A/HRC/WGAD/2020/62

GE.20-13657 (E) 290121 290121

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-ninth session, 23–27 November 2020

Opinion No. 62/2020, concerning Benoît Faustin Munene (the Republic

of the Congo)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work (A/HRC/36/38), on 6 April 2020 the Working

Group transmitted to the Government of the Republic of the Congo a communication

concerning Benoît Faustin Munene. The Government has not replied to the communication.

The State is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

United Nations

A/HRC/WGAD/2020/62

General Assembly

Distr.: General

21 December 2020

English

Original: French

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Submissions

Communication from the source

4.

Benoît Faustin Munene is a serviceman and politician of Angolan and Congolese

(Democratic Republic of the Congo) nationality. He lives in the Republic of the Congo.

(a)

Context

5.

According to the source, Mr. Munene was the head of the armed forces of the Alliance

of Democratic Forces for the Liberation of Congo-Zaire and, alongside Laurent-Désiré

Kabila, an active participant in the events leading to the fall of the Mobutu regime.

6.

The source states that, under Mr. Kabila’s presidency, which lasted from 1997 to

2001, Mr. Munene was appointed Deputy Minister of the Interior and, subsequently, Chief

of Staff of the Congolese armed forces and Chief of Staff of the Congolese air force. After

Mr. Kabila’s assassination in 2001, Mr. Munene was removed from his government post. It

is alleged that Mr. Munene’s status and privileges were then gradually withdrawn, as he was

appointed to non-existent posts on the pretext of being promoted. In 2006, he was forced to

retire and placed under surveillance.

7.

The source explains that Mr. Munene then formed a political party, the Convention

du peuple pour le progrès et la démocratie, and stood as a candidate in the parliamentary

elections. However, the incumbent authorities obstructed all the political activities of this

newly established party.

8.

The source alleges that Mr. Munene was subsequently subjected to several

assassination attempts and attacks against his person. In October 2009, and again in

September 2010, armed men allegedly attacked his residence using heavy weapons, shooting

at his family and staff. During the last attack, one of his daughters was reportedly killed. For

this reason, Mr. Munene left Kinshasa.

9.

The source states that, on 29 September 2010, Mr. Munene went into exile in the

Republic of the Congo, where the authorities welcomed him and granted him “personal

protection”.

10.

The source reports that Mr. Munene has subsequently been held in de facto detention,

without justification, by the national authorities of the Republic of the Congo, which

confiscated both his Angolan passport and the passport issued to him by the Democratic

Republic of the Congo. The source explains that Mr. Munene was first placed under house

arrest in a State-owned villa in Ewo, in the west of the country, near the border with Gabon.

The national authorities have placed him under constant surveillance on the pretext that they

are ensuring his safety. The source states that the conditions of his house arrest are very strict

in that he is not allowed to move freely outside the residence and its gardens and is kept under

constant surveillance by armed or plain-clothed guards. Furthermore, he is allowed only a

bare minimum of communication and his written and telephone messages are monitored and

subject to a request for authorization.

11.

The source further reports that, on 4 March 2011, during a mock trial in the

Democratic Republic of the Congo, the Matadi military court sentenced Mr. Munene, in his

absence, to life imprisonment for conspiring against national security. The source alleges that

Mr. Munene was never summoned or asked to give a statement. He has never been notified

of this judgment, having heard about it only through the press. Following this conviction, the

Democratic Republic of the Congo requested the extradition of Mr. Munene but the Republic

of the Congo opposed it.

12.

The source adds that Mr. Munene has not been granted a residency permit. His

deprivation of liberty is not based on any court decision. Moreover, it is not possible for him

to submit an application for political asylum, or another residency permit, to the National

Committee for Assistance to Refugees, the body responsible for dealing with asylum

applications. On supposedly humanitarian grounds, Mr. Munene has been placed under the

jurisdiction of the Republic of the Congo and detained in his home, without justification,

under the constant surveillance of State officials. According to the source, Mr. Munene is

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being used as a high-profile bargaining chip vis-à-vis the authorities of the Democratic

Republic of the Congo.

13.

The source explains that, in December 2017, Mr. Munene attempted to travel to Gabon

to submit an asylum application to the Swiss consular authorities, which have no presence in

Brazzaville. Just after he had crossed the border, however, Mr. Munene was arrested and

detained by the Gabonese border police for unlawfully entering the country.

14.

On 12 January 2018, Mr. Munene was allegedly brought back to Brazzaville, where

he was held at the Directorate General for National Surveillance without any legal basis or

court decision to justify this action.

15.

The source states that, following this unjustified incarceration, Mr. Munene’s lawyer

contacted the authorities of the Republic of the Congo to find out why he had been detained

and to request his release. In this connection, Mr. Munene’s lawyer wrote to the Ambassador

of the Republic of the Congo (letter dated 17 May 2018) and then to the President (letter

dated 31 May 2018) with a view to resolving the situation. He then went to the Directorate

General for National Surveillance with a view to meeting with Mr. Munene sometime

between 8 and 15 June 2018. Although Mr. Munene’s lawyer had obtained a visa from the

consular authorities of the Republic of the Congo, he received an email on 6 June 2018

informing him that, on the instructions of the Ambassador of the Republic of the Congo to

France, it would be “helpful” for him to postpone his trip in order to prevent any possible

difficulties. Mr. Munene’s lawyer went ahead with the trip despite this warning, but the

authorities of the Republic of the Congo tried to dissuade him from visiting Mr. Munene.

16.

The source explains that, despite Mr. Munene’s critical state of health (he suffers from

high blood pressure and cancer), during his detention he has had access only to primary health

care and has never received adequate medical treatment. No specialist outpatient

consultations have been arranged for him and he has never been allowed out of detention to

attend health-care facilities.

17.

According to the source, Mr. Munene not only has difficulty contacting his lawyer but

has also been almost totally isolated from his relatives, only one of whom has been allowed

to visit his residence, to deliver his mail once a month.

18.

The source reports that Mr. Munene’s lawyer has continued to send letters to the

authorities in an effort to ensure that Mr. Munene receives adequate medical care.

19.

The source states that, in 2019, in view of the change in the political situation and the

presidency, there was no longer any reason to keep Mr. Munene in strict detention on the

grounds that his personal safety was allegedly being protected. In letters dated 30 January

2019 and 11 July 2019, Mr. Munene’s lawyer requested his release and the return of his

Angolan passport so that he would be free to leave the Republic of the Congo. The lawyer

has not received any response.

20.

The source states that Mr. Munene is still unable to take legal action against his

unlawful detention. At the same time, asylum applications have been submitted in South

Africa and Switzerland but these have not yet been processed.

21.

Lastly, the source reports that, in December 2019, Mr. Munene was once again placed

under house arrest, where he remains to this day. He is under 24-hour surveillance and cannot

leave the Republic of the Congo, not even to receive the medical care that he urgently needs.

The source explains that he lives with his wife and his youngest daughter but has no freedom

of movement. It further states that Mr. Munene lives under constant armed surveillance and

has been forbidden from leaving his residence or receiving visits, aside from a single visit

from his doctor. He is also forbidden from communicating with anyone.

(b)

Legal analysis

22.

According to the source, Mr. Munene’s detention is arbitrary under categories I, III

and V.

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i.

Category I

23.

The source states that Mr. Munene has been deprived of his freedom of movement

since he arrived in the Republic of the Congo. In September 2010, he was placed under house

arrest and kept under continuous surveillance in a villa in Ewo. He was not free to leave his

residence or the country. From January 2018 to December 2019, following his trip to Gabon,

Mr. Munene was detained at the Directorate General for National Surveillance under very

harsh conditions: he had almost no contact with his relatives and it was difficult for him to

communicate with his lawyer. In December 2019, Mr. Munene was once again placed under

house arrest, where he remains to this day. As he has no freedom of movement, he is unable

to leave his residence or the country. He is also under 24-hour surveillance. The source thus

reports that Mr. Munene has been subjected to several periods of deprivation of liberty.

24.

The source recalls that house arrest is considered to be as much a form of deprivation

of liberty as outright detention.1

25.

The source therefore alleges that Mr. Munene may be considered to have been

deprived of his liberty since September 2010 (that is, for some 10 years).

26.

Since this date, no detention order has been issued to justify Mr. Munene’s deprivation

of liberty and he has never been brought before a national judge. No judicial decision has

been issued. No legal grounds have been cited to justify his house arrest and subsequent

detention at the Directorate General for National Surveillance. No reason for his detention

has been given aside from an oral explanation relating to his alleged security, in connection

with which he was supposedly placed under the personal protection of the President of the

Republic. According to the source, this constitutes arbitrary detention under category I.

27.

The source also affirms that Mr. Munene has never accepted his deprivation of liberty.

On the contrary, he is trying to regain his freedom and leave the Republic of the Congo freely.

28.

The source further argues that the grounds for Mr. Munene’s deprivation of liberty

are spurious. For supposedly humanitarian reasons, Mr. Munene has been placed at the mercy

of the authorities of the Republic of the Congo. He has no permit that would allow him to

remain lawfully in this country. He cannot apply for refugee status to the National Committee

for Assistance to Refugees, the authority responsible for granting such status, since the

Directorate General for National Surveillance sits on this Committee on behalf of the

Ministry of the Interior. He is therefore totally and arbitrarily dependent on the authorities of

the Republic of the Congo, where he has no legal status.

29.

No detention order has been issued to justify Mr. Munene’s deprivation of liberty,

which has no legal basis. The source concludes that Mr. Munene’s detention is arbitrary under

category I.

30.

Furthermore, the source argues that Mr. Munene’s continued detention without

judicial oversight also renders his detention arbitrary under category I. In this regard, the

source recalls that Mr. Munene has been deprived of his liberty for almost 10 years and has

never been brought before a judge, as provided for in article 9 (3) of the Covenant, either

during his house arrest or during his detention at the Directorate General for National

Surveillance.

ii.

Category III

31.

According to the source, Mr. Munene has found it difficult to communicate with his

lawyer as he has not been given any means of contacting him freely and confidentially. The

source states that this violates principle 18 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment and article 14 (3) (b) of the Covenant.

32.

In addition, every time that Mr. Munene was visited by his lawyer between 8 and 15

June 2018, the meeting took place under direct supervision and in the presence of a guard or

officer of the Directorate General for National Surveillance.

1 See Yklymova v. Turkmenistan (CCPR/C/96/D/1460/2006); and deliberation No. 01 of the Working

Group (E/CN.4/1993/24, section II).

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33.

In the light of these facts, the source concludes that communication between Mr.

Munene and his lawyer has been restricted.

34.

The source also argues that Mr. Munene has been kept apart from members of his

family, in violation of principles 15, 16 (1) and 19 of the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprisonment and rules 43 (3), 58 (1) and 68

of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson

Mandela Rules). Indeed, when he was being held at the Directorate General for National

Surveillance, Mr. Munene was allowed only extremely limited contact with his family. Only

one of them was allowed to bring him his mail once a month. This is the only contact that he

was granted.

35.

The source therefore concludes that the impact of these restrictions, and his isolation,

on the fairness of the proceedings are sufficiently serious as to render the detention arbitrary

under category III.

iii.

Category V

36.

The source recalls that, when deprivation of liberty is the result of discrimination

based on political opinion, it constitutes arbitrary detention. It also recalls that Mr. Munene,

a professional serviceman, is known for his political activism. He was a member of the

Government of the Democratic Republic of the Congo after the fall of the Mobutu regime

and was subsequently ousted when Joseph Kabila took power. According to the source, the

authorities then wished to get rid of all members of the previous Government, especially Mr.

Munene, who was a high-ranking tutelary and military figure in the country. The source

reiterates that Mr. Munene then established a political party but the incumbent authorities

prevented him from engaging in political activity.

37.

The source alleges that Mr. Munene’s physical integrity and life were in danger

because he was a political opponent of the incumbent regime. As a result, he went into exile

in the Republic of the Congo.

38.

The source affirms that the present case revolves around the public view, in the

Democratic Republic of the Congo, of Mr. Munene as a political figure. Even though Mr.

Munene is not a political opponent of the incumbent regime in the Republic of the Congo, he

was and still is considered to be a political threat in the Democratic Republic of the Congo.

39.

In this connection, the source reports that Mr. Munene has repeatedly denounced the

massacres, rapes and ambushes carried out in the east of the Democratic Republic of the

Congo as well as the illegal trafficking of raw materials, corruption, misappropriation of

public funds, theft of other people’s property, unpaid wages, unemployment, poverty, rigged

elections, degradation of institutions and agencies, insecurity, injustice, arbitrary detention,

summary executions and lack of respect for human rights in that country.

40.

The source further recalls that the Democratic Republic of the Congo has requested

Mr. Munene’s extradition because, in his absence, the Matadi military court sentenced him

to life imprisonment for conspiring against the State. The source claims that, although the

Republic of the Congo has refused to extradite Mr. Munene, it has also refused to release him

because the two countries have allegedly reached an agreement whereby he is kept away

from the political life of the Democratic Republic of the Congo and is thereby deprived of

his physical freedom and freedom of expression.

41.

The source also maintains that, in view of the pressure being exerted by the authorities

of the Democratic Republic of the Congo on the authorities of the Republic of the Congo,

Mr. Munene is at risk of being returned to the former country at any time and executed there.

42.

The source therefore argues that, on the pretext of providing Mr. Munene with

humanitarian assistance, but without according him the right to the international protection

afforded to political refugees, the authorities are in fact illegally detaining Mr. Munene,

covertly subjecting him to the life sentence handed down in the Democratic Republic of the

Congo.

43.

Therefore, according to the source, Mr. Munene is being detained because of his

political opinions and his detention may therefore be considered arbitrary under category V.

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Response from the Government

44.

On 6 April 2020, the Working Group transmitted to the Government a communication

concerning Mr. Munene. The Working Group requested it to provide detailed information

about Mr. Munene by 5 June 2020 at the latest. Specifically, the Working Group requested

the Government to clarify the legal provisions justifying Mr. Munene’s continued detention

and their compatibility with the obligations of the Republic of the Congo under international

human rights law, in particular with the treaties that the State has ratified. Moreover, the

Working Group called upon the Government to ensure Mr. Munene’s physical and mental

integrity.

45.

The Working Group regrets that it did not receive a response from the Government to

that communication, nor did the Government request an extension of the time limit for its

reply, as provided for in the Working Group’s methods of work. The Working Group notes

with concern that, in recent years, the Government has not taken the opportunity to respond,

or has not responded in a timely manner, under the Working Group’s regular procedure.2 The

Working Group invites the Government to engage constructively with it on all allegations

relating to the arbitrary deprivation of liberty.

Discussion

46.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

47.

In determining whether the deprivation of liberty of Mr. Munene is arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has established a prima facie case for breach of international

requirements constituting arbitrary detention, the burden of proof should be understood to

rest upon the Government if it wishes to refute the allegations (see A/HRC/19/57, para. 68).

In the present case, the Government has chosen not to challenge the prima facie credible

allegations made by the source.

48.

Before examining whether Mr. Munene’s detention is arbitrary, it is first necessary to

determine the periods during which he has been detained. According to the source, Mr.

Munene has been held in detention for three periods since he arrived in the Republic of the

Congo in September 2010: (a) from 29 September 2010 until December 2017, when he was

under supervised house arrest; (b) from 12 January 2018 until December 2019, when he was

held at the Directorate General for National Surveillance; and (c) from December 2019 to

date, during which time he has again been under supervised house arrest. The source argues

that the conditions in which Mr. Munene was held during each of these periods amount to a

deprivation of liberty.

49.

More specifically, the source alleges that, from 29 September 2010 until December

2017, i.e. for more than seven years, Mr. Munene was kept under house arrest in a villa

belonging to the Republic of the Congo in Ewo, near the Gabonese border. According to the

source, Mr. Munene could not move freely outside the residence and was kept under constant

surveillance by armed or plain-clothed guards. His communications were limited to a bare

minimum as all his written and telephone messages were monitored and subject to

authorization.

50.

In addition, from 12 January 2018 to December 2019, i.e., for almost two years, Mr.

Munene was held at the Directorate General for National Surveillance under a very strict

detention regime. According to the source, Mr. Munene had almost no contact with his family

and had difficulty communicating with his lawyer. One family member was allowed to bring

him his mail once a month.

51.

Lastly, from December 2019 to date, i.e. for almost a year, Mr. Munene has been

under house arrest again. He is under 24-hour surveillance and cannot leave the Republic of

the Congo, not even to receive urgent medical care. According to the source, Mr. Munene

lives with his wife and youngest daughter but has no freedom of movement as he is not

allowed to leave his residence. Mr. Munene lives under constant armed surveillance, has not

2 See opinions No. 56/2018, No. 5/2018, No. 25/2017 and No. 44/2014.

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been allowed to receive any visits, other than a single visit from his doctor, and is forbidden

from communicating with anyone.

52.

In its deliberation No. 1 on house arrest, the Working Group stated that house arrest

may be compared to deprivation of liberty provided that it is carried out in closed premises

which the person is not allowed to leave.3 It went on to clarify that the question of whether a

person is deprived of his or her liberty is a question of fact and that a person who is free to

leave at any time is not deprived of his or her liberty.4 The Working Group assesses on a

case-by-case basis whether an individual has indeed been deprived of his or her liberty.

53.

In applying these principles, the Working Group concludes that Mr. Munene has

clearly been deprived of his liberty during each of these three periods. On each occasion, Mr.

Munene was detained in premises that he was not allowed to leave and subjected to constant

surveillance. Furthermore, his communications were monitored and his contact with the

outside world was restricted. Apart from a brief period between December 2017 and 12

January 2018, during which he attempted to travel to Gabon, Mr. Munene has been detained

continuously since 29 September 2010, that is, for more than 10 years. In drawing this

conclusion, the Working Group notes that the Government has not submitted any information

to contest the source’s allegations.

54.

The Working Group will now examine whether Mr. Munene’s detention since

September 2010 is arbitrary.

Category I

55.

The source reports that Mr. Munene went into exile in the Republic of the Congo after

several assassination attempts and attacks had been made against him when he was based in

Kinshasa. On 29 September 2010, when Mr. Munene entered the Republic of the Congo, he

was placed in protective detention by the national authorities on the pretext that they were

ensuring his safety. The authorities confiscated both his passports, and Mr. Munene has no

official legal status in the Republic of the Congo. He cannot apply for asylum or refugee

status as the Directorate General for National Surveillance is part of the organization that

grants this status. The source states that, on 4 March 2011, a military court in the Democratic

Republic of the Congo sentenced Mr. Munene, in his absence, to life imprisonment for

conspiring against national security. Although the Democratic Republic of the Congo has

requested that Mr. Munene be extradited, the Republic of the Congo is refusing to do so and

is instead detaining him indefinitely on the pretext of providing him with humanitarian

assistance.

56.

The Working Group considers that Mr. Munene’s detention in the Republic of the

Congo, since 29 September 2010, has no legal basis. According to the information received

from the source, which has not been contested by the Government, no charges or legal

proceedings have been brought against Mr. Munene in the Republic of the Congo and he is

not being detained under any particular law that would provide for his being in custody.

57.

Furthermore, as the Working Group has already indicated, deprivation of liberty to

protect a person must be used only as a last resort and when the person concerned desires it.

It must also be overseen by a judicial authority.5 In the present case, detention was the

authorities’ immediate response rather than a last resort. The Working Group believes that

alternative measures to detention could have been taken in order to provide Mr. Munene with

appropriate protection. For instance, he could have been offered asylum through an

independent assessment that did not involve the Directorate General for National

Surveillance or his passport could have been returned, allowing him to seek asylum

elsewhere. Moreover, Mr. Munene’s refusal to accept his deprivation of liberty is clearly

shown by his numerous attempts to seek asylum in other countries and to leave the Republic

3 See Opinions No. 10/2020, para. 57; and No. 16/2011, para. 14.

4 See A/HRC/36/37, paras. 50–56; and A/HRC/30/37, para. 9. See also opinions No. 56/2018, para. 43;

No. 37/2018, para. 25; No. 30/2012, para. 15; No. 16/2011, para. 7; No. 13/2007, para. 24; No.

47/2006, para. 30; and No. 11/2001, para. 12.

5 See E/CN.4/2002/77, para. 61; and E/CN.4/2003/8, para. 65 (which refers to the detention of

vulnerable women but is also relevant to this case).

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of the Congo freely. As indicated below, his detention has not been subject to any judicial

oversight.

58.

Furthermore, the Working Group cannot accept that there is any justification for

keeping Mr. Munene under protection for more than 10 years,6 especially since the political

situation in the Democratic Republic of the Congo has reportedly improved since he went

into exile. The Government has not provided any explanation as to why Mr. Munene needed

to be detained for such a long time for his personal safety.7

59.

The source further asserts, and the Government has not denied, that Mr. Munene has

never had the opportunity to challenge the legality of his detention before a judicial authority

in the Republic of the Congo, either during his house arrest or during his detention at the

Directorate General for National Surveillance. The fact that the authorities have not given

Mr. Munene the opportunity to challenge his detention is manifestly contrary to his right

under article 9 (4) of the Covenant to take proceedings before a court so that the judicial

authorities may decide without delay on the lawfulness of his detention. The right to

challenge the lawfulness of detention, both at the outset and at regular intervals, applies to

all situations of deprivation of liberty, including pretrial detention.8 This judicial oversight of

the deprivation of liberty is a fundamental safeguard of personal liberty and is essential in

ensuring that detention has a legal basis. 9 Given that Mr. Munene has been unable to

challenge his detention, his right to an effective remedy under article 8 of the Universal

Declaration of Human Rights and article 2 (3) of the Covenant has been violated.

60.

The Working Group considers that Mr. Munene’s inability to challenge his detention

under article 9 (4) of the Covenant has been exacerbated by his restricted access to a lawyer

throughout his detention. In particular, Mr. Munene has been unable to consult his lawyer in

confidence. Free access to a lawyer from the outset of detention is an essential guarantee to

ensure that detainees are able to challenge the legal basis of their detention.10

61.

For these reasons, the Working Group concludes that there is no legal basis for Mr.

Munene’s detention since September 2010, that his detention violates article 9 of the

Universal Declaration of Human Rights and article 9 of the Covenant and that it is arbitrary

under category I.

Category II

62.

According to the source, Mr. Munene played an active role in the political life of the

Democratic Republic of the Congo before going into exile in the Republic of the Congo in

September 2010. After being forced to retire in 2006, he formed a political party known as

the Convention du peuple pour le progrès et la démocratie and stood for election. However,

the source affirms that the authorities prevented this party from engaging in political

activities.

63.

The source also reports that Mr. Munene spoke out against the massacres, rapes and

other violations committed in the east of the Democratic Republic of the Congo and

expressed his views on other issues of public interest such as corruption, the misappropriation

of public funds, unemployment, poverty, unfair elections, arbitrary detention, summary

executions and the lack of respect for human rights in the country. The source alleges that,

6 See Opinion No. 9/2004, para. 13 (finding that it is not possible to keep a person under house arrest,

allegedly for protection purposes, for one year against his or her will). See also Opinion No. 15/2009,

paras. 21–26 (relating to the absence of legal basis for holding persons in continued police protective

custody).

7 Even if it had been established that Mr. Munene was being held for security purposes, such detention

would normally amount to arbitrary detention as other effective measures addressing the threat,

including the criminal justice system, would be available. See the Human Rights Committee’s general

comment No. 35 (2014), para. 15.

8 See A/HRC/30/37, para. 9; and A/HRC/22/44, para. 82 (b).

9 See A/HRC/30/37, para. 3. See also the Body of Principles for the Protection of All Persons under

Any Form of Detention or Imprisonment, principle 4.

10 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 9

and guideline 8. See also opinion No. 40/2020, para. 29.

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although the Republic of the Congo has refused to extradite Mr. Munene to the Democratic

Republic of the Congo, it is keeping him in detention under an agreement established between

the two countries to remove him from public life and deprive him of his freedom of

expression. The Working Group notes that the Government has not provided any information

or explanation in response to the source’s allegations.

64.

The Working Group recalls that article 19 (2) of the Covenant provides that everyone

has the right to freedom of expression; that right includes the freedom to seek, receive and

impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or

in print, in the form of art or through any other media of his or her choice. This right applies

to political discourse, commentary on public affairs and discussion of human rights.11 It

protects the holding and expression of opinions, including those which are critical of, or not

in line with, government policy.12 The Working Group considers that Mr. Munene’s conduct

falls within the right to freedom of opinion and expression protected under article 19 of the

Universal Declaration of Human Rights and article 19 of the Covenant and that he was

initially placed in detention, and remains there, because he exercised these rights.

65.

Moreover, Mr. Munene’s criticism of government policy, as expressed in his

comments on various human rights issues in the Democratic Republic of the Congo,

concerned matters of public interest. The Working Group considers that he was initially

placed in detention, and remains there, because he exercised his right to take part in the

conduct of public affairs under article 21 (1) of the Universal Declaration of Human Rights

and article 25 (a) of the Covenant.13

66.

There is nothing to suggest that the permissible restrictions on these rights set out in

articles 19 (3) and 25 of the Covenant apply in the present case. The Working Group is

satisfied neither that the detention of Mr. Menune was necessary to protect a legitimate

interest under these provisions nor that his detention for an undetermined period, beginning

10 years ago, is a proportionate response to his previous activities in the Democratic Republic

of the Congo. Importantly, there is no evidence to suggest that Mr. Munene’s criticisms of

the Government amounted to a direct or indirect call for violence or that they might

reasonably be considered a threat to national security, public order, public health or morals

or the rights or reputations of others. The Human Rights Council has requested States to

refrain from imposing restrictions under article 19 (3) of the Covenant that are not consistent

with international human rights law.14 The Working Group refers the present case to the

Special Rapporteur on the promotion and protection of the right to freedom of opinion and

expression.

67.

The Working Group concludes that Mr. Munene has been held in detention since

September 2010 because he peacefully exercised his rights to freedom of opinion and

expression and his right to take part in the conduct of public affairs and that his detention is

contrary to articles 19 and 21 (1) of the Universal Declaration of Human Rights and articles

19 and 25 (a) of the Covenant. His detention is arbitrary under category II.

Category III

68.

The source alleges that Mr. Munene’s ability to communicate freely and in confidence

with his lawyer has been restricted throughout his detention, in violation of principle 18 of

the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment and article 14 (3) (b) of the Covenant.

69.

Following Mr. Munene’s detention at the Directorate General for National

Surveillance in January 2018, his lawyer contacted the authorities of the Republic of the

Congo to ask why he had been detained and to request his release. Mr. Munene’s lawyer also

visited him at the Directorate General in June 2018, despite the authorities’ attempts to delay

11 See the Human Rights Committee’s general comment No. 34 (2011), para. 11.

12 See opinions No. 8/2019, para. 55; and No. 79/2017, para. 55.

13 Human Rights Committee, general comment No. 25 (1996), para. 8 (noting that citizens can take part

in the conduct of public affairs by exerting influence through public debate). See also opinions No.

36/2020, No. 16/2020, No. 15/2020 and No. 45/2019.

14 Human Rights Council resolution 12/16, para. 5 (p).

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his trip and dissuade him from visiting his client. The source affirms that all the visits that

Mr. Munene’s lawyer paid to him between 8 and 15 June 2018 took place under direct

supervision and in the presence of a guard or officer of the Directorate General. Mr. Munene

has also been subjected to restrictions on visits and communications during his two periods

of house arrest. Consequently, the source maintains that Mr. Munene’s detention is arbitrary

under category III.

70.

In the present case, Mr. Munene’s detention is not related to a criminal case as no

charges or proceedings have been brought against him and he is not subject to extradition

proceedings aimed at bringing him before a court in the Democratic Republic of the Congo.

Indeed, Mr. Munene has already been sentenced to life imprisonment in his absence. His

detention for protective purposes is a form of administrative detention. 15 However, the

Working Group has found that in cases involving excessively lengthy detention, the

individual should enjoy the same guarantees as in criminal cases, even if the detention is

administrative.16 Mr. Munene has been in detention for more than 10 years under punitive

conditions similar to those imposed on convicted persons.17 Accordingly, the Working Group

will examine his detention under category III. In doing so, the Working Group reiterates that

the Government has not challenged any of the allegations made by the source.

71.

All persons deprived of their liberty have the right to legal assistance by counsel of

their choice at any time during their detention, including immediately after their

apprehension, and such access must be provided without delay.18 In the view of the Working

Group, Mr. Munene’s lack of access to his lawyer throughout his detention, and the fact that

guards supervised, and were present during, interviews with his lawyer violated his right to

communicate with and be assisted by counsel, in accordance with principles 11 (1), 15, 17

and 18 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment. Legal consultations may be within sight but not within hearing

of the authorities, and all communications with counsel must remain confidential.19

72.

The Working Group concludes that these restrictions on Mr. Munene’s access to his

lawyer have contributed to his being detained for an excessively lengthy period of time and

are therefore of such gravity as to give his detention an arbitrary character under category III.

Category V

73.

The source argues that Mr. Munene is being detained because of his political opinions.

It states that Mr. Munene is known for his political activism. He was a member of the

Government of the Democratic Republic of the Congo after the fall of the Mobutu regime

and was removed from his post when Joseph Kabila took power. The source also asserts that

Mr. Munene’s political influence in the Democratic Republic of the Congo is a key factor in

the present case. Although he is not part of the political opposition in the Republic of the

Congo, he was and still is considered to be a political threat in the Democratic Republic of

the Congo. The authorities of the Republic of the Congo are therefore covertly enforcing the

life sentence handed down to Mr. Munene, in his absence, in the Democratic Republic of the

Congo.

74.

As the Government has not responded to the source’s allegations or explained why

Mr. Munene remains in protective detention after 10 years, the Working Group concludes

that Mr. Munene is being detained on discriminatory grounds because of his political or other

opinions. As previously indicated, the Government could have offered Mr. Munene asylum

15 Administrative detention is the deprivation of liberty of a person that is ordered by the executive

authority of the State rather than by the judiciary; E/CN.4/Sub.2/1989/27, para. 17.

16 See opinions No. 49/2020, No. 12/2020, No. 73/2018 and No. 31/2017. See also the Human Rights

Committee’s general comment No. 32 (2007), para. 15.

17 In view of the facts presented, the Working Group notes that Mr. Munene has never been tried and

has not participated in any judicial proceedings in the Republic of the Congo that might have met the

requirements of article 14 of the Covenant.

18 See A/HRC/30/37, annex, principle 9 and guideline 8.

19 See the Human Rights Committee’s general comment No. 32 (2007), para. 34; the Body of Principles

for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 18;

A/HRC/30/37, annex, guideline 8; and opinion No. 59/2020, para. 78.

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GE.20-13657

11

or allowed him to leave the Republic of the Congo to seek asylum elsewhere. No attempt was

made to explore the feasibility of such measures, which suggests that Mr. Munene was placed

in detention because of his previous political activities in the Democratic Republic of the

Congo. Moreover, in the discussion above concerning category II, the Working Group has

established that Mr. Munene’s detention resulted from the peaceful exercise of his rights

under international law. When detention results from the active exercise of civil and political

rights, there is a strong presumption that the detention also constitutes a violation of

international law on the grounds of discrimination based on political or other views.20 Mr.

Munene’s deprivation of liberty violates articles 2 and 7 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant, and is arbitrary under category V.

Concluding remarks

75.

The source reports that Mr. Munene was isolated from his family during his detention

at the Directorate General for National Surveillance. During this period, Mr. Munene had

extremely limited contact with the outside world: only one of his relatives was allowed to

bring him his mail once a month. In the view of the Working Group, the restrictions imposed

on Mr. Munene’s communication with his family violated his right to communicate with the

outside world under principles 15 and 19 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.

76.

Furthermore, the Working Group is deeply concerned that Mr. Munene has never

received adequate medical care during his detention, despite the fact that he suffers from high

blood pressure and cancer. No outpatient or specialist consultations have been arranged for

him and he is not allowed to receive medical treatment elsewhere. Mr. Munene’s lawyer has

sent several letters to the authorities requesting that medical care be made available to him.

The Working Group urges the Government to immediately release Mr. Munene and ensure

that he receives medical care. The Working Group takes this opportunity to remind the

Government of its obligation under article 10 (1) of the Covenant to ensure that all persons

deprived of their liberty are treated with humanity and with respect for their inherent dignity.

77.

The Working Group recognizes that all States have an obligation to ensure that

persons responsible for committing offences are punished. However, the Working Group’s

opinion in the present case does not concern the previous proceedings brought against Mr.

Munene in the Democratic Republic of the Congo but the conditions in which he is currently

being detained. States must respect the provisions of the Covenant, violations of which have

been identified in the present case.21

78.

The Working Group would like to conduct a visit to the Republic of the Congo so that

it can engage in a constructive dialogue with the Government and thereby address concerns

relating to the arbitrary deprivation of liberty.

Disposition

79.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Benoît Faustin Munene, being in contravention of articles

2, 7, 8, 9, 19 and 21 (1) of the Universal Declaration of Human Rights and of articles

2 (1) and (3), 9, 19, 25 (a) and 26 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I, II, III and V.

80.

The Working Group requests the Government of the Republic of the Congo to take

the steps necessary to remedy the situation of Mr. Munene without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

81.

The Working Group considers that, taking into account all the circumstances of the

case, including the risk of harm to Mr. Munene’s health, the appropriate remedy would be to

20 See opinions No. 42/2020, para. 93; No. 36/2020, para. 75; No. 59/2019, para. 79; No. 13/2018, para.

34; and No. 88/2017, para. 43.

21 See opinion No. 1/2020, para. 74.

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release Mr. Munene immediately and accord him an enforceable right to compensation and

other reparations, in accordance with international law.22

82.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Munene and to take appropriate measures against those responsible for the violation of his

rights.

83.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression.

84.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

85.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Munene has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Munene;

(c)

Whether an investigation has been conducted into the violation of his rights

and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of the Republic of the Congo with its international

obligations in line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

86.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

87.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

88.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.23

[Adopted on 23 November 2020]

22 Working Group on Arbitrary Detention, deliberation No. 10 (A/HRC/45/16, annex I) (identifying full

reparations to which victims of arbitrary deprivation of liberty are entitled).

23 Human Rights Council resolution 42/22, paras. 3 and 7.