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Fair-trial standards violated in Maheshe murder trial, say human rights groups

(HRW/IFEX) - The following is a 20 May 2008 Human Rights Watch press release:

DR Congo: Avert Blatant Miscarriage of Justice

Rights Groups Say Court Denied the Accused Basic Rights in Maheshe Murder Trial

(Bukavu, May 20, 2008) - A group of international and Congolese human rights organizations are greatly concerned that international fair-trial standards have been violated in the trial and appeal of four men convicted in the murder of Congolese journalist Serge Maheshe.

The military court trial and the appeals process have been marred by inadequate protection of the defendants' most basic rights, said Human Rights Watch, Amnesty International, Action by Christians Against Torture (France), and a coalition of 18 Congolese rights groups in a joint statement today.

"The trial for the murder of Serge Maheshe has been characterized by intimidation, injustice and a failure to establish the truth of what happened," said Anneke Van Woudenberg, senior Africa researcher at Human Rights Watch. "The Military Appeals Court appears poised to repeat the egregious errors of the trial court that convicted the four defendants."

Last week, a Military Appeals Court in Bukavu completed three months of hearings in the appeal of four men convicted for the June 13, 2007 murder of Maheshe, the Bukavu bureau chief for Radio Okapi, a United Nations-supported radio station. The court said it would issue its verdict on May 21.

In August 2007, a military trial court found four men guilty and sentenced them to death for Maheshe's murder. Two of those convicted, Serge Muhima and Alain Mulimbi, were close friends of the victim and were with him when he was killed. Two other men, Freddy Bisimwa Matabaro and Mugisho Rwezangabo (also known as Mastakila), initially confessed to the murder, implicating Maheshe's friends as the organizers of the crime. They later retracted their confessions, saying they had been obtained under pressure and a promise of money by military magistrates.

Throughout the initial trial and the appeal, the military court failed to assure the rights of the four men accused, including preventing their lawyers the right to fully question witnesses, to have adequate time to prepare, and to have proceedings translated into a language that they understood. These rights, fundamental to a fair trial, including appeals, are guaranteed by the International Covenant on Civil and Political Rights, which Congo ratified in 1977.

For example, on several occasions, the president of the Appeals Court prevented lawyers from questioning witnesses or insisted on responding to the questions himself. Defense lawyers were blocked from highlighting the flagrant omissions in the investigation, in particular the possible role of government soldiers in the murder. Defendants were questioned when their lawyers were not present and the court failed to inform them of their right not to respond. Swahili translation was not provided at each stage of the trial for two of the defendants who did not speak sufficient French, the language in which the hearings had been conducted, and often translation was only provided when they were directly questioned.

During the hearings, Congolese and international observers as well as the defense lawyers were threatened and harassed. One anonymous phone text message received by observers said, "You will pay dearly with your own blood because of this trial that you have so discredited." Another said, "You are a walking corpse." Lawyers for the defense received messages warning them against following any line of inquiry that might implicate the government soldiers.

The human rights coalition questioned the competence of the military tribunal to try civilian defendants charged with common law infractions, in violation of Article 156 of Congo's new constitution. The organizations also expressed their principled objection to the death penalty in this case as a violation to the right to life and a cruel, inhuman, and degrading punishment.

"The obvious unfairness of these proceedings is a real disservice to the defendants and to criminal justice in the Congo," said Erwin van der Borght, director of the Africa program at Amnesty International. "Observers have a responsibility to denounce flagrant violations of fair-trial standards and should not face threats for doing their jobs."

During the closing arguments, the prosecutor asserted that there was no evidence to find Maheshe's friends, Mulimbi and Muhima, guilty, and he called on the court to acquit them. He asked the court to uphold the conviction and death sentence for the other two, on the charge of "murder to facilitate a robbery."

Under Congolese law, parties injured by the crime have a right to address the court. An attorney representing Maheshe's widow, Cathy Sangara, asked the court to uphold the conviction and death sentence of the four men. But on May 9 and in an earlier radio interview, Sangara repudiated her attorney. She wrote the court a letter asking that the statements made by her lawyer be disregarded because she believed significant doubt remained about the guilt of the condemned men. The judge refused to take account of the letter, saying he had received only a photocopy that was unacceptable for submission to the court. He also did not allow the defense lawyers to read the letter aloud in court or to comment on her submission, as is called for by the principle of contradictory proceedings.

On May 14, the European Union expressed concern over the serious irregularities observed during the hearing and threats received by the human rights defenders and the lawyers. It urged the Congolese courts to guarantee the accused a fair trial. On March 6, 2008, the United Nations peacekeeping mission in Congo, MONUC, published a detailed critique of the initial trial-court hearing providing numerous examples of the lack of fair-trial standards.

The human rights coalition expressed concerns about the handling of the Maheshe case from the beginning. The prosecutor, police, and court failed to investigate the crime fully, relying primarily on the confessions of two of the accused, which were later retracted, and they did not examine the alleged implication of government soldiers in the murder. They also neglected basic investigatory measures, including ballistic analyses and an autopsy of the victim. No checks were carried out on whether the derelict gun presented to the court as the murder weapon could still fire or if it matched the cartridges found at the scene of the crime. The court failed to take advantage of assistance offered by MONUC for expertise and equipment to do forensic investigations.

"The Congolese and international outcry against the failure to provide due process during the initial trial and this appeal has been fully justified," said Van Woudenberg. "The memory of Serge Maheshe, who fought throughout his life for truth, should not be dishonored by this mockery of justice."

In observing the Maheshe murder trial, the human rights organizations of the coalition are motivated uniquely by the respect for national and international fair trial standards, the search for the truth, and the fight against impunity for crimes committed against human rights defenders and journalists.

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