A soldier’s wife collapsed on the floor.  Blood seeped from her abdomen, congealing in a puddle beneath her. She would soon die.  Her husband, drunk, had stabbed her with his bayonet.  It was Sunday, 20 February 2011.  

The Army base on which the woman died is the headquarters of the Forces Armées de la République Démocratique du Congo’s 4th Military Region.  The base is in Kananga, a pleasant city in the center of the DRC that, despite supposedly having more than a million residents, feels rural.  Goats wander about freely when not being milked or slaughtered.  Much of Kananga’s population lives in mud-brick huts with thatched roofs and no running water.  Despite a nearby hydroelectric plant in the middle of the Lulua River, power seems to be an unaffordable–maybe even unavailable–luxury for most of Kananga’s residents.  There are no streetlights and most homes and businesses are dark from sunset to sunrise.

Near the Army base’s entrance is a plinth on which a statue probably once stood– perhaps of King Leopold II or some other figure from the Democratic Republic of the Congo’s colonial past.  If there was a statue, it has long since been toppled.  Now the plinth bears a painted message:  “La discipline est la mère des armées.”  (“Discipline is the mother of armies.”)  The young woman’s death resulted from several breeches of discipline.   

The day after the woman died, a bit after 1700, I walked out of one of the 4th Military Region’s headquarters’ buildings.  A few hundred yards away, a crowd of around 400 people gathered under and around an outdoor pavilion.  I had heard that a soldier was being court-martialed for killing his wife the previous day, but I didn’t immediately connect that fact with the assembly around what looked like–and might have actually been–a parade reviewing stand under a corrugated metal roof.  In my experience, courts-martial have usually been indoor affairs. 

This is the back of the pavilion under which a capital court-martial is in progress.

Photo by Rebecca Snyder

[This is the back of the pavilion under which a capital court-martial is in progress.  The blue backs of the five judges’ chairs are visible in the center of the pavilion.]

I readily accepted a FARDC officer’s invitation to watch the court-martial proceedings.  We climbed up a concrete staircase at the back of the pavilion and were soon standing a few yards to the side of where the court-martial was underway.  In the middle of the pavilion was a flat concrete platform.  A long table stood on the platform.  Seated behind the table were the court-martial’s five judges — one of them a lawyer and the other four non-lawyer FARDC officers made available by their command to serve as judges for the case.  To one side of the table sat the prosecutor, who like the presiding judge was both a lawyer and a major in the FARDC.  On the other side of the table was the court reporter, dutifully transcribing the proceedings by hand.  In front of the table was the accused.  A wooden chair was behind him, but he stood throughout the proceedings.  Two police officers stood next to him.  At first I wondered where the defense counsel was.  Then our translator — a FARDC special forces major — told me that the two police officers were the accused’s defense counsel.  He explained that the Congolese military justice system covers not only the military, but also the police.  Service as a defense counsel is, in essence, a collateral duty to which military officers and police officers are assigned for three-month stints.  The military prosecutors are all graduates of the five-year university program necessary to become a lawyer in the DRC.  They have also passed a special “Magistrate’s” exam that qualifies them to serve as prosecutors or judges, rather than as legal advisers, a decidedly lower rung on the FARDC’s military lawyer hierarchy.  Unlike the prosecutors, the collateral duty defense counsel have no special legal training.  The police officer/defense counsel’s lack of legal training was on prominent display at this capital court-martial.

One of many striking things about the trial was how well attended it was.  A large crowd–military and civilian–gathered on the terraced concrete under the pavilion.  Hundreds more stood in a semi-circle stretching from one corner of the pavilion to the other.  Some even sat in lawn chairs just inside the semi-circle or under the pavilion itself.  There was no sequestration of witnesses.  Rather, the witnesses were part of the crowd, marching forward and reporting when they were called to testify. 

We watched as the accused’s OIC– or at least an officer believed to be the accused’s OIC– was called to testify.  In formal settings, FARDC officers often march with an exaggerated arm swing like that of a drum major.  Several feet from the desired end point, the officer will make a facing movement and then goose step the last few paces, loudly scuffing the soles of his boots along the ground with each step before halting and saluting.  The OIC emerged from the crowd and went through those elaborate machinations to report to the presiding judge.  The presiding judge — who plays a much more active role in the proceedings than is common in an American court — proceeded to berate the OIC.  The presiding judge told the OIC that the accused was drunk when he stabbed his wife and he blamed the OIC for the break in discipline that led to the soldier becoming drunk.  The OIC protested that the accused had been transferred from his unit before the murder.  He was then dismissed and a call went out for the accused’s current OIC to appear.  A woman wearing blue jeans and a white polo shirt then emerged from the crowd.  She mimicked the uniformed OIC’s elaborate arm swinging, facing movement, sole scuffing, and saluting.  The crowd convulsed with laughter at what appeared to be her mocking of those martial conventions.  But it turned out that she was a military officer who happened to be wearing civilian clothes rather than her uniform.  The presiding judge then proceeded to berate her for the breach of discipline that resulted in the accused killing his wife. 

After the female OIC was dismissed, a uniformed military doctor was called.  He also emerged from the crowd, marching across the open space in the semi-circle between the audience and the pavilion, and then reporting to the presiding judge. The presiding judge treated the doctor with great respect — this witness wouldn’t be harangued by the judge.  The doctor proceeded to give clinical testimony about the cause of death.  On cross-examination, one of the police officer defense counsel drew a concession from the military doctor that he couldn’t say what particular weapon had been used to stab the dead woman.  Pressing his luck too far, the police officer defense counsel then seemed to attempt to undercut the evidence that the accused had been drunk, questioning whether anyone could specify the particular bottle from which the accused drank.  The crowd hooted with derisive laughter at what was apparently deemed a stupid question.  The presiding judge went back into lecture mode, this time upbraiding the defense counsel for wasting the court’s time with an irrelevant inquiry concerning which bottle the accused supposedly drank from.  But the police officer wasn’t cowed.  Instead, he proclaimed that representing an accused was a sacred duty and that he would not be intimidated into silence.  The police officer was a passionate defense counsel.  But, alas, zealousness is no substitute for competence. There seemed to be no effort to suggest that the accused’s intoxication might be a mitigating circumstance.  Almost all of the FARDC line officers we met were combat veterans.  Had the accused been in combat?  Had he been exposed to horrific sights?  Might his excessive drinking have been an effort to self-medicate post-traumatic stress disorder?  No hint as to the answers to those questions appeared during the two hours that I watched the court-martial.  And I doubt those themes were explored during the rest of the proceedings.

By 1915, the sun had set.  There was no artificial lighting, so–much like a baseball game at Wrigley Field before 1988–proceedings had to be adjourned for the evening due to darkness. 

We flew to another city in the DRC the following morning, so I was unable to watch any more of the trial.  But a FARDC military judge with whom I was traveling let me know that on Tuesday the accused was found guilty and sentenced to death.  The offense had occurred just two days earlier.

To determine the findings and sentence, the presiding judge would have retired with the four non-lawyer judges and they would have voted.  A 3-2 majority would have been sufficient to sentence the accused to death.

The Congolese military justice system offers the accused two levels of appeal from this capital verdict.  It’s possible to present additional evidence during these appeals, which are something of a cross between an appeal on the record and a trial de novo.  But I’m told that the appellate courts give considerable deference to the original verdict.  There’s no avenue for challenging the conviction or the death sentence in the civilian court system.  

Regardless of the appeals’ outcome, the soldier may never be executed.  While military and civilian courts in the DRC continue to adjudge death sentences, President Joseph Kabila has imposed a moratorium on actual executions.  So those sentenced to death have been sitting in prison rather than marching to their executions.  Moratoriums can always be lifted and there is a presidential election in the DRC scheduled for this November.  Still, FARDC military lawyers with whom I discussed the case believe that, in practice, the soldier will probably be confined for life rather than face a firing squad.  But life expectancy probably isn’t long in a Congolese prison, where food rations are meager and medicines are nonexistent.  As a doctor told us when we toured the DRC’s best prison, his medical facility is nothing more than a building, with no equipment or medicine inside it.

Much of the Congolese court-martial seemed exotic, such as its outdoor venue, the elaborate marching, and the police officers serving as defense counsel.  But certain aspects of the case were chillingly familiar, such as a military doctor’s clinical description of the cause of death.  What crossed the cultural divide most forcefully for me was the senselessness of the crime.  On Saturday, 19 February 2011, there were two young people living on that military base.  The next day one of them would be dead and the other forfeited his freedom forever.  That anguish is all too familiar.

14 Responses to “A glimpse at a Congolese capital court-martial”

  1. Bridget Wilson says:

    Very interesting, Dwight. Dare to ask how you ended up in the Congo?

  2. Some Army Guy says:

    Thanks, great story. I have passed this story down as the standard on how fast my office should conduct courts-martial in the future. I doubt we’ll do the arm-swinging, though.

  3. bill almett says:

    Thank you for sharing. All systems have their problems, but I think I’ll take our slow and deliberative approach as opposed to what you’ve described…Jesus…savages…

  4. FDNF says:

    “Savages?” That seems a bit excessive. Though it’s not our system, which has it’s own absurdities, Dwight’s description of this court-martial didn’t strike me as an entirely unfair proceeding. And that’s especially true if one considers that the Congo is a civil-law-based jurisdiction. As I read this story, I was struck by the transparency and fairness of the proceeding.

  5. Steve B says:

    @ FDNF…Really?

  6. Stewie says:

    FDNF I can agree savages is extreme but I want some of what you are smoking if you thought this proceeding was either transparent or fair.

    It certainly was a system designed to insure someone was brought to justice (thus the extensive training given to the prosecution and the well no training given to the defense).

    So it serves a societal function, but it is in no way “fair” by any stretch of the word. Effective perhaps, and probably they ascribe to the notion of better an innocent man go to jail then a guilty man be set free, which is a way to go…

    but t’aint fair at all.

  7. FDNF says:

    Hey, I like our system better. But, so far as it appears from Dwight’s post, the Congolege system seems to be a reasonablly fair system.

    First, the proceeding was open and well attended.

    Second, the is a civil-law based system. It’s not an advisarial system requiring a strident arguments between the defense and the prosecution. You might like the common-law system more, but most of the rest of the world uses the civil-law based system (once they graduate from tribal justice). Both prosecutor and one of the judges was a highly-trained attorney. If you understand the civil system, you’ll understand why both the prosecutor and defense representative play very minor roles in a criminal trial.

    Third, this defendant enjoys the right to a civil-law-appellate system, which is in some respects is (theoretically) superior to our system that relies too often on preserving error.

    Fourth, it’s entirely reasonable to elevate societal needs above individual needs. And many justice systems (though not always ours) do just that. That’s especially true in military justice, which has far more to do with discipline and readiness than it does with justice for the victim or accused.

    I simply am not offended by the Congolese system. Frankly, I expected worse when I first read the lead into this post. And I found the “savages” comment absurdly inaccurate and somewhat xenophobic.

  8. FDNF says:

    Wow.

    Note to self: Take a few moments to check spelling.

    Sorry folks.

  9. Charles Gittins says:

    Kind of like a 1930’s rape trial in Alabama or Mississippi where a black was charged with rape of a white woman, I think. About the same level of due process.

    CG

  10. Stewie says:

    Open and well attended isn’t the kind of transparency that means much to me. Transparency in the criminal context usually focuses more on evidence to me.

    I do not believe that the civil law system completely does away with defense attorneys or makes them a minor, untrained, and more or less unnecessary judging this trial, part of the trial.

    Even if they do, they most certainly in other places do not have a four non-judge, one judge setup. The dangers of the civil law system kinda require trained and experienced judges controlling the system to make it fair.

    You talk about the unimportance of prosecutors but as you earlier note, they were trained attorneys, so apparently in the Congo, they are a bit more important than the defense assistants.

    Citing the fact that “most of the rest of the world” uses this system doesn’t say much. First, a little research shows that the Congolese system is a mixture of civil law and their own customary law, so this isn’t exactly how say France does it.

    Second, that does not make it a fair or a just system in and of itself.

    The accused may “enjoy” a civil law appellate system in theory but it does not appear to be of much help to him in this specific system based on Col. Sullivan’s reporting that the court gives considerable deference to the trial court.

    I think you haven’t tried a lot of courts-martial, or if you have you’ve got a different viewpoint from what I’ve seen doing them to say that the C-M is more about discipline and readiness than justice for the accused or the victim, because I see a process filled with concern for fairness and which in many ways is more fair towards an accused than the civilian system.

    Not to be trite, but fairness seems to me to be a societal need as much as it is an individual one. I don’t know what worse you expected, but a trial where the only evidence appears to be, she’s dead, and he did it, and little else is presented seems to be about as bad as it gets…particularly when it’s a capital sentence that is handed down.

  11. k fischer says:

    With regards to the term ‘savages,’ it seems that Bill was quoting LTC Kilgore rather than intending to make some sort of off color remark. I got the movie reference.

    The players in the Congolese system remind me of the current state of sexual assault prosecutions in the Army. You have 15 senior Captains and Majors whose sole purpose is to prosecute sex cases as Special Victim Prosecutors. TDS does not have an equivalent position to protect the rights of the Soldier; they defend sex offenses, murder, AWOL, larceny, etc, and do not have the opporunity to develop an expertise in one type of crime. Moreover, you have some TDS counsel who have never been a trial counsel and have zero experience, while most SVP’s have been both a trial counsel and defense counsel. Comparably, in the Congolese system, you have a prosecutor who is a lawyer, and the two guys assigned to defend the accused are not lawyers. Neither system sounds particularly fair to me.

    I will admit that the Congolese system is a little worse, since the two defense “attorneys” were police officers. However, considering the steady erosion of the accused’s constitutional rights in sexual assault cases in the military, I wouldn’t be surprised to see CID Agents representing Soldiers accused of sex offenses at some point down the road.

  12. Derek Mills says:

    I think we’re missing a critical point, here: resources. What type of system maintains order and ensures justice perfectly in the absence of any resources? In many ways their infrastructure is roughly equivalent to, or worse than, that of the American west in the 19th century. Here, however, there is no ‘hanging judge,’ but a modern system attempting to function in the absence of a viable central state and any real resources. One step away from this ‘savage’ system are tribal systems that in no way reflect our – to the Congolese eye – indulgent system of liberties that delays justice over great lengths of time at embarrassing cost. These magistrates are not holding the trial outside because they like the transparency, but because they have no building. They are, in reality, at the front lines of a battle to maintain the path of a modern state in the face of their country slipping back into prehistory. Look at the abuses of the Mai-Mai in eastern Congo and you will see the alternative they are facing. How many of our young judge advocates would even come to work, much less perform their function, having not been paid for six months, with no vehicles for transport, no security, and no viable prisons to succesfully hold those that have been condemned? Hopefully food for thought. Hats off to the Congolese.

  13. European says:

    They certainly take the accused speedy trials seriously at least.

  14. Stewie says:

    I don’t think the idea/question of the fairness of a system is the same as asking whether or not the government involved has the resources to do any better.

    The system seems unfair to me. That it may be unfair solely because they are a poor country is a separate issue, although I can think of a couple of ways to make it fairer without adding a dime to the cost or a day of training to anyone.