Militia Leader Held Without Trial

A lack of political will, combined with a financially-crippled judicial system, has meant that a militia leader from the Katanga province of the Democratic Republic of Congo, DRC, has spent the past five years in jail without being brought to trial, say observers.



Jean Ngwena – more commonly known by the Swahili word “Tshinja Tshinja”, meaning “throat-cutter” – was arrested on April 8, 2005, while trying to negotiate his surrender.



Ngwena, who commanded a Mai Mai militia group thought to include some 500 soldiers, said that he wanted to be made a general in the national army. The Mai Mai are local militia groups, many of which supported, and were supported by, Congo’s government during the five-year civil war from 1998-2003.



Many other Mai Mai fighters have already been integrated into the armed forces, in return for their support. Human rights groups have been fighting attempts to integrate militia leaders into the army, saying that they should be put on trial instead.



Ngwena is understood to have had less political backing from the government than other militia leaders.



During the peace negotiations and disarmament that followed the war, he initially refused to lay down his weapons and allegedly turned to banditry instead.



Ngwena is charged with terrorism and crimes against humanity under Congolese military law. He is therefore expected to face a military court, despite not being a soldier in the armed forces.



According to the United Nations Mission in the Democratic Republic of Congo, MONUC, the exact nature of the charges against Ngwena is sketchy.



However, they are believed to relate to attacks committed in February 2004 around Kabongo in Katanga province, when Ngwena clashed with a rival Mai Mai group.



An estimated 30 civilians were thought to have been killed in the clashes. Episodes of sexual violence, including collective rape, were also reported.



Ngwena's detention is in marked contrast to the arrest and prosecution of Mai Mai militia leader Gédéon Kyungu Mutanga, who was found guilty of crimes against humanity on March 5, following a 19-month trial.



At the time, human rights groups applauded the handling of the trial, although criticised the decision to hand down the death sentence.



The government claims that steps are being taken to bring Ngwena to justice, but MONUC maintains that the case has now effectively stalled, without any clear indication of when a date might be set for the trial.



One UN source told IWPR that there was no real political will to move ahead with the trial. He suggested that the judicial system is so under-resourced that other cases often take precedence, and that moving ahead with Ngwena's trial is not a priority.



The source also blamed the ineffectiveness of the Congolese judicial system, which has come under fire recently for being riddled with corruption and desperate for funding.



He said that it can sometimes simply be “a matter of luck” why one person faces justice while another does not.



In July, DRC president Joseph Kabila pledged to clean up the country's judiciary. He started by sacking 165 judges – a move that was immediately criticised by MONUC for further paralysing an already over-stretched legal system.



Mutanga was arrested and detained in Katanga, where many of his crimes took place, which could explain why the trial went ahead so efficiently.



Ngwena, on the other hand, is held in the nation's capital, Kinshasa. Those who say they are victims of his crimes want him to face justice in north Katanga, where the alleged atrocities took place.



Georges Kabongo, a villager from the region, is resentful of persistent inaction by the government.



Kabongo vividly recalls the day that Ngwena's militia came to his village, Malemba, claiming that they captured young men and children for enrolment in his militia group, and flogged anyone who protested. Several women were also raped, he asserts.



“Our leaders should dedicate a considerable budget to offices and military jurisdictions from Katanga that deal with crimes against humanity, in order to enable them to lead meticulous investigations and to organise hearings at the very spots where these crimes have been committed,” insisted Kabongo.



A lack of resources has been blamed for the failure of the government to transfer Ngwena to Katanga.



At the beginning of 2007, a rotation of military justice personnel meant that the military prosecutor's office of Kamina, where Ngwena would most likely be taken if he was moved, was left vacant.



The military prosecutor's office in neighbouring Likasi temporarily assumed responsibility for Kamina, but this severely over-stretched its capacity.



A replacement prosecutor for the Kamina office has only just been found.



Observers view such technical hitches as symptomatic of the problems facing the country's justice system.



“All this happens in a structurally weak context where even minor details become challenges to the system that can take months to be resolved, augmenting the backlog of cases and delays,” said a UN source.



Jean Kabama, a spokesman for the provincial government, says that preliminary steps are being taken so that Ngwena can be put on trial in Katanga, but no firm date has yet been set for when the transfer might take place.



Kabama defends the government's role in the Ngwena case.



"Remember that the primary mission of the Kabila government is to establish peace throughout the DRC,” said Kabama. “In arresting Tshinja Tshinja, the government has done its job and it is for justice to play its part. Tshinja Tshinja is in jail in Kinshasa and there is peace in Katanga, so we are pleased. It is not the government that should hold a trial, but for justice to take over.”



According to MONUC, members of Ngwena's militia group have been accused of mutilating their victims, collecting their sexual organs, drinking their blood and killing their babies.



These alleged crimes may have had some connection to mystical belief, or they may simply have been a terror strategy.



“We were forced to flee Kabongo to take refuge in Lubumbashi,” said Esther Kabedi, a witness to the violence. “This type of person belongs in hell and not in prison.”



Héritier Maïla is an IWPR-trained journalist. Blake Evans-Pritchard, IWPR Africa editor, contributed to this report.