1. The role of AU organs on transitional justice in the DRC
Dr. Joseph Yav Katshung
I. Background to the country and conflict that has necessitated transitional justice processes and
mechanisms
The Democratic Republic of Congo (DRC) is Africa’s third largest country, with a population of about
65 million people. From 1874–1908, the DRC was known as Congo Free State, then a private
concession of King Leopold II, King of Belgium. In 1908 the DRC became an official colony of
Belgium. It was not until June 1960 that the DRC became independent. The DRC is situated in central
Africa and shares its borders with Angola, Zambia, Burundi, Sudan, Rwanda, Tanzania and the CAR as
well as the Republic of the Congo. Violence has plagued this country since its emergence from Belgian
colonial rule in 1960, leading to the assassination of Patrice Lumumba and then three decades of the
Mobutu kleptocracy and dictatorship. It has experienced continuous instability and wars that took an
extremely heavy toll on the civilian population. The numbers are vast: from the spill-over from the
Rwandan genocide in 1994, to the 1996-1998 and the 1998-2003 wars and the ensuing political
transitions, millions of civilians died of conflict-related causes and hundreds of thousands of others
were displaced.
The first war in the DRC began in 1996 when in October of that year Laurent Kabila decided to fight
against the government of Mobutu beginning from the eastern part of the country. Supported by
Uganda, Rwanda and Burundi, Kabila established a military alliance called Alliance of Democratic
Forces for the Liberation of Congo-Zaire (AFDL). The eruption of the war in October 1996 marked the
first phase of the war in the DRC. That phase ended with the overthrow of the government of Mobutu
and Kabila proclaimed as President of the DRC
The second war and the most violent broke out on the 2 August 1998. Soldiers in the Eastern DRC
nd
launched an armed rebellion against the government of Laurent Kabila. Fighting erupted in a number of
cities such as Goma, Bakavu and even Kinshasa. Uganda and Rwanda decided to support the rebels.
This was due to misunderstandings that had developed between the Government of Kabila on one hand
and the governments of Uganda and Rwanda on the other. But it should be noted however, that several
interconnected elements have shaped this conflict, including the interests of neighbouring countries,
competition over natural and economic resources concerns over instability and lack of security, and
ethnic chauvinism, to name but a few. In addition, this country has been afflicted by poor governance
and political opportunism, which leads to military action being used to resolve essentially social,
political and economic problems.[1]
The capture of Kinshasa by the rebels was saved due to entry into the War by Zimbabwe, Angola and
Namibia in support of the Kabila Government. That made the war highly internationalized. The war
involved dozens of rebel groups, both Congolese and foreign[2] and almost all the neighbouring states
and others like Zimbabwe, from further a field: Angola, Namibia, Zimbabwe, Chad and Sudan in
support of the Kabila regime, and Rwanda, Burundi, and Uganda backing the rebellion against Kabila.
The current President Joseph Kabila’s father, then President Laurent-Desire Kabila, was assassinated at
the Presidential Residence in Kinshasa 2001, plunging an already unstable Great Lakes region into
further chaos.

2. Since 1998 the DRC has been a theatre of war and it is estimated that this war alone have led to the
death of between 3.3 and 5.4 million civilians, which ranks it as the world’s deadliest conflict since
World War II.[3] Ultimately, all the parties sat together in a regional effort and considered all internal
and external dimensions to the conflict. The resultant Lusaka Peace Agreement addressed the concerns
of the rebel armed groups and those of the neighbouring countries. Consequently, forces of
neighbouring countries withdrew and eventually, elections were held in the DRC. It should be noted
that the global peace agreement, concluded in December 2002 in the framework of the Inter-Congolese
Dialogue organised in Sun City, South Africa, officially ended armed conflict in the DRC and
responded to the need for the required justice for the serious crimes committed during the war by
establishing a transitional justice system accompanying the political transition.
Currently, the DRC continues to face instability in some parts of the country and resulting abuse
against the civilian population.
II. Conflict resolution process in DRC and parties involved
The African experience has showed that an important outcome of peace negotiations has been the
signing of peace agreements and ceasefire agreements and their implementations. In some cases
implementations have proved successful while in other cases they have proved a failure.[4] Analysis of
key role players and their contribution in conflict resolution and peace building in the DRC entails a
complex process. The complexity arises out of the fact that since 1996 the country has been involved in
a complicated war situation. The complexity became more serious when the war erupted the second
time in August 1998 as it involved more than six countries, some supporting the government of the
DRC, while others supporting rebel groups that were intending overthrow that government. In the
process of the war many armed groups emerged some based on ethnic lines. As we shall see in this
section the complexity of the war gave rise into complexity of conflict resolution processes. First it had
to involve various international organizations such as the SADC, the OAU -AU and the UN. It had also
to involve individual countries. The complexity is even greater given different economic interests by
actors in the war as well as other actors not directly involved with the war. Suffice is to say that several
attempts have been made to broker peace in the DRC.[5]
2.1. The signing of the Lusaka Ceasefire Agreement : the first stage
The first stage constitutes the period from August 1998 to the signing of the Lusaka Ceasefire
Agreement in July, 1999. In fact, diplomatic efforts to broker peace in the DRC included efforts by the
then Organisation of African Unity (OAU) and a team of African leaders, which culminated in
meetings in Addis Ababa, Ethiopia in 1998 and Sirte, Libya in April 1999, etc. Both meetings called
for ceasefires and the deployment of African peacekeeping troops, but neither measure was
implemented. President Fredrick Chiluba of Zambia and his SADC counterparts made strong
diplomatic efforts that secured the attendance of the belligerent groups to a Lusaka conference in July
1999.
Thus, it should be recognized that during this first stage it was the SADC and President Muamar
Kadhafi of Libya who played an active role. The initiative began with holding of a number of Summit
and other meeting of the SADC. The first was on 7th and 8th August, 1998 at Victoria Falls, Zambia.
The summit was attended by SADC Presidents as well as Presidents from Uganda and Rwanda. The
second was a meeting of defence ministers called by President Mugabe as the then chairman of the

3. SADC Organ of Inter-State Defence and Security Committee, held in Harare, Zimbabwe.[6] It was in
that meeting that it was decided that any SADC country that was able to assist Kabila in the War
should do so; thus the measures taken by Zimbabwe, Angola and Namibia. It should be noted that
different approaches were indeed in contention among different SADC member states, while reflecting
their respective national interests and allies.[7]
Other summit meetings were held in September 7th and 8th at Victoria Falls, and then 13th and 14th
September in Mauritius. During the two summits support and appreciation was given to the SADC
Countries which supported Laurent Kabila in the War. From September 1998 to June 1999 a number of
other summits and meetings were held with the objective of finding a solution to the Congo war by the
SADC. From November 1998 to June 1999 President Muamar Kadhafi of Libya also took steps of
conflict resolution. He held talks at different times with Presidents Kabila of the DRC, Museveni of
Uganda and Kagame, the Prime Minister of Rwanda. Arising out of such an initiative President
Museveni signed a ceasefire agreement with President Kadhafi in May, 1999. Kadhafi insisted that
warring parties should agree on ceasefire to be followed by withdrawal of foreign troops from the
Congo and the deployment of international peace keeping forces.
On July 10, 1999, at a summit in Lusaka, Zambia, the leaders of Uganda, Rwanda, DRC, Zimbabwe,
Namibia, and Angola signed a peace agreement. The agreement focused on the following building
blocks:
- establishment of a cease-fire;
- freezing of the territorial control of all conflict parties and subsequent withdrawal of
all armed groups operating in the territory of the DRC;
- deployment of a UN peacekeeping force in the DRC;
- establishment of a joint military commission made up of African countries to monitor
the implementation of the agreement as well as the disarmament of the Interahamwe
militia; and
- initiation and setting up of the Inter Congolese National Dialogue, aimed to bring
about a new political order in Congo and based on the participation of the Congolese
armed groups, the non-armed political opposition to Kabila’s government and
representatives from civil society (or so-called ‘Forces vives de la Nation’).
However, in the following months, the commitments made by the parties during the signing of the
agreement were not respected, as parties accused each other of breaking the ceasefire. Despite the UN
Security Council passing a resolution on 6 August 1999, authorising the deployment of military liaison
personnel and other necessary officials to the DRC to assist in the development of modalities for the
implementation of a ceasefire, incidents of hostility and armed conflict continued.[8] Laurent Kabila
was accused of indifference towards the accord -whose implementation, he thought, would undermine
his own powers. In February 2000, the UN authorised a force of 5,537 troops - referred to as the UN
Mission in the DRC or MONUC - to monitor the ceasefire. Fighting, however, continued between the
rebels and government forces, and between the Rwandan and Ugandan forces followed by some 18
months of deadlocks, all of which came to a sudden end with the assassination of President Laurent
Desiré Kabila on 16 January, 2001. It was then clear that military operations failed, and diplomatic
efforts that were made bilaterally or through the UN, African Union (AU) and SADC, also failed to
make any headway.
2.2. The signing of the Pretoria agreement : the second stage
As mentioned supra, although the signature of the agreement in July 1999 constituted the first real
prospect for peace in the DRC, the Accord was only the first step toward the settlement of the conflict,

4. both regionally and domestically. The second stage constitutes the period after the signing of the
Lusaka Ceasefire Agreement in July 1999 to 2003. Conflict resolution steps taken during this second
period included the appointment of ex-president Ketumile Masire of Botswana to be the mediator in the
DRC crisis. He was appointed by the OAU but he faced problems because some parties, including
Laurent Kabila, did not accept him.
On January 16, 2001, Laurent Kabila was assassinated and succeeded by his son, Joseph Kabila. Joseph
Kabila reversed many of his father’s policies; over the next year, MONUC deployed throughout the
country, and the Inter-Congolese Dialogue proceeded. By the end of 2002, all Angolan, Namibian, and
Zimbabwean troops had withdrawn from the DRC. Following DRC-Rwanda talks in South Africa that
culminated in the Pretoria Accord in July 2002, Rwandan troops officially withdrew from the DRC in
October 2002, although there were continued, unconfirmed reports that Rwandan soldiers and military
advisers remained integrated with RCD/G forces in eastern DRC. Ugandan troops officially withdrew
from the DRC in May 2003.
In October 2001, the Inter-Congolese Dialogue began in Addis Ababa under the auspices of Facilitator
Ketumile Masire (former president of Botswana). The initial meetings made little progress and were
adjourned. On February 25, 2002, the dialogue was reconvened in South Africa. It included
representatives from the government, rebel groups, political opposition, civil society, and Mai-Mai.
The talks ended inconclusively on April 19, 2002, when the government and the MLC brokered an
agreement that was signed by the majority of delegates at the dialogue but left out the RCD/G and
opposition UDPS party, among others. This partial agreement was never implemented, and
negotiations resumed in South Africa in October 2002. A Global and All Inclusive Agreement
facilitated by former President Thabo Mbeki was signed at Sun City in South Africa in 2003, under the
aegis of the African Union. This time, the talks led to an all-inclusive power sharing agreement, which
was signed by delegates in Pretoria on December 17, 2002, and formally ratified by all parties on April
2, 2003.
Following nominations by each of the various signatory groups, President Kabila on June 30, 2003
issued a decree that formally announced the transitional government lineup. The four vice presidents
took the oath of office on July 17, 2003, and most incoming ministers assumed their new functions
within days thereafter. The UN Mission in the Congo (MONUC) was established, and all foreign
armies were repatriated. It should be recalled that the establishment of the institutions of the Republic
gathered momentum after the formation of the Transitional Government. On 22 August 2003, the
Parliament and the Senate were inaugurated in Kinshasa. By 28 August 2003, the Independent
Electoral Commission (IEC), the National Human Rights Observatory, the High Media Authority, the
Truth and Reconciliation Commission and the Ethics and Anti-Corruption Commission had all been
established.
By late 2003 a comprehensive process for the drafting of a transitional new Constitution put in place.
This Constitution received popular approval in a Referendum in December 2005 at which 84% of
registered voters cast their votes. The Constitution became the basis for the elections held in July 2006.
The elections were hailed as a great success, and after some initial resistance and clashes, the losing
candidate Jean-Pierre Bemba accepted the final results of the Presidential Poll as declared by the
Supreme Court.
III. Starting point: Discussing the Transitional Justice processes in DRC

5. The end of conflict or repression and transition to peace or democracy signify important moments
in a country’s history. Strategies on how to move away from a past characterized by violence
or repression to a new dispensation of peace, respect for human
rights, reconstruction and reconciliation constitute the realm of transitional justice.
There is a wide choice of transitional justice approaches, ranging from silence on the one extreme
and criminal prosecution on the other. The DRC choice was made mainly on three pillars of
transitional justice mechanisms: Amnesty, Truth Commission and Prosecutions. The problem however
is to assess if those pillars have been applied on the ground. Before that, it should be recognised that on
10 July 1999, the DRC government and the other parties to the conflict signed the Lusaka cease-fire
agreement.
The main aspects of the agreement included among others the disarming, cantoning and documenting
of all armed groups, and measures to hand over mass killers and perpetrators of crimes against
humanity to the ICTR and to national courts.[9]
In fact, already in the preamble to the Lusaka agreement, the parties declare their determination to
ensure respect for the 1949 Geneva conventions and the 1977 additional protocols, as well as the 1948
Genocide convention. The modalities of the implementation of the agreement were further specified in
annex A which, among others, entails provisions on issues such as the cessation of hostilities,
disengagement, the orderly withdrawal of all foreign forces, national dialogue and reconciliation, the
UN peacekeeping mandate and ‘disarmament of armed groups’. A Joint Military Commission (JMC)
has been instituted.
The latter provisions, given in Chapter 9 of Annex A, read as follows:
0. "9.1 The JMC with the assistance of the UN/OAU shall work out mechanisms for
the tracking, disarming, cantoning and documenting of all armed groups in the DRC, … and
put in place measures for: - Handing over to the UN International Tribunal and national
courts, mass killers and perpetrators of crimes against humanity; - Handling of other war
criminals.
0. 9.2 The parties together with the UN and other countries with security concerns,
shall create conditions conducive to the attainment of the objective set out in 9.1 above, which
conditions may include the granting of amnesty and political asylum, except for genocidaires.
The parties shall also encourage inter-community dialogue."
Moreover, when the ‘Inter-Congolese Dialogue’ peace conference organised in Sun City, South Africa,
officially ended armed conflict in the DRC, the conflict had already claimed millions of direct and
indirect victims. The global peace agreement, concluded in December 2002 in the framework of the
Inter-Congolese Dialogue, responded to the need for the required justice for these serious crimes by
establishing a transitional justice system accompanying the political transition. This encompassed a
Truth and Reconciliation Commission (TRC), a National Human Rights Observatory and an Ethics and
Corruption Commission. It also recommended the establishment, with the support of the international
community, of a special International Criminal Court for the DRC, which, however, was never actually
created, chiefly due to a lack of funding.

6. Also, all parties to the 2003 Sun City Peace Accords adopted a Resolution No. DIC/CPR/05 of March
2005, calling for the creation of an “International Criminal Tribunal for the DRC”, without detailing its
jurisdiction, procedure or other modalities. The ICD agreement asks for a court “endowed with the
necessary competence to take cognizance of crimes of genocide, crimes against humanity, war crimes
and mass violations of human rights committed or presumed committed since 30 June 1960 as well as
those committed or presumed committed during the two wars of 1996 and 1998.”[10] Since then, this
resolution has never been seriously discussed or officially considered.
Nevertheless, some Congolese civil society actors and other international observers have called and
still calling for the establishment of such a mechanism to investigate and prosecute notably the crimes
that took place before 2002. In fact, there is broad agreement in DRC that war crimes and crimes
against humanity cannot go unpunished, and civil society and some in the former and new governments
have called for the establishment of an international criminal tribunal of some type. Therefore, one
solution for bringing the perpetrators of these heinous crimes to book in the DRC may be for the
Security Council to establish a new ad hoc tribunal, modelled after the ICTY and ICTR. An
international criminal tribunal for the DRC would satisfy the goals of accountability in their fullest
sense by prosecuting perpetrators of atrocities committed during war and beyond the scope of the ICC.
[11] Certainly, the prima facie case of guilt for severe violations of international law is manifest
enough to justify use of this mechanism. More importantly, the severe difficulties of domestic trials, in
particular the clear prospect of their manipulation by domestic political forces and to some extent
foreign forces, justify an international tribunal as the best forum for achieving fair and effective justice
in this case. In this line, in her report to the fifty-ninth session of the Commission on Human Rights, the
Special Rapporteur on the human rights situation in the DRC recommended the establishment of a
special jurisdiction to investigate and prosecute those responsible for war crimes and crimes against
humanity perpetrated by all parties in the DRC conflict.[12] However, since then nothing has been
done and it seems unlikely that the UN will be willing to establish another international criminal
tribunal modelled on the ICTY and ICTR.[13] It should be noted that the lack of international will to
set up this tribunal has prompted an exploration of specialized chambers within the domestic court
system to deal with grave human rights crimes, similar to that recommended for Burundi.[14]
IV. Transitional justice mechanisms implemented in the DRC
4.1. The granting of amnesty to belligerents
The granting of amnesty as a political tool in a peacemaking process is commonplace.[15] Much
debating has occurred in recent years over the limits for granting amnesties for past human rights
violations and crimes under international law. Particularly in respect of crimes such as genocide, crimes
against humanity and war crimes, as well as torture, strong opinions have been expressed against
amnesties. For example, the UN Secretary-General has expressed in many instances - also in respect of
the DRC - that, while amnesties may be a necessary means to facilitate disarmament, demobilisation
and the reintegration of former combatants into society, it is not an option for crimes like genocide and
crimes against humanity.[16]
In DRC, as noted previously it has been included in the peace agreements the possibility of granting of
amnesty and political asylum, except for genocidaires. In order to sign the agreement and end the
conflict, all the parties were asked to make a power-sharing concession in the form of a government of
national unity. A transitional government of national unity was formed. However the rebel groups,
including RCD-Goma, MLC, RCD-N submitted to participation in the government on the non-

7. negotiable condition of being granted amnesty for all offences committed during the conflict. As a
result no condition was imposed on the belligerent groups to apologise, tell the truth or ask for
forgiveness for their wrongdoings.
This was materialised by a Presidential Decree Nº03-001 of April 15, 2003, which granted amnesty by
temporary executive order as per the 2002 Global and All-Inclusive Agreement. This amnesty covered
acts of war, political breaches of the law, and crimes of opinion for the period of August 2, 1998 to
April 4, 2003 but excluded genocide, war crimes, and crimes against humanity from its reach.
Thereafter, the Congolese transitional parliament passed the Law Nº05/023 of December 19, 2005, to
abrogate the 2003 Presidential Decree; it codified an amnesty over the crimes enumerated in that
Decree, but altered the timeframe to include acts committed from August 20,1996 to June 20, 2003;
this law allowed for the retroactive pardon and commutation of convictions for the acts falling under
the amnesty law.[17]
The majority of Congolese people as well as the principal non-armed opposition parties, including
UDPS, PALU, FONUS and PDSC were unanimous in their criticism of the amnesty offered as
impunity in the name of reconciliation. The former perpetrators could not, during the transition, be
prosecuted and punished, in order to preserve peace and prevent a relapse into conflict. But, in the
opinion of many Congolese, reconciliation through justice and truth is extremely crucial in the DRC
context considering the degree of violence and terror that occurred during the years of conflict.
Another Amnesty Law was passed after the latest negotiations in the eastern DRC. The January 2008
Goma peace agreements called for an amnesty law, and the Congolese National Assembly adopted a
bill on July 12, 2008. But fighting resumed before the Senate could consider it. The March 23, 2009
accord between the DRC and the CNDP again called for swift adoption of an amnesty. When the
Senate first reviewed the bill, opposition politicians successfully rejected it, claiming that an amnesty
should have a broader geographic and substantive scope. The bicameral Joint Harmonization
Commission approved a text adopted by parliament and on May 7, 2009, President Joseph Kabila
signed and thereby put into effect an Amnesty Law.
It applies to Congolese living in the DRC or abroad and covers acts of war and insurrection committed
in the eastern provinces of North and South Kivu from June 2003 to the date of signing. Some have
seen the contrary and rightly the ICTJ has put clearly that “… on the surface, the amnesty is of limited
temporal and geographic scope, explicitly excludes genocide, war crimes, and crimes against
humanity from its reach, and does not preclude reparations. In practice, however, it perpetuates
Congo’s pattern of rewarding violence and creates a blanket amnesty for scores of crimes perpetrated
by rebel groups, Congolese armed forces (FARDC), militias, and police alike…”[18] In fact, this
perception is justifiable as after a decade of failed peacemaking efforts, it is clear that only a major
effort to combat impunity in the African Great Lakes region will bring a sustainable end to the cycle of
violence and mass killings plaguing eastern DRC.
4.2. Prosecutions at national and international levels
The obligation to prosecute rests firmly with States, particularly with those on whose territory the
crimes were committed, or whose nationals are either accused of perpetrating the crimes or are victims
of the crimes. It can be assumed that States on whose territory the crimes occurred are better able to
access and collect the evidence than tribunals that operate remotely. Domestic trials, if adhering to
certain standards, have more potential to transform societies and lead to domestic institutional reforms

8. than those conducted far away from the contexts in which the crimes were committed. It is therefore at
the domestic level that long- term and sustainable solutions to ending impunity must be found.[19]
The reality however like in the DRC case is that there are usually tremendous challenges facing
domestic criminal justice systems in investigating and prosecuting international crimes. The main
challenge is often the lack of political will to pursue justice. The involvement of powerful segments of
the political, military or other security forces in these crimes is frequent, as their commission usually
requires planning, organization, and the capacity to mobilize and deploy resources over extended
periods of time and over large territories. In many instances, those who are themselves responsible for
the crimes are still in power or have the means to ensure that those in power protect their interests. In
addition, domestic prosecutions often include several challenges including the legal barriers; lack of an
independent judiciary; lack of capacity and security and access issues, including a volatile security
environment, continued armed conflict, lack of a safe environment for victims and witnesses or legal
professionals.[20]
It is against this background that on April 19, 2004, President Joseph Kabila sent a blank referral to the
International Criminal Court (ICC) requesting them to investigate the crimes committed in the DRC
since July 2002.[21] The first ICC investigations into the atrocities that had taken place in the DRC
were launched in June 2004, focusing on the eastern part of the country. The Court is now conducting
two trials: one for Thomas Lubanga[22], and the other for Germain Katanga and Mathieu Ngudjolo
Chui.[23] Both cases address the conflict in Ituri, a district in northeastern DRC. The Court’s fourth
detainee, Jean-Pierre Bemba[24], is also a Congolese national. But unlike the other three, Bemba is a
prominent public figure; he lost in the 2006 presidential election to the incumbent, Joseph Kabila.
Bemba was serving as a senator when he was arrested in Belgium and transferred to The Hague in June
2008. He is charged with crimes allegedly perpetrated by his Mouvement pour la Libération du Congo
(MLC) forces in CAR. Bemba’s trial is set to open in July 2010.
As for the ICC, although it has begun the prosecutions of the above-mentioned cases, its jurisdictional
rules do not allow it to deal with crimes committed before 2002 and its institutional capacities are too
limited for it to take on more than a handful of cases. Consequently, only national courts are in a
position to bear the brunt of the fight against impunity and thereby contribute to the rebuilding of the
nation. However, to date, civilian courts have not yet prosecuted any of the serious crimes committed
during the wars, partly due to the fact that there is no legislation ‘domesticating’ the Rome Statute
which defines such crimes, which is to say that there is no law to integrate the crimes falling within the
jurisdiction of the ICC into national law and grant national courts jurisdiction in their regard.[25] Thus,
these serious crimes are only be prosecuted by military courts, since the adoption in 2002 of the
military criminal code, which includes the crimes stipulated in the Rome Statute.
The performance of military justice, however, has been mediocre. Only a very limited number of the
international crimes perpetrated in the DRC over the last decade have been prosecuted, and few of
those have led to criminal convictions. A recent study by the organisation ‘Avocats sans
Frontières/Lawyers Without Borders’ was only able to list 13 cases involving serious crimes that were
effectively prosecuted in military courts.[26] Furthermore, these cases were heard in a handful courts,
mostly the garnison courts of Mbandaka and Bunia, and, to a lesser extent, those of Bukavu and
Kipushi. This state of affairs reflects the lack of a consistent prosecution policy and betrays the
opportunistic approach that has characterised both prosecutions in military courts and donor support for
such prosecutions.

9. Moreover, the spectacular escapes of certain convicts have considerably reduced the impact, in the
population, of the judgments handed down, as their confidence in the justice system was already
precarious. The judicial system has shortcomings and requires a genuine reform of the sector and the
strengthening of its capacities. The steps taken by the military courts have only been possible with the
decisive role of the international community (MONUC, European Union, and various NGOs),
particularly in Ituri.
4.3. The Congolese Truth and Reconciliation Commission: A “Truth Commission” or “Truth
Omission”?
A truth commission, the Commission Verité et Réconciliation (CVR), was established as one of the five
institutions in support of democracy encompassed in the Pretoria power-sharing agreement that was
signed in December 2002. It was proposed by members of the Inter-Congolese Dialogue (ICD) as part
of the peace negotiations. It should be noted however, that it inclusion in the peace agreement was
lobbied for by Congolese civil society groups and the ICD meeting in Sun City, South Africa, adopted
a resolution on a Truth and Reconciliation Commission, which goes into great detail into the proposed
institution.[27] The commission operates from July 2003 to February 2007 but one can easily say that
by law, its started to operate one year later as per article 160 of the Transitional Constitution, which
stipulates that the specificities of the truth commission would be determined by an organic law. Until
more than a year after the establishment of the commission, it was operating without such a law. On
July 30, 2004, the mandate (Organic Law No 04/018) was enacted by President Kabila.
According to articles 154-160 of the Transitional Constitution 155 and article 5 of the Organic Law No
04/018, the TRC was tasked with a 10-point ambitious set of goals, including to establish truth and
promote peace, justice, reparation, forgiveness and reconciliation, with the view of consolidating
national unity. The commission was set up to examine the political, economic, and societal conflicts
between the country’s independence in 1960 and the conclusions of the peace agreement in 2003. It
was then responsible for investigating political crimes and human rights violations, which took between
that period.[28] The commission was also expected to contribute to the compensation of victims.[29]
The commission had twenty-one members, and eight of them were “Members of the Bureau” which
were selected to represent each of the parties of the Inter-Congolese Dialogue and were approved by
the National Assembly. The other members were religious leaders, representatives of scientific
associations, women’s organizations and other civil society groups with objectives similar to the
commission. It should be noted that the selection of the Commissioners, while inclusive and
representative of the political forces involved in the peace negotiations, was criticized because some of
the commissioners had informal ties with those who were implicated in the crimes. MONUC explained
that the UN mission would only support the truth commission if there were sufficient guarantees of its
independence from the executive branch. International observers called for a follow-up truth-seeking
mechanism because of the lack of political will and resources for the Truth and Reconciliation
Commission.[30]
In assessing if the Congolese TRC met some minimal requirements to approach legitimacy under
international law, one can point out that the Congolese TRC was not created and not operated
transparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement in
the creation and functioning of a TRC, and openness to ensure domestic legitimacy. In fact, the TRC,
with all its far-reaching aspirations, was born out of an elite (and perhaps morally questionable)
consultation in which victims did not participate broadly, with potential consequences of disconnecting
parts of the country from the embryonic process. There was no endorsement of the TRC and its work as

10. a mechanism of transitional justice. Moreover, many critiques have been made because commissioners
came from different factions, and were not chosen by means of a process, which tried to ensure a
democratic spirit and practice, and transparency. In fact, the selection of commissioners was
problematic, who ideally should be widely respected persons of unparalleled morals chosen through an
open process. This was clearly mentioned in the ICD resolution stating that the commissioners should
be “Congolese of great moral and intellectual probity and possessing the necessary skills to carry out
the mandate of the commission,” selected “by consensus from the ranks of the components according
to the criteria established by the Dialogue: moral probity, credibility….”[31] Despite these provisions,
the commissioners were nominated by their political parties with no regard for the ICD criteria or the
consensus described in the truth commission resolution.
Therefore, it seems that the purpose of such a commission, was meant to be a “Truth Omission”
instead of a “Truth Commission” and could not encountered support by the international community.
In this line, Nahla Valji stated that “a good example of a commission set up in bad faith to avoid justice
and perpetuate impunity would be the truth commission in the DRC, which did not hear a single case
from victims - and whose commissioners included representatives of the warring factions responsible
for atrocities. Given their susceptibility to the broader political context there is always the danger that
truth commissions are held hostage to the balance of power and political manipulations”.[32]
Although the appropriate non-judicial mechanism, the Truth and Reconciliation Commission (TRC)
was well established in DRC, truth-telling had not happened. The TRC was unable to undertake
investigations of human rights violations and put together victims and perpetrators to facilitate
reconciliation. As it can be noticed, in this case it is difficult to imagine a face-to-face process between
perpetrators and their victims, as the TRC was not even able to identify the crimes committed.[33]
Instead, it has focused its work on conflict-mediation activities.
In its recommendations, the commission asked the international community for financial support to
enhance transitional justice in the DRC. Moreover, given the limited involvement of victims, witnesses,
and perpetrators, the commission recommended a public awareness campaign to pave the floor for a
future truth commission initiative. Civil society members are seeking this as the Constitution provides
the window to establish if needed any necessary democratic institution. There is then an occasion to
lobby for the establishment of a new TRC with clear mandate, well funded and transparent. For that,
there is need to ensure that truth commission is well adapted to the local context and local populations
need to be consulted as their input and support is critical.
However, there is widespread debate in DRC since last year about whether the particular transitional
justice strategy developed entails a choice between peace and justice. Some argue that while
international and national criminal trials promote justice, they can exacerbate divisions and may hinder
the achievement of peace. Those who face the potential for prosecution may be reluctant to lay down
arms. Others argue that transitional justice can simultaneously produce peace and justice. It seems that
efforts should be made to devise a comprehensive strategy that incorporates various mechanisms and
approaches that can complement one another – and that can provide the greatest voice to survivors and
deliver the greatest impact to local communities.
Also, the views of Congolese citizens have been expressed by Thierry Kambere, a Global Rights
Program Officer in Kinshasa, as he put it clearly that “ because DRC has a new constitution, which was
approved by the Congolese people and promulgated in February 2006, it is now possible to think about
justice. The preamble to the Constitution focuses, among other things, on combating impunity and
ensuring political change. The Congolese people have a contradictory view of justice in their country.

11. On the one hand, they want justice, but on the other hand, they doubt that justice will be done. This is
because they have seen a lot of inconsistencies between the written law and the reality on the ground…
Justice has a role to play, not only in combating impunity, but also in Congo’s democratic process. The
Congolese people want justice that doesn’t amount to silence, that doesn’t function on the basis of
power struggles between parties to a conflict, that doesn’t live off the backs of people who want
justice. They want justice to provide a space in which people can express themselves and be free, they
want a justice that can be enforced, that is close to the Congolese people. The Congolese people are
convinced that justice is a value that should not be compromised…”[34] This is a clear quest for justice
and truth telling.
V. The implementation and mechanisms to monitor the implementation and outcome
It was clear that concerning the conflict resolution process the African Union has been involved and
continues to some extent to monitor the situation on the ground. In fact, the AU by its former
Chairperson of the Commission played a role in the DRC peace process.[35] In fact, as member of the
International Transition Support Committee and of the Technical Committee established by the
International Community to backstop the electoral process, the African Union actively supports the
transition process, alongside the United Nations, the European Union, representatives of the Permanent
Members of the Security Council based in Kinshasa and other African and foreign partners of the peace
process. Through the AU Special Representative in the DRC, Martin Bongo, the AU participated in all
the CIAT and Technical Committee meetings.
The AU also participates in many missions within the country, carried out by those two international
transition support organs. For instance, the AU Office was part of a Joint Mission, comprising
representatives of the UN, the Transitional Government, the Embassies of France, Belgium and Spain,
the UNDP and the European Union, which visited Bunia, Ituri, at the end of February 2004. During the
visit , the delegation had a working session with the leaders of the armed groups, who pledged to
resume dialogue with the Government to find a solution to the instability in the Region. The delegation
inaugurated the town’s new Prison, Court and Police Station. In general and via its Liaison Office, the
African Union maintains regular contacts both with the Congolese players in the peace process and the
country’s external partners in the process. Upon the signing of the Lusaka Ceasefire Agreement in July
1999, the OAU, in concert with the Parties, established the Joint Military Committee (JMC) to ensure
compliance with the Ceasefire. The JMC played a decisive role in that regard, prior to the deployment
of MONUC.
As far as the transitional justice mechanisms are concerned, it should be noted that little or mere
nothing has been done to ensure the monitoring of the process and there is need for action. That is true
as the international observers called for a follow-up truth-seeking mechanism in DRC because of the
lack of political will and resources for the Truth and Reconciliation Commission.[36]
Nothing was done to monitor the impact of the adopted strategy of power sharing without vetting gross
human rights violators coupled with little more than hypothetical accountability measures reflected the
negotiating parties primary interest in achieving an immediate peace. As Jason Stearns, concluded, “…
In contrast with peace processes elsewhere, justice and reconciliation have ranked low on the list of
priorities in Congo.”[37]
VI. Recommendations for the possible continued role of AU and sub-regional bodies in TJ
developments in the DRC and other countries

12. The issue of justice was raised in DRC to respond to the question of the extremely grave crimes
committed. The conflicts affected, in particular, the civilian populations, victims of numerous acts of
sexual violence, used as weapons of war, the recruitment by all the armed groups of children, numerous
massacres, displacements of population, and other abuses – murder and mutilation, and acts of
cannibalism. However, peace efforts have resulted in the integration of former rebel factions into the
army and police services, the adoption of a series of amnesty laws, and the nomination of suspected
war criminals into leading positions of the security sector without any prospects for vetting them as part
of comprehensive security system reform. That is true as the price paid for the comprehensive peace
agreement was impunity for those most responsible for atrocities. Rather than risk derailing the shaky
peace process by aggressively prosecuting human rights abusers, the strategy of the transition was to
purchase stability by distributing lucrative and powerful positions in the government to armed groups
regardless of their human rights record. This is however still continuing even presently and it may
easily be said that impunity has become the normal state of affairs in the DRC. Something need to be
done to change the situation and the important thing now is to look at the challenges in addressing
impunity for the horrific crimes that have been committed in the DRC before July 2002 and even after
that if the ICC is not dealing with them. If not, the impunity for these atrocities will sends the message
that such crimes may be tolerated in the future and the ghost of impunity continues to haunt the DRC.
In full consultation all the stakeholders (Government, CSOs, AU and the international community)
need to find a framework within which the past can be properly addressed and those responsible for
crimes under international law and other grave human rights abuses may be held accountable. In order
to ensure that these objectives are achieved, there is need to develop a comprehensive anti-impunity
programme, supported by the stakeholders.
Furthermore, it has been noticed that peace agreement and power sharing arrangements are sought for
at regional or sub-regional levels to restore peace and create stability among former belligerents and
dealt with them as legitimate parties, despite obvious links to war crimes and economic plunder.
Transitions in this context lack legitimacy and have little chance of producing lasting democracy or
peace. It’s necessary to frame within the peace agreement or power sharing arrangements the
appropriate mechanism of transitional justice to be undertaken by the country in order to ensure
accountability and reconciliation. This is true, as the 2010 have been declared “year of peace” and the
African Union and other sub-regional organisations should start to work on the link between
transitional justice and peacebuilding.
Discussing the relevance of Transitional Justice for the African Union: The way forward!
From this paper and other literatures, it is clear that transitional justice is a field that lies at the
intersection of human rights and conflict resolution. While the field cannot be completely subsumed
within a peacebuilding framework, given that transitional justice also encompasses legacies of abuse
that have nothing to do with armed conflict (e.g., transitions from periods of dictatorship), there is a
clear recognition among peacebuilders of the added value of transitional justice in restoring public
security and contributing to long-term reconciliation.
As seen in the DRC case and in other experiences, there are several stakeholders at the national,
regional, and international levels who can impact transitional justice processes and have the potential to
create fertile ground for positive, sustainable coexistence in societies emerging from violent conflict.
These include government in transition, local civil society, truth seeking bodies, national and
international judicial systems, the international community, and regional bodies such as the African

13. Union, all of whom have a role to play in the design, enactment, and follow-up of transitional justice
processes.
From the AU statute and other relevant treaties and documents, we can easily state that Transitional
Justice is coherent with the mandate of the AU. The adoption of an array of strategies by the AU,
including the more recent strategy on post-conflict reconstruction and development (PCRD) have
acknowledge that issues of democratic security sector governance are a prerequisite for successful
transition from conflict to sustainable peace.[38] Taking this example of the PRCD only, although it
does not explicitly use the phrase “transitional justice”, its six indicative elements (including security,
humanitarian/emergency assistance, political governance and transition, socio-economic reconstruction
and development, human rights, justice and reconciliation, women and gender) are key ingredients
when dealing with legacies of violence. Thus, the Constitutive Act of the African Union and other
treaties of the union and from its building blocks, places the entire institution, at the centre of
transitional justice processes on the continent. The AU has consequently a role on conflict resolution
and it has a huge potential to ensure greater coherence in integrating transitional justice in
peacekeeping and peacebuilding agendas, and to push for consistent policies in implementation at field
level.
In this regard, it will be important to identify what the AU’s role in the area of transitional justice
should logically be in broad terms. Key questions have to be asked in this respect. They include the
following: what is the opportunity for the AU in the area of transitional justice? How can it play a
useful flanking role and not duplicate efforts undertaken in other institutions or arenas? Broadly
speaking, the AU has a chance to play a leading role in transitional justice standard- setting. This is
especially true given the number of countries within the AU where legacies of abuse and reconciliation
processes remain on domestic political agendas. The DRC being one of them.
There are several entry points for transitional justice to be taken up in the work of the AU, at the policy
as well as the operational level. An AU policy framework on transitional justice together with measures
to strengthen AU institutions with transitional justice expertise should enhance the future work of the
organization on this important matter as there is a general consensus among scholars and practitioners
that a sustainable peace is meant to be built as a result of different transitional justice mechanisms.[39]
In other words, addressing the legacies of past violence and human rights abuse is necessary for
fostering sustainable peace especially during this year. In fact, the AU has declared the Year 2010 the
African Year of Peace[40], reiterating its commitment to further push the peace process in Africa,
where millions of people are killed and displaced due to civil strife. As the plan of action of the Year of
Peace and Security includes launching new initiatives for the promotion of peace and security, it is the
momentum for the African people and leaders as well as African institutions in partnership with the
international community, to embrace Transitional Justice Mechanisms in order to Make Peace ‘Really’
Happen in Africa.

14. Selected Bibliography
1. Assefa, H., and G. Wachira (eds) 1996, Peace Making and Democratization in Africa:
Theoretical Perspectives and Church Initiatives; Nairobi, Kampala: East African Educational
Publishers.
2. Avocats Sans Frontières, Etude de Jurisprudence : L’application du Statut de Rome de la
Cour Pénale Internationale par les Juridictions de la République Démocratique du Congo,
March 2009.
3. Benjamin Coughlan et al., (2006). Mortality in the Democratic Republic of Congo: A
Nationwide Survey, 367 The Lancet 44
4. Borello, Federico and International Center for Transitional Justice (2004); A First Few
Steps: The Long Road to a just Peace in the Democratic Republic of Congo. Available at http://
www.ictj.org/images/content/1/1/115.pdf
5. Bosire, Lydiah, 2006, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan
Africa, ICTJ Occasional Paper
6. Cecile Aptel, Domestic Justice Systems and the Impact of the Rome Statute, Discussion
Paper prepared for the Consultative Conference on International Criminal Justice , September 9
– 11, 2009, United Nations Headquarters, New York.
http://www.internationalcriminaljustice.net/experience/papers/session7.pdf
7. Håkan Friman, The Democratic Republic of Congo Justice in the aftermath of peace? In
African Security Review, Vol 10 No 3, 2001
8. Inter-Congolese Dialogue, Resolution No. DIC/CPR/05, March 2005.

15. 9. International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”,
Focus: 2009 DRC Amnesty Law
10. International Rescue Committee, Fifth Mortality Report on the DRC, January
2008. http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf
11. Jason K. Stearns, Congo’s Peace: Miracle or Mirage?, 106 Current Hist., 203
(2007). Also available at http://www.crisisgroup.org/home/index.cfm?id=4799&l=1.
12. Kasongo Kamwimbi Theodore, The DRC Elections, Reconciliation, and
Justice, Pambazuka News, July 27, 2006
13. Kuye Ndondo Jean-Luc, “Exposé De Monseigneur Jean-Luc Kuye Ndondo,
Président de La Commission Vérité et Réconciliation”, Kinshasa, 2004.
http://democratie.francophonie.org/IMG/pdf/IV.A.4.pdf
14. Magnus, K “Introduction to the UN and Human Rights in Africa” in Heyns,
C.H. (ed) 1 Human rights Law in Africa 2004 Leiden: Nijhoff, 4–59 (With the establishment of
the ICC future ad hoc tribunals might be avoided).
15. Mallinder, Louise (2007), Can Amnesties and International Justice be
Reconciled? The International Journal of Transitional Justice 1 (2) : 208-230
16. Nahla Valji, Trials and Truth Commissions: Seeking Accountability in the
Aftermath of Violence., http://www.humansecuritygateway.com/documents/CSVR_T_Se.pdf
17. Patricia Dalley (2006): Challenges to Peace: conflict resolution in the Great
Lakes Region of Africa; Third World Quarterly, Vol 27, No2 pp309-319
18. Paul Van Zyl, “Promoting Transitional Justice in Post-Conflict Societies”, in
Security Governance in Post-Conflict Peacebuilding, eds. Alan Bryden and Heiner Hanggi
(Geneva: Geneva Center for the Democratic Control of Armed Forces, 2005), 205
19. Peace and Security Council, “Report of the Chairperson of the Commission
on the situation in the DRC”, Fifth Session, Addis Ababa, Ethiopia, 13 April 2004.
20. Punungwe, 1998, “Towards a Ceasefire and the Resolution of Conflict in the
Democratic Republic of Congo (DRC): The Role of the Southern African Development
Community (SADC) Organ on Conflicts, Defence and Security”, Harare Workshop on the Crisis
in the DRC.
21. Rachel Kerr and Eirin Mobekk, (2007): Peace and Justice: Seeking
Accountability after War ; Cambridge, UK: Polity Press
22. Report of the Special Rapporteur on the human rights situation in the DRC to
the fifty-ninth session of the Commission on Human Rights. See: http://www.un.org

16. 23. UN Security Council press release (2005) Security Council Notes Decision in
Democratic Republic of Congo to Extend Transitional Period Until End of 2005, SC/8430,
Available at: http://www.un.org/News/Press/docs/2005/sc8430.doc.htm
24. Yav Katshung Joseph, 2009: The International Criminal Court and Truth
Commissions: Two sides of the same coin? , ISBN-10: 1449518079 - ISBN-13:
978-1449518073, Ed. UniBook, Spuurs, Belgium
25. Yav Katshung Joseph, 2007 : Greasing the wheels of reconciliation in the
Great Lakes region. African Security Review, vol 16 n 3, September 2007
26. Yav Katshung Joseph, 2006 “Prosecution of Grave violations of Human
Rights in Light of Challenges of national Courts and the International Criminal Court: the
Congolese Dilemma,” Human Rights Review 7: 5-25.
20
[1] Yav Katshung Joseph (2007) : Greasing the wheels of reconciliation in the Great Lakes region. African Security
Review, vol 16 n 3
[2] Including Rwandan FDLR, the LRA and the Angolan UNITA
[3] Patricia Dalley: Challenges to Peace: conflict resolution in the Great Lakes Region of Africa; Third World Quarterly,
Vol 27, No2 pp309-319, 2006; Read also: Benjamin Coughlan et al., Mortality in the Democratic Republic of Congo: A
Nationwide Survey, 367 The Lancet 44 (2006). Also read: International Rescue Committee, Fifth Mortality Report on the
DRC, January 2008. Available at http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf
[4] South Africa and Mozambique provide us with good examples of success in the process of implementing peace
agreements. In South Africa the Peace Agreement was signed after peace negotiations between the ANC movement and the
Boer Government. The two parties had been engaged in violent conflicts during the war of armed liberation carried out by
the ANC and other movements. A transition period was set and democratic elections were successfully held in April 1994.
In Mozambique the Peace Agreement was signed in 1992 between the FRELIMO government and RENAMO, a rebel
group. The to parties had been engaged in a protracted civil war for nearly 17 years. The peace negotiations were carried out
in Rome, Italy mediated by a religious NGO called Saint Edigio (Romano, 1998). After a successful transition period the
first democratic elections were held in October, 1994. A good example of cases of unsuccessful implementation of peace
agreements is Rwanda. The Peace Agreement for Rwanda was signed in Arusha in August 1993 between the Habyarimana
Government and the RPF rebel groups with its military wing, the RPA. From August 1993 to April 1994 no serious steps
were taken to implement the agreement. The end result was genocide of April to July 1994 costing between 800,000 and a
million lives. It appears that the then Government was not committed to the implementation process.

17. Read, Assefa, H., 1996, Peace and Reconciliation as a Paradigm: A Philosophy of Peace and its Implications for Conflict,
Governance and Economic Growth. In: Assefa, H., and G. Wachira (eds) Peace Making and Democratization in Africa:
Theoretical Perspectives and Church Initiatives; Nairobi, Kampala: East African Educational Publishers.
[5] Mbendi information for Africa “Democratic republic of Congo- Overview”
http://www.mbendi.co.za/land/af/zr/p0005.htm
[6] Punungwe, 1998, “Towards a Ceasefire and the Resolution of Conflict in the Democratic Republic of Congo (DRC):
The Role of the Southern African Development Community (SADC) Organ on Conflicts, Defence and Security”, Harare
Workshop on the Crisis in the DRC.
[7] For instance, in the light of his alliance with Kabila, President Mugabe of Zimbabwe promoted an approach based on
the view that the rebels were at fault in the ongoing conflict and that the SADC member states should come to aid Kabila’s
regime, under a Defence agreement signed shortly thereafter.
[8] UN Security Council press release (2005) Security Council Notes Decision in Democratic Republic of Congo to Extend
Transitional Period Until End of 2005, SC/8430, Available at: http://www.un.org/News/Press/docs/2005/sc8430.doc.htm
[9] See the Lusaka Cease-Fire Agreement, chapter 8, paragraph 8.2.2.
[10] Inter-Congolese Dialogue, Resolution No. DIC/CPR/05, March 2005.
[11] Joseph Yav Katshung, 2006 “Prosecution of Grave violations of Human Rights in Light of Challenges of national
Courts and the International Criminal Court: the Congolese Dilemma,” Human Rights Review 7: 5-25.
[12] Report of the Special Rapporteur on the human rights situation in the DRC to the fifty-ninth session of the
Commission on Human Rights. See: http://www.un.org
[13] Magnus, K “Introduction to the UN and Human Rights in Africa” in Heyns, C.H. (ed) 1 Human rights Law in Africa
2004 Leiden: Nijhoff, 4–59 (With the establishment of the ICC future ad hoc tribunals might be avoided).
[14] Bosire, Lydiah, 2006, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa, ICTJ Occasional
Paper
[15] Read: Mallinder, Louise (2007) Can Amnesties and International Justice be Reconciled? The International Journal of
Transitional Justice 1 (2):208-230
[16] Håkan Friman, The Democratic Republic of Congo Justice in the aftermath of peace? In African Security Review, Vol
10 No 3, 2001
[17] Read: The International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”, Focus: 2009
DRC Amnesty Law,
[18] The International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”, Focus: 2009 DRC
Amnesty Law,
[19] See: Cecile Aptel, Domestic Justice Systems and the Impact of the Rome Statute, Discussion Paper prepared for the
Consultative Conference on International Criminal Justice , September 9 – 11, 2009, United Nations Headquarters, New
York.
Available at: http://www.internationalcriminaljustice.net/experience/papers/session7.pdf
[20] Yav Katshung Joseph, (2009): The International Criminal Court and Truth Commissions: Two sides of the same coin?
, ISBN-10: 1449518079 - ISBN-13: 978-1449518073, Ed. UniBook, Spuurs, Belgium

18. [21] The DRC ratified the Rome Statute on March 30, 2002
[22] Thomas Lubanga is the subject of the ICC’s first trial, which began on Jan. 26, 2009. He is charged with two counts of
war crimes for enlisting and conscripting children younger than 15 and using them actively to take part in hostilities.
Lubanga was arrested and detained on March 19, 2005, pursuant to an arrest warrant that Congolese military prosecutors
issued for charges of genocide and crimes against humanity under Congolese law.
[23] The trial of Germain Katanga and Mathieu Ngudjolo Chui began on Nov. 24, 2009. They are charged with three
counts of crimes against humanity (murder, rape, and sexual slavery) and seven counts of war crimes (willful killings, rape,
sexual slavery, pillaging, destruction of property, directing an attack against civilians, and using children younger than 15 to
actively participate in hostilities).
[24] On June 15, 2009, the Pre-Trial Chamber confirmed two charges of crimes against humanity (murder and rape) and
three charges of war crimes (murder, rape, and pillaging) against Bemba alleging his responsibility as a military
commander.
[25] A comprehensive draft ICC Implementing Legislation was drafted and deposited in Parliament by two Members of
Parliament in March 2008. This bill differs from the 2005 Bill deposited by the Transitional Government in that it does not
include the death penalty for genocide, crimes against humanity and war crimes. The 2008 Bill is also more in line with the
Rome Statute with respect to defences and superior orders. The Bill was tabled for the parliamentary session beginning on
September 15, 2009, but was not discussed due to competing issues in the agenda of Parliament. At the Parliamentarians for
Global Action (PGA) regional Kinshasa Conference on Justice and Peace in the Great Lakes region, held on 10-12
December 2009, impressive public endorsements for the adoption of the Legislation by the Speaker of the Lower House, the
Minister of Justice, top MPs from majority and opposition, as well as Madame Jaynet Kabila were manifested. PGA
Members have now taken up the initiative to reproduce and deposit the existing legislative text in the Senate in order to
benefit from a more speedy treatment and adoption of the bill which is stalled in the lower chamber.
[26] Avocats Sans Frontières, Etude de Jurisprudence : L’application du Statut de Rome de la Cour Pénale Internationale
par les Juridictions de la République Démocratique du Congo, March 2009.
[27] Resolution DIC/CPR/04, available at: www.drcpeace.org/docs/finalreport1_1.pdf
[28] See DIC/CPR/04, id. at para. 6; See also Constitution de la transition, Articles 154–160, where the TRC is listed as
one of the institutions supporting democracy, alongside an independent electoral commission on ethics and anti-corruption.
[29] Jean-Luc Kuye Ndondo, “Exposé De Monseigneur Jean-Luc Kuye Ndondo, Président de La Commission Vérité et
Réconciliation”, Kinshasa, 2004.
http://democratie.francophonie.org/IMG/pdf/IV.A.4.pdf (accessed May 17, 2010).
[30] Read: Borello, Federico and International Center for Transitional Justice. A First Few Steps: The Long Road to a just
Peace in the Democratic Republic of Congo 2004. Available at http://www.ictj.org/images/content/1/1/115.pdf (accessed
May 3, 2010).
[31] See DIC/CPR/04, supra note 62, at para. 10.
[32] Nahla Valji, Trials and Truth Commissions: Seeking Accountability in the Aftermath of Violence.
http://www.humansecuritygateway.com/documents/CSVR_TrialsTruthCommissions_SeekingAccountability_AftermathVio
lence.pdf
[33] Theodore Kasongo Kamwimbi, The DRC Elections, Reconciliation, and Justice, Pambazuka News, July 27, 2006
[34] See Thierry Kambere, Prospects for Justice in the Democratic Republic of Congo: A Global Rights Discussion
Forum, April 3 2006, available at www.globalrights.org/site/DocServer/DRC_April_06.pdf?docID=5023
[35] Peace and Security Council, “Report of the Chairperson of the Commission on the situation in the DRC”, Fifth
Session, Addis Ababa, Ethiopia, 13 April 2004.

19. In the contrary read a interview made in November 2008 on Deutsche Welle, a Germany’s international broadcaster, an
expert named Ulrich Delius responding to a question on the possible involvement of the AU to try and solve the conflict in
DRC stated that “There are certainly many foreign ministries in the European Union which might favor broader
involvement of the African Union in the Congo conflict. But on the other hand they're also aware that the Congo conflict is
also an African conflict involving many countries, not just the Congo and Rwanda. So many countries are involved
militarily or politically in this struggle at the moment. But it's extremely difficult to get the African Union involved as a
neutral party, and right now only neutral parties can be effective. Regarding the inefficiency of the African Union and its
peace commitment in Darfur, it's really not a good idea to invite the AU to be more involved in the Congo because the
Congo conflict is much more complex and much more difficult to solve than the Darfur conflict. They are failing in Darfur
and they would be guaranteed to fail in the Congo…”
Read: Germany Should Step in to Solve Conflict in the Congo, http://www.dw-world.de/dw/article/0,,3772585,00.html
[36] Read: Borello, Federico and International Center for Transitional Justice. A First Few Steps: The Long Road to a just
Peace in the Democratic Republic of Congo 2004. Available at http://www.ictj.org/images/content/1/1/115.pdf (accessed
May 3, 2010).
[37] Jason K. Stearns, Congo’s Peace: Miracle or Mirage?, 106 Current Hist., 203 (2007).
Also available at http://www.crisisgroup.org/home/index.cfm?id=4799&l=1.
[38] See: Report Of Proceedings Experts Meeting On Post-Conflict Reconstruction And Development (PCRD) In Africa ,
6-7 February 2006, Addis Ababa, Ethiopia, p. 6&7. Also see: Report On the Elaboration of a Framework Document on
Post Conflict Reconstruction, EX.CL/274 (IX), 25-29 June 2006, Banjul, The Gambia, p. 2.
[39] Read: Paul Van Zyl, " Promoting Transitional Justice in Post-Conflict Societies”," in Security Governance in Post-
Conflict Peacebuilding, eds. Alan Bryden and Heiner Hanggi (Geneva: Geneva Center for the Democratic Control of
Armed Forces, 2005), 205.; Also read: Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability after War
(Cambridge, UK: Polity Press, 2007), 3-4.
[40] In the Tripoli Declaration on the Elimination of Conflicts in Africa and the Promotion of Sustainable Peace adopted
by the Special Session of the Assembly of the Union, held on 31 August 2009, the Assembly decided to proclaim 2010 as
the Year of Peace and Security in Africa.