The Governing Council of the Inter-Parliamentary Union,

Having before it the case of Mr. Jean-Bertrand Ewanga, a member of the National Assembly of the Democratic Republic of the Congo (DRC), which has been examined by the Committee on the Human Rights of Parliamentarians pursuant to the Procedure for the examination and treatment of complaints (Annex I of the revised rules and practices),

Referring to the information provided by the Speaker of the National Assembly in his letter of 8 October 2014, and by the complainant,

Considering that Mr. Ewanga, an opposition member of parliament, gave a speech on 4 August 2014 at a public rally, and was arrested in the morning of 5 August 2014; he was charged with insulting the Head of State and inciting racial and tribal hatred; he was tried before the Supreme Court in first and last instance under the flagrante delicto procedure; during the trial Mr. Ewanga claimed that the Constitution was violated, causing the judges to suspend the proceedings until a decision on these matters was made by the Constitutional Court; his challenges were rejected by that court and the trial before the Supreme Court resumed; he was subsequently sentenced to one-year imprisonment on 11 September 2014 on the charge of insulting the Head of State and other state officials,

Considering that according to the complainant, Mr. Ewanga was arrested, charged, and convicted in violation of his freedom of expression, parliamentary immunity and right to liberty and due process,

• As regards freedom of expression

Considering that,according to the complainant, article 23 of the DRC Constitution on freedom of expression was violated; Mr. Ewanga was exercising his freedom of expression and did not make any statements that went beyond legal criticism of a Head of State,

Considering that, according to the Speaker, a video of Mr. Ewanga’s speech was broadcast during the Supreme Court trial and forged the conviction of the Court that his words went beyond legal criticism of the Government’s action and were constitutive of a criminal offence,

Bearing in mind that the video and the transcript of Mr. Ewanga’s speech, provided by the complainant and other reliable sources of information, indicated that he stated that “Kabila must go”, that “he stole the elections”, that “he lied”, and that the Speakers of the Senate and the National Assembly, as well as the Prime Minister, were his sorcerers,

Bearing in mind that members of the international community, including the European Union and the United Nations peacekeeping mission in the DRC (MONUSCO), expressed concern over the arrest of Mr. Ewanga, questioned the appropriateness of the use of the flagrante delicto procedure, and called on the authorities of the DRC to take necessary measures to ensure that freedom of expression was protected,

Considering also that, according to the complainant, Ordinance-Law No. 300 of 16 December 1963, which stipulates the crime of insulting the Head of State, is not in compliance with the DRC Constitution promulgated in 2006 and with international human rights standards, and should be repealed or amended,

• As regards parliamentary immunity

Considering that the complainant alleges that Mr. Ewanga was arrested in violation of his parliamentary immunity; it contested the application of the flagrante delicto procedure and claimed that it was used abusively to circumvent the National Assembly and article 107 of the DRC Constitution, which reads that “Parliamentarians may not be prosecuted, investigated, arrested, detained or tried for opinions expressed or votes cast by them in the exercise of their functions”; it alleges that the use of the flagrante delicto procedure was abusive both because Mr. Ewanga was simply exercising his freedom of expression and therefore did not commit a crime, and also because he was not arrested at the moment that he gave his speech, but only the following day,

Considering that the Speaker of the National Assembly noted that, according to article 107 of the Constitution, parliamentary immunity only protects opinions or votes expressed in the exercise of parliamentary functions; he also stated that according to article 7 of the Congolese Criminal Code, the procedure of flagrante delicto can be applied whenever an infraction “produces effects … provided that this occurs shortly after the violation”,

• As regards pretrial detention and house arrest

Considering that, according to the complainant, Mr. Ewanga was put in jail on 5 August 2014 despite a Supreme Court order that he be placed under house arrest, which was finally executed on 8 August 2014 when Mr. Ewanga was transferred to a hotel in Kinshasa; the complainant contested, however, that pursuant to the legislation and existing jurisprudence on house arrest, he should have been placed under house arrest at his domicile,

Considering that the Speaker of the National Assembly stated that he intervened with the Prosecutor General to obtain enforcement of the Supreme Court order,

• As regards due process

Considering that, according to the Speaker of the National Assembly, Mr. Ewanga’s lawyers had access to the Supreme Court files, otherwise they would not have obtained a stay of enforcement of the case on account of pleas of unconstitutionality,

Considering that the reasoned rulings on both the Supreme Court case and the Constitutional Court case have not yet been made available to Mr. Ewanga and his lawyers by the DRC authorities more than one month after his conviction,

Bearing in mind that the Constitutional Court is not fully operational and that its proceedings continue to be conducted by the Supreme Court to date,

Bearing in mind that freedom of expression is protected by article 19 of the International Covenant on Civil and Political Rights (ICCPR) and that, according to the United Nations Human Rights Committee ICCPR general comment No. 34 (2011), “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties … all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition” (para. 38), “defamation laws must be crafted with care to ensure that they … do not serve, in practice, to stifle freedom of expression” (para. 47),

Considering that, during the Universal Periodic Review (UPR) in 2014, the DRC accepted to “ensure that the freedoms of expression and peaceful assembly are respected in conformity with international standards and that members of political parties, journalists and human rights activists are able to exercise their activities and criticize the Government without being subject to intimidation, reprisals or harassment” (para. 134.134 of the UPR Working Group Report,

1. Thanks the Speaker of the National Assembly for the information provided;

2. Observes that Mr. Ewanga criticized government policy, the Head of State and other state authorities; notes that the language of his comments was not conducive to promoting constructive and amicable political dialogue; but considers, based on the video and transcript of the speech, that his words fell within the scope of protected free speech pursuant to Article 19 of the ICCPR and should therefore have been protected; urges the DRC authorities, including Parliament, to consider all appropriate means of resolving the case, including presidential pardon, amnesty, or a retrial in full compliance with international standards;

3. Is deeply concerned that the procedure of flagrante delicto appears to have been used abusively and considers that the National Assembly should have inquired, in full respect of the principle of separation of powers, as to the grounds justifying the use of the procedure and made its own assessment on whether the procedure was used properly;

4. Notes with concern the allegations regarding the violation of due process and wishes to receive the reasoned rulings of both the Supreme Court and the Constitutional Court; reaffirms its longstanding view that the possibility to appeal is one of the principal guarantees of a fair trial; therefore urges the Congolese Parliament to create an avenue of redress in the judicial process applying to parliamentarians, so that they may enjoy the same full protection of the rights of defence in judicial proceedings, as all other citizens of the DRC;

5. Urges the authorities to repeal or amend the laws stipulating the crime of insulting the Head of State and other high political authorities and bring it in compliance with international human rights standards so as to prevent similar incidences from being repeated in the future; wishes to be kept informed in this regard;

6. Suggests that the IPU, in the context of a technical assistance programme, examine together with the parliamentary authorities the possibility of allowing them to benefit from its experience to address the underlying concerns reflected in this case;

7. Requests the Secretary General to convey this decision to the parliamentary authorities, the complainant and any third party likely to be in a position to supply relevant information;

8. Requests the Committee to continue examining this case and report back to it in due course.

---

Note: you can download a complete electronic version of the brochure "Results of the 131th Assembly and related meetings of the Inter-Parliamentary Union" in PDF format (file size 1026 Kb). This version requires Adobe Acrobat Reader, which you can download free of charge.

HOME PAGEIPU ASSEMBLYMAIN AREAS OF ACTIVITYIPU STRUCTURE AND DOCUMENTS