For half a dozen years and more, conflicts and internal crises have been strangling Congo- Zaïre, and anarchy has been doing its best to destabilise, disrupt, and frankly rend our country apart. To all this the UNIR/MN’s answer is : territorial integrity, restoration of peace, national reconciliation.
1. National reconciliation, the foundation of the new Republic of Congo-Zaïre
The re-establishment of peace, preliminary to the restoration of territorial integrity, will only come about through the reconciliation of all of Congo-Zaïre’s sons and daughters; that reconciliation is in fact an essential moment in the crystallisation of peace in Congo- Zaïre.
But what does this mean, this “national reconciliation”? How do we of UNIR MN imagine it? What would its various phases look like?
To all these questions, the UNIR MN offers a programme in three main stages :
- Organising a suitable national dialogue;
- Asking the people’s pardon;
- Holding a NSC.
1.A. The organisation of a national dialogue
It is an ambitious mission, to remake our Republic. As well as the UNIR/MN, there are other live strands within the nation which are seeking to start a committed debate about these issues. This is the background against which we speak of a “Dialogue among the Congolese”.
The UNIR MN is wholly in favour of this idea. Nevertheless, the UNIR MN is firmly of the opinion that this dialogue must take place within the Republic’s borders; it must be the symbol, the hallmark, and the expression of national reconciliation.
It is the UNIR’s conviction that the people of Congo-Zaïre must be – and are – responsible enough to wash their own dirty linen themselves, at home and nowhere else. Each of our country’s sons and daughters must be aware of the real source of the problems currently facing the nation; and every single one must show solidarity with the people of Congo- Zaïre as a whole, for that people to organise itself accordingly and tackle all these problems.
Fully aware that Congo-Zaïre has neither the financial nor the material means of ensuring a fruitful outcome, the UNIR MN intends to ask not only for the support of the United Nations Organisation but also, and above all, for financial and logistical aid from the European Union to help with the organising and holding of this event as the foundation of civil harmony, itself a prerequisite of the country’s reconstruction.
There is a danger that this national dialogue might be no more than an illusion if, in this process of reconciliation, Congo-Zaïre does not reconnect with its own history. Indeed, national reconciliation is, in the UNIR/MN’s view, the supreme moment in the marriage of the people of Congo-Zaïre with their history; and it is our belief that the restoration of peace to Congo-Zaïre cannot be achieved without the vital co-operation of all this country’s sons and daughters. That is to say, national reconciliation must also include the restoration of family feeling among the different generations, and the re-establishment of a whole-hearted friendship between the pre-independence and post-independence generations.
To rebuild our country, therefore, we need all members of our Congo-Zaïre family to make their individual contributions, in their own fields and according to their own abilities, in spite of all divergences in their thinking.
1.B. The people’s pardon
Asking and obtaining the pardon of the people of Congo-Zaïre is an indispensable part of founding a new Republic.
Nothing vitiates the life of a nation more that these three “Rs” : Rancour, Remorse and Reproach. All three are based on anger, blame and hatred.
These three feelings blind all our faculties and destroy all hopes of coming to enjoy peace. Hatred is death to national well-being. We must not view our country’s future through a dark and distorting glass: countries are not mere victims of destiny. That, at any rate, is the UNIR/MN’s conviction.
However that may be, it is the people’s pardon that will be the start of this what the UNIR MN calls “the Year Zero of the Republic”. The idea is not to efface the past utterly; we have a duty to turn the page, rather than rip it out.
The UNIR MN refuses to allow Congo-Zaïre to produce any more political exiles; and for this reason it is imperative that all of us, all of our country’s children, become reconciled. The people of Congo-Zaïre must pardon each other; they must stop shutting each other out. Only with the agreement of all the country’s sons and daughters can a lasting peace be re- established; only mutual reconciliation can provide an effective weapon against the aggressors, and against some who claim to be friends of Congo-Zaïre, but are not. Congo- Zaïre is in disarray: our families, our brothers and sisters, our children are calling for our help. It is time we heard their call ; time we put an end to our domestic quarrels; time we put ourselves at the service of a truly worthwhile cause.
Pardon, though, does not mean impunity. We must make it clear that, following the example shown us by the Republic of South Africa, pardon may only be obtained where there is total transparency. It will therefore be the task of the Commission set up for this purpose to decide the cases of those whom the people rightly expects to ask its pardon, and of those who may feel a need to apologise to the people of Congo-Zaïre.
C The holding of a National Sovereign Conference (NSC)
National reconciliation must be concrete; it must be credible ; and it cannot be achieved in isolation from the idea of restoration of the state. The NSC presents itself as the final stage in the process of reconciliation.
The institutional and political crisis in Congo-Zaïre today must be settled according to the principle of self-determination, under which each country has the right to determine its political, economic, and social status, and to choose its governors in freedom. This sacrosanct principle, clearly enshrined in Resolution 1514 of the UN General Assembly in its Declaration on the Granting of Independence to Colonial Countries and Peoples, forms the very soul of a nation; the principle of self-determination is, in other words, the expression of sovereignty, and every modern state’s mark of independence.
The people of Congo-Zaïre must be in a position to contribute to its own particular story, in liberty and full awareness. Its sons and daughters must make up their own minds, recognising that this country is not the private property of any, and that each has rights of use in the Republic, not ownership of it. With this realisation, a concern for the creation of a society of peace and well-being must be, for all the people of Congo-Zaïre, the very first of priorities. Each of us must think before all else of the inheritance we shall be leaving to our children and grandchildren, to the generations to come. We need to become aware of our duty, and work to carry it out.
The UNIR MN recognises and salutes the efforts of the people of Congo-Zaïre and the work they put into their first and only NSC. That Conference pointed the way, and laid down two fundamental principles in the matter of political settlement: first, that power was not to be taken by force of arms; and, second, that a Government of National Unity should be formed for the period of transition.
The UNIR MN therefore proposes that the work of the defunct NSC should be resumed, or rather revived. This alone will foster the establishment of a real democratic transition in Congo-Zaïre.
Obviously that work, though relevant as a whole, will not be taken up again in all details; but it cannot be ignored; and there are certain points settled then which must be subjected to either reconsideration or further development.
2. The return to constitutional legality of transition: a way out of the political and institutional crisis
The UNIR MN intends that the new state of Congo-Zaïre should be built on the basis of democratic principles; specifically, the UNIR/MN’s political programme lays particular emphasis on the establishment of constitutional government: the founding of the state on the principle of the rule of law and the respect of human rights and fundamental freedoms. Indeed no rational person can nowadays dispute the value of having a legal framework based on the principle of constitutional government; yet such a legal situation unfortunately does not in fact exist in Congo-Zaïre. For this reason the UNIR MN insists above all on the respect of basic personal human rights. Undeniably, the protection of human rights and fundamental freedoms is today regarded as a matter of common interest to all humanity; one might even go so far as to say that human rights constitute generally- accepted common ground, respect for which is a universal obligation on states.
The protection of human rights and fundamental freedoms is the task, in the end, of the judicial authorities. But UNIR MN insists, looking beyond the architecture of justice, its organisation or even its manner of operation, that all citizens, as well as all others who find themselves under the jurisdiction of the Republic of Congo-Zaïre, must be entitled to have their cases heard by an independent and impartial court. We stress, that is, that the right of access to the courts must not only be proclaimed; its effectiveness in practice must be reinforced.
In practical terms, the government authorities must be obliged to educate the population, to make sure it is aware of its rights, by making available the necessary information. What is needed, in the UNIR/MN’s view, is the creation of “Citizens’ Centre for Human Rights” (CCHR). Along the same lines, the UNIR MN aims to establish legal assistance for the benefit of the poor so as to facilitate their access to justice and law. On this point, the UNIR MN recommends an institution known in English-speaking countries as a “Legal Aid Agency”, consisting of officials with legal training whose task is to advise and/or defend the most deprived citizens free of charge.
3. Proposals concerning the Nationality of the “Banyamulengé”, in the Process of Peace and National reconciliation in Congo-Zaïre
Among the many difficult or awkward passages to be expected on the road to a resolution of the chaos currently affecting Congo-Zaïre is the primary matter of the relationship between peace and nationality.
The restoration of peace and territorial integrity to Congo-Zaïre is in fact closely linked to nationality issues. According to the general practice of states and the case law of courts and arbitrators, nationality constitutes “a legal status based on a social fact of attachment, a real solidarity of existence, interests and feelings, combined with a reciprocity of rights and duties. It is, one might say, the juridical expression of the fact that an individual on whom it is conferred, whether directly by the law or by an official act, is more closely connected with the population of a particular State than with any other State”
(C.I.J, Nottebohm case, Judgement of 6 April 1955).
The legal definition of the concept of nationality thus tallies with its sociological meaning; and this emphasises that nationality is to be understood as the state or situation of a person who belongs to a nation. It is, at bottom, a feeling of national belonging which must be effectively present, that is, which must correspond with a factual situation, one resting on greater connection in fact between the person concerned and the state he or she claims to belong to.
The dialectical relationship between peace and nationality in Congo-Zaïre is instanced by the case of those who took it upon themselves, in 1977, to announce that they were thenceforward to be known as “Banyamulengé”. The name comes in fact from that of the name of the Fuliiru village where the first group of migrant Tutsi settled in 1924, before their dispersion on the high plateaux of Southern Kivu where they were joined, between 1959 and 1962, by successive waves of Tutsi refugees fleeing from Hutu persecution. In other words, whatever may have been written or read to the contrary in this place or that, the “Banyamulengé” do not constitute an ethnic group or tribe originating within Congo- Zaïre. In the Kinyarwanda language, “Banyamulengé” simply means “inhabitants of Mulenge”.
In any case, it is clearly established nowadays that the so-called “Banyamulengé” have never been counted among the tribes or ethnic groups which existed in the territory of Congo-Zaïre in colonial times. As to their nationality, on the other hand, it is apparent from various official documents that the Tutsi population which settled on Congo-Zaïre territory have in principle enjoyed Zaïre or Congolese nationality ever since the Decree-Law of 26 March 1971. This text stated that : “Those persons originally from Rwanda-Urundi but settled in the Congo by 30 June 1960 are deemed to have acquired Congolese nationality on that date”. However, in view of its general and arbitrary character – that is to say because there was no census of the people to whom this Decree-Law applied – an Act of 5 January 1972 (Law N° 72-002 on Zaïrean nationality) attempted, though without real success, to clarify the issue of the nationality of the “Banyamulengé”, by rescinding the 1971 measure. Article 15 of the new law reads : “Those persons originally from Rwanda- Urundi who were in the province of the Kivu before 1 January 1950 and who have continued since then to reside in the Republic of Zaïre until the coming into force of the present Act shall be deemed to have acquired Zaïrean nationality on 30 June 1960”. Finally, the Act of 29 June 1981 (Law N° 81-002) restricted the right to Zaïrean nationality to those who could prove their ancestors had been living in Congo-Zaïre before 1885. This Act, and more particularly Article 20 of the Decree of 15 May 1982 which provided for certain measures in implementation of the 1981 Act, repealed that of 1972, and stated definitively that : “All certificates of Zaïrean nationality or other identity documents issued under Article 15 of the Zaïrean Nationality Act, Law n° 72-002 of 5 January 1972, are hereby declared null”. In fact, however, the 1981 Act has not been rigorously applied, in that identity cards that had been issued to “Banyamulengé” have not been cancelled.
In view of the legal void implicit in this state of affairs, and still with a view to national reconciliation, the UNIR MN starts from the premiss that the so-called “Banyamulengé” belong entirely to Congo-Zaïre. On the other hand, the UNIR MN has to express reservations as to the repeated claims of this section of the country’s population, known as “Banyamulengé”, to be treated differently from the rest of the population of Congo-Zaïre. On this, the UNIR MN wishes to recall that the new country to be built in Congo-Zaïre will be meeting the requirements of constitutional government; that is to say, it will be a state which respects the principles of freedom, human rights and the rule of law, all universal principles without which no society could claim nowadays to be democratic. To achieve this, the UNIR MN recommends the erection of a functioning, coherent legal system which allows all those subject to the jurisdiction of the State of Congo-Zaïre to benefit from effective legal guarantees, among other things by means of readier access to justice.
In view of this, the UNIR MN considers that to accord the “Banyamulengé”, alone, the right to special legal treatment would be tantamount to an implicit admission of the existence of one ethnic minority within the territory of the Republic. Now the ethnic map of Congo-Zaïre clearly shows that our country is made up of many tribes and/or ethnic groups, each as incontrovertibly a “minority” as any other.
The UNIR MN accordingly rejects all claims by the “Banyamulengé” relating to different treatment, on the evident grounds that these are in a situation not manifestly different either in fact or in law from that of the remainder of the population of Congo-Zaïre. For the new Republic of Congo-Zaïre is a state which must rely on the principle that all its citizens are equal before the law. Every holder of Congo-Zaïre nationality must, in reason, enjoy the same treatment and the same legal guarantees when in identical or similar conditions. The UNIR MN proposes therefore to resolve this thorny question of the “Banyamulengé” by insisting that the national authorities of the Republic of Congo-Zaïre implement the principle of non-discrimination in an effective manner; that principle is moreover commended, in various texts protecting fundamental human rights, as one that is necessary for the exercise of the other fundamental human rights and freedoms.
The UNIR MN is of the opinion, when all is said and done, that all those who live in Congo-Zaïre must have the same rights and duties; they must necessarily be subject to the same laws. It has to be noted, of course, that there are certain distinctive features which must, one way or another, be taken into account by the public authorities, all in accordance with the application in practice of the principle of non-discrimination. To achieve this, the UNIR MN undertakes not only to draw inspiration from the various international and regional measures that safeguard human rights and freedoms, but above all to apply them. More concretely, the UNIR MN recommends application of the relevant case-law of the European Court of Human Rights, in that the European system for protection of human rights is a part of the objective framework of the Universal Declaration of Human Rights and, as a result, the substance of the European Convention on Human Rights and Fundamental Freedoms (ECHR) is not restricted to the sphere of the Council of Europe only. Furthermore, European law on human rights has been constantly developed over more than half a century, and has clearly proved its effectiveness.
However that may be, modern conceptions of human rights are increasingly extending their scope beyond any purely regionalist vision. The various authorities (the African Commission, the Inter-American and European Courts of Human Rights) can in fact be seen to be interpreting their own regional texts very often with reference to each others’ case law. In the exercise of their legal powers enforcing government authorities’ respect for human rights and in particular in the resolution of the issue of “Banyamulengé” nationality, the UNIR MN regards the approach to the principle of non-discrimination that has been taken in European case law as the one best suited to the achieving of the objective we seek.
Frédéric BOYENGA BOFALA
UNION POUR LA REPUBLIQUE MOUVEMENT NATIONAL March 2002