Fizi Diary: “This Is a Once in a Lifetime”

As we approach on the bus I see a large crowd, over a hundred, has gathered. I feel like a groupie of a rock band. All disheveled from our journey by helicopter from Bukavu this morning, we pile out of the bus and make our way through the crowd that stands parted by police carrying guns.

Ushered into the open-air public forum, we make our way to seats specially marked out for us—the lawyers and observers. The lawyers put on their robes and, as if by magic, there is a court. We all rise as the president of the military court enters. A soldier sounds commands, the gun pounds the cement. The mobile court is in session.

The crowd, just about all men of different ages, spills over the walls of the forum. Armed police stand guard on the walls, and the president of the court reminds those present that this is a trial and proper decorum must be observed. Yet, as they break out in laughter over matters such as the limited schooling of the accused, I have the impression they are here for a bit of entertainment. There is not much access to television here, and running water and electricity are scarce. As my interpreter says, “This is a once in a lifetime.”

Identification of the accused begins. Lt. Col. Kibibi Mutware Daniel, Congolese, born in Sange, on 12/12/1964, married, eight children. 43rd Sector, joined the army in 1987. On January 1–2, 2011, accused of committing crimes against humanity, systematic attacks and acts of terrorism by entering homes for the purpose of terror including rape of women.

The 43rd Sector has been stationed in Fizi and is Kibibi’s stronghold. As one person told me, “He’s a big fish.” Since this is a high-profile case, securing the accused is a problem. Three soldiers have already escaped, and it is the responsibility of the mobile court—a partnership in Baraka between the American Bar Association, the UN Development Program, the UN's Office of the High Commissioner of Human Rights, Lawyers Without Borders, and DanChurchAid with the assistance of the UN mission here—to ensure that the rest remain in custody.

The mobile court pays the costs for transportation of the accused and the victims, the detention of the accused, and the all other fees associated with the trial. Transportation of the accused costs $24,000 for the helicopter flight alone. The state has an interest in securing the detention of the accused, but there is no infrastructure to support such a trial. Through discussions with the local authorities we are told there is a newly built prison, but no one has a key.

During the identifications of the accused, one soldier requests the court to declare him a minor. He says that he is not 20 as stated in the identification, but 16 years old. His name is Amani. Most of the accused are 20–24, have little schooling, and do not speak French or perhaps even Swahili, since they are from the north where Lingala is spoken. All are from the same region, but most cannot answer the name of their territory and it seems they might be foreigners (i.e., Rwandan), recruited as children.

On this, the first day of the trial, the governor and minister of justice are present. There are only a few women gathered to watch today. I was told that this is because it is a Thursday, and they are working in the fields or at the market. In general not as many women attend the mobile court because they do not want to be stigmatized. Something like a V-Day celebration is acceptable, I was told, but attending a trial can bring problems. Many people I ask say they see the trial as more of a spectacle for the international community because afterwards the perpetrators go free.

It’s 7:00 a.m. on the second day of the trial and I sit for breakfast with Maitre Thérèse Kulungu, one of the lawyers for the victims. She is the only female lawyer working to represent victims in South Kivu. She has not yet been given the chance to meet with the victims. They are hidden in the area until they will appear to testify.

Last night she had prepared her opening statement, writing down notes but ran out of paper. Obtaining supplies is difficult here. It costs $4 a page to make a copy of the dossier, which can be 500 pages long. The dossier had to be transferred from another village and could not be accessed before.

We discuss the law as she reads out loud the elements necessary to prove a crime against humanity and terrorism out of a small EU booklet on human rights. We talk about how the elements are represented in the facts. Her introductory statement is to focus on the situation of Kibibi’s solders. Her argument: that they are all minors recruited by Kibibi.

Yet the military prosecutor, famous for his writings on the military penal code, declared with jovial demeanor at the trial yesterday that Amani had already given two other appearances where he could have provided this information. The court has yet to decide.

The trial was set to begin at 9:00 a.m. It’s now close to 10:00 a.m. and the crowd is frustrated, shouting. Others seated inside with us are from local NGOs, civil society. It’s a Friday and not as many people are watching today, but today there are a few women present. One covers her face as I try to take a photo.

The trial finally begins at 10:30. The delay, it turns out, was because they were looking for military uniforms for some of the accused. At the trial yesterday, the president said that all the accused must appear in their military uniforms. The problem is that when they were arrested their guns and uniforms were confiscated from them, and now they can’t find any for them to wear.

They finally arrive but three of them still have no uniform. They are brought in with handcuffs that are then removed as they are seated on two rows of benches. I am told that when the victims are present they are often standing right next to the accused until someone intervenes to provide protective space.

The accused look well fed and relaxed, even happy. The lieutenant colonel greets his lawyer with smiles and conversation. But the boys are all very thin, if muscular. The crowd is loud, and seems happy and impressed with the opening of the second day of the trial.

The lawyers for the accused and the victims want more time to read the dossier. For the accused, the lawyer argues, “our client risks the death penalty,” so his rights should be protected. The president of the court says that yesterday the defense asked for one day and today they ask for two more and tomorrow? What will they demand? He wants to begin today.

In their opening statements, they invoke the DRC Constitution (Art. 19) and international laws such as the Rome Statute (Crimes Against Humanity) and the Yugoslavia Tribunal. The main issues for the day concern protection for the rights of the accused, their right to an interpreter under Art 14 of the International Declaration of Human Rights that has been incorporated into the DRC Constitution. It guarantees the right of the accused to know the crime of which they are accused. There are also questions raised regarding the “obscurity of those raped.” Although I was told 25 have come forward to testify, the accused have only been charged in general terms with rape. And, there is the question of the age of Amani who has now testified that others were paid by Kibibi to lie about their age.

After a day of conflicting testimony regarding the events and Kibibi’s orders on the night of January 1, it is Kibibi who has the last word, stating that he fears for his security. Just outside the Court, across a small bridge stands a military vehicle full of Kibibi’s men “patrolling” the population. I am told this is troubling since Kibibi is their commander. This is a threat and intimidation of the civilian population many of whom have come from Fizi to see the trial.

I speak with some of the people gathered to watch. They say they are happy there is a trial because Kibibi has been known causing problems in Fizi for a long time, and many people have had to flee here to Baraka. They think, however, that this trial has become too international, which is not good. They think it should be local. There is a local process but only for possession of land and family matters, not for this.

Do they think justice will be done? No. After the trial, Kibibi will be free again and, even if he is in prison there will be no change after the trial because some elements “bandits” who work with Kibibi are still there. What do they see as justice? For this 43rd Sector to leave and a new military to come.

I was sorry I had to leave Baraka before the victims testified, but I have heard their testimonies. For the past year, I have been collecting victim testimonies all over South Kivu and listening to their perspective on justice. Without exception, their stories are always the same, “I am happy this man has been put in prison, that he can no longer do these terrible things, but me, I have seen nothing."

Judgments are passed: 5, 10, 15 years or life in prison and fines of $5,000 to $15,000. But, as I am told repeatedly by lawyers, government officials, NGOs, victims and the general population, often a phone call is made to the prison officials, money is offered by the family or military commander and the accused goes free. To date, no fine has ever been paid to a victim.

Since there is no banking system, money designated in the budget for government employees and police salaries never reaches the eastern provinces. Therefore, government employees must live off of corruption. Therefore, even if the trial itself follows proper procedures, there is little hope for justice.

For the victim it’s always the same story: “In my village now they laugh at me, I can no longer go to school” or “My husband left saying I’m no longer good.” They are all poor and want to relocate, start a new life, have a small business or cultivate some land, but they have nothing. Stigmatization remains the greatest challenge of doing justice for military rape victims in the Congo. What they want is a reparations system so they can gain the needed education and skills to have a life, to have justice.

Justice in the Congo continues to be undermined by problems of internal corruption. It remains a man’s business of local NGO partners where the victims of crimes against humanity—women, girls and boys—remain social victims long after what is known as the “foreign court” has gone home.