THE BANYAMULENGE: A COMMUNITY PREY TO ARRESTS AND VIOLENCE IN THE DEMOCRATIC REPUBLIC OF CONGO (DRC)
by Innocent Nteziryayo
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.” 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”.
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. Article 9 of the Universal Declaration of Human Rights declares that “no one shall be subjected to arbitrary arrest, detention or exile”. 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. 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”. 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”. 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. 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. 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, and November 30, 2022.
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Innocent Nteziryayo is a founding and active member of Collectif des Avocats des Parties Civiles, a group acting in support of victims of human rights violations in eastern Democratic Republic of Congo and representing them in judicial processes. He is the coordinator of the Gatumba Justice Project, advocating for justice on behalf of Gatumba genocide survivors. He also formerly worked as a public prosecutor in Rwanda. As an advocate, he is interested in justice for human rights violations against minority communities. Innocent Nteziryayo holds a Bachelor’s Degree in Sociology and Anthropology with Gender Studies from the University of Hull in the UK (2016-2019). He holds a Postgraduate Diploma in Legal Practice from ILPD in Rwanda (2009) and a Bachelor’s Degree in Law from UNILAK, in Rwanda (2003-2007).
NB: This report has been produced by an external researcher and activist and is not an official Genocide Watch publication. It does not represent research conducted internally and directly by Genocide Watch staff. Genocide Watch supports and promotes efforts by other actors to investigate, document, and bring attention to the plight of persecuted communities such as the Banyamulenge of DR Congo. The report has been reviewed by several academics, and it may be subject to further updates.