Democratic Republic of the Congo

There are three instruments relevant to the Democratic Republic of the Congo. 1. Law No. 23/027 on the Protection and Responsibility of the Human Rights Defenders; 2. South Kivu Provincial Edict, and; 3. North Kivu Provincial Edict.

1. Law No. 23/027 on the Protection and Responsibility of the Human Rights Defender in the Democratic Republic of Congo

Type of instrument: Ordinary Law*

Status (as at 1 December 2023): Promulgated on 15 June 2023 and gazetted on 8 July 2023

Comments on the instrument:

The law incorporates several rights provided for in the Model Law (as detailed in the below table) albeit in a rather formalistic way. While certain rights are provided for, including the protection of women and vulnerable HRDs under Article 6, they are merely enunciated but their content is not established. The Act does not have a provision that guides the way it should be interpreted (a general interpretation clause) which would have allowed the reader to understand whether the law should be interpreted broadly in favour of the protection of human rights defenders’ rights or narrowly by its letter. The DRC legal tradition being literalist in nature (laws are generally interpreted according to the literal meaning of the text, rather than according to their purpose or the context within which they were enacted), these provisions run the risk of being interpreted narrowly thus clawing back the rights already provided. This assumption is supported by the existence of limitation clauses under Articles 3 and 7 according to which rights should be exercised per the law, public order, morals and public health, some of the vague and open-ended reasons to restrict rights.

The law contains the duties of HRDs and indicates they have to follow them through. HRDs who do not respect their duties may be sentenced to between six months and one year imprisonment. Some of these duties include the obligation imposed on individual human rights defenders to submit an annual report of their activities to the National Human Rights Commission (CNDH) copying relevant ministries. This obligation institutionalises the function of an HRD and excludes individuals who promote and defend human rights occasionally.

Several criminal sanctions against HRDs defeat the purpose of the Act as they can be used to intimidate and discourage their activities while other criminal provisions targeting both state and non-state actors enhance the protection of HRDs against, among others, unlawful attempts on their physical integrity and security. The last part of Article 3 empowers the Minister of Human Rights to determine, through a ministerial arrêté, the modalities for the exercise of HRD activities. If not well scrutinised, this arrêté (order) may restrict further certain human rights.

Before it was promulgated, the law underwent significant modifications. See here proposals that preceded it: Senate. National Assembly, NHRI.

Does the instrument contain specific provisions easily used to restrain the rights of human rights defenders? Articles 3 and 7 are overarching general limitation clauses. Article 3 guarantees that HRDs may exercise their activities provided that they respect laws and regulations. Article 7 enjoins HRDs to respect the constitution, regional and international agreements as well as laws and regulations. According to Article 7(2), HRDs should exercise their rights and freedoms responsibly, with neutrality and impartiality following the law, public order, good morals and general interest. It encourages HRDs not affiliated with civil society organisations to register with and obtain an identification number from the National Human Rights Commission (CNDH) while assuring at the same time the independence of the HRD vis-à-vis the CNDH. It is worth recalling articles 26, 27 and 28 criminalising certain conducts of HRD as these provisions can be used to restrict, directly or indirectly, the work of HRDs.

Does the law institute a mechanism for the protection of HRDs? There is no institutional mechanism established to protect the rights of HRDs. Article 16 simply empowers the CNDH to ensure respect for rights and obligations provided for under this law. If this provision were to be interpreted progressively, it may be seen to confer on the CNDH the power to establish a protection mechanism as is the case in Burkina Faso. The Minister of Human Rights can also establish a protection mechanism because of the power the HRD law vests in them to adopt an arrêté determining the modalities of the exercise of the rights of HRDs. However, this possibility would leave the mechanism with a weak legal basis and predispose it to interference of any kind. See here an informative review of other aspects of the law.

Comparison to the Model Law

Below is a short summary of the instruments compared to the Model Law. For additional information and analysis by ISHR on the Democratic Republic of the Congo, click here.

A selection of fundamental rights for human rights defenders incorporated in the instrument:

Provision	Covered	Analysis/articles
Definition of Human Rights Defenders	FULL	Article 2 Covers three groups of HRDs: a) general HRDs ‘every person who promotes and protects human rights’; b) HRDs by profession or status ‘as those individuals who, through their work, contribute to the realisation of human rights’; c) juristic HRDs covering legally constituted institutions and organs, of states or private sector
Right to promote and protect human rights and fundamental freedoms	PART	Article 3(6) confers on HRDs and not to ‘everyone’ the right to evaluate the state of human rights
Right to form groups, associations and organisations	PART	Article 3(1) misses a critical part of the Model Law including the clarification that organisations may be formal or informal, registered or unregistered and does not detail specific rights
Right to solicit, receive and utilise resources	FULL	Article 5
Right to seek, receive and disseminate information	FULL	Article 3(4) & (5)
Right to develop and advocate for human rights ideas	FULL	Article 3(5) & (6); Article 4
Right to communicate with non-governmental, governmental and intergovernmental organisations	FULL	Article 3(3)
Right to access, communicate with and cooperate with international and regional human rights bodies and mechanisms	PART	Article 4
Right to participate in public affairs	PART	Article 4 but a broader reading of the provision with other laws and the Constitution may lead to a FULL compliance
Right to peaceful assembly	FULL	Article 3(2)
Right to represent and advocate	PART	Article 3(8) it is less detailed than the Model Law but contains its gist
Right to freedom of movement	NONE	Article 3(9) guarantees free access of HRDs to detention centres
Right to privacy	NONE	Article 9 imposes on HRDs an obligation to respect the right to privacy
Freedom from intimidation or reprisal	FULL	Article 21 framed as a criminal offence to subject an HRD to any form of reprisals and harassment
Freedom from defamation and stigmatisation	NONE
Right to exercise cultural rights and to development of personality	NONE
Right to effective remedy and full reparation	PART	Article 16 & Article 15
Limitations on the rights of human rights defenders	PART	Article 7
Other rights and freedoms not affected	NONE
Responsibility to defend human rights and fundamental freedoms	NONE	Article 8

State obligations regarding human rights defenders in the instrument?

Provision	Covered	Analysis/articles
Obligation to respect, promote, protect and fulfil the rights of human rights defenders	PART	Article 12
Obligation to facilitate the activities and work of human rights defenders	PART	Article 13
Obligation to provide free access to materials relating to human rights and fundamental freedoms	NONE
Obligation not to disclose confidential sources	FULL	Article 13(1)
Obligation to prevent and to ensure protection against intimidation or reprisal	PART	Article 17(2), Article 19. Article 15 obligates the state to ensure broadly that violations against HRDs are prosecuted
Obligation to ensure protection against arbitrary or unlawful intrusion and interference	PART	Article 20
Obligation to conduct investigation	PART	Article 15
Obligation to ensure effective remedy and full reparation	NONE

Mechanism on the protection of human rights defenders established in the instrument?
No

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Loi N°23-027 du 15 juin 2023

* Ordinary laws are different from organic laws and provincial edicts given that they are laws passed by parliament in the absence of a constitutional provision enjoining them to do so. In other words, it is not constitutionally mandatory to pass an ordinary law. On the contrary, an organic law, or a subsidiary law, is a law passed to implement a constitutional provision. In terms of normative hierarchy, the organic law is superior to an ordinary law as it has an infra-constitutional and a supra-legislative value. Consequently, an organic law cannot be assented into law before it is reviewed by the Constitutional Court to ensure it complies with constitutional provisions including the Bill of Rights. Pre-enactment constitutional review of ordinary laws is optional. Therefore, an ordinary law, such as the HRD law, can be passed and enacted with provisions which contradict the Bill of Rights and international human rights standards. A provincial edict is a legislative piece passed by a provincial parliament and is normatively inferior to an ordinary law. The two edicts on HRDs passed in Nord-Kivu and Sud-Kivu must thus be consistent with the (national) HRD law.

2. Edict N°001-2016 of 10 February 2016 on the protection of human rights defenders and journalists in the South Kivu province

Type of instrument: Provincial edict (order of the Governor of South Kivu)
Status: (as of 1 January 2022)
Adopted on 10 February 2016.

Comments on the instrument:
The Edict, adopted by the Governor of South Kivu, is short and does not contain many rights enunciated in the Model Law. Those that are included are redacted in qualified language (subjecting their enjoyment to the human rights defender being ‘in compliance with national law’) and are not as comprehensive as in the Model Law.

Does the instrument contain specific provisions easily used to restrict human rights defenders’ rights? No.

Comparison to the Model Law

A selection of fundamental rights for human rights defenders incorporated in the instrument:

Provision	Covered?	Analysis / articles
Definition of Human Rights Defender	FULL	2.1
Right to promote and protect human rights and fundamental freedoms	FULL	3
Right to Form Groups, Associations, and Organisations	FULL	4 c)
Right to Solicit, Receive and Utilise Resources	PART	10
Right to freedom of expression and to seek, receive and disseminate Information	FULL	5 a), 5 b)
Right to access and cooperate with NGOs, government organisations and intergovernmental organisations	PART	4 d)
Right to participate in public affairs	FULL	5 c), 6
Right to Peaceful Assembly	FULL	4 a), b)
Right to represent and advocate	NONE
Right to freedom of movement	NONE
Right to Privacy	NONE
Freedom from intimidation or reprisal	PART	14
Freedom from defamation and stigmatisation	FULL	14

State obligations regarding human rights defenders in the instrument?

Provision	Covered?	Analysis / articles
Obligation to respect, promote, protect and fulfil rights of human rights defenders	FULL	13
Obligation to facilitate the activities and work of human rights defenders	PART	9, 13
Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal	FULL	14
Obligation to investigate, provide an effective remedy and ensure reparation	FULL	7, 8, 15

Mechanism on the protection of human rights defenders established in the instrument?
No

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Edict N°001-2016 of 2016

3. Edict N° 001/2019 of 30 November 2019 on the Protection of Human Rights Defenders in the North Kivu Province

Type of instrument: Provincial edict (order of the Governor of the Province of North Kivu)
Status: (as of 1 January 2022)
Adopted 30 November 2019.

Comments on the instrument:
The Edict, adopted by North Kivu’s Provincial Assembly, represented progress at the local level for the protection of human rights defenders and prompted the reopening of discussions of adopting a national law on this subject. However, the Edict is rather short and contains only some rights in the Model Law.

Does the instrument contain specific provisions easily used to restrict human rights defenders’ rights? No.

Comparison to the Model Law

A selection of fundamental rights for human rights defenders incorporated in the instrument:

Provision	Covered?	Analysis / articles
Definition of Human Rights Defender	FULL	2.3
Right to promote and protect human rights and fundamental freedoms	FULL	3, 4.1, 4.6
Right to Form Groups, Associations, and Organisations	NONE
Right to Solicit, Receive and Utilise Resources	NONE
Right to freedom of expression and to seek, receive and disseminate Information	PART	4.2, 4.3
Right to access and cooperate with NGOs, government organisations and intergovernmental organisations	NONE
Right to participate in public affairs	NONE
Right to Peaceful Assembly	NONE
Right to represent and advocate	FULL	4.4, 4.5
Right to freedom of movement	NONE
Right to Privacy	PART	11.4
Freedom from intimidation or reprisal	FULL	5
Freedom from defamation and stigmatisation	FULL	5

State obligations regarding human rights defenders in the instrument?

Provision	Covered?	Analysis / articles
Obligation to respect, promote, protect and fulfil rights of human rights defenders	FULL	10, 11.1
Obligation to facilitate the activities and work of human rights defenders	FULL	3, 4.4, 11.2-11.4
Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal	FULL	6, 10
Obligation to investigate, provide an effective remedy and ensure reparation	FULL	12, 13

Mechanism on the protection of human rights defenders established in the instrument?
No

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Edict N° 001/2019 of 2019