THE BANYAMULENGE: A COMMUNITY PREY TO ARRESTS AND VIOLENCE IN THE DEMOCRATIC REPUBLIC OF CONGO (DRC)

Innocent Nteziryayo

le 1er decembre 2024

Under human rights law and most liberal constitutions, everyone has the right to be free from arbitrary or unlawful deprivation of liberty. Everyone accused of an offense is guaranteed the right to have his or her case heard by an independent and impartial court of law that may decide on the lawfulness or arbitrariness of detention. Article 16 (1) and 17 of the Constitution of the Democratic Republic of Congo (DRC) as amended by Law N°11/002 of January 20, 2011, revising certain articles of the Constitution of the DRC of February 18, 2006, clearly states: "The human person is sacred and Individual liberty is guaranteed”[1] The provision echoes Article 9 of the International Covenant on Civil and Political Rights providing that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and by such procedures established by law”.[2]

International law requires that anyone who is arrested be informed, at the time of arrest, of the reasons for the arrest, promptly informed of any charges brought against them, and brought promptly before a competent court to determine whether the arrest was lawful.[3] Article 9 of the Universal Declaration of Human Rights declares that “no one shall be subjected to arbitrary arrest, detention or exile”.[4] The Human Rights Committee has interpreted the requirement of being promptly brought before a judge to mean a few days after the arrest, with 48 hours being sufficient. The Committee has also stated that the individual has the right to legal assistance by the counsel of their choice in the hearing that ensues and in subsequent hearings where the judge assesses the legality of detention.[5]Arbitrary and illegal detention refers to the unlawful arrest or imprisonment of individuals without following the legal procedures for arrest and detention. It occurs when people are deprived of their liberty and free movement unlawfully or by force.

According to Wole Soyinka, "A tiger doesn't proclaim its tigerness; it jumps on its prey”.[6] The true meaning of Soyinka's metaphor becomes apparent when applied to the DRC's struggle with the rule of law. A tiger's power lies in its quiet but assured ability to act when necessary, jumping on its prey without announcing itself. In the case of the DRC, we see the opposite reality. The state often claims to have perfect written laws guaranteeing human rights but fails to implement them effectively, particularly regarding arbitrary arrest and unlawful detention. The phenomenon of arbitrary arrests and unlawful detention in the DRC is rampant. The practice has become insidious in targeting members of specific communities, as illustrated in the annexed table documenting the illegal arrests and unlawful detentions of members of the Banyamulenge community in the DRC.

As George Orwell said in Animal Farm, “All animals are equal, but some are more equal than others”.[7] All citizens in the DRC suffer from the dysfunction of the state, but some citizens collectively face specific challenges not shared with others. These include the Banyamulenge of South Kivu and the Tutsi of North Kivu. Members of these communities are targeted because of who they are.

This article presents a detailed overview of the current situation of Banyamulenge prisoners, highlighting the ongoing abuse of power by the DRC public authorities through illegal arrests and unlawful detentions. It has been documented that civilians and soldiers from the Banyamulenge community of South Kivu and the Tutsi community of North Kivu are often arrested because of their physical appearance and ethnicity. They are frequently accused of “participating in insurgent movements, treason “and violation of orders  without being brought before judicial authorities to formally face charges.[8] The Banyamulenge, a Tutsi community residing primarily in the Hauts Plateaux of South Kivu, along with the Tutsi community of North Kivu, have faced long-standing discrimination and violence in the DRC equal to genocide.[9] This was confirmed by Alice Wairimu Nderitu, the United Nations Secretary-General's Special Adviser on the Prevention of Genocide, particularly in her statements dated November 11, 2024[10], and November 30, 2022.[11]

To date, more than 450 villages have been destroyed and burnt down, and more than 500,000 heads of cattle looted and sold in public markets in full view of government officials. More than 80% of the Banyamulenge have been forced into exile over the last thirty years.[12] The selective genocidal violence targeting the Banyamulenge of South Kivu and Tutsi civilians of North Kivu has spread to Tutsi/Banyamulenge soldiers in the Congolese armed forces.

Soldiers have been killed, bloodied, or detained by their colleagues in arms without any justification.[13] The first most notable case was the attack on Major Joseph Kaminzobe in Lweba on 9 December 2021. He was dragged out of his vehicle transporting other soldiers, lynched, and then burned by elated civilians in the presence of his comrades in arms, who took pleasure in observing his agony before his bruised flesh was eaten in front of the cameras.

This tragic and atrocious incident followed a broader pattern of targeted violence as witnessed in a previous attack in Fizi on October 4, 2011. During this incident, a militia known as Maï Maï Yakutumba stopped a vehicle belonging to the evangelical Eben Ezer Ministry and killed seven Banyamulenge women and men involved in humanitarian work.[14] More recently, Lieutenant Gisore Kabongo Patrick, a Munyamulenge, was lynched in Goma on November 9, 2023,[15] as was Mr Ntayoberwa Fidele on June 19, 2022, in Kalima/Maniema. Several other individuals have suffered a similar fate.[16]

Those who survive such killings and acts of cannibalism but remain in the country are permanently persecuted, harassed, hunted down by the Congolese security services, or arrested simply based on their "Tutsi" facial features. Currently, hundreds of Banyamulenge and Tutsi of North Kivu are languishing in the Kinshasa prisons of Ndolo and Makala, and in the dungeons of the Military Detection of Antipatriotic (DEMIAP) and the National Intelligence Agency (ANR) as well as in several provincial detention centres in inhumane conditions. Various individuals—civilians and soldiers, boys and girls, men and women—have been detained without trial. Some have spent years in DEMIAP detention without their visiting rights being respected as stipulated in Articles 18 and 19 of the Constitution of the DRC.

What is more concerning in the DRC is that when anyone challenges or questions such violence and the reported ethnic cleansing against the Banyamulenge of South Kivu and the Tutsi of North Kivu, the DRC government treats them as criminals. Ludovic Kalengayi, who does not belong to any of these communities, has been in secret detention without trial since May 10, 2024, for his denunciation of the persecution of these communities. Several sources have confirmed that Kalengayi and many others such as Barnabe Milinganyo Wimana were arrested more than once for being against the persecution of the Banyamulenge.[17] Such arrests are sought to silence the truth and any condemnation of the genocidal killings accompanied by arbitrary arrest and unlawful detention targeting the Banyamulenge of South Kivu and Tutsi of North Kivu.

 Amnesty International[18] and Human Rights Watch have documented the arbitrary arrests of Banyamulenge and Tutsi civilians. These civilians are frequently accused, without evidence, of supporting militias such as M23 (North Kivu) and Twirwaneho (South Kivu).[19] In addition, the Banyamulenge and Tutsi are repeatedly branded as foreign invaders and falsely accused of collaborating with foreign powers, particularly Rwanda, to justify arbitrary arrests, illegal detentions, and systematic acts of torture.[20] These arbitrary arrests, often carried out without formal charges, frequently result in prolonged detentions under inhumane conditions. This was highlighted and confirmed on November 06, 2024, during the opening remarks of the General States of Congolese Justice by the Minister of State and Minister of Justice, Constant Mutamba, in the presence of His Excellency President Félix Tshisekedi.[21] However, in a shocking address at Munzenze prison in Goma on November 24, 2024, Minister of Justice Constant Mutamba pledged to release prisoners who assist in identifying “Rwandan Tutsi collaborators with Rwanda,” who would then face arrest and execution. His rhetoric — employing terms such as “Banyarwanda,” “Rwandan,” “enemy,” “traitor,” and “foreigner” — directly targets Congolese Tutsi and Banyamulenge communities, individuals perceived to have “Tutsi appearances,” and Kinyarwanda speakers, hundreds of whom are already detained under such accusations.[22]

In many cases, those arrested are denied legal representation and healthcare and are incarcerated for extended periods—in many cases several years—without the benefit of a fair trial.[23]Article 61 of the Constitution of the DRC of February 18, 2006, as revised to date, prohibits all forms of torture and cruel, inhuman, or degrading treatment.[24] According to Article 27 of the DRC Code of Criminal Procedure, a person may not be detained for more than six months without trial. Any extension of this period must be justified by a judge based on clear legal grounds.[25] This article emphasizes the importance of the right to a fair trial, of timely judicial proceedings, and of protecting individuals from arbitrary detention. Furthermore, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights guarantee protection against arbitrary arrests and detentions.[26] These Congolese and international norms are frequently violated concerning the arrests and detentions of Banyamulenge of South Kivu and Tutsi of North Kivu, in particular young men from these communities.

On April 13, 2024, Major Ndizeye Thomas from the Banyamulenge community was arrested in Goma,   , and transferred to Kinshasa, where he died in unlawful detention on May 14, 2024. In a similar case, Muragwa Bonheur, from the same community, was arrested in Minembwe on February 13, 2021, and died on May 9, 2022 in a Kinshasa detention center. Both died due to starvation, torture, and lack of medical care. The detainees are often kept in crowded prisons or in isolation, far away from their families, particularly when transferred to detention centers in distant cities such as Kinshasa, 2,000 km away from their villages.

On September 25, 2024, hundreds of demonstrators and many human rights organizations, including the prisoners in Kinshasa, protested the DRC’s bid for a seat on the United Nations Human Rights Council. Emmanuel Cole, an activist in the Bill Clinton Foundation for Peace, and Grace Bele, an activist from the political party Alliance for Change, both said in a statement that “the DRC does not meet the necessary conditions to claim such a position of international responsibility.”[27] 

The Collectif des Avocats des Parties Civiles (Lawyer’s Collective), a group of lawyers from diverse backgrounds and continents representing victims of serious human rights violations against the Banyamulenge of South Kivu, the Hema of Ituri, and the Tutsi of North Kivu in the Democratic Republic of Congo (DRC), documented multiple cases of arbitrary arrests and detentions involving their clients during a visit to Makala and Ndolo prisons in Kinshasa from November 11 to 15, 2023. The Collective submitted a formal complaint to civilian and military judicial authorities in the DRC, as well as to various international courts, regarding acts of torture and inhumane and degrading treatment inflicted upon the Banyamulenge and Tutsi of North Kivu.

Collectif des Avocats des Parties Civiles, alongside the families of the detained from Banyamulenge and Tutsi of North Kivu platforms and several human rights organizations, continue to denounce these abuses and call for the release of detainees. They also demand an end to all discriminatory practices. However, the Congolese judicial authorities often remain silent or inactive, further aggravating ethnic tensions. The plight of individuals imprisoned because of who they are is emblematic of the broader problem of ethnic marginalization in the DRC.

Arbitrary arrests and illegal detentions continue to represent serious violations of human rights in the DRC, with consequences that extend far beyond the individuals detained, affecting families, communities, and society. The DRC has formally enacted or adhered to legal norms and policies protecting individuals from human rights abuses including arbitrary arrests and illegal detentions. However, the DRC judicial system has failed to take any meaningful action to enforce those laws and policies by protecting the Banyamulenge and other affected communities from killings, arbitrary arrests, and unlawful detention.

In documenting these abuses, we conducted interviews with the families of detainees, their lawyers, and human rights organizations, examining the circumstances of the arrests and the conditions of detention. This process enabled us to compile detailed tables with reliable data, highlighting cases of illegal arrests and detentions.

A written statement submitted by the Society for Threatened Peoples for the Human Rights Council meeting on February 28, 2022, clearly stated that “The Government of the Democratic Republic of the Congo and the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, (MONUSCO) failed to protect civilians.”[28] This statement explicitly emphasized the case of the Banyamulenge. This failure constitutes a breach of the obligations assigned by the DRC under international law. The evidence in the table below shows that the DRC government violates various international human rights standards, including the African Charter on Human and Peoples' Rights (Banjul Charter), the Universal Declaration of Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.[29] With these violations, the families of Banyamulenge incarcerated insist that there is a dire need for international intervention to protect their rights by freeing those incarcerated and preventing the commission of similar acts against members of their community.

Despite DRC laws and international legal framework, and growing awareness, the DRC government continues to use detention as a tool of discrimination, particularly against the Banyamulenge and other targeted communities. Considering these ongoing injustices, it is becoming increasingly urgent for international actors to intervene and protect the rights of these vulnerable communities. The United Nations, the African Union, the East African Community (EAC), and the European Union are urged, within the framework of instruments established for the prevention of human rights violations, to provide the relevant authorities in the Democratic Republic of Congo with the necessary police, logistical, and administrative support to ensure the rigorous enforcement of laws against arbitrary arrests and illegal detentions.

Below are tables that provide detailed information on the current situation of Banyamulenge prisoners, including places and dates of arrests and the legal status of each case. However, the tables present an undercount of the total number of the Banyamulenge victims, as it is difficult to collect and corroborate data on all individuals who have been unlawfully arrested and released without trial including many others abducted with no known destination.

1.       TABLE OF PENDING CASES OF ILLEGAL DETENTION AND UNLAWFUL ARREST AGAINST THE BANYAMULENGE

The table below includes individuals who have been unlawfully arrested, illegally detained and have pending cases.

2.       TABLE OF ADJUDICATED CASES

The table below lists individuals who face charges before military courts without the possibility of a fair trial that respects the right to appropriate legal representation.

3.       TABLE OF DETAINED AND RELEASED WITHOUT TRIAL

The table below lists individuals who have been detained or released without trial. Some individuals have been convicted or acquitted, while others have died in prison.

[1] Constitution of the Democratic Republic of the Congo, art.16 (2006).

[2] International Covenant on Civil and Political Rights, art. 9, adopted December 16, 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), March 23, 1976.

[3] Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc.  CCPR/C/GC/35 (2014), para. 33.

[4] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, art. 9 (1948).

[5] Human Rights Committee, General Comment No. 35: Liberty and Security of Person, UN Doc. CCPR/C/GC/35 (2014), para. 34.

[6] Wole Soyinka, "A tiger doesn't proclaim its tigerness; it jumps on its prey," The Man Died: Prison Notes (1972), 32.

[7] George Orwell, Animal Farm (London: Secker & Warburg, 1945), 112.

[8] Human Rights Council. (February 28, 2022). https://documents.un.org/doc/undoc/gen/g22/268/19/pdf/g2226819.pdf

[9] Ntanyoma, Rukumbuzi Delphin and Helen Hintjens. 2022. “Expressive Violence and the

Slow Genocide of the Banyamulenge of South Kivu”, Ethnicities 22 (3): 374–403. DOI:

10.1177/14687968211009895.

[10] Nderitu, A. W. (2024). Taking genocide prevention to the grassroots: UN Special Adviser on Prevention of Genocide hosts transformative workshops and conference in Kigali. United Nations Office on Genocide Prevention. file:///C:/Users/benki/Downloads/usg_nderitu_hosts_transformative_workshops_conference_kigali_11nov2024.pdf

[11] Nderitu, A. W. (2022). Statement condemning the escalation in fighting in the Democratic Republic of Congo (DRC). United Nations Office on Genocide Prevention. https://www.un.org/en/genocideprevention/documents/Statement_DRC_FNL.pdf

[12] Nteziryayo, Innocent, “Report on attacks against the Banyamulenge in the Hauts & Moyens Plateaux of South Kivu in the Democratic Republic of the Congo,” Genocide Watch, February 20, 2023, https://www.genocidewatch.com/single-post/report-on-anti-banyamulenge-attacks-in-dr-congo 

[13] Zébédée Ruramira, B., "Les Attaques Armées Contre les Banyamulenge : Des Actes Constitutifs de Génocide", Genocide Watch, October 9, 2023, https://www.genocidewatch.com/single-post/les-attaques-armees-contre-les-banyamulenge

[14] Daniel Bekele, DR Congo: Awaiting Justice One Year After Ethnic Attack”, Human Rights Watch, October 4, 2012, https://www.hrw.org/fr/news/2012/10/04/rd-congo-la-justice-se-fait-toujours-attendre-un-apres-une-attaque-caractere

[15] Fessy, Thomas, "DR Congo: Mob Lynches Soldier in Apparent Hate Crime, "Human Rights Watch,” December 4, 2023, https://www.hrw.org/news/2023/12/04/dr-congo-mob-lynches-soldier-apparent-hate-crime

[16] Fessy, Thomas, "DR Congo: Atrocities by Rwanda-Backed M23 Rebels, "Human Rights Watch”, February 6, 2023, https://www.hrw.org/news/2023/02/06/dr-congo-atrocities-rwanda-backed-m23-rebels

[17] Tambwe, Perci: Le ‘‘croisé de la paix’’ Ludovic Kalengayi aux arrêts, des mouvements citoyens protestent, avalable online: https://finance-cd.com/blog/2024/05/15/le-croise-de-la-paix-ludovic-kalengayi-aux-arrets-des-mouvements-citoyens-protestent/

[18] Amnesty International: Democratic Republic of the Congo 2023, https://www.amnesty.org/en/location/africa/east-africa-the-horn-and-great-lakes/democratic-republic-of-the-congo/report-democratic-republic-of-the-congo/

[19] Human Rights Watch, 2023, https://www.hrw.org/news/2023/02/06/dr-congo-atrocities-rwanda-backed-m23-rebels

[20] Ndahinda, Felix M. and Aggee S. Mugabe, 2022: “Streaming Hate: Exploring the Harm of Anti-Banyamulenge and Anti-Tutsi Hate Speech on Congolese Social Media”, Journal of Genocide Research, DOI: 10.1080/14623528.2022.20785783

[21] Mutamba, C. (2024). N’eût été ton courage, j’aurais démissionné, Paul Kagame, https://youtu.be/w0jAW_0qLr0?si=Dnsv1XZcJa4Qqr9M

[22] Conspiracy Tracker Great Lakes. “Nous devons TUER… tous les TRAITRES parmi vous. Nous faisons déjà LE TRAVAIL. On m’a déjà fourni la première LISTE.” - @ConstantMutamba (Ministre de la Justice de la RDC).” Twitter, November 24, 2024. https://twitter.com/conspiracygl.

[23] Sakalumbu, Carol M., 2024: Arbitrary arrest: “The issue of arbitrary detention in the Democratic Republic of Congo, the case of the ANR”

[24] Constitution of the Democratic Republic of the Congo, art. 61 (2006).

[25] Code of Criminal Procedure of the Democratic Republic of the Congo, art. 27 (2013).

[26] Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, Ibid, 1.

[27] AFP - Agence France Presse, 2024. Hundreds Protest DR Congo UN Human Rights Council Bid., 25 September, https://www.barrons.com/news/hundreds-protest-dr-congo-un-human-rights-council-bid-8adc96a6

[28] Human Rights Council. (February 28, 2022). https://documents.un.org/doc/undoc/gen/g22/268/19/pdf/g2226819.pdf