On May 8, 2014, the National Assembly of the Democratic Republic of Congo (DRC) rejected a government bill seeking to establish special chambers within the Congolese judiciary system.  The special chambers would have the authority to prosecute perpetrators of genocide, crimes against humanity, and war crimes.  This follows the rejection of a similar proposal by the DRC’s Senate in 2010.

Why a bill on Special Chambers?

Over the past two decades, the Democratic Republic of Congo has been ravaged by conflicts that have resulted in  an estimated six million deaths. During the violence, warring groups have repeatedly committed mass atrocities amounting to violations of international law. The majority of these crimes remain unpunished, while the victims have had no redress.

In 2004, the DRC referred the Congolese situation to the International Criminal Court (ICC) citing the incapacities of the Congolese judicial system,  leading so far to two convictions of militia leaders (Thomas Lubanga and Germain Katanga). At the same time, numerous calls for the creation of an ad hoc international tribunal for the DRC have gone unheeded. The government has also proposed reinforcing its national court system, to create the capacity to prosecute and punish authors of international crimes committed on its territory.

The first proposal, rejected by the Senate in 2010, called for the creation of a new specific court; the 2014 proposal envisaged setting up special chambers within the DRC’s existing courts.

The creation of special chambers would demonstrate that justice is back on the government’s agenda, after a period during which it has emphasized the needs for political accomodation to end conflcit over the needs of justice. It would also be a recognition of the fact that the fight against impunity is a primary responsibility of Congolese institutions.

The bill proposed creating three regional Special Chambers of the First Degree within the appeal courts in Goma (North-Kivu), Lubumbashi (Katanga), and Mbandaka (Equateur) and a Special Chamber of Appeal within the Supreme Court of Justice in Kinshasa. The courts would include international staff working along with Congolese staff.

What did not work?

The rejection of the bill by the National Assembly seems to reflect several factors:

Constitutional uncertainties. The bill that was presented by the Ministry of Justice was marred by procedural errors and ambiguities that Members of Parliament (MPs) were quick to point out. But the the main problem was the alleged nonalignment of some dispositions of the bill with the Constitution, in particular provisions that would allow the court to prosecute both MPs as well as members of the Congolese army.

The MPs constitutional concerns regarding prosecution of their fellows do not appear to be justified: article 153 of the Congolese Constitution states that the Cour de cassation (the de facto supreme court) alone is competent to prosecute MPs in first and second degree. However, Article 2 of the bill proposed setting up a special chamber within the Cour de Cassation to handle cases involving MPs, which would preserve that court’s constitutional authority. However, the debate is still open concerning members of the army.

Misreading the mood. There were also indications that the Ministry of Justice misunderstood or misread the dynamics of the National Assembly. The government’s tardy responses to MPs queries, and mishandling of the bill while it was still in committee, may have antagonized MPs, many of whom have demonstrated a desire to be properly engaged in the business before them, and not be taken for granted.

Lack of consultation.  The current government benefits from a large majority in the National Assembly, yet the Ministry of Justice faced opposition from the government’s own political camp. It seems very clear that MPs, including members of the majority, were not previously briefed on the bill, which would have helped prepare the ground in the National Assembly. Many civil society organizations (national and international) have worked for several years on transitional justice mechanisms and would have been very useful allies for the government, had they also been consulted beforehand.

Domestic Politics. The political environment even within the majority has become particularly sensitive, since Joseph Kabila’s announcement of plans to form a new national unity government. It is not impossible that the bill presented an opportunity for some MPs to openly expose some of the limitations of the current government team.

Concerns over Sovereignty. MPs are increasingly wary of any suggestion of external influence in the management of Congolese internal affairs, including in justice sector. Perceptions that the government was responding to foreign pressure contributed to the defeat of the first special court proposal in 2010. Critics at that time highlighted the activism of many international non-governmental organizations and their demand for an international presence in the composition of the special chamber. This time around, it is possible that the timing of the bill aggravated these concerns; it was presented to the National Assembly just two days after a visit by John Kerry, U.S. Secretary of State, who had spoken in support of the bill.

What are the next steps?

This project remains critical for the many Congolese who are demanding better justice for the huge number of international crimes committed in the DRC. These concerns about the weaknesses of the judicial system were underlined again just this month, over a military court’s handling of a mass rape by the Congolese army in the town of Minova in eastern DRC in 2012. Of the 39 military defendants, 14 were acquitted; only two were convicted of rape, the rest for pillage and breaking rank.

Fortunately, despite this latest setback, the government is still in a position to resubmit the special chambers bill.

In order to have a chance of success, it is clear that any new version must take proper account of the criticisms clearly voiced in the National Assembly. The Ministry of Justice would also be wise to engage local civil society organizations that in this process—several have already expressed a readiness to asssit. The bill’s supporters might also point to President Joseph Kabila’s recent endorsement of the special chamber model—evidence that this is a project supported by Congolese, to meet the needs of Congolese, and not something imposed from outside.

Nick Elebe ma Elebe is the DRC Country Manager for the Open Society Initiative for Southern Africa.