flag of the Democratic Republic of the Congo

Democratic Republic of the Congo

There are five instruments relevant to the Democratic Republic of the Congo. 1. Senate draft law initially drafted by civil society and modified by the Senate. It is simple and does not create a protection mechanism; 2. National Assembly draft law initially prepared by civil society and amended by the National Assembly. While it recognises rights in the Model Law, it also contains many restrictive provisions. 3. NHRI draft law is comprehensive and practically analogous to the Model Law 4. South Kivu Provincial Edict is short and missing many rights from the Model Law 5. North Kivu Provincial Edict is short and contains only some rights from the Model Law.

1. Proposed law on the protection and responsibility of human rights defenders

Type of instrument: Law
Status: (as of 1 January 2022)
In Progress; Proposed by Senate, under review by Parliament.

Comments on the instrument:
The proposed law was initially drafted by civil society and was then modified by the Senate. It is simple and comprehensive. It includes almost all of the rights enshrined in the Model Law, except for the right to privacy. However, the rights are not as detailed as in the Model Law, but rather just listed; and no protection mechanism is created.

Does the instrument contain specific provisions easily used to restrict human rights defenders’ rights?
Yes. Article 17 states that legally registered human rights defenders must present an annual activity report to the Human Rights Minister, a requirement that could be used to restrict human rights defenders activities.


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 (as compared to the Model Law):

Provision

Covered?

Analysis / articles

Definition of Human Rights Defender

FULL

2.1

Right to promote and protect human rights and fundamental freedoms

FULL

2.1, 3, 3.7, 3.8,

Right to Form Groups, Associations, and Organisations

FULL

3.2

Right to Solicit, Receive and Utilise Resources

FULL

11

Right to freedom of expression and to seek, receive and disseminate Information

FULL

3.5, 3.6

Right to access and cooperate with NGOs, government organisations and international organisations

FULL

3.3, 10

Right to participate in public affairs

FULL

4

Right to Peaceful Assembly

FULL

3.1

Right to represent and advocate

FULL

3.7, 3.8, 3.9, 4

Right to freedom of movement

FULL

3.4

Right to Privacy

PART

6, 18

Freedom from intimidation or reprisal

FULL

5, 6

Freedom from defamation and stigmatisation

FULL

7

State obligations regarding human rights defenders in the instrument?

Obligation to respect, promote, protect and fulfil rights of human rights defenders

FULL

18, 21

Obligation to facilitate the activities and work of human rights defenders 

FULL

18

Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal

FULL

19

Obligation to investigate, provide an effective remedy and ensure reparation

FULL

8, 9, 20

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

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Proposed law

 

2. Proposed law on the protection and regime of the activity of human rights defenders

Type of instrument: Law
Status: (as of 1 January 2022)
In Progress; Proposed by National Assembly, under review by Parliament.

Comments on the instrument:
This draft law was initially prepared by civil society and then amended by the National Assembly. The draft is contrary to the spirit of the Model Law and contains multiple elements seeking to restrict the rights of human rights defenders and control them. While it does recognise many rights enshrined in the Model Law, even adopting some of its language, the numerous restrictive elements and the application to a very narrow set of human rights defenders (those the government considers as such) mean this law, if passed, would be deleterious to the rights of human rights defenders.

Does the instrument contain specific provisions easily used to restrict human rights defenders’ rights?

Yes. This law contains various provisions that could be used to restrict the rights of human rights defenders: 

  • Articles 2, 3.3, 7 and 8 restrict who is a human rights defender. Article 2 states that the term human rights defender applies only to those who ‘exercise on a permanent basis the protection of human rights’ and article 3.3 states that human rights defenders must be ‘a member of a non-governmental human rights organisation’. Article 7 requires human rights defenders to participate in a ‘Human rights organisation’ be of congolese nationality, over 18 years old, of ‘good morality’ and have a State Diploma, completed human rights training and not be subject to an irrevocable penalty. Article 8 requires multiple documents to accredit these elements.
  • Articles 10-12 establish a government registry of human rights defenders in the country.
  • Article 13 limits the right to defend human rights to laws, decrees and statutes of the organisation to which the human rights defender belongs.
  • Article 15 requires human rights organisations to present an annual report to the government.
  • Article 33 requires all resources received by the human rights organisation to be reported to the government.
  • Articles 34-40 contain sanctions for human rights defenders who do not comply with requirements set by the law (for example making ‘unfounded declarations that alter public order’); these are redacted in broad terms and are highly-restrictive. 

Comparison to the Model Law

A selection of fundamental rights for human rights defenders incorporated in the instrument (as compared to the Model Law):

Provision

Covered?

Analysis / articles

Definition of Human Rights Defender

PART

3

Right to promote and protect human rights and fundamental freedoms

PART

2, 3, 19

Right to Form Groups, Associations, and Organisations

FULL

19.2

Right to Solicit, Receive and Utilise Resources

FULL

32, 33

Right to freedom of expression and to seek, receive and disseminate Information

FULL

5, 6, 14, 19.5

Right to access and cooperate with NGOs, government organisations and international organisations

FULL

19.3

Right to participate in public affairs

FULL

14, 18, 19.6

Right to Peaceful Assembly

FULL

19.1

Right to represent and advocate

PART

19.7, 19.8

Right to freedom of movement

FULL

19.4

Right to Privacy

PART

6, 19, 27

Freedom from intimidation or reprisal

FULL

21

Freedom from defamation and stigmatisation

FULL

19, 21, 28

State obligations regarding human rights defenders in the instrument?

Obligation to respect, promote, protect and fulfil rights of human rights defenders

FULL

4, 19, 31

Obligation to facilitate the activities and work of human rights defenders 

FULL

5, 6

Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal

FULL

4, 20, 21, 26

Obligation to investigate, provide an effective remedy and ensure reparation

FULL

4, 20, 29, 30

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

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Proposed law

 

3. Proposed law regarding the protection and responsibility of human rights defenders

Type of instrument: Law
Status: (as of 1 January 2022)
In Progress; Proposed by National Human Rights Institution, under review by Parliament.

Comments on the instrument:
The law proposed by the National Human RIghts Institution is comprehensive and practically analogous to the Model Law. The only provision not explicitly stated is the right to privacy; which is similarly absent from other laws in and beyond the region. While the text for each provision is shorter and not as expanded as in the Model Law, the essence of the rights is present.

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 (as compared to the Model Law):

Provision

Covered?

Analysis / articles

Definition of Human Rights Defender

FULL

2.1

Right to promote and protect human rights and fundamental freedoms

FULL

3, 3.7, 3.8, 7

Right to Form Groups, Associations, and Organisations

FULL

3.2

Right to Solicit, Receive and Utilise Resources

FULL

6

Right to freedom of expression and to seek, receive and disseminate Information

FULL

3.5, 3.6

Right to access and cooperate with NGOs, government organisations and international organisations

FULL

3.3, 5

Right to participate in public affairs

FULL

4

Right to Peaceful Assembly

FULL

3.1

Right to represent and advocate

FULL

3.9

Right to freedom of movement

FULL

3.4

Right to Privacy

PART

14

Freedom from intimidation or reprisal

FULL

13

Freedom from defamation and stigmatisation

FULL

15

State obligations regarding human rights defenders in the instrument?

Obligation to respect, promote, protect and fulfil rights of human rights defenders

FULL

18

Obligation to facilitate the activities and work of human rights defenders 

FULL

18

Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal

FULL

17, 19

Obligation to investigate, provide an effective remedy and ensure reparation

FULL

16, 20

Mechanism on the protection of human rights defenders established in the instrument?
No. Article 21 indicates that the NHRI will be in charge of promoting the effectiveness of the rights, duties and obligations contained in the law. 

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Proposed law

 

4. 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 (as compared to the Model Law):

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 international organisations

FULL

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

FULL

12, 14

Freedom from defamation and stigmatisation

FULL

14

State obligations regarding human rights defenders in the instrument?

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

 

5. 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 (as compared to the Model Law):

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 international 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?

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

5, 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