A/HRC/WGAD/2022/75

GE.23-05172 (E) 151223 181223

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 75/2022, concerning Christian Roger Okemba (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 51/8.

2.

In accordance with its methods of work,1 on 9 August 2022 the Working Group

transmitted to the Government of the Congo a communication concerning Christian Roger

Okemba. 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).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/75

General Assembly

Distr.: General

30 March 2023

English

Original: French

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Submissions

Communication from the source

4.

Christian Roger Okemba is a citizen of the Congo. He was born on 27 July 1960 and

holds an identity document issued by the Republic of the Congo on 13 April 2016. He usually

lives at 83 rue Ongoue, Jacque-Opangault, Djiri, Brazzaville.

5.

The source explains that on 24 August 2017, Mr. Okemba was elected mayor of

Brazzaville and appointed chair of the departmental and municipal council of Brazzaville.

He took up his role on 4 September 2017. According to the source, Mr. Okemba is a

Congolese political figure who is particularly popular in the city of Brazzaville and the towns

of Makoua and Itoumbi and who had been expected by some to stand in the March 2021

presidential election.

6.

The source notes that Mr. Okemba’s political vision for the city of Brazzaville hinged

primarily on organization of the inaugural urban agriculture forum, financed by the Food and

Agriculture Organization of the United Nations, on the Brazzaville tram project and on the

decision to use bank accounts to handle municipal receipts to allow such receipts to be traced.

a.

Arrest and detention

7.

The source claims that, in a letter dated 2 March 2020, the State prosecutor ordered

the Director General of the Direction générale de la surveillance du territoire

(Directorate-General of National Security) (DGST) to open a preliminary investigation under

the flagrante delicto procedure.

8.

On 3 March 2020, at around 1 p.m., a number of DGST officials visited Mr. Okemba’s

home and informed him that he had been summoned by the Director General of the DGST.

Mr. Okemba was not presented with a warrant. He contacted the DGST to verify the

authenticity of the summons and went to the DGST premises, accompanied by his bodyguard

and driver.

9.

On arriving at the DGST premises, Mr. Okemba was informed that he was under arrest

for embezzlement. No documents were presented to him. He was then taken to a cell where

he remained for two days. He had not been granted a hearing prior to his detention. During

this two-day period, he was allowed to receive only meals provided by his family.

10.

On 6 March 2020, Mr. Okemba was questioned from around 7 p.m. until 2 a.m. the

next morning without his lawyer present. His time in police custody was extended on

6 March, and then again on 9 March until 13 March. According to the source, Mr. Okemba

did not have access to a lawyer during his 10 days in custody.

11.

The State prosecutor referred the matter to the Criminal Chamber of the Supreme

Court on 4 March 2020. On 6 March 2020, the Criminal Chamber appointed the Brazzaville

tribunal de grande instance (court of major jurisdiction) to investigate and rule on the case.

However, the source explains that the State prosecutor never referred the case to the

investigating judge and instead took the judge’s place in the investigation of the case and

extended the period of Mr. Okemba’s detention.

12.

On 13 March 2020, the State prosecutor issued a committal warrant for Mr. Okemba

without having first questioned him in the presence of his lawyer. That same day,

Mr. Okemba, who had been detained at the DGST premises since 3 March 2020, was

transferred to Brazzaville prison, where he is currently detained.

13.

The source notes that at the time of Mr. Okemba’s arrest and during his pretrial

detention, several media outlets raised questions regarding his arrest and removal,

highlighting several anomalies, grey areas and obvious procedural defects. Some media

outlets judged the speed at which the procedure took place to be unusual, noting that

suspected cases of corruption in the country were rarely investigated. According to the

source, the media reported that the municipality of Brazzaville represented a major financial

concern and referred to “clan warfare” over the municipality.

14.

The source considers that the State prosecutor’s decision to issue a warrant for

Mr. Okemba suggests that no preliminary investigation had been carried out that could justify

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his arrest. In this regard, the source states that on 24 February 2020 the Minister of the Interior

requested the freezing of Mr. Okemba’s account, and that the following day the State

prosecutor ordered the freezing of Mr. Okemba’s account with the Banque sino-congolaise

pour l’Afrique (Sino-Congolese Bank for Africa) (BSCA) in accordance with a ruling handed

down by the Indictments Chamber. However, the Inspectorate General for Territorial

Administration did not initiate its investigation until 28 February 2020, days after the decision

to freeze Mr. Okemba’s account.

15.

According to the source, while Mr. Okemba was in custody at the DGST premises,

the Criminal Chamber of the Supreme Court alleged that he had withdrawn 200 million CFA

francs from a private BSCA account through cheque no. 8004136. However, the source

points out that the withdrawal slip corresponding to this cheque indicates that the transaction

was carried out not by Mr. Okemba, as indicated by the judges, but by another person, whose

name the source has provided. The source therefore believes that the name was intentionally

changed, which led to Mr. Okemba’s detention.

16.

The source notes that on 28 May 2020, Mr. Okemba’s counsel requested his release

in accordance with articles 123 and 124 of the Code of Criminal Procedure. This request was,

however, rejected.

17.

On 23 June 2020, a petition was lodged with the Constitutional Court to review the

constitutionality of Decree No. 2020-119 of 29 April 2020, which ordered Mr. Okemba’s

removal, and Decision No. 4831/MID/CAB of 28 February 2020, which ordered his

suspension as chair of the departmental and municipal council and as mayor of Brazzaville.

On 14 July 2020, the Constitutional Court declared itself incompetent to rule on the

constitutionality of the decree and the decision, in accordance with its assigned jurisdiction.

18.

On 26 June 2020, Mr. Okemba’s counsel petitioned the Administrative Chamber of

the Supreme Court for the annulment of those administrative acts. The Chamber dismissed

the petition on 13 May 2021, declaring that the State prosecutor was competent to initiate

flagrante delicto proceedings under article 42 of Act No. 7-2003 of 6 February 2003, on the

organization and functioning of local authorities, and article 55 of the Code of Criminal

Procedure.

19.

On 18 July 2020, the Brazzaville Criminal Court sentenced Mr. Okemba to 5 years’

imprisonment for embezzlement of public funds pursuant to articles 59 and 60 of the Criminal

Code, articles 15 and 18 of Act No. 5-2009 of 22 September 2009 on corruption, bribery,

fraud and related offences, and articles 222, 228, 251, 252, 255, 256, 258 to 261, 264, 267 to

270, 279, 297 to 307, 309, 311, 312 and 314 of the Code of Criminal Procedure.

20.

On 20 July 2020, Mr. Okemba lodged an appeal on points of law. Through a decision

dated 22 December 2020, the Supreme Court referred the case back to the Criminal Chamber

of the Supreme Court, even though this chamber had already examined the case and referred

it to the criminal division of the Brazzaville courts on 6 March 2020. The source notes that

the same applies to the Supreme Court judges who had handed down the 22 December 2020

ruling, since they had already examined the case when they appointed the Brazzaville

tribunal de grande instance to hear it.

21.

The source states that, following Mr. Okemba’s arrest, his relatives found lawyers

who agreed to represent him after he had been taken into custody. However, the lawyers were

unable to gain access to their client until 4 July 2020, two days before his trial before the

Brazzaville Criminal Court began on 6 July 2020. For a period of four months, Mr. Okemba

was thus unable to obtain access to his lawyers or his case file, which he needed in order to

familiarize himself with his file and prepare his defence. The source adds that, during the

trial, the speaking time of Mr. Okemba’s lawyers was limited and their statements were

regularly censored by the judges.

22.

Furthermore, the source reports that Mr. Okemba was not granted any visitation rights

prior to the start of his trial on 6 July 2020. He was able to receive visits from his family only

after his trial.

23.

Lastly, Mr. Okemba is being held in an unsanitary cell with four other detainees and

has access only to primary health care.

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b.

Legal analysis

24.

According to the source, Mr. Okemba’s detention is arbitrary under categories I, II,

III and V.

i.

Category I

(i)

Police custody

25.

The source states that articles 46, 48 to 50, 55 and 63 of Title II of the Code of Criminal

Procedure set out the procedure to be followed in investigations into cases of serious crimes

and other major offences in which the perpetrator is caught in flagrante delicto. In particular,

in cases of flagrante delicto, the law states that suspects may be held in police custody for a

maximum of 72 hours, a period extendable by 48 hours for a maximum total of 120 hours.

26.

The source recalls that, in an opinion concerning the Congo, the Working Group on

Arbitrary Detention noted that custody time limits are an important safeguard for individuals

in contact with the criminal justice system, and any extension thereof should be duly justified

and remain exceptional. 2 In the same opinion, the Working Group considered that the

repeated and unjustified extension of the custody time limit resulted from an abuse of power

and led to detention that no longer had any legal basis and therefore fell within category I.3

The source notes that according to the International Federation of Action by Christians for

the Abolition of Torture (FIACAT), 90.97 per cent of Congolese detainees are held in

custody beyond legal time limits.4

27.

In the present case, the source affirms that Mr. Okemba’s custody was extended

several times by the State prosecutor. Mr. Okemba was held in police custody from 3 to

13 March 2020, five days beyond the legal limit. The source also states that, contrary to the

guarantees contained in the Code of Criminal Procedure, Mr. Okemba was not able to receive

assistance from his lawyer during his time in custody and was able to consult his doctor in

the first three days of his detention only.

28.

The source concludes that Mr. Okemba’s detention in police custody was arbitrary as

it was excessive and lacked legal grounding.

(ii)

Pretrial detention

29.

The source also explains that, according to article 121 of the Code of Criminal

Procedure, pretrial detention may not exceed 4 months. However, on 13 March 2020,

Mr. Okemba was transferred to Brazzaville prison, where he remained in pretrial detention

until his trial on 18 July 2020, five more days than permitted under domestic law. The source

notes that none of the documents in his case file explains why the State prosecutor requested

that Mr. Okemba’s detention be extended by the investigating judge.

30.

The source notes that, according to FIACAT, the legal time limits for detention

envisaged in domestic law are often not respected, and most cases of detention in the Congo

are cases of pretrial detention as a result of the high rate of improper pretrial detention.

According to FIACAT, as at 14 January 2020, pretrial detainees represented 81 per cent of

Brazzaville’s prison population.5

2 Opinion No. 5/2018, para. 38.

3 Ibid.

4 FIACAT and Action des chrétiens pour l’abolition de la torture au Congo (Action by Christians for

the Abolition of Torture in the Congo) (ACAT Congo), Alternative report of FIACAT and ACAT

Congo for the adoption of the list of issues prior to the submission of the report of the Congo,

129th session, para. 57.

5 Ibid., para. 70.

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31.

As mayor of Brazzaville and chair of the Brazzaville departmental and municipal

council, Mr. Okemba should have benefited from the application of the provisions of article

42 of Act No. 7-2003 on the organization and functioning of local authorities, and articles

602 and 608 of the Code of Criminal Procedure concerning serious crimes and other major

offences. Under the terms of article 42 of Act No. 7-2003, the State prosecutor must

immediately submit a request to the Criminal Chamber of the Supreme Court, which will

consider and make decisions on that request, including by settling conflicts of jurisdiction,

and will designate the court responsible for the investigation or trial. Under the terms of

article 602 of the Code of Criminal Procedure, the designated investigating judge must

personally collect all the information needed. The source adds that article 34 (3) of the Code

specifies that if the investigating judge is unavailable for any reason, he or she must be

substituted by the presiding judge of the tribunal de grande instance or by a judge of the

court designated by the presiding judge. The source asserts that in no case may the

investigating judge be substituted by the prosecutor.

32.

In the present case, the State prosecutor referred the case to the Criminal Chamber of

the Supreme Court on 4 March 2020. On 6 March 2020, the Criminal Chamber appointed the

Brazzaville tribunal de grande instance to investigate and rule on the case. However, the

State prosecutor never referred the case to the investigating judge and instead led the

investigation against Mr. Okemba himself.

33.

The source concludes that, since Mr. Okemba’s detention and the proceedings against

him contravene domestic law, his detention is arbitrary.

(iii)

Imprisonment

34.

The source alleges that the placement of Mr. Okemba in detention following his trial

is itself arbitrary since his detention has no legal grounding.

35.

Article 9 of the Constitution of the Congo recognizes the inviolability of human liberty

and prohibits arbitrary detention. In the present case, the source notes that, on 18 July 2020,

Mr. Okemba was found guilty of embezzlement of public funds. However, none of the five

other defendants in the same case were found guilty, even though one defendant had ordered

the transfer of the funds at the direction of another. The source argues that the failure to

convict these individuals as accomplices confirms that no administrative misconduct or

mismanagement had taken place.

36.

In addition, as the transfer in question was made in a regular manner, it does not

constitute embezzlement and consequently cannot be invoked as justification for

Mr. Okemba’s conviction. The source explains that, according to Congolese criminal law,

material, legal and intentional elements must be present for an action to constitute a criminal

offence. In the present case, it had not been proven that Mr. Okemba had intended to engage

in embezzlement. The source therefore considers that the placement of Mr. Okemba in

detention following his trial was arbitrary.

ii.

Category II

37.

The source adds that Mr. Okemba’s detention is in violation of article 26 of the

Covenant and article 19 of the Universal Declaration of Human Rights.

38.

According to the source, the prosecution of Mr. Okemba clearly constitutes

discrimination on the basis of his political opinions and amounts to political manipulation. In

this respect, it is recalled that Mr. Okemba is a local political figure who had been expected

by some of his opponents to stand in the March 2021 presidential election.

39.

The source explains that, on 16 January 2020, in the context of foreign and

international budgetary support, the Ministry of Finance and Budget informed the Minister

of the Interior and Decentralization that 6 billion CFA francs had been earmarked for

roadworks in Brazzaville. However, according to the source, an order was issued stating that

only 1,250,000,000 CFA francs was to be allocated to the office of the mayor of Brazzaville,

which casts doubt on the regularity of the procedure.

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40.

Roadworks in Brazzaville are the responsibility of the municipality of Brazzaville and

therefore of the Brazzaville departmental and municipal council. The source states that the

Minister of the Interior could not, therefore, allocate budgetary support to the municipality

of Brazzaville without the approval of the departmental and municipal council via the mayor

– at that time Mr. Okemba – in accordance with article 6 of Decree No. 2009-158 of 20 May

2009 on the reorganization of the delegation of major public works, and articles 8 and 13 of

Decree No. 2009-162 of 20 May 2009, which sets the thresholds for the award, monitoring

and approval of government contracts, amended through Decree No. 2011-843 of

31 December 2011.

41.

The source asserts that the Brazzaville departmental and municipal council and its

chair were never informed of the works carried out, nor of the allocation of the remaining

4,750,000,000 CFA francs of budgetary resources. The source recalls that Mr. Okemba had

been suspended from his duties as mayor of Brazzaville without a hearing before the

Brazzaville departmental and municipal council, in contravention of the provisions of articles

49 and 50 of Act No. 7-2003 on the organization and functioning of local authorities, and

that he had been removed by the Council of Ministers before the start of his trial. According

to the source, the decision to suspend and remove Mr. Okemba in such circumstances was

taken with the intention of charging him with an offence that he had not committed and to

divert the attention of the Brazzaville departmental and municipal council and the Congolese

people from the alleged misappropriation of 4,750,000,000 CFA francs by members of the

Government.

42.

The source states that the sole aim of charging and convicting Mr. Okemba was to

silence him so that he could not speak at departmental and municipal council meetings and

so that municipal councillors would not be alerted to the misappropriation of funds by

members of the Government. In this respect, the source points out that Mr. Okemba was

replaced as mayor of Brazzaville by the erstwhile chief of staff of the Minister for Land-Use

Planning and Major Works, whose ministry had allegedly received the misappropriated

funds. The source asserts that the election of the new mayor of Brazzaville had been held

with the intention of concealing the misappropriation of funds from the departmental and

municipal council.

43.

The source submits that Mr. Okemba’s arrest and detention constituted acts of

discrimination on the basis of his political opinions and contravened his right to freedom of

expression, in violation of article 19 of the Universal Declaration of Human Rights and article

26 of the Covenant. The source therefore considers that the arrest and detention of

Mr. Okemba are arbitrary under category II.

iii.

Category III

44.

The source recalls that the Congo has been a Member State of the United Nations

since 20 September 1960 and acceded to the Covenant on 5 October 1983.

45.

The source alleges that the DGST officials who visited Mr. Okemba’s home did not

inform him of the reasons for his arrest, in violation of article 9 (1) and (2) of the Covenant

and article 9 of the Universal Declaration of Human Rights. The source states that

Mr. Okemba was unaware of the reasons for his arrest and was informed only of a summons

issued by the Director General of the DGST.

46.

In addition, the source asserts that the extension of Mr. Okemba’s time in police

custody was excessive and exceeded the legal time limit of 120 hours. Furthermore,

Mr. Okemba had been held in pretrial detention for longer than the time limit envisaged in

domestic law. The source considers that these examples of overreach constitute a violation

of article 9 (3) of the Covenant.

47.

In its 2011 annual report, the Working Group on Arbitrary Detention stated that

pretrial detention constitutes a grave limitation on the freedom of movement, a fundamental

and universal human right, places an individual’s life under the authority of agents

responsible for his or her custody and must therefore be as short as possible.6 The source

6 A/HRC/19/57, paras. 50 and 52.

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argues that pretrial detention should be justified and applied on an exceptional basis,7 and

that conditional release may be envisaged in accordance with the principles of presumption

of innocence and individual liberty, equally recognized in the Covenant.8 The source adds

that the Congolese Human Rights Observatory has also noted that the “systematic and

improper use of detention is the main cause of prison overcrowding in the Congo. Arbitrary

detention is a reality not only in prisons but also in disciplinary facilities belonging to the

security forces, which are used as pretrial detention facilities”.9

48.

In the present case, the source recalls that the request for release submitted by

Mr. Okemba’s counsel was rejected. Mr. Okemba has remained in pretrial detention for four

months and five days without justification of this period from the authorities.

49.

In addition, it is alleged that Mr. Okemba was tried in an expeditious manner very

soon after his arrest, in violation of article 9 (3) of the Covenant. The State prosecutor

informed Mr. Okemba’s counsel on 26 May 2020, less than three months after the start of

the investigation, that the case was to be closed. Furthermore, the judgment was handed down

on 18 July 2020, just a few days after the public hearing before the Brazzaville Criminal

Court, which was held on 6 July 2020.

50.

Lastly, the source maintains that Mr. Okemba was unable to prepare a defence, in

violation of article 14 (3) of the Covenant. In this respect, the source recalls that the Human

Rights Committee has noted that the right of an accused person to have adequate time and

facilities for the preparation of his or her defence is an important element of the guarantee of

a fair trial and a corollary of the principle of equality of arms, and that the determination of

what constitutes “adequate time” requires an assessment of the individual circumstances of

each case.10

51.

In the present case, the source argues that Mr. Okemba was unable to obtain assistance

from his counsel while in custody and was not notified of the decision of the Criminal

Chamber of the Supreme Court in which it designated the court that would hear the case

against him. Mr. Okemba was also unable to acquaint himself with the documents in his case

file and was therefore unable to prepare his defence.

52.

The source thus considers that Mr. Okemba’s detention is arbitrary under category III.

iv.

Category V

53.

The source alleges that the arrest and detention of Mr. Okemba are also arbitrary under

category V.

54.

The source explains that Mr. Okemba is a political figure who is known for his activity

at the municipal and departmental levels. He was elected mayor of Brazzaville in 2017. His

key initiatives included the installation of the city’s first public toilets and development of its

first tram system, in partnership with the city of Dresden (Germany), as well as the renewal

of Congo’s cooperation with cities such as Dresden and Reims (France). Mr. Okemba’s

policies were not unanimously supported by his own municipal team; in particular, his deputy

supports the son of the current President of the Congo. The source believes that

Mr. Okemba’s opponents view his cooperation with European cities as a factor that has

helped to build his international reputation. The source also notes that the city of Brazzaville

was a key battleground in the March 2021 presidential election.

55.

According to the source, at the time of a scheduled meeting of the departmental and

municipal council, a number of municipal councillors organized a meeting with the intention

of removing Mr. Okemba from his post for his alleged mismanagement of the municipality

7 Opinion No. 5/2018, para. 40.

8 A/HRC/19/57, para. 58.

9 Civil society report on the implementation of the International Covenant on Civil and Political Rights:

contribution concerning the adoption of the list of issues established by the Human Rights Committee

prior to the submission of the third periodic report of the Congo, 129th session, 29 June to 24 July

2020, p. 28, Available at: https://www.ocdh-congobrazza.org/wp-content/uploads/2020/06/Rapport-

alternatif-Congo_2020.pdf.

10 Wright v Jamaica (CCPR/C/45/D/349/1989), para. 8.4.

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of Brazzaville and the alleged misappropriation of funds earmarked for repairs to the capital’s

roads and pavements. The source explains that two days later, Mr. Okemba was suspended

by the Ministry of the Interior in order to “allow appropriate investigations” into

“irregularities observed in the administrative and financial management of the city”. He was

suspended without a hearing, in violation of article 49 of Act No. 7-2003 on the organization

and functioning of local authorities, which states that an interested party must have a hearing

before any such suspension.

56.

The source therefore considers that Mr. Okemba was arrested and detained on account

of his political opinions and therefore arbitrarily under category V.

Government reply

57.

On 9 August 2022, the Working Group transmitted a communication concerning

Mr. Okemba to the Government, requesting it to provide detailed information about him by

10 October 2022 and to ensure his physical and mental integrity.

58.

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

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.

Discussion

59.

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.

60.

In determining whether the deprivation of liberty of Mr. Okemba 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.11 In the present case, the

Government has chosen not to challenge the prima facie credible allegations made by the

source.

61.

The source argues that the detention of Mr. Okemba is arbitrary under categories I, II,

III and V. The Working Group will examine each of the source’s allegations in turn.

i.

Category I

62.

The source states that, at around 1 p.m. on 3 March 2020, Mr. Okemba was informed

by DGST officials that he was being summoned to the DGST premises but was not told why.

He went to the office of his own accord, and immediately after his arrival he was arrested for

embezzlement. No documents were presented to him, and he was placed in a cell for two

days without having been granted a hearing beforehand. It was only on 13 March 2020,

10 days after Mr. Okemba was taken into custody, that a committal warrant was issued

against him. The Government has chosen not to contest these allegations, although it had the

opportunity to do so.

63.

According to article 9 (1) of the Covenant, no one shall be deprived of liberty except

on such grounds and in accordance with such procedures as are established by law. As the

Working Group has previously stated, in order for a deprivation of liberty to have a legal

basis, it is not sufficient for there to be a law authorizing the arrest. The authorities must

invoke that legal basis and apply it to the circumstances of the case. This is typically done

through an arrest warrant,12 an arrest order or equivalent document.13

64.

In the absence of a reply from the Government, the Working Group deems credible

the source’s allegations that the summons did not specify the reasons for the request, that

Mr. Okemba was arrested immediately after having arrived at the police station of his own

accord, that no documents were presented to him and that he had not been heard before his

11 A/HRC/19/57, para. 68.

12 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person

(CCPR/C/GC/35), para. 23.

13 It is not usually feasible to obtain an arrest warrant in cases of arrest in flagrante delicto.

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arrest. The Working Group therefore concludes that the authorities have failed to establish a

legal basis for Mr. Okemba’s detention, violating article 9 (1) of the Covenant.

65.

According to the source, Mr. Okemba was taken into custody on 3 March 2020 and

held until 9 March 2020. This measure was extended to 13 March 2020, meaning that he was

detained for a total of 10 days, despite the legal maximum period of police custody in cases

of flagrante delicto being 120 hours. Mr. Okemba did not have access to his lawyer or to a

judicial review while he was in police custody. The State prosecutor never referred the case

to the investigating judge and instead took the judge’s place in the investigation of the case,

extending the period of Mr. Okemba’s detention. Furthermore, on 6 March 2020, while in

police custody, Mr. Okemba was questioned without a lawyer until 2 a.m. the next morning.

66.

According to article 9 (3) of the Covenant, “anyone arrested or detained on a criminal

charge shall be brought promptly before a judge”. The Human Rights Committee has

observed that 48 hours is ordinarily sufficient to satisfy this obligation, and any longer delay

must remain absolutely exceptional and be justified under the circumstances.14 Moreover, as

the Working Group has previously noted, a prosecuting body cannot be considered a judicial

authority for the purposes of article 9 (3) of the Covenant.15

67.

Article 9 (3) of the Covenant also provides that pretrial detention should be the

exception rather than the norm and should be ordered for the shortest time possible. 16

Detention pending trial must be based on an individualized determination that it is reasonable

and necessary for such purposes as to prevent flight, falsification of evidence or the

recurrence of crime.17 Courts must examine whether alternatives to pretrial detention, such

as release on bail, would render detention unnecessary. 18 In determining whether the

conditions governing pretrial detention have been met, the Working Group focuses on

whether the national courts have taken into account the particular circumstances of the person

concerned but does not check whether there are risks that would make detention necessary.19

68.

The Working Group considers that the source has submitted credible allegations that

Mr. Okemba’s pretrial detention exceeded the maximum period allowed by domestic law and

was ordered by the State prosecutor without a judicial intervention specifying the reasons for

extending the period of detention. According to the jurisprudence of the Working Group, the

continued detention of a person beyond the maximum period set by domestic law is contrary

to article 9 of the Covenant.20 Furthermore, the Government has not contested the source’s

allegations that the State prosecutor had never referred the case to the investigating judge and

had instead taken the judge’s place in order to investigate the case and extend Mr. Okemba’s

detention. The Government has also failed to demonstrate that a court considered alternatives

to pretrial detention, such as release on bail.

69.

The Working Group considers that the detention of Mr. Okemba, without his prior

appearance before a judicial authority to challenge its legality, is arbitrary. Moreover, in the

present case, the Government has not contested the allegation that Mr. Okemba had been

detained without a hearing for 10 days and has not demonstrated that this state of affairs is in

line with domestic law. The custody time limit is an important protective measure for

individuals facing the criminal justice system, and any extension must be duly justified and

thus remain exceptional. The Working Group considers that issuing a committal warrant

10 days after the arrest of a person held in custody is an inherent contradiction of the

14 Human Rights Committee, general comment No. 35 (2014), para. 33. See also opinion No. 67/2019,

para. 64.

15 Opinion No. 31/2022, para. 81; and No. 64/2020, para. 56; Human Rights Committee, general

comment No. 35 (2014), para. 32; and A/HRC/45/16/Add.1, para. 35 (in which the Working Group

notes that prosecutorial bodies do not possess the requisite degree of independence to assess the

necessity and proportionality of detention).

16 A/HRC/19/57, paras. 48–58; and opinion No. 64/2020, para. 58; No. 62/2019, paras. 27–29; and

No. 5/2019, para. 26.

17 Human Rights Committee, general comment No. 35 (2014), para. 38.

18 Ibid., para. 38.

19 Opinion No. 15/2022, para. 66; No. 37/2021, para. 72; and No. 46/2020, para. 62.

20 Opinion No. 31/2022, para. 82; No. 64/2020, para. 50; No. 1/2020, para. 52; and No. 10/2015,

para. 34.

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obligation to ensure that arrested or detained individuals are brought before a judge at the

earliest opportunity.

70.

For these reasons, the Working Group considers that the authorities have violated

Mr. Okemba’s rights under article 9 (3) of the Covenant.21

71.

Under article 9 (4) of the Covenant, anyone who is deprived of liberty by arrest or

detention shall be entitled to take proceedings before a court, in order that the court may

decide without delay on the lawfulness of the detention and order the individual’s release if

the detention is not lawful.

72.

The Working Group recalls that, to ensure the effective exercise of the right to

challenge the legality of their detention, persons deprived of their liberty have the right to be

assisted by the counsel of their choice from the moment of their arrest, in accordance with

the 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.22 As concluded

below (see category III), Mr. Okemba was unable to communicate with his lawyers between

3 March and 4 July 2020. In addition, he was questioned in police custody without the

presence of his lawyer. The Working Group considers that the deprivation of this right has

hampered Mr. Okemba’s ability to exercise his right to challenge the legality of his detention

as provided for under article 9 (4) of the Covenant. The Working Group recalls that judicial

oversight of deprivation of liberty is a fundamental safeguard of personal liberty and is

essential in ensuring that detention has a legal basis. Given that Mr. Okemba was unable to

challenge the legality of his detention, his right to an effective remedy under article 2 (3) of

the Covenant and article 8 of the Universal Declaration of Human Rights was also violated.

73.

In the light of the above, the Working Group considers that Mr. Okemba’s arrest and

detention violate articles 3 and 9 of the Universal Declaration of Human Rights and article 9

of the Covenant. Mr. Okemba’s detention is therefore arbitrary under category I.

ii.

Category II

74.

The source alleges that Mr. Okemba was detained as a result of the exercise of his

right to freedom of opinion and expression, in violation of article 19 of the Universal

Declaration of Human Rights. The source considers that the sole aim of charging and

convicting Mr. Okemba was to silence him so that he could not speak at meetings of the

Brazzaville departmental and municipal council and so that municipal councillors would not

be alerted to the misappropriation of funds allegedly involving members of the Government.

75.

In support of its allegations, the source reports that Mr. Okemba was aware of

inconsistencies between the amount allegedly earmarked and the amount allocated to

roadworks in the city of Brazzaville in the context of foreign and international budgetary

support. Furthermore, the source states that Mr. Okemba is a particularly active Congolese

political figure who had been expected by some to stand in the March 2021 presidential

election.

76.

The Working Group recalls that article 19 of the Universal Declaration of Human

Rights and article 19 of the Covenant guarantee the right to freedom of expression. This right

includes the holding and expression of opinions, including those critical of, or not in line

with, government policy.23

77.

However, in the present case, the Working Group considers that the source has not

sufficiently demonstrated a link between a specific statement made by Mr. Okemba and his

detention. The source has not identified any speeches or other statements made by

Mr. Okemba concerning the misappropriated funds. In view of the information provided by

the source, the Working Group does not consider that it has been established that

Mr. Okemba’s detention resulted from the exercise of his right to freedom of expression.

21 Opinion No. 37/2018, para. 32; and No. 5/2018, para. 38.

22 A/HRC/30/37, annex, principle 9.

23 Opinion No. 16/2020, para. 68; No. 15/2020, para. 65; No. 8/2019, para. 55; and No. 79/2017,

para. 55.

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78.

However, the Working Group is of the view that Mr. Okemba’s actions concern

matters of public interest. In this regard, the Working Group recalls that article 21 (1) of the

Universal Declaration of Human Rights and article 25 (a) of the Covenant provide that

everyone has the right to take part in the conduct of public affairs.24

79.

The Working Group notes the source’s credible allegations, uncontested by the

Government, that Mr. Okemba is being detained because of his role as mayor of Brazzaville

and his duties concerning the allocation of budgetary support to the municipality of

Brazzaville. The Working Group considers that the source has provided credible information

demonstrating that Mr. Okemba was arrested, and is currently being detained, for having

exercised his right to take part in the conduct of public affairs, in violation of article 21 (1)

of the Universal Declaration of Human Rights and article 25 (a) of the Covenant.

80.

There is nothing to suggest that the permissible restrictions of this right, as set out in

article 25 of the Covenant, apply in the present case. In the absence of a reply from the

Government, the Working Group is not convinced that Mr. Okemba’s detention constitutes

a reasonable restriction to this right as guaranteed in article 25 of the Covenant.

81.

The Working Group concludes that Mr. Okemba’s detention from 3 March 2020 to

the present day is a consequence of the peaceful exercise of his right to take part in the

conduct of public affairs and is in violation of article 21 (1) of the Universal Declaration of

Human Rights and article 25 (a) of the Covenant. His detention is therefore arbitrary under

category II.

iii.

Category III

82.

Given its finding that Mr. Okemba’s detention is arbitrary under category II, the

Working Group emphasizes that he should not have been put on trial. However, Mr. Okemba

was found guilty and sentenced to 5 years’ imprisonment.

83.

The source indicates that Mr. Okemba was held in pretrial detention from 13 March

2020 until his trial on 18 July 2020, five days more than the maximum period provided for

in domestic law. It appears from the facts of the present case that Mr. Okemba was deprived

of his liberty in a manner incompatible with the procedures provided for by law and contrary

to article 9 of the Covenant. The source also alleges that Mr. Okemba was deprived of his

right to be assisted by the counsel of his choosing and that he was not provided with the time

or facilities necessary to prepare his defence. The Government has chosen not to contest these

allegations, although it had the opportunity to do so.

84.

According to article 14 (3) of the Covenant, all persons deprived of their liberty have

the right to legal assistance by the counsel of their choosing at any time during their detention,

including immediately after their apprehension, and that such access is to be provided without

delay.25

85.

The Working Group notes that Mr. Okemba did not have direct access to his lawyers

between 3 March and 4 July 2020 and that he was only able to contact them on 4 July, two

days before the start of his trial on 6 July 2020. Furthermore, the source adds that

Mr. Okemba did not have access to the documents in his case file and was therefore unable

to prepare his defence. In the absence of a reply from the Government, the Working Group

considers that these allegations are well-founded. The Working Group concludes that the

source has also provided credible information to suggest that Mr. Okemba was deprived of

his right to a lawyer. Although Mr. Okemba’s family was able to contact lawyers, who filed

requests for his release, this did not remedy his lack of direct access to his lawyers. The right

to effective assistance from a lawyer of one’s choosing includes the ability to receive legal

advice and participate in decisions on strategies and approaches regarding legal proceedings,

which is compromised if lawyers have to work without consulting or receiving instructions

24 Human Rights Committee, general comment No. 25 (1996) on participation in public affairs and the

right to vote, para. 8 (notes that citizens take part in the conduct of public affairs by exerting influence

through public debate). See also opinions No. 62/2020, No. 36/2020, No. 16/2020, No. 15/2020 and

No. 45/2019.

25 A/HRC/30/37, annex, principle 9 and guideline 8; A/HRC/45/16, para. 51; Human Rights Committee,

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

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from their clients. In addition, the source claims that Mr. Okemba was tried in an expeditious

manner, an allegation that the Government has decided not to contest.

86.

The Working Group considers that, since Mr. Okemba did not benefit from effective

legal representation, was unable to access the documents in his case file and was tried in an

expeditious manner, the authorities violated his right to the facilities necessary for him to

prepare his defence and communicate with the counsel of his choice. The Working Group is

of the view that these shortcomings necessarily affected Mr. Okemba’s ability to prepare his

defence, in violation of the principle of equality of arms. The Working Group thus concludes

that Mr. Okemba’s rights under article 14 of the Covenant and article 11 of the Universal

Declaration of Human Rights were violated.

87.

In addition, the source affirms that, at the time of his arrest, Mr. Okemba was mayor

and chair of the Brazzaville departmental and municipal council and was therefore entitled

to certain procedural assurances, including the right to be heard before the imposition of any

suspension or removal measure. However, Mr. Okemba’s bank accounts were frozen before

an investigation was initiated by the Inspectorate General for Territorial Administration.

Furthermore, the opening of a preliminary investigation under the flagrante delicto procedure

had been requested the day before his arrest. Mr. Okemba was thus suspended and removed

from his position on 29 April 2020, in advance of the start of his trial on 6 July 2020.

Accordingly, the Working Group considers that Mr. Okemba was suspended and removed

from his mayoral duties without the opportunity to exercise his rights to procedural fairness

through legal proceedings or a hearing, in violation of the right to be presumed innocent

guaranteed under article 14 (2) of the Covenant and article 11 (1) of the Universal Declaration

of Human Rights.

88.

Finally, with respect to the cheque allegedly cashed by Mr. Okemba, the source notes

that the corresponding withdrawal slip indicates that the transaction was carried out by

another person and not by Mr. Okemba. The source believes that the name was intentionally

changed, resulting in Mr. Okemba’s detention. However, the Working Group considers that

it does not have sufficient information and is therefore not in a position to issue an opinion

on this matter.

89.

Nonetheless, the Working Group concludes that, in the present case, the failure to

comply with international standards relating to the right to a fair trial contravenes article 14

of the Covenant and article 10 of the Universal Declaration of Human Rights and is of such

gravity as to give the deprivation of liberty of Mr. Okemba an arbitrary character under

category III.

iv.

Category V

90.

The source alleges that Mr. Okemba is a victim of discrimination on the basis of his

political opinions. According to the source, Mr. Okemba’s policies are not unanimously

supported by his municipal team, particularly his deputy, who supports the son of the current

President of the Congo. In this respect, the source points out that Mr. Okemba was suspended

from his duties as mayor of Brazzaville by the Ministry for the Interior without a hearing, in

contravention of domestic law, and was removed by the Council of Ministers before the start

of his trial.

91.

In the discussion above concerning category II, the Working Group established that

Mr. Okemba’s detention resulted from the peaceful exercise of his right under international

law to take part in the conduct of public affairs. When detention has resulted 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.26

92.

However, the Working Group considers that the source has not provided sufficient

information to indicate how Mr. Okemba’s detention is grounded in discrimination. There is

no indication that he was targeted on the basis of his membership of a protected category. On

the contrary, the information provided indicates that he was targeted because of his position

26 Opinion No. 62/2020, para. 74; 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.

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as mayor of Brazzaville, which does not in itself point to discrimination. Accordingly, the

Working Group cannot conclude that Mr. Okemba’s detention is arbitrary under category V.

v.

Concluding remarks

93.

The source reports that Mr. Okemba was able to consult his doctor during only the

first three days of his detention at the DGST premises. The source adds that Mr. Okemba is

currently detained in an unsanitary cell with four other detainees. The Working Group takes

the 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

respect for their inherent dignity. It also recalls that under rules 24 and 118 of the United

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

Rules), all persons deprived of their liberty must be allowed to receive the same standards of

care as that available in the community and must be allowed to be visited and treated by their

own doctor if their request is reasonably justified and they are able to pay any expenses

incurred. The Working Group urges the Government to ensure that conditions in all places

of deprivation of liberty in the Congo meet international standards.

94.

In addition, Mr. Okemba was unable to enjoy the right to family visits during the

pretrial detention period. The Working Group recalls that all States must respect the Body of

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

including the right of all detained and imprisoned persons to have contact with the outside

world and receive visits, in particular from their families, in accordance with principles 15

and 19.

Disposition

95.

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

The deprivation of liberty of Roger Christian Okemba, being in contravention

of articles 3, 8, 9, 10, 11 and 21 of the Universal Declaration of Human Rights and

articles 2, 9, 14 and 25 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I, II and III.

96.

The Working Group requests the Government of the Congo to take the steps necessary

to remedy the situation of Mr. Okemba 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 Covenant.

97.

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

case, the appropriate remedy would be to release Mr. Okemba immediately and accord him

an enforceable right to compensation and other reparations, in accordance with international

law.

98.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Okemba and to take appropriate measures against those responsible for the violation of

his rights.

99.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

100.

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. Okemba has been released and, if so, on what date;

(b)

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

(c)

Whether an investigation has been conducted into the violation of

Mr. Okemba’s rights and, if so, the outcome of the investigation;

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(d)

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

harmonize the laws and practices 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.

101.

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.

102.

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.

103.

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.27

[Adopted on 16 November 2022]

27 Human Rights Council resolution 51/8, paras. 6 and 9.