Burning the Candle at Both Ends: Death Penalty for Deserters in the Congo

Many, if not all nations have enshrined the right to life in some way or another in their constitution, or in lieu of a constitution, in their national legislation. The Democratic Republic of the Congo (DRC, the Congo) is no different, with article 16 of the nation's 2006 constitution stating, "The human person is sacred. The State has the obligation to respect it and to protect it." And while the nation has oscillated between being in favor of the abolition of the death penalty—as seen by the country's first consultative opinion adopted by the National Human Rights Commission (CNDH) in 2017, which outlined that the death penalty no longer has a constitutional basis—and voting against or abstaining during United Nations (UN) resolutions calling for a moratorium on the penalty, the general view was that the country's new President, Felix Tshisekedi, who came to power in 2019, would 'restore the rule of law and end the war in the east' as promised on the campaign trail..Since then, and in March 2022, the Rwandan and Ugandan-backed March 23 (M23) rebels took up arms once more after disarming in late 2013, rejoining over 120 separate armed groups operating in the Congo's eastern regions, which shares porous borders with Uganda, Rwanda, Burundi, and Tanzania. Subsequent gains by the rebel group have been major, with an estimated 7 million internally displaced civilians and 1.1 million civilians seeking refuge outside the nation's borders. Counter-offensives by the Congolese armed forces (FARDC) have largely failed—even with aid from a Southern African Development Community (SADC) mission headed by South Africa—and have pushed senior FARDC officers, as early as May 2022, to financially and logistically support the 'Wazalendo,' an informal entity comprised of local armed groups and members of the Hutu Forces for the Liberation of the Rwanda (FDLR) to fight alongside FARDC personnel against the M23..Speaking on two separate occasions in 2023, Tshisekedi referred to the DRC's justice system as 'sick,' stating in an interview with his spokesperson, "I have relied heavily on the judiciary because I tell myself that as in the Bible, it is justice that elevates a nation. Unfortunately, in our case, justice destroys our nation.".In defiance of the President's own words, on March 13th, the country's Minister of Justice informed the judiciary of the government's intent to resume executions for offenses in which there is a provision for capital punishment—which had been halted through a 2003 moratorium—and that were committed 'in times of war or under a state of siege or emergency,' with the Minister citing the need to root out 'treasonous elements' from the country's armed forces. Many of the FARDC's failed offensives and counter-offensives have been attributed to the 'infiltration' of the force by rouge elements with M23 sympathies..Across early May and July, a total of 55 military personnel in three separate trials have been sentenced to death for crimes ranging from 'fleeing the enemy' to desertion and cowardice. One such trial, consisting of 27 defendants lasted just one day and resulted in the handing down of death sentences to 25 of the accused..Both contemporary and historical literature have found that capital punishment has little to no effect on rates of offending, particularly in nations with 'legitimacy crises,' where the government and its branches are seen as inefficient and corrupt. Thus, in the context of the DRC, a country that has periodically been at war or partial war since 1996, the question that requires investigation is not why executions for specific military crimes such as fleeing the enemy, desertion, and cowardice have been resumed, but rather what is driving FARDC personnel to make the choice to disobey orders..The History of Capital Punishment in the DRC.Prior to colonization, death as punishment for misdeeds was utilized by the various tribes and chiefdoms that resided in the territory now known as the DRC. The 1884 Berlin Conference gave way for Belgium's King Leopold II to administer what became known as the Congo Free State in 1885, as his personal possession. The entry of Belgian authorities to the country led to the introduction of legislation specific to the territory, as well as the provision of the death penalty in said legislation. Ensemble Contre la Peine De Mort (Together Against the Death Penalty), a French abolitionist association has claimed that upon the creation of 'Leopold's Congo' in 1885 and independence in 1960—when the territory became the Democratic Republic of the Congo—the death penalty was used as a tool for domination by the colonial administration, who differentiated between 'developed blacks,' local elites and intelligentsia, and 'undeveloped blacks' the local, uneducated population..In the lead-up to and immediately after independence, the country was plunged into political strife, with Joseph Mobutu conducting a coup against the nation's first president, Joseph Kasavubu, in 1965. Under Mobutu, the armed forces were bolstered with loyal commanders and, in essence, became Mobutu's personal protection force. Little effort was placed on professionalizing the country's forces, while intense corruption and economic mismanagement further degraded the force's strength as Mobutu loyalists filled the ranks. Mobutu renamed the country Zaire in 1971, and in 1972, the Code de Justice Militaire, which outlined the nation's first coherent military legislation and provided for the death penalty for certain offenses, was brought into force..Conflict History.Meanwhile, outside of Zaire in 1987, a young Paul Kagame—a Rwandan Tutsi whose family fled to Uganda at the onset of the Hutu Revolution in 1959—serving as Uganda's Chief of Military Intelligence formed the Rwandan Patriotic Front (RPF) alongside other Rwandan exiles in response to increasingly aggressive Hutu rhetoric against Tutsis in his home country..The Rwandan Genocide, which began on April 7th 1994, was the result of this increasingly deadly anti-tutsi rhetoric. Lasting 100 days, an estimated 800,000- 1,000,000 Tutsis and Hutu moderates were killed by radical Hutu groups such as the Interahamwe youth militia..At the onset of the genocide, the Rwandan Patriotic Front, now under the leadership of Paul Kagame and who had conducted a cross-border guerrilla campaign from Uganda against the forces of Rwanda's Hutu President Habyarimana between 1991-1992, moved swiftly into the country, capturing the capital, Kigali, three months later..Upon the advance, an estimated 2 million Hutu civilians as well as Interahamwe militia members fled into the neighboring Congo and took refuge in Congolese refugee camps..The existence of Interahamwe members, key perpetrators of the Rwandan genocide, posed, in Kagame's mind, an existential threat to Rwanda. Thus, two years later, in 1996, the Alliance des forces démocratiques pour la libération du Congo (Alliance of Democratic Forces for the Liberation of Congo – AFDL), a Rwandan and Ugandan-backed force under the command of Laurent-Desire Kabila entered the eastern Congo..Known as the First Congo War, the AFDL killed swaths of refugees, with Mobutu's forces, who proved weak against the highly organized and highly mobile invading force, deserting en masse..In a testament to the strength of the Rwandan and Ugandan forces, and the lack thereof in Mobutu's forces, Mobutu was ousted from power by the AFDL after just one year of war, in 1997..Kabila assumed power that same year, and in fear of becoming a Rwandan and Ugandan puppet, ordered out all foreign forces in the country in July 1998, prompting Rwanda to invade from the east once again in August of the same year..The Second Congo War, referred to as 'Africa's World War,' is the second-deadliest conflict to occur in the contemporary period, after WWII, with an estimated 5.4 million killed as a result of the war and its aftereffects..In 2000, Rwandan Hutus in the Congo formed the Democratic Forces for the Liberation of Rwanda (FDLR), and a year later President Kabila was killed by his bodyguard, bringing Kabila's son Joseph to power..Reform Under Kabila.One of the first acts of the young Kabila was to arrest and sentence an approximate 135 individuals implicated in the killing of his father, 30 were sentenced to death, while others received life sentences. The executions of the 30 were never carried out as Kabila introduced a moratorium on the use of the penalty in January 2003, but they remained 'death row inmates.'.In spite of the moratorium, under Kabila, death sentences continued to be handed down, albeit not carried out..In 2006, the country's new constitution was brought into force, which did not include a provision specifically in favor of capital punishment, and instead included several articles affirming the right to life..Articles 16 and 61, in particular, outline, "The individual is sacred. The State has the obligation to respect and protect him/her. All persons have the right to life, physical integrity and to the free development of their personality, while respecting the law, public order, the rights of others and public morality […]. In no case, not even when the state of siege or the state of emergency has been proclaimed in accordance with Articles 85 and 86 of this Constitution, is a derogation admissible from the following rights and fundamental principles: 1. The right to life […]," respectively..Be that as it may, the nation's law maintains the provision for capital punishment for nearly 100 offences, 74 of which pertain to military offences, as outlined by the country's military penal code..Fleeing the Enemy: Desertion and Cowardice.Article 44 of the military penal code outlines the elements that must be met for a solider to be considered a deserter, with the peacetime time frame of six days cut down by two-thirds in "times of war or in a region where a state of siege or emergency is proclaimed.".Thus, "any solider who, two days after the absence is noted, is absent, without authorization from his corps or detachment, from his base or formation, from his establishment, from a military or civilian hospital where he was" is considered a deserter..Conversely, Article 57 simply states that, "any soldier or equivalent who is guilty of cowardice is punished by death," with cowardice defined in the code as, "flight from enemy forces or insurrectional bands, or the use of irregular means to escape danger.".Corruption, Economic Mismanagement, and Low Morale.Historically, the Congolese armed forces have suffered from subpar training, hierarchical disorganization, and endemic corruption, which is much in part owed to the mismanagement of funds by government officials despite the DRC being one of the wealthiest countries in the world due to its vast caches of precious minerals, gold, diamonds, and petroleum..High-risk activities and low pay—exacerbated through the M23's resurgence in 2022—also affect morale, with estimates of base salaries starting at $1,488 per year..Additionally, mid-level corruption, as seen through an incident in 2020, where, according to Lt. Col. Joseph Ngibilicho, a FARDC officer 'disappeared with the October 2020 salaries of his unit totaling around $85,000,' is also rife, meaning some soldiers do not get paid at all..Professor Roger Kibasomba Man-Byemba, from the University of Kinshasa in his article 'Drivers of Chaos in the Eastern Democratic Republic of the Congo' has claimed that increased defense spending in times of war comes oftentimes too late, and instead works to further exacerbate existing issues.."Brief funding is often mobilized when the country is already at or in war. Under such circumstances, defense and security failures are basically compounded by erratic programming and funding, and a total lack of effective control over spending and the contracting effort. This leads to massive waste, gross inflation of prices in conflict areas, a pervasive climate of corruption and abuses by power brokers (public and private)," says Kibasomba..The country's vast resources has contributed to the position it finds itself in today, with various actors, such as Rwanda and Uganda, making use of the porous borders in the east and the advances of the M23 to capture strategic mining towns. For example, in June 2019, a United Nations group of experts on the DRC addressed the UN Security Council stating, "Rwanda declared gold exports of 2,163 kg (2.3 tons), while the United Arab Emirates officially imported 12,539 kg (13.8 tons) from Rwanda during the first nine months of 2018." These discrepancies continue, with the DRC Minister of Mines, Antoinette N'samba stating on May 15th that all mining products from Rwanda should be considered 'blood minerals' because their sale ostensibly supports the conflict in the east..Moreover, the FARDC's inability to contain the advances of the M23, which has, according to a United Nations group of experts, acted increasingly as a conventional army, is evidenced by the several international forces currently in the country. The UN mission in the country, MONUSCO, deployed in 2010, while an East African Community (EAC) regional force deployed in November 2022 before being asked to leave by the Congolese authorities just over a year later. MONUSCO had the same fate, and was asked to withdraw by President Tshisekedi in September 2023. Three months later, the Southern African Development Community's (SADC) force deployed, and although it has struggled to make substantial gains, it remains in the country. The establishment of the Wazalendo (meaning 'patriots' in Kisawhili) paramilitary entity further signals the FARDC's incapacity to effectively counter the insecurity in the east..Furthermore, a July 9th report by a UN expert group acknowledged the presence of an estimated 3,000-4,000 Rwandan troops in the DRC, who have 'de-facto control over M23 operations.' The report also noted the existence of evidence "confirming the active support for the M23 by certain Ugandan People's Defence Force (UPDF) and Chieftaincy of Military Intelligence officials.".The report highlighted the proliferation of advanced military and technology in the North Kivu region, including 120mm guided mortar bombs, drone-carried mortar shells, and short-range air defense systems, particularly in the Rutshuru, Masisi, and Nyiragongo territories, pointing to a likely escalation of the conflict in the coming months..These latest developments prompted the DRC's Foreign Minister, Therese Kayikwamba Wagner, to claim on July 13th while speaking to Reuters, that with Rwandan troops in the country, the withdrawal of MONUSCO forces will be unlikely to proceed until 'conditions allow.'.The resumption of executions of those handed down a final sentence for an offense carrying the provision for capital punishment can thus be understood as a reactive government policy to the FARDC's inefficiency in the east. Moreover, it cannot be claimed that death penalty sentences have increased in response to M23 gains, as such numbers are not readily available. However, it is clear that desertions and cases of 'cowardice' in the presence of the enemy have increased; enough at least for the government to lift a 21-year moratorium on the use of the penalty..What Drives Military Personnel to Desert?.As stipulated in the Congolese penal codes, civilians sentenced to death are hanged while military personnel are shot..Two academic works, one investigating the deterrent effect of the death penalty through an analysis of desertions from the British military in World War One and another investigating drivers of desertions in civil war contexts, have highlighted the importance of two factors in the decision-making process of a deserting soldier. While the contexts of these works differ almost entirely from that of the conflict in the DRC, crucial insights can still be drawn out..Daniel L Chen, in his work on desertions from the British military found that a soldiers perceived legitimacy of the military authorities is a key driver in the decision making process of a solider considering deserting. The less legitimate a solider sees the military or wider government for which he is fighting under, the more likely he is to desert..As stated, the Congolese government throughout its history has suffered from crises of legitimacy, with the election and subsequent inauguration of President Felix Tshisekedi in 2019 representing the country's first peaceful transfer of power since 1960. Despite this, the election was marred by widespread allegations of electoral irregularities. 27 percent of polling stations did not open while 45 percent of voting stations suffered malfunctions, according to the Africa Center for Strategic Studies..Academics Holger Albrecht and Kevin Koehler, in their work on desertions during the Syrian civil war, found that while moral grievances and economic concerns played a role in the decision-making process of a solider considering deserting, those factors, while changing over time, did not constitute an adequate 'trigger' for desertion. Instead, fear for one's personal safety was found to be the most effective cause of desertion, stating, "personal risk perception is the most effective trigger of insubordination," "increasing conflict intensity, therefore, leads military personnel to reevaluate their personal risk perception, taking into account the dangers of a desertion attempt and the risk of military service itself.".In the DRC's current context, the risk of military service for members of the FARDC is high. This is mostly due to the superior capabilities of the M23, supplied by Rwanda and Uganda, with Rwanda under Paul Kagame placing the utmost importance on the strength of the military due to the "Rwandan military's intrinsic connection to a broader post-genocide state-building process," according to Ralph Shield from the US Naval War College..With its origins as a guerrilla army, the Rwandan Defence Force (RDF) is highly mobile and highly skilled in small arms fire. Currently, 4,585 Rwandan forces are serving across two UN peacekeeping missions, making Rwanda the fourth largest contributor of troops and police to UN missions..The highly disciplined Rwandan force maintains a high combat motivation, making it a 'master of midspectrum war fighting,' says Shield, with 'midspectrum war fighting' referring to a combination of conventional and guerrilla warfare techniques..Consistent budget support and stable compensation has also aided in the continued professionalism of the force, in stark contrast to the FARDC..Consequently, the M23 continues to make gains in the Congo's east, to the detriment of the civilian population and the FARDC forces, who, less skilled and less equipped, face the choice between a bullet fired by a Rwandan or, if he deserts, a bullet fired by a Congolese..'Bandaids Over a Bullet Wound'.As illustrated, the insecurity plaguing the eastern regions of the Democratic Republic of the Congo can only be adequately understood when one takes a macro-approach, viewing the historical actions of key actors such as Paul Kagame and the RPF, the Hutu Interahamwe, Uganda's Yoweri Museveni, and the Congo's various leaders who placed little importance on anti-corruption measures and armed forces professionalization..The lifting of the moratorium on the death penalty in the country in specific regard to military crimes such as desertion and cowardice can thus be understood as a last-ditch government effort to quell FARDC disunity, signaling an increasing 'losing-game' in the east..The recruitment of the Wazalendo and the delay of the MONUSCO withdrawal further highlights this losing game, with M23 offensives displaying the military might of its backers, particularly Rwanda..Deep-rooted governance deficiencies, left unchecked since independence, legitimacy crises, and underfunding and corruption have contributed to the continuation of the conflict, prompting increasing desertions and affording little protection to civilians..Punitive measures in the military justice system coupled with a disastrously corrupt judiciary remains then, a literal and figurative 'band-aid over a bullet wound.' With the personal risk perceptions of deserters triumphing over the patriotic leanings of military personnel to an alarming degree..Backtracking on previous abolitionist stances, the Congolese government, through the reinstatement of death penalty executions, has effectively signaled to international actors, multilateral institutions, and its own military personnel that it has lost fervor in the fight in the east.