Some have argued that article 156 of the Democratic Republic of Congo’s (DRC) 2006 constitution, which provides that “the military jurisdiction rule on the offenses committed by the members of the armed forces and national police,” has helped the DRC’s military to instill discipline. The punishing of soldiers according to this law, however, has had dire consequences. In a trend neglected in both policy and scholarly circles, the article has contributed to mass desertion of soldiers in the country. The neglect stems from the perception that soldiers, especially those in African militaries, are perpetrators of violence both during times of war and peace.
What is often missed in scholarly research and policy practice is that soldiers are also victims of the defense act within the armed forces. Understanding this is important to overcoming a critical knowledge gap by revealing the implications of the victimization of soldiers, which include mass desertions—an issue worrisome to the state and the soldiers affected, as well as to their families. This argument is supported by the experiences of former Armed Forces of the Republic of Congo (FARDC) soldiers now living in South Africa, recounted by them through formal interviews and informal conversations between 2011 and 2016. They are identified here by military code names, such as “Alpha Yank,” “Charlie Mike,” and so on.
Military court martial: Sources of victimhood
Military court martials are difficult to understand because they are often hidden from civilian eyes. Situated within army barracks and serving as punitive institutions for soldiers, their operations and procedures are known to military personnel only, with little attention paid to them by human rights organizations. The military judges, who are soldiers themselves, prosecute other soldiers according to rather draconian rules.
Military court martial proceedings are generally very long, and the procedures make it difficult for detained soldiers to challenge their detention.1AfriMAP and the Open Society Initiative for Southern Africa, “The Democratic Republic of Congo: Military Justice and Human Rights—An Urgent Need to Complete Reforms,” Discussion Paper, Open Society Initiative for Southern Africa, 2009, http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf, accessed April 13, 2016. According to ex-Congolese soldier Alpha Romeo, “No one tells you exactly when and where you are going to attend the court so that you can prepare legal representation.” Another army deserter, Charlie Mike, reveals, “You get detained and nobody cares. Commanders see it as part of the punishment even before you are found guilty of the offense.”
The indefinite detention of soldiers while awaiting court martial violates the constitution. It also exemplifies how the Congolese military acts outside it in punishing its members. Punishing before trial is seen as part of “soldiering” and of discipline, which creates confusion as to where the line is drawn between being military and being lawful. Sierra Tango, a Congolese army deserter, attested to this, noting, “In the military defense act, there is no such a thing as you are innocent until proven guilty by the court of law. In fact, you are always harassed even before you get to the court martial.” In short, the military prioritizes punishment over what is lawful for soldiers, disciplining its members with little consideration of them as citizens.
This infringement on soldiers’ rights to swift trial and legal representation is a cause for concern. Asked why soldiers fail to have legal representation for military court martial, Congolese army deserter Alpha Yank emphasizes what he sees as a failure based on “institutional character” and “affordability.” Upon further questioning, he adds, “Generally the army does not tolerate legal representation; the military is only interested in punishing the soldier.”
What constitutes “institutional character” in the military is an interesting question, as closer examination reveals different characters at play within the army barracks. In this case, institutional character is about the military as an institution that does not give in to the views of outsiders such as civilian lawyers, journalists, and other human rights actors. Hence, soldiers going through court martial believe engaging legal counsel will be unfruitful; and, with senior officers appointed as judge advocates prosecuting junior ranks, little space remains for fair engagement in the court room. This was revealed by Oscar Papa, a Congolese army deserter who notes, “Sometimes you just find a soldier who was just a platoon commander being part of the prosecution team; they have no knowledge of the law. They only harass you rather than following the correct court procedures.”
Distinction between court martial and civilian courts
Generally speaking, civilian courts are courts that specifically serve the civilians and are presided over by civilian judges. Conversely, the procedures of court martial are highly militarized. This does not necessarily mean the law is totally forgotten, but the ways in which it is practiced within the military have come under scrutiny.
Peter Way has observed many differences between court martial and civilian courts in both structure and practice.2Peter Way, “Brewed in Blood: Military Justice and Hydras Many Heads,” History Presentation, University of Windsor, 2012, http://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1003&context=historypres, accessed April 13, 2016. Just a few need be noted to reveal the ruthlessness of the court martial in prosecuting members of the armed forces. For one, the court martial is composed of uniformed judges, often arranged according to rank, so in most cases, very little argument regarding legal proceedings takes place within the bench. This is quite distinct from the civilian court system, where the police, prosecutor, and magistrate or judge represents distinct interests. The court martial also applies punishment very brutally and arbitrarily and contrary to the rights of soldiers as citizens.3Way, p. 4.
This essay reveals the ways in which soldiers become victims in the military institution. According to this perspective, some soldiers are victimized by the very military they serve through court martial proceedings that often delay prosecution and then serve up an unfair and tedious process. What is needed at the policy level is independent civilian jurisdiction to prosecute soldiers who commit offenses. This would help bring about fair trials, which may minimize future army desertions in the DRC and other African countries experiencing the same problem.
- 1AfriMAP and the Open Society Initiative for Southern Africa, “The Democratic Republic of Congo: Military Justice and Human Rights—An Urgent Need to Complete Reforms,” Discussion Paper, Open Society Initiative for Southern Africa, 2009, http://www.geneva-academy.ch/RULAC/pdf_state/AfriMAP-and-The-Open-Society-Initiative-for-Southern-Africa-Discussion-Paper-The-Democratic-Republic-of-Congo-Military-justice-and-human-rights-An-urgent-need-to-complete-reforms-2009.pdf, accessed April 13, 2016.
- 2Peter Way, “Brewed in Blood: Military Justice and Hydras Many Heads,” History Presentation, University of Windsor, 2012, http://scholar.uwindsor.ca/cgi/viewcontent.cgi?article=1003&context=historypres, accessed April 13, 2016.
- 3Way, p. 4.