observers from the NGOs alleged that they were victims of security incidents although they were not able to identify the perpetrators of those incidents. Moreover, during the trial the defence lawyers alleged that they had received threats by SMS after the hearing in which the two military defendants accused the magistrates of subornation.

12. When the verdict was announced, Mr. Alan Doss, the Special Representative of the United Nations Secretary General in the Democratic Republic of the Congo, stated that “MONUC notes that there remain many questions to resolve regarding Serge Maheshe’s assassination and asks the Congolese justice system to shed light on this crime in accordance with the laws of the country and with international norms commonly accepted in the exercise of justice.”5

13. The publication of this report occurs more than one year after the closure of the appeal proceedings against the alleged perpetrators of Serge Maheshe’s assassination. Since this trial, two other journalists have been killed. Consequently, the publication of this report on these appeal proceedings was warranted because an in-depth study of this case may be useful to improve the judiciary’s response to the murders of other journalists.