The 2006 Constitution of DR Congo (as amended) protects fundamental human rights, including the rights to life, physical integrity, and to freedom from cruel, inhuman or degrading treatment:
The human person is sacred. The State has the obligation to respect it and protect it.
All persons have the right to life, to physical integrity as well as to the free development of their personality, under respect of the law, public order, rights of others and public morality.… No one shall be subjected to cruel, inhuman or degrading treatment.…Art. 16, 2006 Constitution of DR Congo (as amended).
These rights are non-derogable even in a situation of emergency.
According to Article 25, "The freedom of peaceful gatherings without arms is guaranteed subject to respect for law, public order and good morals." Article 26 stipulates that:
The freedom to demonstrate is guaranteed.
Any demonstration on the public highways or in the open air must be notified by the organisers in writing to the competent administrative authority.
No one may be forced to take part in a demonstration.
The law sets the appicable conditions.
The Congolese National Police (PNC) is addressed in Chapter 1 of the Constitution. The PNC is responsible for “the public security, the security of persons and of their property, for the maintenance and re-establishment of public order as well as the close protection of high authorities”.Art. 182, 2006 Constitution of DR Congo (as amended).It must exercise its functions “in the respect of the Constitution and of the laws of the Republic”.Art. 183, 2006 Constitution of DR Congo (as amended).
|1966 Covenant on Civil and Political Rights (ICCPR)
|ICCPR Optional Protocol 1
|1984 Convention against Torture (CAT)
|Competence of CAT Committee to receive individual complaints
|CAT Optional Protocol 1
|1998 Rome Statute of the International Criminal Court
|1981 African Charter on Human and Peoples' Rights
|1998 Protocol to the African Charter on the African Court
|Article 34(6) declaration regarding individual petitions
|Malabo Protocol on the African Court of Justice and Human Rights
Police Use of Force
Police use of force is generally regulated by Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police and the Code of Ethics of the Police Officer of the Congolese National Police. It provides that the PNC cannot “inflict, encourage nor tolerate any act of torture, inhuman treatment or punishment, under any circumstances”.Art. 7, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.The PNC may only use force “in case of absolute necessity and only in order to achieve a legitimate objective” and “in, any circumstances, the use of force must respect the principle of proportionality and progressivity”.Art. 8, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.
The law further provides that in the exercise of their function, the police agents may, "in case of absolute necessity", use knives or firearms "when there is no other way for them to defend the place they occupy, the facilities, stations or persons that are under their responsibility" or when violence is or is about to be used against them or others.Art. 9, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.The police may also use, "in case of absolute necessity", knives when they are tasked to disperse crowds or suppress riots, but may only use firearms "when previously requested to do so by the authority legally responsible for the maintenance of order". Before any recourse to firearms, this authority makes three summons formulated in a high and intelligible voice with the following terms: “Obey the law! We are going to use firearms. Good citizens, leave!”Art. 9, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.
The PNC is entitled to use “law enforcement equipment”,Art. 84, Organic Law 11/013 of 11 August 2011 on the organization and functioning of the Congolese National Police.which is said to comprise ordinarily "a pistol, a baton and a pair of handcuffs".
A police officer having been found guilty of having “abused his authority or his position in order to commit acts of rape, torture, barbarism or having infringed the respect due to the human person” or “used his weapon in circumstances not provided for by the Law and Regulations or self-defence” is liable to dismissal.Art. 185, Law 13/013 of 1 June 2013 on the status of the professional personnel of the National Police.
The DRC armed forces are regulated by Law 11/012 of 11 August 2012 on the organization and functioning of the armed forces. Although they exercise law-enforcement functions, including in the management of assemblies, Law 11/012 does not contain any provision regulating the use of force in such a situation. According to Article 6 of Law 11/012, however, every member of the DRC armed forces must “respect and protect the dignity and fundamental liberties of the human person."
In 2015, a paramilitary structure called the Corps for the Protection of National Parks and related natural reserves (CorPPN) was created. It is tasked with “ensuring the protection of the fauna, of the flora and of the ecosystems in national parks and in affiliated natural reserves, and in particular combating poaching and all other forms of criminal acts against wildlife species”.Art. 2, Decree 15/012 of 15 June 2015 creating a corps tasked with securing national parks and affiliated natural reserves.In the exercise of their functions, members of the CorPPN “may use firearms, when violence is or is about to be used against them and in order to protect the parks and affiliated natural reserves as well as their resources”.Art. 17, Decree 15/012 of 15 June 2015 creating a corps tasked with securing national parks and affiliated natural reserves.
The General Inspectorate of the PNC controls the "functioning and organization of the National Police”.Art. 2, Decree 15/026 of 9 December 2015 on the organization and functioning of the General Inspectorate of the Congolese National Police.In particular, it is tasked with assessing “the respect of fundamental rights, human rights and the protection of individual and collective freedoms, by the national police’s personnel in the exercise of the police function” and controlling “the implementation of the code of ethics of the national police.”Art. 5, Decree 15/026 of 9 December 2015 on the organization and functioning of the General Inspectorate of the Congolese National Police.
Both the PNC and the FARDC are subject to military jurisdiction and may not be prosecuted in civilian courts.Art. 156, 2006 Constitution; and Art. 106, Code of Military Justice of 18 November 2002.
In 2019, in its Concluding Observations on DR Congo, the Committee against Torture was concerned about "the manifestly excessive and disproportionate use of force by officers of the National Police and the armed forces, who used live ammunition during the demonstrations that took place across the country between December 2017 and February 2018, in which 19 people reportedly lost their lives and 251 were injured." The Committee urged the government to:
Develop and implement clear guidelines on the use of force and weapons, incorporating the principles of lawfulness, necessity and proportionality, and the precautionary principle, and bring the laws and regulations governing the use of force into line with international standards, in particular the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted in 1990.
In 2017, in its Concluding Observations on DR Congo, the Human Rights Committee expressed its concern about "allegations that police and security officers have used excessive force to disperse demonstrations, resulting in deaths and injuries in some cases, such as the demonstrations that took place between 19 and 21 September 2016 and on 19 and 20 December 2016."Human Rights Committee, Concluding Observations on the Democratic Republic of Congo, UN doc. CCPR/COD/CO/4, 30 November 2017, para. 43.The Committee called on DR Congo to "see to it that all instances of excessive use of force are promptly, impartially and effectively investigated and that those responsible are brought to justice" and that measures are taken "to effectively prevent and eliminate all forms of excessive use of force by police and security officers, including by providing such personnel with training on the use of force, taking due account of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”.Human Rights Committee, Concluding Observations on the Democratic Republic of Congo, UN doc. CCPR/COD/CO/4, 30 November 2017, para. 44.
The African Commission on Human and Peoples’ Rights has, in a number of resolutions, condemned excessive use of force by state agents, as well as the “ongoing impunity” attached to their actions, and called on the Government of the DR Congo to conduct investigations into the human rights violations allegedly committed.ACHPR, Resolution 358 on the Human Rights Situation in the Democratic Republic of Congo, ACHPR/Res. 358(LIX) 2016, 4 November 2016; ACHPR, Resolution 393 on the Human Rights Situation in the Democratic Republic of Congo – ACHPR 393 (LXII), 22 February 2018.
A Commission of Inquiry was established in 2018 by Ministerial OrderMinisterial Order N°001/CAB/MIN/DH2018to investigate “the violations and abuses of human rights in relation to the protests of 31 December 2017 and 21 January 2018 in Kinshasa”. Its report, which was published on 10 March 2018,Mixed Commission of Inquiry-3121, “Rapport de synthèse de la commission d’enquête mixte 3121: Enquête sur les violations et atteintes relatives aux droits de l’homme en lien avec les manifestations du 31 décembre 2017 et 21 janvier 2018 à Kinshasa”, 10 Mars 2018, Kinshasa.found that violations of the right to life and of the right to physical integrity had been committed by the PNC and the DRC armed forces. It recommended that the government create an Independent Commission of Experts tasked with revising the command system and the deployment protocol of the defence and security forces in situations other than war or violent riots. It also recommended that the government ensure the investigation and prosecution of the perpetrators of violations and abuses of human rights during the protests of 31 December 2017 and 21 January 2018.