Fahamu Refugee Legal Aid Newsletter

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http://www.refugeelegalaidinformation.org
The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

Treatment of returned failed asylum seekers to the Democratic Republic of Congo

Contributed by Charlotte Manicom, LLM Candidate, Cape Town University.

The Fahamu Refugee Programme has launched the Post-Deportation Monitoring Network, which seeks to monitor what happens to failed asylum seekers after deportation and ensure organisational support for deportees once they arrive in the country to which they have been removed. The information gained can contribute to the collation of country of origin information (‘COI’) which, in turn, can be used in ongoing refugee claims and ideally, lead to fairer decisions.


This article collates recent information regarding the Democratic Republic of Congo, a country to which many states deport failed asylum seekers. The disconnect between the information provided by ‘official’ COI sources and Congolese/UK organisations on the ground exemplifies the urgent need for thorough and accurate COI.


Introduction

The elections in the Democratic Republic of Congo (DRC) have resulted in renewed repression of anti-Kabila political activity. This, paired with recent Country of Origin Information (‘COI’) on DRC and a rising concern among human rights organisations, has motivated this submission.[1][2][3]. Information regarding the treatment of returnees in DRC and relevant caselaw, form the conclusion that it is particularly dangerous for failed asylum seekers to be returned to DRC. This report recommends the reconsideration of returns to DRC, especially of those asylum seekers whose claims are based on opposition political involvement.


General treatment of returnees in Congo DRC

The screening process at the airport

In theory, most returnees face a reasonably standard procedure upon disembarkation in Congo DRC, which has been corroborated by several sources.[4] On their arrival to N’Djili Airport, returnees will be screened and interrogated by Direction Générale des Migrations (‘DGM’) officials. If they are found to be on a ‘wanted’ list, they will be transferred to prison or a detention centre.[5] If returned to Kinshasa, such returnees will usually be transferred to Kin Mazière or Makala Prison. If deported to Lubumbashi, they will usually be transferred to Kasapa Prison.[6] Depending on their perceived danger to the Congolese state, these detainees will face torture, prolonged detention or disappearance. Some are able to bribe their way out.[7]


In reality, this procedure is applied inconsistently: Unsafe Return, a report by UK-based NGO Justice First, reports that some returnees were handed to Congolese immigration officers, whilst others were handed to Congolese police.[8] It has emerged that, during recent returns to Lubumbashi, Congolese officials transferred returnees directly to prisons or screened them at the prison itself.[9]  Some returnees do not face difficulty in the airport itself but rather are subject to the state security afterwards,[10] (secret police or ANR) which is a particularly efficient force in targeting potential opponents[11] and which has a ‘very good and wide network throughout the country’.[12]


Outside the airport: Congolese state security

Trefon describes how the administrative aspect of the Congolese state ‘might be very weak in carrying out development… but it is very strong in terms of security and surveillance’.[13] With regards to surveillance of opponents, the state is ‘extremely efficient’.[14] He confirmed the state security’s bugging of SIM cards as an acknowledged form of surveillance, which was corroborated by Unsafe Return.[15] A 2008 report by Human Rights Watch further confirms government agents’ use of text messages, anonymous calls and night visits as methods of intimidation.[16] The capacity of Congolese intelligence services has deep implications for those returnees with political involvements. Those interviewed for Unsafe Return resorted to using disguises, arranging night-time meetings and taking different journeys for fear of being picked up by state agents.[17]


Imputed Political Opinion

Several reports document the assumption, on the part of the Congolese state officials, of returnees’ political involvement.[18] The Evening Gazette reported on a returnee who ‘was told he was arrested because he was from London, from the UK, and against the regime and had to be punished’.[19] Dianne Taylor corroborates such treatment in her article.[20] Taylor further refers to the presidential candidate Marie Thérèse Nlandu, who had herself been imprisoned in the DRC. In 2007, she made a speech at the All Party Parliamentary Group at Great Lakes, explaining that Congolese abroad (in this case, Britain) are viewed as traitors.[21] The fact that returned asylum seeker are, simply for having applied for asylum in another state, considered political threats in DRC is corroborated by various other sources.[22]

The Congolese media also plays into the imputed political opinions of returnees. Vircoloun described how ‘expulsions have been described by the state media as politically motivated’.[23] The national television broadcaster, RTNC, portrayed the return of Congolese deportees from South Africa in early March as ‘combatants’.[24] Furthermore, after recent anti-Kabila protests in Johannesburg were filmed, 150 Congolese participants were arrested. Tolsi reports that ‘police spokesperson Captain Dennis Adriao confirmed that 150 people had been arrested… The arrests made came after the team’s investigations which included examining footage of several incidents of this nature.’[25] There is news that around twenty of those arrested face deportation and are being held in Lindela Detention Centre. Furthermore, Aurelia Segatti [26] writing from Kinshasa, confirmed that the video of the Johannesburg protest was ‘subsequently shown at the RTNC [Radio Télévision Nationale Congolaise] in Congo thus reinforcing the idea that Combatants are thugs that ought to be eradicated (terms used in that video)’.[27]


Reports regarding treatment of returned failed asylum seekers.

Unsafe Return

Unsafe Return has received attention both within media and judicial spheres.[28] The UK Country of Origin Information Service (COIS), which published their latest report on Congo DRC in March 2012, quotes Unsafe Return at length. COIS is used in Refugee Status Determination procedures and in subsequent court cases. Interviews for the report took place in the DRC in 2011.[29]


The report found that 13 out of 24 returnees were ‘subject to some degree of interrogation, arrest, imprisonment, verbal, physical and sexual abuse, rape and torture’;[30] six out of nine deported children were also imprisoned.[31] Three of these children required medical treatment following their imprisonment in DRC.[32] Seven out of ten Justice First clients who had been retuned were imprisoned without access to a lawyer. Two out of the five female returnees were raped on their return.[33]


UNHCR and other human rights organisations

A 2006 UNHCR report regarding the treatment of returnees found that, in general, they faced no real harm on return.[34] The report refers to IOM Kinshasa, who claimed to have no information regarding the mistreatment of returnees,[35] although it acknowledged conditions in detention centres (to which returnees are transferred) as ‘dire’.[36]  L’Association Africaine de Défense des Droits de l’Homme (ASADOH)[37] and Voix Sans Voix (VSV)[38] feature in the report as recording no mistreatment of refused asylum seekers.[39]


However, recent contact with the above mentioned organisations provides conflicting information. The former ASADOH Katanga president[40] confirms his belief that returnees are being detained in prisons and disappearances being commonplace.[41] The VSV was recently found to no longer have offices at N’Dijili airport due to restricted resources, thus their ability to comment on the treatment of returnees is somewhat affected.[42] The suspicious death of Floribert Chebeya, VSV president, in 2010, has led many returnees to fear being involved with, or revealing information about, the VSV.[43] In a phone interview in 2010, Mr Chebeya stated that returnees were imprisoned.[44] This is contrary to VSV’s position in the UK Country of Origin Information report.


The ASADOH president further confirmed that there have been several arrests of Congolese returnees from South Africa. There were 45 returnees who landed at the Loano airport in Lubumbashi in early 2012. They were taken directly to the Kasapa prison.[45]


Comité des Observateurs des droits de l’Homme (CODHO) found, in February 2011, that returnees’ fates are at the discretion of the DGM official. If a returnee presents a ‘problem’, in that they are known for their position against the state, they will be ‘exposed to ill-treatments when arriving in Ndjili [airport]’.[46]


Recent media reports

Jenny Cuffe, writing for the BBC, reports on returnees facing torture and detention in jail. Her interview with an ANR official exposes how ‘political dissidents, people who leave the country and go to say bad things about the government’ face detention. When asked what would happen to them, the ANR official only answered, ‘everything’.[47] Cuffe contacted Celestin Nikiana, a human rights lawyer in the DRC, who had found returnees in Kin Mazière who had ‘been there for more than five years without charge’.[48] Dianne Taylor, reporting for The Guardian (UK), exposes the torture faced by two returnee, who were detained in Kin Mazière prison. This included beating, burning and forced sexual acts. Furthermore, her report found ‘entries in the Kin Mazière logbook, leaked to The Guardian, [which] confirm the men’s [returnees’] detention there’[49]. Niren Tolsi, writing for The Mail and Guardian (South Africa) reports that, of a South African deportation to DRC in February 2012, 46 out of 52 returnees were detained at Kasapa prison. Here, they were ‘deprived of food and water, threatened, beaten and interrogated about their political affiliations’.[50]


Prison Conditions

The prison and detention conditions of the DRC, in which many returnees find themselves, are widely reported to constitute a violation of basic human rights. It must also be taken into consideration that human rights monitors are often denied access to sites of detention[51] and so resulting information is indicative only. Regarding Kin Mazière prison, human rights monitors are often denied entry and, if they are, as ‘detainees are reportedly hidden’.[52]


The US Department of State 2010 human rights report on DRC found that prison conditions ‘remained severe and life-threatening…in several instances, detainees died from starvation…sexual violence continued to be a serious problem in prisons’.[53] It further reports on a lack of medical facilities, underfunding, over-crowding, poor maintenance and a lack of sanitation facilities.[54]


Those conducting the torture in Kin Mazière are typically members of the Special Services Branch of the Congolese police: a ‘highly politicised unit, allegedly reporting directly to the Présidence’.[55] Furthermore, ‘reports of arbitrary arrest and detention for political reasons, as well as the use of torture, cruel, inhuman and degrading treatment by its members are well documented by the UNHRO’.[56]

MONUC’s recent report on human rights in the Congo DRC states that:

‘The intelligence services, both civil and military (l’Agence Nationale de Renseignements - ANR and the ex-DEMIAP), the Special Services Branch of the PNC [National Congolese Police] in Kinshasa (Kin Mazière) and the Republican Guard (RG) were responsible for approximately 8 % of the human rights violations documented [in Congo DRC] during the reporting period [of this report].’[57]

Dianne Taylor interviewed a former member of the PNC, who was involved in acts of torture carried out at Kin Mazière. Rapes, beatings and electrocutions of opponents of the government (both in DRC and abroad) were recorded. Taylor writes that ‘many of the inmates have been deported from the UK, France and Germany’.[58]  


Recent reports on Congo DRC and consequences for returnees

The most recent report by the Office of the High Commissioner for Human Rights on the DRC documents human rights violations in during the elections in Congo,

‘…where at least 33 people were killed… by members of the defence and security forces. At least 16 people remain unaccounted for. Furthermore, the UNJHRO documented the arrest of at least 265 civilians, most of whom have been detained illegally and/or arbitrarily, mainly due to their real or alleged affiliation to a political opposition party or for coming from Mr. Etienne Tshisekedi’s home province or to other provinces where he enjoys significant support.’ [59]

In short, the report found ‘multiple cases of arbitrary executions and enforced disappearances of civilians and excessive use of force’ during the election period.[60] Most human rights violations were against l’Union pour la Démocratie et le Progrès Social (‘UDPS’) members, and the ‘number of reported violations affecting UDPS members appears to be rising rapidly’.[61] The report focuses on an event at N’Djili Airport in November 2011 when several UDPS supporters were shot by members of the defence and security forces during the dispersal of a UDPS gathering.[62]

Several other allegations of murders, mass graves and shootings were reported to MONUSCO. This did not form part of the overall death toll during the run-up to election, however, as MONUSCO were disallowed entry to detention centres and alleged graves.[63]

Kabila won the presidential elections, taking 49% whilst Tshisekedi of UDPS took 32%.[64] The elections were disputed, and Tshisekedi was put under unofficial house arrest.[65] As the UK case AB and DM (Risk Categories Reviewed - Tutsis Added) DRC v SSHD set out, the risk of persecution on return to DRC fluctuates in accordance with the political situation.[66] Taking into consideration the relatively slim victory of Kabila and the oppression of political opponents,[67] it would be reasonable to conclude that Congolese failed asylum seekers face a heightened risk of persecution on their return, especially based on imputed political opinion.


Other groups particularly at risk

UDPS members, Rwandans and women are found to be at particular risk of maltreatment on return to DRC. Tolsi finds, in researching for his article, that returnees were asked during interrogation if they were involved in the UDPS.[68] The case of AB found that ‘returnees of Tutsi ethnicity or believed to be of this ethnicity could be at real risk on return’.[69] This includes those who have or are presumed to have ‘Rwandan connections or are of Rwandan origins’.[70] This is further confirmed in other reports.[71] AB further confirmed that there existed a real risk for those with a political or military profile on return.[72] This paper asserts that, based on recent reports and events in Congo DRC, there exists again a real risk for those with political profiles.

As mentioned above, Unsafe Return reports that two out of five female returnees were raped on their return to DRC.[73] Rape has become so commonplace that one senior UN official called the country ‘the rape capital of the world’[74] and rape of women within prisons is rife.[75]


Conclusion

The political situation in the Congo DRC has not yet settled following the 2011 elections. Taking this current political situation into consideration, accompanied by recent reports documenting the maltreatment of political opponents and returnees in DRC, this report recommends a suspension of removals to DRC until the safety of returnees can be confirmed.



References
[1] Reference to ‘returnees’ in this paper refer to those asylum seekers who are refused refugee status in their host state and returned to Congo DRC. Focus is upon South Africa but the information regarding returnees’ treatment is applicable to all returnees’ regardless of which host state is involved.
[2] Theodore Trefon is a Congolese affairs analyst for the BBC and author of the recent book Congo Masquerade. He is senior researcher at the Royal Museum for Central Africa. Personal correspondence.
[3] This includes Catherine Ramos, one of the directors of Justice First and author of Unsafe Return, a recent report on Congolese returnees, referenced below (personal correspondence) and Theirry Vircoulon, expert on the Congo DRC, referenced below (personal correspondence) and representatives of the African Centre for Migration and Society at the University of the Witwatersrand (personal correspondence).
[4] J Cuffe ‘Asylum questions for Congo DRC’ BBC News (1 December 2005), C Ramos Unsafe Return (2011) and Refugee Documentation Centre of Ireland Information regarding the dangers for failed asylum seekers returning to the DRC (2010).
[5] UK Border Agency The Democratic Republic of Congo: Country of Origin Information Report (2012) 185. Unsafe Return (n above) 18, Cuffe (n above).
[6] The conditions of such prisons are explored below.
[7] Cuffe (n above).
[8] Justice First (n above) 19.
[9] Thierry Vircoloun, personal correspondence, 27/04/12. Vircoloun is an expert on the Congo DRC, having worked for the French Foreign Ministry and the European Commission in the DRC.
[10] Justice First (nX above) 20
[11] Trefon (n above), Human Rights Watch (HRW), ‘We Will Crush You’: The Restriction of Political Space in the Democratic Republic of Congo (2008), 1-56432-405-2.
[12] C Querton and S Huber Comments on the Operational Guidance Note on Democratic Republic of Congo prepared for Still Human Still Here (2008) 38.
[13] Trefon, Interview, 31/03/12.
[14] Ibid.
[15] Unsafe Return (n above) 13.
[16] HRW (n above) 5.
[17] Unsafe Return (n above) 11.
[18] Querton (n above) 8.
[19] J Desira ‘Campaigners claim asylum seeker is beaten on Congo return’ Evening Gazette, 8 June 2009.
[20] D Taylor, ‘Torture fate ‘awaits UK deportees’ The Observer, 16 September 2007.
[21] Ibid.
[22] D Taylor ‘Britain sending refused Congo asylum seekers back to threat of torture’ The Guardian, 27 May 2009.
[23] T Vircoloun, personal correspondance, 26/04/12.
[24] This was highlighted by Ms. Aurelia Segatti, a Senior Research Fellow African Centre for Migration and Society University of the Witwatersrand. The broadcast can be viewed at:  http://www.youtube.com/watch?v=x-tlCtqwlO4&feature=player_embedded
[25] N Tolsi ‘Congolese nationals claim intimidation during raids’ Mail and Guardian, 21 January 2012.
[26] See n24 above.
[27] Segatti (n above), personal correspondence, 12/05/12.
[28] N Tolsi ‘South Africa ignores deportee torture claims’ Mail and Guardian (9 March 2012) and D Taylor ‘Refused asylum seekers ‘face torture’ in Democratic Republic of Congo’ The Guardian (25 November 2011).
[29] Unsafe Return (n above) 11.
[30] Ibid. 16.
[31] Ibid. 15.
[32] Ibid. 21.
[33] Ibid. 19.
[34] UNHCR Response to Information Request – DRC: Treatment of rejected asylum seekers (2006) 1.
[35] Ibid. 2.
[36] Ibid. 2.
[37]  L’Association africaine de Défense des droits de l’Homme is a human rights organisation working in Congo DRC. http://asadho-rdc.net.
[38] Voix Sans Voix is a human rights organisation working in Congo DRC. www.vsv-rdc.com.
[39] UNHCR Response to Information Request (nX above) and UKBA (nX above).
[40] The former president of ASADOH now presides over Justicia Asbl, a Katanga-based organisation defending human rights. The organisation especially focuses on refugees and IDPs. The website, which is under construction, can be found at justicia.blogs.continentalnews.fr.
[41] Personal correspondence, 17 April 2012.
[42] Unsafe Return (n above) 31.
[43] Ibid. 34, 15.
[44] Ibid. 31.
[45] Personal correspondence 2 March 2012.
[46] UKBA (n above) 186.
[47] Cuffe (n above).
[48] Cuffe (n above).
[49] Taylor (n above).
[50] Tolsi (n above).
[51] HRW (n above) 12.
[52] Ibid. 7.
[53] US Department of State 2010 human rights report: Democratic Republic of the Congo (2011) 10.
[54] Ibid.
[55] MONUC Human Rights Division, United Nations The Human Rights Situation in the Democratic Republic of Congo (DRC) (2007) 7.
[56] Ibid.
[57] MONUC (n above) 2.
[58] Taylor (n above).
[59] Office of the High Commissioner for Human Rights Report of the United Nations Joint Human Rights Office on human rights and fundamental freedoms during the pre-electoral period in the Democratic Republic of Congo (2011) http://www.ohchr.org/Documents/Countries/ZR/UNJHRO_HRElectionsReport_en.pdf.
[60] Ibid. 19.
[61] Ibid. 21.
[62] Ibid. 9.
[63] Ibid. 7 and 11.
[64] Figures are rounded. Commission Electorale Nationale Independente Election presidentielle 2011 (2009)
[65] BBC ‘DR Congo’s Tshisekedi under unofficial house arrest’ BBC News, 26 January 2011.
[66] AB and DM (Risk Categories Reviewed - Tutsis Added) DRC v. Secretary of State for the Home Department, CG [2005] UKIAT 00118, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 21 July 2005, para 51(iii).
[67]HRW (n above), UN (n above).
[68] N Tolsi ‘South Africa ignores deportee torture claims’ Mail and Guardian http://mg.co.za/article/2012-03-09-sa-ignores-deportee-torture-claims
[69] AB and DM v SSHD (n above) 39.
[70] Ibid. 51(i).
[71] Cuffe (n above).
[72] AB and DM v. SSHD (n above) 44.
[73] Unsafe Return (n above) 19.
[74] T Trefon ‘Failed State: can DR Congo recover?’ BBC News (21 November 2011).
[75] USSD (n above).
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