## Facts

- In September 2002, the African Commission on Human and Peoples’ Rights received a communication filed by a group of Congolese lawyers from the *Groupe de Travail sur les Dossiers Judiciaires Stratégiques* against the Democratic Republic of the Congo (DRC), a State Party to the African Charter (ratified 20 July 1987).
- The complaint was brought on behalf of seven alleged victims, including several persons who were children at the time of the events; it also included Joseph Kasongo’s father (Oscar Mwita) among the named victims.
- The complainants alleged that the DRC’s military courts (created under Executive Order No. 019 of 23 August 1997) tried the victims for ordinary criminal offences arising in the context of armed conflict in which some had been used as child soldiers.
- The military courts imposed death sentences on the victims for serious crimes (described by the parties as including offences such as criminal conspiracy, armed robbery, and murder), offences for which Congolese law authorized the death penalty.
- The complainants stated that six death sentences were later commuted to imprisonment, but that Joseph Kasongo was executed on 15 January 2002 immediately after sentence was pronounced.
- The complainants alleged that the military-court judgments were not subject to ordinary appellate review and that the children were not assisted by counsel during the proceedings, despite the gravity of the charges and sentences.
- The complainants further argued that juvenile protections under Congolese law (including rules on juvenile delinquency) and ordinary criminal procedure were not applied in the military-court process.
- The DRC responded that the accused had committed grave offences and that, although the military-court decisions were not appealable, convicted persons could seek a presidential pardon. The DRC also stated that counsel should have been appointed, but could not provide proof that legal assistance was actually provided in the cases at issue.
- The Commission declared the communication admissible and proceeded to decide the merits under the African Charter.

## Issues

1. Whether imposing death sentences (and allegedly executing one victim) following military-court proceedings that did not meet fair-hearing guarantees violated Article 4 (right to life) of the African Charter.
2. Whether trying the alleged victims—including children—before military courts for ordinary offences, without demonstrated legal assistance and without ordinary appellate review, violated Article 7 (right to a fair hearing) of the African Charter.
3. Whether the DRC failed to meet its Article 1 obligation to take legislative or other measures to give effect to Charter rights by maintaining and applying a military-justice framework that permitted these violations.

## Decision

- The African Commission found the DRC in violation of Articles 4 and 7 of the African Charter in relation to the death sentences imposed through the challenged military-court proceedings and the alleged execution of Joseph Kasongo.
- The Commission held that the use of military courts in these circumstances did not satisfy Article 7’s requirements of a competent, independent, and impartial tribunal and the minimum guarantees of defence, particularly given the absence of proof that counsel assisted the accused.
- The Commission determined that the lack of ordinary judicial review could not be cured by the availability of presidential clemency, because clemency is discretionary and is not a form of judicial appeal.
- The Commission concluded that execution (and, more generally, the use of capital punishment) following proceedings that fail to meet fair-hearing standards amounts to an arbitrary deprivation of life contrary to Article 4.
- The Commission also found a violation of Article 1, reasoning that the DRC had not taken sufficient measures to give effect to Charter rights where its laws and practice allowed military courts to try civilians and children for ordinary offences without the protections required by the Charter.
- The Commission recommended measures including review of the convictions and sentences by the competent ordinary judicial authorities, steps to prevent military courts from exercising such jurisdiction in a manner inconsistent with Article 7, and forms of reparation for the victims and the family of the executed victim.

## Legal Principles

- A death sentence—or an execution—carried out after proceedings that do not meet Article 7 minimum guarantees constitutes an arbitrary deprivation of life under Article 4 of the African Charter.
- Article 7 requires adjudication by a competent, independent, and impartial tribunal; military courts, by their nature and design, must not be used in a way that removes ordinary-court guarantees for civilians and children tried for ordinary offences.
- The right to defence includes effective legal assistance; where the state cannot show that counsel was provided in capital cases, the Commission may find a breach of Article 7.
- Judicial review is a core element of fair-hearing protection; discretionary presidential pardon or commutation does not replace an appeal or other judicial remedy.
- Article 1 imposes a duty on States Parties to take legislative and practical measures to give effect to Charter rights; maintaining a legal framework that enables unfair military trials and unlawful deprivations of life can amount to a separate violation.
- In assessing protections for children and the permissibility of capital punishment and military trials, the Commission may read Charter guarantees consistently with widely accepted international standards on juvenile justice and the death penalty.

## Conclusion

The African Commission held that the DRC violated the African Charter by using military courts to impose (and in one case carry out) capital punishment through proceedings that lacked basic fair-hearing guarantees, including proof of legal assistance and access to ordinary judicial review, and by failing to take sufficient measures to align its legal system with Charter obligations.


Group de Travail sur les Dossiers Judiciaires Strategiques v. Democratic Republic of the Congo, Communication 259/2002 (2011)