CCPR/C/37/D/241/1987

I. Communications Nog, 241 and 242/1987, F. Birindwa ci Birhashwirwa

and £. Tahisekedi wa Mulumba y. Zaire (views adopted on

2November 1989, at the thirty-seventh session)

Submitted by: F, Birindwa ci Birhashwirvwa

E. Tehisekedi wa Mulumba

Alleged vicatima: The authors

tate party concerned: Zaire

Date of communications: 25 and 31 August 1987 (date of initial letters)

Date of decision on admissibility: 4 April 1988

the Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 2 November 1989,

Having concluded ite consideration of communications Nos. 241 and 242/1$87,

submitted to the Committee by F. Birindwa ci Birhashwirwa and E. Tshisekedi wa

Mulumba for consideration under the Optional Protocol to the International Covenant

on Civil and Political Rights,

taken into account all written information made available to it by the

authors of the communications and by the State party,

Adopts the following:

Views under article 5. paragraph 4. of the Optional Protoco)

1. The authors of the communications (initial submissions dated 25 and

31 August 1987, respectively, and subsequent correspondence) are

Faustin Birindwa ci Birhashwirwa and Etienne Tshisekedi wa Mulumba, two Zairian

citisens and founding members of the Union pour la Démocratie et le Progrés Social

("U.D.P.8."3; Union for Democracy and Social Progress), an opposition group in

Zaire. They claim to be the victims of violations by Zaire of articles 9,

paragraph 1) 10, paragraph 1; 12, paragraph 1; and 17 of the International Covenant

om Civil and Political Rights. Mr. Tshisekedi is represented by counsel. The

authors were among the co-authors of communicetion No. 138/1983 concerning

themselves and 11 other Zairian parliamentarians. The Committee adopted its views

on communication No. 1386/1983 at its twenty-seventh session on 26 March 1986.

2.1 In the above-mentioned views, the Committee had observed that the facts

disclosed violations of articles 9, paragraph 1; 10, paragraph 1; 12, paragraph 1,

14, paragraph 1; 19 and 25 of the Covenant and concluded that Zaire was under an

obligation to take effective measures to remedy the violations that the authors had

suffered, to grant them compensation, to conduct an inguiry into the circwnstances

of their ill-treatment, to take appropriate action thereon and to ensure that

similar violations did not occur in the future.

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2.2 The authors state that as a consequence of the Committee's views of

26 March 1986, the Zairian authorities, far from granting them compensation or

investigating their ill-treatment, decided to impose another term of banishment on

them and eome of the other authors uf communication No. 138/1983. In the case of

Mr. Birindwa and Mr. Tehisekedi, this second period of internal exile is said to

have lasted from mid-June 1986 to the end of June 1987. While Mr. Birindwa was

confined to his native village in the province of Kivu (close to the border of

Rwanda), Mr. Tehisekedi was kept under surveillance in his native village in the

province of Kasai-Oriental. The relatives of both authors were also subjected to

surveillance by the Zairian authorities. Mr. Tshisekedi was released from

banishment on 27 June 1987, and Mr. Birindwa on 1 July 1987, following a

presidential amnesty promulgated in the context of the Zairian elections of

August 1987.

2.3 With rege i to the requirement of exhaustion -f domestic remedies, the authors

refer to the procedures engaged by the counsel to the authors of communication

No. 138/1983 before Zairian courts and to tb ineffectiveness of appeals to Zairian

courts. In that respect, they allege that ezplicit order has been given to the

registrars of the courts in Kinshasa not to make available to members of the

political opposition or to their legal counsel any court orders or decisions in

cases affecting them. They further allege that the pursuit of domestic remedies is

obstructed in Zaire by the fact that any pereon in possession of official documents

of the Human Rights Committee is deemed to be in possession of "subversive"

documents and subject to arrest.

3. By decision of 2 Novomber 1987, the Human Rights Committee transmitted

communications Nos. 241/1987 and 242/1987 to the State party, requesting

information and observations relevant to the question of the admissibility of tiueir

communications. The State party was requested, in particular, to provide the

Committee with information concerning all the measures taken by its authorities

vis-&-vis the victims referred to in communication No. 138/1983, following the

transmittal to the State party of the Committee's views in that case.

4.1 In itr submission under rule 91, dated 28 January 1988, jointly relating to

communications Nos. 241/1987 and 242/1987, the State party provides information

concerning the authors’ cases. This information relates exclusively to their

situation after their release in mid-1987.

4.2 The State party indicates that in June 1987, President Mobutu declared an

amnesty for members of the U.D.P.S., some of whose leaders returned to the

Mouvement Populaire de la Révolution (M.P.R.), the National Party of Zaire. Seuior

officiais of the U.D.P.S. were appointed to important posts in the hierarchy of the

M.P.R. Others were appointed to responsible positions at the head of certain State

enterprises.

4.3 With respect to the fate of the authors of these commuaications, it is stated

that they also benefited from the Presidential amnesty. With respect to

Mr. Tehisekedi, the State pacty explains that he wat able to travel extensively

throughout Europe and the United States, that he returned to Zaire towards the

middle of January 1988, where he sought to organise a public demonstration in

Kinshasa on 17 January 1988, without prior authorisation. The State party explains

that under its laws, every demonstration must be notified to the authorities and

meet certain requirements before it is approved. It adds that Mr. Tshisekedi

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none the less decided to proceed and that the police was forced to intervene. The

author and other demcnstrators were arrested .ad transferred to Makala prison in

Kinshasa. The State party submits that as the author displayed "signs of mental

disturbance, the judicial authorities decided that he should undergo a psychiatric

examination, both in the interests of his health and to ensure a fair trial." With

respect to Mr. Birindwa, the State party merely observea that he has remained

abroad, and that no administrative or legal measures have been taken against him.

4.4 The State party's submission of 28 January 1988 does not provide any

information on the remedies that would have been open to the authors with respect

to the treatment allegedly suffered by them between mid-June 1986 and the time of

their release at the end of June 1987.

5.1 In her comments on the State party's submission, dated 25 March 1988,

Mr. Tehisekedi's counsel affirms that an authorization had been requested for the

demonstration led by the author on 17 January 1988 but that it was denied.

‘Allegedly, every request for authorisation of a demonstration is refused in Zaire,

since demonstrations are prohibited under the country's constitution. In these

circumstances, the author decided to defy the authorities. Counsel further ciaims

that the security forces who j/.ntervened allegedly caused the death of several

demonstrators, although the manifestation is said to have been peaceful.

5.2 Counsel provides further information about Mr. Tshisexedi's situation.

Following his arrest and transfer to Makala p.ison, he was kept detained until

11 March 1988, when he was released. On 16 March 1988, he was, however, again

placed under house arrest and military eurveillance at his home in Gombe-Kinshasa.

On 18 March 1988, the military allegedly began to harass the visitors to the

author's home, and on 19 March, violent incidents occurred outside the home and in

the neighbourhood, in the course of which numerous arrests are said to have

ocourred and several individuals who found themselves on the grounds of the

author's home were maltreated. As to the reported "mental disturbance" of the

author, counsel states that following concerted international pressure, the State

party's authorities abandoned their idea of interning him in a psychiatric

institution, all while continuing to disseminate information about his allegedly

disturbed mental state.

6.1 Before considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide

whether or not it (s admissible under the Optional Protocol to the Covenant.

6.2 The Committee agcertained, as it is required to do under article 5,

paragraph 2 (a), of the Optional Protocol, that the matters complained of by the

authors had not been submitted to another procedure of international investigation

or settlement. As to the question of exhaustion of domestic remedies, the

Committee noted the authors’ statement that appeals to the State party's courts

with respect to events occurring prior to tho presidential amnesty of June 1987 are

ineffective. it observed that these allegations had remained uncontested and that

the State party had not provided any information about remedies that would have

been available to the authors. As to the State party's statements on the situation

of Mr. Tshisekedi, the Committee considered that they related to issues of

substance and that they should, eccordingly, be examined on the merits.

7.1 Oa 4 April 1988, the Human Rights Committee therefore decided that the

communications were admissible.

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7.2 The Committee also decided, pursuant to rule 88, paragraph 2, of ite rules of

procedure, to deal jointly with the communications of Mesars. Birindwa and

Tehisekedi.

8. In a submission dated 4 May 1988, Mr. Tehisekedi's counsel indicates that on

8 April 1968, Mr. Tehisakedi was placed under arrest and taken to the State

Security Court, whore he was interrogated until midnight. The arrest ig said to

have heen linked to his call for a boycott of the partial elections held in

Kiaghasa on 10 April 1988. During the night of 8 April he was handed over to

General Bolosi. Commander of the city of Kinshasa. He is said to have subsequently

been transferred sack and forth between various camps located in Upper Zaire and on

the border between Zaire and Sudan, where frequent fighting between guerrilla

forces is said to occur. Counsel points out that Mr. Tshisekedi suffers from

various ailments, that he is without medical attention at the places of his

detention, and that the climatic conditions in these placns adversely affect his

health. By letter of 18 August 1988, counsel supplements this information with

ezcerpts from statements expressing concern about Mr. Tshisekedi's situation made

in the international and in particular the Belgian press.

9. On 1 September 1988, the Secretariat was informed by the representative of the

U.D.P.8&. in Geneva, Mr. G. Woedia Mutombo, that Mr. Tehisekedi was under detention

at the military camp of Kota Koli, and that Mr. Birindwa had been released from

detention on 27 July 1938 and was reported to be in his home province of Kivu.

10.1 In a submission datrd 21 September 1988, ‘ue State party informs the

Committee “that the administrative measures of banishment taken against citisen

Tehisekedi following the events of 17 January 1988 have been lifted with effect

from 16 Septerber 1988 by decision of ... the President of the Republic". It adds

that the author has returned to his family and “enjoys complete freedom of

movement"; as a result, the State party suggests that the “file concerning what hes

been called the Tehisekedi case may be ragarded as definitely closed”. As to the

fate of those who were arrested at the same time as Mr. Tshisekedi, the State party

indicates that many have already been released, and that the rest would be frecé

shortly. It points out that the procedures initiated against those guilty of other

offences would be conducted “with complete legality".

10.2 "nm another submission dated 2 November 1988, the State party reaffirme that

“the situatson of citisens Birindwa ci Birhashwirwa and Tshisekedi wa Mulumba is

perfectly clear as regards both their place of reaitence and their freedom of

movement”. Furthermore, the State party refers to ite oral statement made in the

Comniseion on Human Rights on 1 March 1988, concerning the ryailability of domestic

remedies in Zaire.

10.3 In its oral statement to the Commission on Human Rights, made under the

procedure governed by ECOSOC resolution 1503 (XLVIII), the State party had pointed

out that the "recourse procedure” of complaints to the Department of Citisens'

Rights and Freedoms (Département des Droits et Libertés du Citoyen) constitutes an

effective domestic remedy and the ultimate recourse in cases of allege’ human

rights violations, and that the authors of communications submitted to the

Commission on Human Rights or to the Human Rights Committee, in their quasi

totality, had not resorted to the remedy in question. The State party added that

the procedure before the Department of Citisens' Rights and Freedoms ji governed by

Departmental Decrees No. 0005/CAB/CE/DLC/MAWU/87 of 2 February 1987 azd

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et pedir ne

Bm 2... lhl,

No. 0027/CAB/DLC/CE/BI/87 of 29 June 1987, and that all complaints abovt alleged

human rights violations after 1 January 1960 may be examined under it.

11.1 In comments, dated 9 January 1989, on the State party's submissions, counsel

reaffirma that Mr. Tahisekedi suffered serious violations of his rights under

articles 19, paragraph 2) 21, 22 and 25 of the Covenant between the period of

17 January and 16 September 1988 and that he continues to be subjected to serious

restrictions on his freedom, since the State party's authorities do not allow him

to speak. out freely.

11.2 In his own comments, dated 21 February 1989, Mr. Tehisekedi confirms and

supplements much of the information contained in paragraphs 5.1, 5.2 and 8 above,

reiterating that the State party violated his fundamental human rights in the

pe. sod from 17 January to 19 Ss;tember 1988. With respect to the availability of

domestic remedies, he claims that the lawe and the Constitution of Zaire, in their

daily application, render any efforts to eshaust domestic remedies futile. In this

context, he submits that Zairian institutions act with the sole purpose of carrying

out the ideas, worde and acte of President Mobutu) in particular, the country's

security services, which act independently of each other and are directly

controlled by the President, allegedly engage frequently in human rights

violations. If citisens complain about the -ractices of the security services,

they are either accused of apostasy or considered to be mentally unstable. The

author therefore asserts that the Département des Droits et Libertés du Citoyen is

no more than an instrument of the State des:ined to conceal the daily occurrence of

human rights violations.

11.3 As to the evente subsequent to 17 January 1986, Mr. Tshisekedi states that in

the evening of that day he was due to deliver an address at the Place du Pont

Kaga-Vubu in Kinghasa. Upon addressing the large crowd which had gathered in the

square, he was seized by armed agents of the political police, while others

attacked the crowd and violently suppressed the manifestation. The author was then

taken into custody and brought to a secret place, where he was locked in a high

security cell and deprived of food and drink for ‘our days. It is submitted that

during his detention, i.e. from 17 January to 11 March 1986, he was never visited

or questioned by any examining magistrate.

11.4 One week after his arrest, he had to undergo a medical check-up at the

General Hospital. An electro-encepha)ogram was also carried out on him at the

Centre Neuro-Psycho-Pathologique of KR. hase. The author was aseured by the

doctors who examined him, Prof. Mpania and Prof. Loseke, that all tests had

produced satisfactory results. Notwithstanding, he was later informed that two

daye after his check-up, two agents of the political police broke into the office

of Prof. Mpania, accused him of being a member of the U.D.P.J., and searched his

office. They proceeded to do the same in Prof. Mpania's hovse: once they had

obtained the author's medical file, they ordered it to be destroyed and to have a

fake one prupared, which certified that the author was suffering ental disocders.

Prog. Logeke was subjected to similar acts of intimidation and even kept in

underyround detention for some days, as he had attempted to oppose the police

action.

11.5 According to the author, five days after his release on 11 March 1988, armed

sold‘ers entered his estate and brutally dispersed the crowd who had gathered to

celebrate. The commanding officer informed the author that, as he had been put

under judicial rnupervision ("surveillance judiciaire”), he was not allowed to

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receive any visitors. On 11 April 1988, the “surveillance judiciare" changed to

internal banishment ("baniasement intérieur"), without explanation. As a result,

the author was again tranaferred two thousand kms. te the north of the country, to

a camp close to the Sudanese border. ‘Two months later, he was t ansferred to yet

another place, located close to the presidential village of Gbadolite, where he waa

detained until 19 September 1988. The author explains that during the latter

period, he had to endure tremendous physical and psychological preasure and had to

live in deplorabl, sanitary conditions, as the place of his banishment was situated

in the Equatorial rain forest. Only after he had gone on a hunger strike for

13 days did President Mobutu order him to be: released.

12.1 The Human Rights Committee, having considered the present communications in

the light of all the information made available Lo it, as provided in article 5,

paragraph i, of the Optional Protocol, hereby decides to base its views on the

following facts, which are not in dispute or which have not been contested by the

State party.

12.2 The authors of the communications are two leading members of the Union pour

la Démocratie et le Progrés Social (U.D.P.S.), a political party in opposition to

the government of President Nobutu. From mid-June 1986 to the end of June 1987,

they were subjected to administrative measures of internal banishment, as a result

of the views adopted by the Human Rights Committee on 26 March 1986 in

communication No. 1368/1983. On 27 June and 1 July 1987, respectively, they were

released following a presidential amnesty, and decided to travel abroad. Upon his

return to Zaire in mid-January 1988, Mr. Tshigekedi sought to organise a

manifestation which met with the disapproval of the State authorities. On

17 January 1988 he was arrested and subjected to inhuman treatment, in that he was

deprived of food and drink for several days and was placed in a high-security

cell. Between 17 January and 11 March 1988, he was kept detained in a prison in

Kinshasa; during this time, he was neither informed of the reasons for his arrest

or of charges agaiuet him nor brought before a judge, while the State party's

authorities ordered his psychiatric examination and consistently referred to him in

the preas as being mentally disturbed. From 16 March to the beginning of

April 1988, Mr. Tehisekedi was kept under house arrest at hig home in Kinshasa -

Gombe, and from 11 April to 19 September 1988, he was intermittently subjected to

renewed administrative measures of banishment, which included his internment in

several military camps. During his internment, he had to live in unacceptc-le

sanitary conditions.

12.3 The Committee has taken note of the State party's submission of

2 November 1988, contending that the communications should be declared

inadmissible, and also of the information contained in its oral statement of

1 March 1988 before the Commission on Human Rights, in which the State party

referred to a recourse procedure before the Zairian Department of Citisens’ Rights

and Freedoms. The State party hag not, however, established how the authors could

have effectively availed themselves of this remedy in the circumstances of their

cases. The Committee reiterates that it ts incumbent upon the State party to

provide details of the remedies which it submits are available to the authors,

together with evidence that there would be a reasonable prospect for euch remedies

to be successful. In the light of the above, the Committee concludes that there is

no reason to review its admissibility decision of 4 April 1988.

12.4 In formulating jtes views, the Committee observes that the State party, while

providing some information about the authors' situation following the presidential

amnesty of June 1987 and their situation between 17 January and September 1988, has

not addressed the substance of their allegations, in yartioular their claim that

they were subjected to measure: cf administrative banishment as a result of the

adoption of the Committee's views in communication Nu. 138/1983 on 26 March 1086.

It ia implicit in article 4, paragraph 2, of the Optional Fratoce] that Statee

parties have a duty to investigate in good faith all the allegations of vio} ations

of the Covenant made against them and their authorities, and to furnish to the

Committee all the information available to them. In the communications under

congideratioa, the information provided by the State party addresgea only some

aspects of the allegations made by Mr. Tshisekedi and Mr. Birindwa. The Committee

takes the opportunity to reitorate that while partial and incomplete information

provided by States parties may assict in the examination of communications, it does

not satisfy the requirement of article 4, paragrayh 2, of the Optional Protocol.

In the circumstances, due weight must be given to the authors’ allegations.

12.5 The authors have alleged that they suffered retaliatory measures by the

Zairian authorities as a direct consequence of their prior communication to the

Human Rights Committee, No. 138/1983 (para. 2.2 above) and that any person in

possession of official documents of the Human Rights Committee isa deemed to be in

possession of "subversive" documents and, therefore, subject to arrest (para. 2.3

above). The Committee notes that these sorious allegations have not been commented

on by the State party. The Committee stresses in this connection that it would be

untenable and incompatible with the Covenant and the Optional Protocol if States

parties to these i.struments were to take exception to anyone's placing a

communication before the Committee under the Optional Protocol. Indeed, such

allegations, if established as true, would disclose grave violations of a State

party's obligations under the Covenant and the Optional Protocol.

The period from mid-June 1986 to June 1987

12.6 Article 12, paragraph 1, of the Covenant stipulates that "Everyone lawfully

within the territory of a State shall, within that territory, have the right to

liberty of movement and freedom to choose his residence." Both Mr. Birindwa and

Mr. Tehisekedi were, for a period of over ons year, confined to their native

villages and thue deprived of their freedom *f movement within the State party's

territory, in contravention of article 12, paragraph 1. In respect of the other

allegatious made by the authors for the period of mid-June 1986 to June 1987, the

Committee lacks sufficient information to make specific findings.

The period from January to September 1988

12.7 In as much ae the authore' situation for the period from 17 January to

September 1988 is concerned, the Committee finds it necessary to distinguish

between the situation of Mr. Tshisekedi and that of Mr. Birindwa. With respect to

Mr. Tehisekedi, it observes that he was kept in detention for close to two months

following the break-up of the demonstration of 17 January 1988. The State party

hae not contested hie claim that during this period, he was not brought before a

magistrate, contrary to article 9, paragraph 3, of the Covenant. Mr. Tehisekedi

further suffered administrative measures of internal banishment for intermittent

periods between 11 April and 16 September 1988 as a result of his call for a

boycott of the partial elections held in Kinshasa on 10 April 1988. Finally, he

was subjected to unlawful attacks on his honour and his reputation, in that the

authorities sought to have him declared insaue, although medical reporte

contradicced such diagnosis.

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12.8 With respect to Mr. Birindwa, the Committee observes that he has not provided

any daformation about his situation following his retura to Zaire. Accordingly,

the Committee is not in u position to mate any findings in this respect for the

period from 17 January to September 1983.

13, The duman Rights Comnit.tae, acting under article 5, peragreph 4, of the

Optional Protocol to the Interaationai Covenant on Civil and Politice’ Rights, is

of the view that the facte of the vommunivations disclose violations of the

International Covenant on Civil and Political Rights:

‘AY

{a) dn reepect of Faustin Birindwa of Birhashwirwa:

of article 12, paragraph 1, because he was deprived of hie freedom of

movement during a period of internal banishment which lasted from

mid-June 1986 to 1 July 1987;

(b) din reepect of Etienne Tahisekedi wa Mulumba:

of article 7, because he wae subjected to inhuman treatment, in that he

wae deprived of food and drink for four days after his arrest on

17 January 1988 and was subsequently kept interned under unacceptable

sanitary conditions)

of article 9, paragraph 2, because he was not informed, upon his arrest,

on 17 January 1988, of the reasons for his arrest)

of article 9, paragraph 3, because he was not brought promptly before a

judge following his arrest on 17 January 1988;

of article 10, paragraph 1, because he was not treated with humanity

during hie detention from 17 January to 11 March and from 11 April to

19 September 1988;

of article 12, paragraph 1, because he was deprived of his freedom of

movement during periods of internal banishment which lasted from

mid-June 1986 to 27 June 1987 and again from 11 April to

19 September 1988);

of article 17, paragraph 1, because he was subjected to unlawful attacks

on his honour and reputation.

14. The Committee is therefore of the view that the State party is under an

obligation, in accordance with the provisions of article 2 of the Covenant, to take

effective measures to remedy the violations suffered by the authors, in particular

to ensure that they can effectively challenge these violations before a court of

law, to grant appropriate compensation to Mr. Tsehisekedi and Mr. Birindwa, and to

ensure that similar violations do not occur in the future. The Committee takes

this opportunity to indicate that it would welcome information on any relevant

measures taken by the State party in respect of the Committee's views.

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