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DRC: Kilwa Trial - a Denial of Justice

Pays
RD Congo
Sources
ASADHO/KATANGA
Date de publication
A Chronology
October 2004 - July 2007

I. THE KILWA INCIDENT

II. THE INVESTIGATION: DENIAL, DELAY AND INTIMIDATION

III. THE TRIAL: REPLACEMENT OF MILITARY PROSECUTOR AND FURTHER DELAYS

IV. THE KILWA HEARINGS: PRESSURE ON WITNESSES AND ABSENCE OF THE VICTIMS' LAWYERS

V. CLOSING STAGES OF THE KILWA TRIAL

I. THE KILWA INCIDENT

14 October 2004: At around 2am, a group of six or seven people attempted to occupy the small town of Kilwa, in the province of Katanga, in the southeast of the Democratic Republic of Congo (DRC). They claimed to belong to a hitherto unknown rebel movement calling itself the Revolutionary Movement for the Liberation of Katanga (Mouvement Révolutionnaire pour la Libération du Katanga, MRLK). Anvil Mining's security personnel had discussions with the rebel leader in Kilwa who told them that they had no intention of taking over Anvil Mining's Dikulushi mine,(1) located in the area. Anvil Mining stated "the rebel group appears to be a small band of disaffected individuals seeking representation".(2)

14 - 15 October 2004: Anvil Mining evacuated its staff from the Dikulushi mine to the provincial capital, Lubumbashi, using charter planes via the airport at Dubie. Anvil Mining confirmed that soldiers were flown into the area on the return journey. Two expatriates and two Congolese members of Anvil Mining's security staff remained on site to monitor the situation.(3)

15 October 2004: Anvil Mining issued a press release on the day the military attack started (see below), stating that the company "expects the situation to be resolved within the next 72 hours".(4)

Most of Kilwa's population fled when it was announced over the radio that troops being sent to the town would show no mercy and that anyone who remained would be treated as an insurgent.(5)

Soldiers of the 62nd Infantry Brigade of the Congolese Armed Forces (Forces armées de la République démocratique du Congo, FARDC) arrived in Kilwa. The FARDC had used Anvil Mining trucks for the journey from their base in Pweto, 135 kilometres away. Under the command of Colonel Ilunga Ademar,(6) the soldiers launched an attack to recapture the town of Kilwa. In the course of this operation, serious human rights violations - including scores of summary executions, arbitrary detentions, pillage and extortion - were reportedly perpetrated by the FARDC against the civilian population. In a confrontation lasting two hours, the FARDC did not sustain any casualties.(7)

Almost three years after these events in Kilwa, it emerged that President Joseph Kabila had ordered the town to be retaken within 48 hours.(8)

16 October 2004: Pierre Mercier, a Canadian national and General Manager of AnvilMining Congo, arrived in Kilwa at about 9am for the first time after the uprising.(9) He met Peter Van Niekerk, Anvil Mining's security officer, who had remained on site at the Dikulushi mine, and Colonel Ademar.(10) The Dikulushi mine restarted its operations.

The FARDC carried out systematic house-to-house searches, which lasted from 16 to 18 October.(11)

Anvil Mining staff did not report the deaths of civilians or human rights abuses during the Kilwa incident to the United Nations (UN) or to diplomats.(12)

17 October 2004: Augustin Katumba Mwanke(14) (an adviser to President Joseph Kabila and member of Anvil Mining's board), Urbain Kisula Ngoy (then Governor of Katanga province) and General Dieugentil Alengbia Nzambe (Commander of the 6th Military Region) visited the island of Nshimba where a large part of the population of Kilwa had fled for safety. They encouraged the displaced people to return to Kilwa.(15)

October 2004 onwards: The soldiers who had carried out the violations remained in the Kilwa area for a further nine months. During this time, victims and relatives of people who had been summarily executed or who had disappeared were intimidated or threatened. Families of those who were killed were threatened if they showed signs of grief in public.(16)

Notes:

(1) Anvil Mining Limited is incorporated in the Northwest Territories, Canada. Anvil Mining Limited is listed on both the Toronto Stock Exchange and the Australian Stock Exchange. Anvil Mining Limited, through its wholly owned subsidiaries Anvil Management NL (Australia) and Anvil Mining Holdings Limited (United Kingdom), has a 90% holding in Anvil Mining Congo SARL, which owns Dikulushi Mine.

(2) Anvil Mining Limited, 'Advice on rebel activity in village of Kilwa, DRC', Press release, 15 October 2004.

(3) Ibid.

(4) Ibid.

(5) Two Kilwa radio operators have confirmed this information saying that they heard the message from Colonel Ademar being transmitted while in the bush. (ACIDH/RAID Joint report, "Kilwa A Year After the Massacre of October 2004", October 2005). Many witnesses later stated in court that they had fled out of fear of reprisals by the FARDC.

(6) Different documents use different spellings for Colonel Ilunga Ademar's name: some refer to him as Ademar, others as Ademard, and others as Ademars.

(7) MONUC Special Investigations Unit (SIU), 'Report of the Special Investigation in Kilwa 22-24 October 2004, Lubumbashi', 10 November 2004, paragraph 15 (hereafter 'MONUC Preliminary Report'). This was MONUC's preliminary report into the Kilwa incident. MONUC released its final report in September 2005.

(8) Transcript of an audio recording by Radio Okapi of the judgment in the Kilwa trial, as read out in court on 28 June 2007 (English translation by RAID/Global Witness). See intra, under 28 June 2007 and note 131.

(9) RAID interview with Pierre Mercier, Lubumbashi, 24 November 2004. According to the court, Mercier was accompanied by the Governor of Katanga and by the Commander of the 6th Military Region: see transcript of an audio recording by Radio Okapi of the judgment in the Kilwa trial, as read out in court on 28 June 2007 (English translation by RAID/Global Witness).

(10) See intra, entry for 16 May 2007.

(11) Paragraph 17 of MONUC final report 'Rapport sur les conclusions de l'enquête spéciale sur les allégations d'exécutions sommaires et autres violations de droits de l'homme commises par les FARDC à Kilwa le 15 octobre 2004' (hereafter 'the MONUC report'), released in September 2005. Despite the UN's failure to distribute the report and to provide an English translation (standard practice with all other MONUC human rights reports on the DRC), it is widely available on the Internet. See for example: http://abc.net.au/4corners/content/2005/MONUC_report_oct05.pdf. See also transcript of an audio recording by Radio Okapi of the judgment in the Kilwa trial, as read out in court on 28 June 2007 (English translation by RAID/Global Witness).

(12) Anvil Mining's press releases of 18 and 21 October 2004 do not refer to civilian deaths, summary executions or other human rights abuses in Kilwa during the incident. Anvil Mining's press release of 21 June 2005 states that 'Although at the time, Anvil had no knowledge of human rights abuses, we are now learning, it was a terrible event.' Although there was some communication between MONUC's human rights investigation team and Pierre Mercier in October/November 2004, Anvil Mining states that there was no contact between the company and MONUC until after an ABC television news team had visited Kilwa (see Anvil Mining Limited, 'Quarterly Activities Report To Australian Stock Exchange Limited For the Third Quarter ended September 30, 2005', 31 October 2005, p.3). In August 2005, during RAID's visit to Dikulushi, an Anvil Mining staff member was asked why the company had not informed the UN about the human rights abuses in Kilwa. He replied: 'We're not NGOs, we didn't know what to do.' Bill Turner, Anvil Mining's CEO had 'a long conversation' in July 2005 with the Canadian Embassy in Kinshasa about the Kilwa incident. E-mail from Canadian embassy staff to RAID, 8 August 2005.

(14) Augustin Katumba Mwanke, a close adviser to President Kabila, was included in the list of persons against whom the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo recommended a travel ban and financial restrictions (Final Report of the Panel of Experts, 16 October 2002, S/2002/1146). A document entitled 'An Assessment of the Political and Security Risks Relevant to the Proposed Development of the Dikulushi Project', by Anvil Mining NL, dated 28 August 2001, states on page 23: '[Katumba] now has increased political clout to influence the timely development of the project, which he has indicated he will use to support Anvil. He indicated during the meeting on 24 July that he would like to take the board position on Anvil Mining Congo SARL being offered to the Government (one position out of five). Katumba also acts as Ministere de Portefeuille (though officially this ministry no longer exists), and is therefore responsible for the government's interests in commercial enterprise companies.'

(15) RAID interviews with witnesses in Nsensele and Kilwa, 25 August 2005. See also MONUC report, paragraph 19.

(16) See RAID, 'Report of a Visit to the Dikulushi Mine and Kilwa, 24 -25 August 2005', 5 October 2005. In their statements to the prosecutor, eight witnesses referred to not being allowed to hold funeral rights on behalf of the victims. The local bishop informed the human rights organisation ACIDH that on the first anniversary of the Kilwa massacre, the Catholic Church was prevented from holding a mass to commemorate those who had died. (E-mail ACIDH to RAID, "Réunion avec Monseigneur Fulgence Muteba," 25 October 2005).