CCPR/C/27/D/157/1983

O. Communication No. 157/1983, An~r' Alphonae Mpaka-Nsusu v. Zaire (View. adopted on 26 March 1986 at the twenty-aeventh ae.aion) Submitted by. Andr' AlphonAe Mpaka-Nau.u Alleqed victim. The author State party concerned. zaire Date of communication. 15 Auquat lQ8J (date of initial letter) Datt of decision on admia.ibilit¥. 28 March lQ85 The Human Riqhta Conllaitte. e.tabliRhed under articlo 28 of the Internationa' Covenant on Civil ~nd Politic~l RiQht., Meet!n~ on 26 March 1986, H"vinq concluded itJ consideration of oommuniclItion No. 157/lQS3 lIubmitted to the COl"mittelt by Andr6 Alphons., Mp"ka-Nausu under the Optional Pro oco1 to t.he International Covenant on eiv", and Political Riqht., Havinq taken into account .11 written Informaticn mdde available to it by the author of the oom~unication and notinq that no aubstar Ive information hall be.n received from the State party concernedl adopta \ he fo11owinqr VIEWS UNDER ARTIC~ ~, PARAGRAPH 4, OF THE OPTIONAL PROTOCOL 1.1 The duthor of the communication (initial letter dated 15 Auquat 1983 and further lettera dated 8 January and 8 May 1984) i. Andr6 Alphon~. Mpaka·-N.u.u, a Zairian national at pr.sent livinq in exile. He claim. to be a victlm of br••ches by Zaire of articles 1, 9, 1. an~ 26 of the International Covenant on Civil and PoJitical RiQhtll. tie la repre.ented by an attorney. 1.7 ~e fact. aa described by the author are a. follows. on 21 November 1977 he prea;>nted hla candidacy for the preaidency of the Mouvemont populaire de la r~volution (MPR) ~nd, at the aame time, Cor the pre3idency of Zaire in oonformity with exiatinq Zairian law. After the rejection of hi. candidacy - which he a11ftqes was in contravention of law No. 77-029 (concerninq thtt orqanizat ion of presidential el act ion.)

- Mr. Mpaka-Nsuau. on n December 1Q77, submitted a proposal to the C~vernmont requoatinq recoqnition of ~ second, conatitution~lly permissible, party in Zltlre, the Federal Nation~liat Party (PANAPE). 1.1 He claims that he acted in accordance with article 4 of the Constitution of 24 June lq67 which .nviaaqus a two-party sy.te~, but d~.pite this he was arre.t~J on 1 .July 1979 ano detaIned without trlal until 11 J ..mIlHY 11181 in the prison of the State Secur ity Police (CNRI). ne cl.. ime that his de'cention was ba"ed on unfounded charqoa of aubvertinq State aolClIrity. After beinq released from prison, he was banished to hia villaqe DC oriQin for an indefinite period. Thia banishment ended d. facto on l~ February lq83 when he fled the country. -142- 1.4 The ituthor Ittatefl that IIlthouqh he filet' a suit on 1 Octot'er 1981 betore the Supreme Court of' Justice of Zaire «(1) contelltinq the leqality of the inflt i tut tonal i ~IIt ion ut MPR as lIole party as hein.:. lunter to the dual party IItrur.t,Jrt· flet out in the Constitution, (1i) thert.lfl)re requeatinq that pllrts or la",s No. 74-020 o! 1'i Auqllst 1914 and No. 80-012 of l'i Novemher 1980 be declal4td unconAtitutional (mocHfyinq hy ordinary law conatibltionllll orovil'liona), and (itl) "leekinq repllrlltion tor damaqeu suffered I1I11'inq 11etention), the Supreme Court of .TUHUCt'l refllset1 to consider it. Furthermore, the author notea that individull1a hllve no J'r.cefltJ to the Constitutional Court of Z..1re. Accordinqly, the author conlendfl thllt he hae exhllulltcd all dOlllea~lc f'.tmecHe:l aVllilahle to hir.,. 2. 11'/ ita l'echion of I) November 1981, the Human Niqhta l nmmittee transmitted the comm'Jniclltion undeor rule 91 of the provisional rules of procedure t.O tt•• Stllte p,utv conc1!rne..~, reque8tinq inforlllation IInd observations relevant to the que.tion of 1'I1'lniBflihll ity ot the cOII\munication in 80 far a8 it mlqht ratae tasue. under IHticl~ll Cl, ~'i lIn~ 26 of the Covenant. The Committee> 111,0 requested the State Plld:y to tran8mit. to the Committee any copies of court orders or decisions relevant t.o t:.h~ Cf.ll\lt!!. Furthermoro, the Committee requested the aut.hor to provide more detl'llll!<~ information concerning the groun<'ls for alleqinq violationa of article 1 of the Covenant. 1. In rP-RponRe to the Committee'. reque.t, the author, hy a letter dated 8,TlInulH'y 1984, explained that the people of Zaire, in a constitution.,l referendum hel~ from 4 to 24 Jun. 1~67, had declared themselves in favour of a hipartiaan constitutional system. He lJa.erted that it was contrary to th,' Conlltitution of Z... ire, in particular article 39, t.o prohibit the .atabl1l"1hment of a aecond political party, and that hp, had been a victim of peraecution because of hi. politi~l'll I'lctivities aa hader)f PAN"P'E. 4. Ry a note dated 18 JlIrllll.lry 1984, the State party informed the COI'IImitte. that ~n inquiry into the clIse of Mr. Mpaka-Nauau was in proqr.sa in Zaire and that a reply would be forwarded to the Committee by the end ot P'.hru.ry 1984. By a note ~ated 6 April 1984, the State party informed the Committee that the inquiry had not yet been completed and that a reply would be aubmitted bv the en~ of April. No further sllbm1lJaion from the Sl:at:. party haa been received, d.apite repelllted remindern. 'i. Before considering a communioation on the merita, the C,~mittee muat aaoertain whether it fulfils all conditiona relating to its admisaibility llOdel' the Optional Protocol. With reqard to articl. ~, paragraph 2 (a), of the Optional Protocol, the Committee had not received any information that the aubject-matter had b.en Rubmitte<1 to another procedu r. of internat ional i nve.t iqat ion or aet t lemenl:. Accordinqly, t..h" Committee founc) th.~t the oOMmunication wall not inadm1asible under ...rticle 'i, paraqraph 2 (11), of the Optional Protocol. Th. COIlImittee waa al.o unahlo to conclude thllt in the circumatancoll of the caa. there wure .frective [.m~i~p. availllhl~ to the alleged victim which h. had fail"" to exhauat. Ac~oreHnQly, t.he COlnmittett found that the communication was not inadmiaaible under lllrticll!' 'i, parllqrllph 2 (h). uf the Optional Protocol. 6. On 28 Mlllrch 1985, the- Human RiQht" Committee therefore c..~icJuo:J that tht!' communtcl'ltton wait admiflflihle, "nd in accordance with III "ticle 4, paraerraph 1, of the Optional ProtoN)l, r8queat~J the Rtate party to aubmit to the Committee, within Alll monthfl of the dllte of the tr"nflmitt... l to it of the Committe.'s decision, written eXl'l"nlttionB or IItatementB rlarityl ...,) the matter and the remedy, if any. that miqht. have helto t ... kltn hy it. -143- 1.1 The time-limit for the State party's lIuhmipsion under article 4, paraqraph 2, of the Optional Protocol expired on 2 November 1985. No submission has been received from the State party. 1.2 No further sUbmi8sion has be.n received from the author. 8.1 "he lIuman Riqhts Committee, havinq considered the pr.sent cOllmunication in the liQht of all the information made av~il~ble to it, as prouided in article ~, pararaph 1, of the Optional Protocol r hereby decide. to base ita views on the followinq facts, which have not heen contested hy the S~.te party. 8.2 Mr. Andr' Alphon.e Mpaka-Nsusu is a Z.iribn national at pre.ent 14vinQ in exil.. In 1911, he pre.ented his candidacy for the pre.idency ot Zaire in conformity with exi.tinq Zairian law. His candidacy, however, wa. rejected. On I July 1919, he was ar rested and subsequently deta in~ in the pr ison of the State Security police without trial until ]1 January 1981. After beinq relea.ed from pri.on he was bani.hed to hi. villaqe of oriqin ~or an indefinite period. He fled the country on 15 February 1983. 9.1 In formulatinq it. view., the Human Riqhta Committee also takes into account the failure o~ the State party to furnish any information and clarifications neeee.ary for the Committee, to faCilitate its task.. In the circum.tance., due weiqht mu.t be qiven to the author'. alleqations. It i. implicit in article 4, paraqcaph 2, of the Optional Protocol that the State party has the duty to inve.tiqate in qood faith all all. tion. of violation of the Covenant made aqainst it ~nd it. author iHes, and to furnll1h "0 the Committee the inforllation available to it. The Committee not.. with concern that, de.pite its repeated reque.t. and reminder. and despite the State party'. obliqation under article 4, par.qc.ph 2, ot the Optional Protocol, no eubmillsion has been received from the State party in the pre.ent oase, other than two notetl of JltnUary and Apr il 1984 informinq the Committee that an inquiry into the calle of Mr. Mpaka-N.u.u wa. in proqress. 9.2 The Committee ob.erves that the information before it doe. not justify a findinq .s to the alleqed violation of article 1 of the Covenant. 10. The Human Riqht. Committee, actinq under article S, paraqraph 4, of the Optional Protocol to the International Covenant on Civil and Political Riqhts, is of the view that these facta disclo.e violation. of thp Covenant, with re.pect tOr Artiol. 9, paraqraph I, beeau•• Andr' Alphon.e Mpaka-N.u.u was arbitrarily arre.ted on 1 July lq19, and detained without trial until 31 January 1981, Article 12, paraqraph 1, beeaulle he wa. baniBhed to hi. villaqe of oriqin for an indefinite period, Article Iq, because he .uffeted persecution for hiB political opinion., Article 20;, heeau••, notwith.tandinq thf. entitlement to .tand for the pr.sid~ncy under Zairian law, he was not so permitted. 11. The Committee, accordinqly, io of the view that the State party i. under an obliqation, in accordance with the provi.iona 0~ article 2 of the Covenant, to provide Mr. Mpaka-N.usu with effective remedi',., includinq compensation, for the violations that he has tuffered, and to take _t4ps to en.ure that similar violations do not OCCUl in the tuture.