Voters in the Democratic Republic of Congo go to the polls on July 30 for the first time in 40 years and after a four-year transitional period that followed a brutal war. Theodore Kasongo Kamwimbi points to the failure of the DRC to achieve justice for victims of human rights abuses as a significant threat to the elections, future peace and stability. “Many younger people argue that they won’t let the perpetrators walk free forever. They guarantee that sooner or later they will honour the memory of the loved ones innocently massacred, raped, abused, abducted by those who are running the country and want to run it indefinitely.”
After five years of war and terror which left more than three million dead and thousands displaced, the Democratic Republic of Congo (DRC) is struggling to make way for the establishment of a new society. The process is on track so far, as the first democratic elections, initially scheduled for April and June 2006, are finally confirmed to take place on 30 July 2006. The elections are the result of various rounds of negotiations and peace accords between the DRC government, Mai-Mai militia, rebel groups, non-armed political opposition parties and representatives of civil society.
During the negotiation process, the government of the Republic was represented by the former government led by President Joseph Kabila. Rebel groups were represented by the Rwanda-backed Congolese Rally for Democracy (Rassemblement Congolais pour la Démocratie, RCD-Goma), the Uganda-backed Movement for the Liberation of Congo (Mouvement pour la Libération du Congo, MLC), the Congolese Rally for Democracy-National (Rassemblement Congolais pour la Démocratie-National (RCD-N), the Congolese Rally for Democracy/Kisangani- Liberation Movement (Rassemblement Congolais pour la Démocratie/Kisangani- Mouvement de Libération, RCD/K-ML). Non-armed political opposition parties were represented by the Union for Democracy and Social Progress (Union pour la Démocratie et le Progrès Social, UDPS), Unified Lumumbist Party (Parti Lumumbiste Unifié, PALU), National Congolese Movement-Lumumba (Mouvement National Congolais- Lumumba, M.N.C./L), Popular Movement for the Revolution- Fait Privé (Mouvement Populaire de la Révolution- Fait Privé (MPR- Fait Privé), Innovative Forces for Union and Solidarity (Forces Novatrices pour l’Union et la Solidarité, FONUS) and Democratic and Social Christian Party (Parti Social et Démocrate Chrétien, PDSC).
The first positive achievement of the process was the global and all-inclusive agreement on transition in the DRC signed by all parties in Pretoria, South Africa on 16 December 2002. Despite the difficulties and misunderstandings which characterised the political negotiations, under the guidance and supervision of the international community all the parties managed to reach a final agreement in Sun City, on 2 April 2003. 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, MNC, RCD-N submitted to participation in the government on the non-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.
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. Therefore, the key question is whether reconciliation has really started in the DRC if as Alex Boraine argues:
“Reconciliation can begin when perpetrators are held accountable, when truth is sought openly and fearlessly, when institutional reform commences and when the need for reparation is acknowledged and acted upon.” 
In other words, it can be argued that a given society can be considered as reconciled only if a number of conditions are fulfilled:
- Accountability of perpetrators
Reconciliation can indeed begin when perpetrators are held accountable for their wrongdoings. But in the DRC context that is not the case as former perpetrators have not been prosecuted and have not acknowledged or disclosed their wrongdoings. Therefore, they have not shown any remorse to the victims and the community as a whole. It is obvious that the decision to grant amnesty to them for political reasons is unlikely to promote national reconciliation and meet the population’s demands for justice.
In the Congolese public opinion, the best way of holding someone accountable for his act or omission is through the judiciary system as established by the law. If a presumed perpetrator does not appear in a court of law for his alleged criminal actions or omissions, that is considered to breed impunity. This absence of justice has created frustration among the Congolese and caused private vengeance and cycles of violence between communities.
For instance, in the North-eastern DRC the culture of impunity has resulted in a cycle of ethnic violence among the local populations as reported by Human Rights Watch in its briefing paper of January 2004. This kind of attitude is believed to be exacerbated, especially in the case of amnesty granted to former perpetrators in order to reach political agreement. Moreover, as long as the former perpetrators have now become state officials capable of taking executive decisions, the justice option is clearly difficult to achieve. The other reason is that some of them still have military capability and could take up their weapons and destabilise the peace process once again.
- Open and fearless truth-seeking
It is argued that reconciliation can begin when truth is sought openly and fearlessly. But in the DRC, although the appropriate non-judicial mechanism, the Truth and Reconciliation Commission (TRC) is well established, truth-telling is not happening. The TRC resulted from the Inter-Congolese Dialogue to establish the truth and give the perpetrators the opportunity to seek forgiveness and pay compensation to their victims. This has not happened yet, as the TRC hasn’t called and put together victims and perpetrators to facilitate reconciliation.
Congolese people and civil society organisations are pessimistic concerning any success of the truth-telling model and thence, its ability to achieve reconciliation. This seems true given the fact that the TRC has a bounded mandate and has to submit its complete and final report before the end of the transitional period. According to the new calendar released by the Independent Electoral Commission on 12 January 2006 the elections in June 2006 will end the transitional period. Moreover, as its President, Bishop Jean-Luc Kuye told the International Centre for Transitional Justice (ICTJ) in August 2004, the TRC is unable to undertake investigations of human rights violations. Instead, it has focused its work on conflict-mediation activities.  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 is not even able to identify the crimes committed.
- Effectiveness of Institutional Reform
It is argued that reconciliation can begin when institutional reform commences effectively. In this regard, the DRC is far from achieving its goals in relation to the reform of government sectors. For instance, the government has not managed to reform the public administration, justice system, nor to unify, restructure and reintegrate the security forces, including police and the army. Without institutional reform fair and free general elections, sustained peace and stability, and go forward in the reconstruction process will be impossible.
One of the major obstacles for peace, reconciliation and stability in the DRC remains the army and security forces. Indeed, during the last years of war and violence the DRC had more than five different armed groups fighting against each other for control of different portions of territory. The Ugandan backed MLC was in control of the Northwestern part of the country, while the Northeastern part was under the control of RCD/N, RCD-ML, UPC rebel group and other militia groups. The Kivu and North-Katanga provinces were controlled by the Rwandan backed RCD/ Goma and the Mai-Mai militia. The rest of the territory was under the control of the Congolese national army, FAC and national police.
All these groups were enemies for a long time, but now they need to be part of the new unified, restructured, reintegrated and inclusive security forces under construction. As is evident, this will be an extremely difficult and challenging task, but it is essential for sustainable peace and reconciliation in the DRC as well as in the rest of the Great Lakes region. To date, the unification and integration process of the army is far from being achieved given both the hostility of former belligerent armies to the transitional government and the divisions between them on the basis of ethnicity.
For example, the majority of the former RCD-Goma, Congolese Tutsi known as Banyamulenge, fight regularly against other units composed of other Congolese ethnic groups. It has been reported that a number of former RCD soldiers, mainly Congolese Tutsi, are deserting the new integrated army to join the dissident General Laurent Nkunda. In fact, Laurent Nkunda, a Tutsi Congolese, was a senior military officer in the former rebel group RCD-Goma. In accordance with the Global and All-inclusive Agreement signed in Pretoria by all the warring parties, he was named general in a new integrated Congolese army. But, he declined the offer and withdrew his troops to Masisi in North Kivu province from where he threatened to overthrow the government in Kinshasa on the pretext of rescuing, protecting and defending his community members, "threatened" by the Congolese government. In September 2004, Nkunda was sentenced in absentia by a Congolese military court and an international arrest warrant was issued against him after he briefly seized and occupied Bukavu, the capital city of South Kivu province. But, to date the DRC police and army as well as the UN peacekeeping forces have not been able to arrest him. Human Rights Watch  criticized this failure in a statement released on 1 February 2006.
Urgent reform is also needed in the public administration sector which is generally corrupt. As a result, corruption has been strongly institutionalised in all national sectors in the DRC. For reform to happen, political will is needed from officials with the support of the Congolese people.
- Acknowledgment of the need for reparation
It is argued that reconciliation can begin when the need for reparation is acknowledged and acted upon. In the DRC, former perpetrators haven’t acknowledged their wrongdoings and showed their willingness to pay reparations to victims or survivors. This attitude has made the victims feel forgotten and abandoned. Yet, the majority of former perpetrators in power have enough resources to pay compensation to their victims. It’s just a question of political will and personal conscience. Like in South Africa, the issue of individual reparations for victims could be used in the DRC context to appease victims’ anger over the amnesty process.  Victims would feel morally rehabilitated if the need for symbolic reparations was acknowledged. Reparation is indeed essential for reconciliation to sustain peace and democracy. In this regard, Charles Villa-Vicencio argues that reconciliation includes reparation because to exclude socio-economic justice from the reconciliation process is to endanger the prospects of democratic consolidation. 
As demonstrated, all conditions to begin reconciliation are not fulfilled in the DRC and both the rule of law and truth-telling mechanisms have failed up to now. Therefore, the Congolese believe that the only remaining option would be the international criminal judicial model. This option has also been called for by various local and international human rights organisations given the scale of abuses committed in the last five years. An International Criminal Court process could possibly work if the DRC ratified the Rome Statute of the International Criminal Court (ICC) by Decree-Law No 13/2002 of 30 March 2002. This international court would deal with crimes not covered by the amnesty law, including war crimes and crimes against humanity. But, cooperation between the Congolese judicial system and the ICC would be necessary. Congolese officials have already shown their willingness in that regard by inviting the ICC prosecuting authority to proceed with investigations on the ground. The ICC has responded to the Congolese request and promised the significant involvement of victims of violence in the north-eastern region of Ituri in the inquiry process, as reported by the Catholic Missionary International Service News Agency (MISNA) on 20 January 2006.
The ICC exercises jurisdiction over crimes against humanity, war crimes, aggression and genocide in accordance with article 5 (1) of Rome Statute under which it was established. But in order to prosecute those crimes the ICC has to work with the Congolese government and judicial authorities. This is required by the principle of complementarity provided in Paragraph 10 of the preamble of the Rome Statute of the ICC. In accordance with this principle, priority to exercise jurisdiction over the crimes mentioned in article 5 is reserved to national courts, unless the State in question is unwilling or unable to prosecute, as stated in article 17 (a). The ICC should prosecute those who committed the crimes within its jurisdiction; otherwise the question of impunity will once again be raised, which undermines deterrence and encourages recidivism.
As an international body, the ICC was created to fight impunity and rejects any procedures or institutions that protect perpetrators from accountability. One may wonder about the impact of the ICC proceedings on the reconciliation process in the DRC. In the DRC context, the ICC is indeed in a good position to prosecute the crimes committed because the Congolese judicial system is unable to prosecute given the multidimensional problems it is facing. Among those problems the key ones are: corruption, nepotism, tribalism, lack of professionalism, lack of impartiality and the absence of an independent judiciary. Another major reason why the DRC national judicial system is unable to prosecute has been the political situation on the ground, which gave Congolese authorities no choice other than negotiations.
Paul Van Zyl  argues that it would be irresponsible to prosecute those perpetrators who are able to jeopardise peaceful transition to stable democracy and peace. However, alternative transitional justice mechanisms are still feasible and possible in the DRC context. For instance, acknowledgement and apology would be one of the better options for the former perpetrators to reconcile with their victims. This happened once, during the 1991 Sovereign National Conference, when many officials and members of Mobutu’s party came and apologised publicly to the Congolese people. That attitude was well received and appreciated by the whole nation, but unfortunately the perpetrators’ acts were not sincere.
One of the key actors in the Congolese political arena, MLC leader and Vice-president for economic and financial affairs, Jean-Pierre Bemba has publicly apologised for atrocities, crimes and pillages committed by his soldiers during the war. Bemba made his apology in his speech at his party’s congress where he was designated as a candidate for the forthcoming Presidential elections. One may, of course, wonder whether he apologized in order to get sympathy and support from the Congolese people with a view to the elections, or if he sincerely apologised and sought forgiveness. Time will tell.
The overriding issue, at this stage, is whether the Congolese will be willing to let their perpetrators decide their destiny. The majority of Congolese believe that they are subject to the will of those who committed mass human rights violations against them. Many younger people argue that they won’t let the perpetrators walk free forever. They guarantee that sooner or later they will honour the memory of the loved ones innocently massacred, raped, abused, abducted by those who are running the country and want to run it indefinitely. In consequence reconciliation without truth and justice in the DRC poses a significant risk to the future stability of the country.
* Theodore Kasongo Kamwimbi is a lawyer to the Kinshasa Court of Appeal, currently acting as the Fellows Programme Coordinator at the Institute for Justice and Reconciliation (IJR) in Cape Town, South Africa. He has published and co-published several articles, including “Hat Kongo eine Friedensperspektive?”, a Newspaper article published in Germany in the Der Überblick in July 2006 as well as ‘DRC moves towards first democratic elections: Congo peace prospects precarious’, a Newspaper article published in The Cape Times on 5 July 2006. (contact [email][email protected] or [email][email protected])
 Boraine, Alex (2004) ‘Transitional Justice’, in Villa-Vicencio, Charles and Doxtader, Erik (eds.) Pieces of the Puzzle: Keywords on Reconciliation and Transitional Justice, Cape Town: IJR, p. 69-70.
 Borello, Federico (2004) ‘A First Few Steps: The Long Road to a Just Peace in the Democratic Republic of Congo’, Occasional Paper Series, New-York: ICTJ p.46.
 Human Rights Watch (2006) ‘D.R. Congo: Arrest Laurent Nkunda For War Crimes: Military and U.N. Should Act to Protect Civilians’, New York, Available at http://www.hrw.org/english/docs/2006/01/31/congo12579.htm Accessed on: 2 February 2006
 Lyster, Richard (2000) ‘Amnesty: the burden of victims’ in Villa-Vicencio, Charles and Verwoerd, Wilhelm, Looking back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, UCT Press: Cape Town, p.189.
 Villa-Vicencio, Charles (2004) ‘Reconciliation’, in Villa-Vicencio, Charles and Doxtader, Erik (eds.) Pieces of the Puzzle: Keywords on Reconciliation and Transitional Justice, Cape Town: IJR, p. 8.
 Van Zyl, Paul (2000) ‘Justice without Punishment: Guaranteeing Human Rights in Transitional Societies’ in Villa- Vicencio, Charles and Verwoerd, Wilhelm, Looking back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, UCT Press: Cape Town, p. 43.