Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.

In the early morning hours of  November 24, police in the Democratic Republic of Congo (DRC) arrested Fidèle Babala Wandu, a member of the DRC Parliament and Deputy Secretary General of the Movement for the Liberation of Congo (MLC) (the party of Jean-Pierre Bemba) and transferred him to the International Criminal Court (ICC). Mr. Wandu is a long time member of the opposition and close political ally of Bemba’s. He served as chief of cabinet for Bemba when the latter was serving as Vice-President. This arrest has been roundly criticized by the opposition and civil society in the DRC and was characterized by one journalist as adding “fuel to the fire” of anti-ICC sentiment in the DRC, just over a month after the African Union convened an Extraordinary Summit on the ICC’s relationship with Africa.

Mr. Wandu was arrested along with three other colleagues: Bemba’s lead counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Bemba’s case manager, and Narcisse Arido, a defense witness. The four are charged alongside Bemba with offences against the administration of justice for allegedly falsifying documents for presentation to the court and bribing witnesses to provide false testimony. Mr. Wandu was the only one arrested in the DRC: the others were apprehended in Belgium, the Netherlands, and France.

Although the charges are serious, many in the DRC are up in arms over the arrest. The apprehension has been criticized both for the heavy handed way in which it was carried out and for the underlying charges, which are viewed with some suspicion.

The MLC and others claim that the arrest was carried out in a way that was unconstitutional. According to a statement released by the MLC, the arrest was carried out by armed men at 2:45 a.m. and shots were fired. At his first hearing, Mr. Wandu complained: “My house was broken into and my children are traumatized.”

The MLC statement further claims that several procedural problems existed with the way police apprehended Mr. Wendu, including that he was not immediately informed of the reasons for his arrest and that the arrest warrant was not examined by any Congolese court. Indeed, Mr. Wendu was transferred less than 24 hours following his arrest, and the celerity of the process has raised eyebrows. An opposition MP asked, “How can the government hand over its own citizen without so much as a hearing or interrogation?” A civil society activist pointed out: “There is a similar case involving a Kenyan Barasa, which was announced earlier, but Barasa is still in proceedings in Kenya. This is not because the Kenyan government has a problem with the ICC, it is functioning appropriately within the constitution to ensure that the rights of its citizens are protected.” The journalist Marcel Yabili writing for Congo Independent noted that the fact that Mr. Wendu’s colleagues in the Netherlands and France had not yet been handed over in anticipation of hearings was evidence of how the procedure ought to have been managed.

Another issue has been whether Mr. Wendu should have benefitted from the qualified immunity granted under Congolese law to parliamentarians. Article 107(2) of the Constitution states that “no parliamentarian may in the course of a session, be prosecuted or arrested, except in the case that he is caught in flagrante delicto, without the authorization of the National Assembly or the Senate, depending on the case.” In defending the action, the Minister of Justice reportedly told the parliament that Article 27 of the Rome Statute does not recognize any immunities.

The MLC has labeled the arrest “cavalier” and suspended its participation in parliament in protest. A number of newspapers have bandied around the word “abduction.” Baudouin Amba Wetshi of  Congo Independent has called the arrest “completely irregular.”

All this appears to have a political impact. The MLC has suspended its participation in parliament in protest and the newspaper Le Potentiel has argued that the arrest threatens to unravel the national cohesion that had been built up by the ongoing national consultations process. Indeed, the newspaper Le Phare has reported that as part of efforts to convince the MLC to participate in the national consultations process, President Kabila promised to take personal action in the cases of Congolese who are charged by the ICC. In this context, some in the political class are arguing that Kabila should not have handed Mr. Wendu over in the interests of maintaining national cohesion.

For its part, the government of the DRC argues that it was simply cooperating with the ICC and that it had an obligation to respect the warrant it had received from the ICC. While it is certainly true that this obligation exists, the speed of the procedure, against the backdrop of the steadfast refusal to arrest Bosco Ntaganda over a number of years, fuels speculation of political bias. Opposition MPs have asked whether the government would have moved as quickly if the charges had been against a member of the ruling party. In the words of one activist, “We should congratulate the DRC on its cooperation, but with reserve, as it has only been focused so far on opponents to the regime.”

Although the conduct of the arrest was not carried out by the ICC, there have been grumblings about the failure of the ICC to engage with the issue. Paul Madidi, the ICC’s representative in the DRC was quoted on Afrik.com as saying that “it was a normal procedure. It is entirely possible to arrest someone at home, at night, if it was not possible to do it earlier.” Given the procedural problems, this comment has raised eyebrows.

The ICC itself has also been accused of bias in connection with the arrests. The Congolese newspaper Le Potentiel has questioned whether this is just a diversion tactic: “The first hypothesis that presents itself would be to believe that the ICC, fearing a dismissal of the charges in the ongoing Bemba case, has just found an opportunity to create a diversion.” Activists are skeptical as well. In the words of one, “If the accused have been doing what is alleged then the court has an obligation to prosecute them, but given that the last evidence provided by the defense was so damaging to the prosecution’s case, it is not hard to see why the prosecution might be tempted to push ahead with such a case to undermine the credibility of these defense witnesses.”

Others wonder whether some individuals who had collaborated with the prosecution might merit similar treatment. One activist said, “This is a case of double standards. The ICC should have brought similar charges against those that collaborated with the prosecutor in the Lubanga case,” referring to accusation that prosecution intermediaries lied about the identities and coaching of witnesses.

Overall, the court is finding itself in a difficult position in Congo. The Lubanga case exposed critical weaknesses in the ICC’s investigation strategy, with embarrassing revelations made about the conduct of intermediaries. The acquittal of Mathieu Ngudjolo Chui further undermined confidence in the court’s capacity by showing that it was unable to secure a conviction despite the considerable resources at its disposal. In the words of one activist, “If the charges against Babala are not proven it will be a K.O. for the court the total repudiation of the court in the eyes of Congolese.” Already he argues, Congolese are beginning to consider the court as an instrument of imperialism.

The court also faces more challenges ahead, and the long-awaited case of Bosco Ntaganda coming before the court in early 2014 will be a critical test. It will no doubt be difficult to hold up evidence in charges that are now ten years old, according to one activist, because “many of the witnesses are already dead and memories are lost.” Only time will tell the outcome of the trial, but it is clear that the ICC is clearly facing an uphill battle in terms of Congolese public opinion.