‘Never enough’ resources for rape cases in Congo: A Q&A with Colonel Magistrate Freddy Mukendi
By— January 8, 2016
Bukavu, Democratic Republic of Congo—Colonel Magistrate Freddy Mukendi is an imposing man who speaks from behind darkly shaded eyeglasses. Wearing a black cotton button-down shirt and matching pants, he takes up the full space of a lounge chair, giving off a breezy, if formal, comfort in his own skin. Considering his high-level position in the Democratic Republic of Congo, this may not be entirely unexpected.
As a magistrate in the country’s military tribunal, Mukendi presided over the famous (or infamous, depending on who you ask) Minova trial in 2013, in which 39 soldiers were tried for war crimes including rape. The Rape of Minova should perhaps be capitalized like that for its gravity and far reach; the Congolese army violated at least 76 women over 10 vicious days in November 2012. The pillage took place as the army retreated from Goma, in the country’s eastern North Kivu province, after the militia group M23 took over the city. As the army fled through the market town of Minova, soldiers looted, raped, and destroyed shelters in camps for internally displaced people, according to Human Rights Watch, which issued a 102-page report in October 2015 on the trial.
Only two soldiers were convicted for rape in Minova and in the surrounding area. Both were rank-and-file men, not commanders—those officers were never charged. Instead, the high-level officers were congratulated for defeating M23, news reports say.
With criticism taking aim at the lack of a cohesive investigation, prosecutorial errors, and a lack of evidence (among other failings), I spoke to Mukendi on January 3 in Bukavu, capital of the province of South Kivu, in eastern DRC, about his role in one of the most famous trials on sexualized violence in recent history.
LW: Is prosecuting sexualized violence a particular interest of yours?
FM: I worked here in Bukavu for years as the premier president of the military court of South Kivu, from 2007 to 2013. I’ve tried many cases of sexualized violence as well as crimes against humanity and war crimes. I was one of two magistrates in the Minova trial; there were also three military judges who didn’t study law like we did.
LW: What was that like, adjudicating such a major case?
FM: [Mukendi shakes his head back and forth.] There are particularities here in our country that make it so that I, as a judge, can’t pursue a perpetrator. It’s the military prosecutor who has to bring people to us to judge them. We don’t do investigations, we only judge. So if investigations were not well done, it’s a problem for us as judges. When there are no deep investigations, you find yourself in front of a case without much evidence—and with much doubt. You can’t sentence people if you don’t have the evidence.
The evidence against those who were brought before us wasn’t enough.
In the case of Minova, rapes happened, that’s for sure. But in terms of the people who were brought before us, there wasn’t enough evidence to prove they were the perpetrators. They were not high-ranking soldiers. There needed to have been intensive investigations to arrest the real perpetrators. For rape cases, deep investigations needed to be carried out.
In terms of Minova, it wasn’t easy to figure out what happened because it was during a period of the war when Goma had fallen and everyone was fleeing the fighting. But yes—there were men who were not arrested and who were not identified. To identify them, investigations needed to have been done beforehand and we needed to have enough time to do them.
LW: So you wanted to convict but couldn’t because you didn’t have enough evidence?
FM: Two of the alleged perpetrators in situations in which there was enough evidence—and who were recognized by the victims—were sentenced. Others were sentenced for having looted and for other crimes committed by the army, but not for rape.
The Human Rights Watch report clearly explained the difficulties about the cases but there is one point I disagree with: It’s about the technical validation of the evidence. When evidence is brought to court, it’s up to the judge to rule on it. I think those who do monitoring shouldn’t make decisions in place of the judge. If there is evidence, it’s up to us to decide the sentence—it’s not the observers who decide in place of the judge. Those who wrote this report made decisions about the cases in place of us. They evaluated the evidence. For instance, when a witness gives his or her statement, it’s up to the magistrate to evaluate that statement and decide whether he’s going to consider that statement or reject it. That’s the power given to a judge. If the accuser said one thing and the judge asked questions, then HRW drew their own conclusions.
In the cases where people were sentenced for having looted, we asked a question like, “Where did you get this?” [Points.] And we asked, “When the looting was taking place, where were you?” The man gave his answers: “I picked it up there.” You asked him, “Where were you when the looting took place?” He said, “I was out looking for food.” A person like me, you sentence him for having looted yet the report says there was no evidence. The absence of the soldier in his unit during the looting, and also the fact that we found items on him that didn’t belong to him, this is evidence the judge used to prove that this guy participated in the looting.
LW: Hard evidence can be tough to find on rape cases. Do you find these kinds of cases more difficult to judge?
FM: Yes, of course. We’ve learned a lot from training we’ve gotten from partners for many years here on how to collect evidence on sexualized violence. And the collaboration between police officers who do the first investigations, doctors, and magistrates—those things have helped.
I’m a judge. I don’t do investigations. I take the evidence that they bring me and I evaluate it. As a judge, I can play a role in researching evidence, such as by ordering experts to do medical exams, etc.
A big issue also is the lack of resources. You can train a number of people but when they move them to a different place, new people come and then those people need to be trained. And to do so is a matter of means. Also, to do these investigations there need to be resources given to police and the public prosecutor’s office.
LW: Are you saying the Congolese government isn’t giving enough money toward such cases?
FM: [Exhales loudly.] Honestly, they don’t provide enough. The government intervenes only sporadically. They only intervene in a case that makes a lot of noise. The government never provides enough resources.
LW: Witness protection was better than usual in the Minova trial. Is this an area that will continue to be expanded in DRC?
FM: In the case of Minova and in other cases, of course magistrates have to think about how to protect witnesses. It’s for the magistrates to know how to take the initiative because the law says that a judge should protect witnesses—but they don’t provide the measures or the types of protection you need to give a witness. That’s why here in South Kivu we were well known in terms of protecting witnesses and victims. We receive funds from partners, such as the American Bar Association and Lawyers Without Borders. For the Minova case, there was no government money provided. For the cases I’ve worked on, only international partners were providing funds to protect witnesses.
LW: Will the standard set in the Minova trial of protection of witnesses become the bar to meet in future cases?
FM: For Minova, the protection of witnesses was quite efficient. To generalize this to other cases—this is up to the judges in each case.
LW: In your 20 years of experience, have you seen improvements in the way sexualized violence cases are handled by Congolese law or in the courts?
FM: In terms of military justice, yes. Military justice is doing enough, mostly here in the east. We work with few resources and reduced staff. I worked for five years all alone in South Kivu on military cases. That meant I handled more than 200 cases myself from 2007 to 2014.
LW: We hear in the West that the military is committing many, many rapes. What do you think will stop these crimes once and for all?
FM: You have to punish them. And we are punishing them. When the crimes are committed by the national army, if they capture you, we punish you. But for militias, we don’t control the militias. That’s what we can’t control.
LW: How useful is it to classify sexualized violence as a crime against humanity in terms of finding justice?
FM: Not every sexualized violence case is a crime against humanity. There are conditions that the court needs to consider. Is it systematic? Widespread? There are sexualized violence cases I’ve considered crimes against humanity that have been judged here. Recently, there was a case of a lieutenant colonel known as “106” because his battalion unit was 106—he was tried last year. [Bedi Mobuli Engangela, aka “106,” was convicted of ordering rape, murder, and looting between 2005 and 2006 in multiple villages in South Kivu.] And he carried out a lot of killings in South Kivu, in the area of Kabare and parts of Mwenga over a long period—from 2006 to 2009. This case was tried as a crime against humanity. We also considered the case of Colonel Kibibi Mutware in 2011 in Fizi a crime against humanity. [He was sentenced to 20 years for ordering his troops to rape and loot the town of Fizi, in South Kivu.] “106” has been sentenced but he’s appealing.
LW: Is it helpful when cases are elevated to the International Criminal Court, or would you prefer cases stay in Congo?
FM: Personally, for cases that have political issues, I think it’s better that they go to the ICC but for others, we try them here. For the cases that go to the ICC, they’re ones that won’t find independent justice if they’re tried here, so it’s better that they’re tried somewhere else.
Let’s take the case of Bosco Ntaganda. He was here and they wouldn’t arrest him. He was a big commander and nobody could pursue him. It’s only the ICC that can judge him. Here it was impossible. I’m happy he can be tried somewhere, because when he was here moving around, giving orders, I as a magistrate considered that to be impunity.
LW: What changes need to occur so that a case like that can actually be tried here?
FM: [Laughs.] The problem is the independence of the justice system from politicians. We are in a country where politics takes precedence over justice.
LW: Your job entails keeping justice over the people who are meant to keep the peace—the military and police. How frustrating a job is this?
FM: I apply the law to the cases that are referred to me. The difficulties we face are part of our job. Personally, in all the time I’ve been working as a magistrate I’ve never gotten pressure from superiors telling me how to do my job. I do my job with my conscience and soul. But for the public prosecutors, you can get instructions to not follow a particular person or to stop investigations.
LW: Is there something about your job people don’t know?
FM: There are things I can’t say. But when I have to say something, I have to say it. The work of justice in eastern DRC, it’s not easy. There’s corruption, so if you are honest you have to be brave. The military justice system has done a lot here. Not so much civilian justice. While there’s still a lot to do, we should agree that a lot has been accomplished—and with few resources, mostly. At this point, everybody should want to get justice for these crimes and to help justice, overall, move forward.