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Haut-Uele: Justice and Security Mechanisms in Times of Conflict and Isolation

July 2016

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University of Antwerp

This paper discusses the justice and security mechanisms in Haut-Uele district. It shows how the district has a long history of marginalization and degradation. In the context of degraded state institutions and geographical isolation, the resolution of conflicts remains limited to a local and isolated level through which a small number of actors – particularly the customary chiefs - play an important role. Moreover, it is shown how different actors make deliberate efforts to concentrate decision-making processes at their own level. All this has strongly negative consequences for the beneficiaries. Secondly, it is shown how the presence of the LRA rebel group has further accelerated this process, since the conflict has increased the isolation of certain areas whilst at the same time making conflict resolution more multi-layered, as other actors such as the army and international organizations have become involved. The latter has had a positive impact for the beneficiaries.

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JSRP Paper 32

Haut-Uele: Justice and Security

Mechanisms in Times of Conflict

and Isolation

Kristof Titeca

(Institute of Development Policy and

Management, University of Antwerp)

July

2016

Although every effort is made to ensure the accuracy and reliability of material

published in this paper, the Justice and Security Research Programme and the LSE

accept no responsibility for the veracity of claims or accuracy of information provided

by contributors.

retrieval system, or transmitted in any form or by any means without the prior

permission of the publisher, nor be issued to the public or circulated in any form other

than that in which it is published.

Requests for permission to reproduce any part of this paper should be sent to:

The Editor, Justice and Security Research Programme, International Development

Department, LSE, Houghton Street, London WC2A 2AE

Or by email to: Intdev.jsrp@lse.ac.uk

ABSTRACT

This paper discusses the justice and security mechanisms in Haut-Uele district. It

shows how the district has a long history of marginalization and degradation. In the

context of degraded state institutions and geographical isolation, the resolution of

conflicts remains limited to a local and isolated level through which a small number

of actors – particularly the customary chiefs - play an important role. Moreover, it is

shown how different actors make deliberate efforts to concentrate decision-making

processes at their own level. All this has strongly negative consequences for the

beneficiaries. Secondly, it is shown how the presence of the LRA rebel group has

further accelerated this process, since the conflict has increased the isolation of

certain areas whilst at the same time making conflict resolution more multi-layered,

as other actors such as the army and international organizations have become

involved. The latter has had a positive impact for the beneficiaries.

Contents

Introduction ............................................................................................................................... 1

A history of increased isolation in Haut-Uele ........................................................................... 2

Economic developments ....................................................................................................... 2

Rebel groups ......................................................................................................................... 3

The justice and security sector in Haut-Uele ............................................................................. 5

Fragmentation and concentration of power ............................................................................... 9

The church and civil society in Haut-Uele .............................................................................. 11

The impact of the LRA conflict on actors of justice and security. .......................................... 12

Fewer actors in the field of justice and security .................................................................. 12

New actors introduced through the LRA conflict ............................................................... 15

Conflicts between the displaced and the local population ....................................................... 17

Conclusions ............................................................................................................................. 21

Bibliography ............................................................................................................................ 24

Haut-Uele: Justice and security mechanisms

in times of conflict and isolation

Kristof Titeca

Introduction

The District of Haut-Uele is part of Orientale Province and is situated in the North-

East of the Democratic Republic of Congo, bordering South Sudan and the Central

African Republic in the North, and Ituri in the East and South.

It has six territories –

Dungu, Faradje, Niangara, Rungu, Wamba and Watsa, and has a surface area of about

91,600 km² (Omasombo 2012: 27). During the last census in 2008, it was estimated to

have 1,652,866 inhabitants (Omasombo 2012: 70).

This paper aims at explaining how Haut-Uele’s governance structures, and

particularly its justice and security sectors, function in this situation of historical and

increasing isolation. This isolation occurs not only between the region and the rest of

the country, but primarily within the district itself: it will be shown how the lack of

infrastructure and communication have created a situation of far-reaching

decentralization, in which localities are largely disconnected from the rest of the

district, and from justice and security structures which go beyond that particular

locality. This does not mean that there are no more actors available in the field of

justice and security in these localities, but that power is concentrated in a number of

actors –particularly the customary chief and also the police. The customary chief is

closer to the population, and is considered more legitimate than the ‘modern’ courts,

which are perceived to be corrupt and unfair. It will be shown how the LRA conflict

had a dubious but strong impact on this concentration of power: on the one hand,

processes of isolation and concentration further increased, as insecurity pushed the

remaining state actors to urban centers, and insecurity made movement much more

difficult. On the other hand, through the LRA conflict, more actors became involved

in processes of justice and security – these were primarily international actors

(international NGOs and political sections of MONUSCO), but also the Congolese

army.

In order to demonstrate these arguments, this paper is structured in the following way:

The first section gives a brief overview of the history of increasing isolation and

conflict in Haut-Uele district. The next section looks at the general functioning of

justice and security mechanisms in Haut-Uele. This is followed by a section

explaining how isolation and concentration of power are key characteristics of these

mechanisms, and how this affects their actual functioning. The final sections examine

the impact of the LRA conflict on these characteristics and the new actors introduced,

as well as elaborating on conflicts between displaced people and the host population.

Its borders were determined by two agreements in 1894 – one English-Congolese agreement, and one

French-Congolese agreement.

The paper is based on field research in Haut-Uele in August 2012, March 2013 and

July 2013

, in which interviews were conducted with a wide range of actors including

government officials, customary chiefs, civil society actors, representatives from

international organisations and traders. Because of the security situation, research was

primarily conducted in Dungu. Additional research was conducted in localities on the

Dungu-Duru axis. A research assistant conducted additional research for the author in

Isiro and Faradje.

A history of increased isolation in Haut-Uele

Economic developments

In pre-colonial, and particularly in colonial times, the Haut-Uele district was

relatively prosperous. Agriculture was very important and the region considered itself

the ‘granary of Haut Zaire’ (Omasombo 2012: 262) with the most central activities

being cotton and coffee farming, as well as subsistence farming (primarily in rice,

maize, and manioc). Coffee played a particularly important role with 55% to 60% of

national production of the Robusta coffee bean coming from Isiro.

However, the benefits of these agricultural activities to the local population were

mixed. Firstly, European farmers and traders reaped most of the profits. They

established themselves in the area at the beginning of the 20

century with primarily

Greek traders playing a prominent role and having a presence in most towns of Uele

(Faradje, Dungu, Niangara, Watsa, etc). The Greeks (as well as Belgian and Indian

expatriates) strongly focused on the farming and trading of export crops (cotton and

coffee) as well as on elaeis (the source of palm oil) and ivory. They were also active

in the industrial transformation of Congolese agricultural products (Obasombo 2012:

259-260): Oil and rice mills and a cotton factory were installed (Omasombo 2012:

255-260). In other words, European (and to a lesser extent Indian) traders, rather than

local actors, played an important role in the most profitable aspects of this trade.

During this period, the necessary transport infrastructure was also put in place for the

export of these crops: for example a railway line was constructed during the colonial

period to export cotton and coffee (Omasombo 2012: 253-254).

Yet this did not mean that the region was an economic center. For instance, although

coffee was a very important crop, the province did not have a coffee manufacturing

plant despite being one of the most important coffee yielding areas of the country. It

was instead being “treated in areas which produce coffee of worse quality”

In the post-colonial period, President Mobutu relied both politically and militarily on

figures

from the Uele region for his regime. However, the impact of this at the local

level was very limited, since their political positions translated into little or no

development for the area. In common with the rest of the country, Mobutu’s

Zairisation had a strongly negative effect on Haut-Uele. By means of this policy,

begun in November 1973, President Mobutu wanted to take Zairean economic

resources out of the hands of foreigners and give them back to the Zairois. As a result,

foreign (and particularly Greek) traders left the province. However, mismanagement,

This paper was written in the second half of 2013.

Hally Mukimbwa-wa-Bakimbwanga ‘Isiro raconté par un journaliste’, Boyoma, Kisangani, vendredi

14 Septembre 1973, p.2; cited in Omasombo 2012: 262

For example Victor Nendaka, who had several high-level political positions under the Mobutu

regime.

inexperience, and a lack of know-how, in combination with a worldwide economic

crisis had disastrous consequences in Zaire as a whole, and also in Haut-Uele. This

was particularly visible in the coffee sector, where most of the big coffee plantations

were abandoned after their stocks were sold off. Other plantations were badly

managed. As a result, whereas in 1974 44,000 tons of coffee were sold from the two

Uéle districts, this had fallen to 12,000 tons by the end of the 1980s – going further

downhill after this (Omasombo 2012: 276) A similar dynamic was seen in the cotton

sector: mismanagement, in combination with a global crisis in cotton prices, led to the

closure of cotton manufacturing plants in Haut-Uele. Moreover, most oil mills

stopped their activities after the Zairisation with the last ones closing at the end of the

1980s.

The situation continued to worsen throughout the 1980s, 1990s, and 2000s. In this

process, Haut-Uele became increasingly isolated. Regional trade became extremely

limited and was largely concerned with products of little added value such as bananas,

manioc, and paddy (Omasombo 2012: 263-274). Moreover, there was a general

degradation of the road infrastructure; in 1934, Haut-Uele had 3,125km of roads but

by the end of the 1990s there were only 1,942km left, all in a poor state. In these

circumstances, Haut Uele became almost impossible to access, with plane and bicycle

remaining the only options. Yet, there are hardly any flights to the area

, and cycling

naturally takes a very long time. Apart from the transport infrastructure - and again

mirroring developments in the rest of the country - the general state infrastructure also

deteroriated; salaries were no longer paid and the disconnection from the central state

increased. Medical facilities are, for example, largely insufficient: in 2003, there were

26 doctors for a population of 1,267,231 (Omasombo 2012: 336). Although this was

an improvement on earlier times,

it is still largely insufficient and certainly in a

situation where medical facilities are seriously delapidated. Furthermore, only 8% of

schools are provided by the state in Haut-Uele

– which is about half as much as the

national average of 16,2% (De Herdt, Titeca and Wagemakers 2012: 684).

An important contributing factor to this increasing degradation and isolation was the

number of rebellions in the area and these are discussed in the next sub-section.

Rebel groups

The first rebellion in the area was the 1964-1966 Simba rebellion in which local

political and intellectual elites were particularly targeted. After this rebellion, the area

was peaceful for many years, until the ADFL (Alliance des forces démocratiques pour

la libération du Congo) started its rebellion in 1996. It particularly targeted the area

for its links with the Mobutu regime. The AFDL, and the subsequent rebel

movements controlling the area, took over the politico-administrative structures.

In 1997 the Rassemblement Congolais pour la Démocratie (RCD) started its rebellion

against the Kabila regime and in August 1998 the rebel troops arrived in Haut-Uele

and took over its capital, Isiro. The Congolese armed forces (Forces Armées

Mobutu for example had abolished the Isiro-Bunia-Kigali plane route – as it was largely used by

foreigners to export coffee.

In 1975, there were 13 doctors, 12 hospitals and 38 medical centres. (Omasombo 2012: 272).

Figures for 2008.

Congolais, or FAC) fled the town and looted the surrounding area

. At the same time,

Mai Mai groupings that had supported the FAC on certain occasions, burnt down

Dungu hospital. In September 1998, following the vacuum created by the retreat of

the FAC, the RCD (which had only taken over Isiro) convinced the SPLA to join their

fight. In September and October 1998, the SPLA took over Dungu and Doruma –

primarily to force Southern Sudanese refugees to return to Southern Sudan. They also

engaged in looting and destruction of the area. (Oxfam Quebec and UNHCR 2011:

10-13; Marks 2007: 15).

In 2000 the RCD split into RCD-Goma and RCD-KML and Haut-Uele fell under the

control of Mbusa Nyamwisi’s RCD-KML, that merged in 2001 with Bemba’s

Mouvement de Libération du Congo (MLC) to form the Front de Libération de Congo

(FLC). In 2002, the FLC imploded and a conflict emerged between the RCD-KML

and the MLC. These were titled respectively the ‘effaceurs’, or ‘effacer le tableau’,

(erase the blackboard) and the ‘écrivains’ (writers). Haut-Uele fell into the hands of

Nyamwisi’s effaceurs. Both sides were engaged in a brutal military campaign that

largely took place beyond Haut-Uele (mainly in Ituri – see for example HRW 2005:

24-25, 36-44; MRG 2004). However, this did not mean that Haut-Uele was exempt

from conflict; several battles for Dungu took place between both forces, and in 2003

Dungu fell under the control of Bemba’s écrivains who eventually manage to push

out Nyamwisi’s troops. Bemba largely controls Haut-Uele through an ally, Roger

Lumbala’s Rassemblement Congolais pour la Démocratie Nationale (RCDN), that is

engaged in various exactions against the population (Oxfam Quebec and UNHR

2011: 12). At this time RCD-N representatives were in charge of the major state

positions.

Furthermore, in 2002 a political-religious movement created and led by Simon

Kpologbele set out to conquer parts of Dungu and Ango territory. Kpologbele used

forced recruitment to achieve this aim and according to a report by Oxfam Quebec

and UNHCR (2011: 12), over 100 people were killed and at least 1,000 displaced

because of this conflict.

At the end of the rebellion, Haut-Uele was under the rule of a military comprising the

MLC and RCD-N troops, mixed with those of the RCD-KML, that came to constitute

the Congolese army or ‘Forces Armées de la République Démocratique du Congo’

(FARDC). These troops behaved in an undisciplined manner towards the population

and harassment was frequent since they were hardly ever paid and were thus preying

on the population. This situation improved slightly after the 2006 elections.

In late 2005, the Lord’s Resistance Army (LRA) arrived in Haut-Uele. It was initially

peacefully settled in Garamba National Park, but started launching small-scale attacks

from late 2007 onwards. The main trigger for a brutal campaign of attacks and

killings was the launch of ‘Operation Lightening Thunder’ by the armies of Uganda,

DRC and South Sudan,d supported by the USA, on 14 December 2008. The operation

largely failed and led to major attacks in which around 1,500 people were killed, and

around 2,300 abducted, in Haut- and Bas-Uele. Large-scale attacks continued up to

mid-2010, after which time the LRA went into survival mode whereby it was

primarily looting to survive, abducting people for a short time to carry food items,

after which they were mostly released. Although only a few LRA rebels are left in the

Particularly the route to Niangara.

DRC, their presence continues to have a strong psychological impact, as many people

prefer not to return home. (Titeca and Costeur 2015). Another important factor is the

presence of the Mbororo. The Mbororo are nomadic cattle keepers who have a long

history of moving through central Africa (Pax Christi 2007), but who started entering

the DRC from around 2000 onwards, and became active in Bas and Haut-Uele from

2005-2006 (Pax Christi 2007). The number of Mbororo was estimated at between

10,000 and 20,000, with between 100,000 and 160,000 head of cattle (Bathily 2008:

5). Because of these large numbers of cattle the Mbororo occupy large plots of land

and the animals destroy many crops and other assets. The local population complains

that no compensation is given and this has led to major tensions, with many wanting

the Mbororo to leave the area. The issue has been further exploited politically as the

Mbororo are, for example, accused of collaborating with the LRA (Titeca and Costeur

2015).

In summary, a history of gradual economic, political and physical marginalization and

degradation, combined with a recent history of conflict, has led to the increased

geographical isolation of Haut-Uele from the wider region. Previously flourishing

regional trade – for example with Southern Sudan – has come to a standstill over the

years. Moreover, communication and transport within the district has become much

more difficult.

The justice and security sector in Haut-Uele

Congo relies on a hierarchical judicial system in which both ‘modern’ and ‘customary’

courts play a part. As can be seen in Table 1, the different levels of customary courts

are the lowest level of judicial process, after which ‘modern’

courts come in. The

lowest level of the modern courts is that of the Peace Courts (or ‘Tribunaux de Paix’).

After their establishment in 1968, these Peace courts were intended to be the first

level of judicial access which would eventually replace customary courts. Yet,

through a lack of funding and political will, little of this materialized. According to a

report from the International Crisis Group (2006: 15), it is estimated that 80 per cent

of citizens do not have access to these ‘modern’ courts. As a result, customary courts

continue to play a dominant role in judicial processes and they have a large degree of

autonomy in doing so (Rubbers and Gallez 2012: 81).

Every territory

also has a

‘tribunal de territoire’. Whereas the Peace Court has ‘judges with general

competences’, and therefore has the mandate to decide on actual sentences, this is not

the case with the ‘tribunal de territoire’, which only has ‘judges with limited

competences’. The latter can only decide on transactional fines, hold someone for 48

hours, and refer cases to its hierarchy, but it cannot sentence someone as such. Every

chefferie has a principal tribunal (at the level of the chefferie) and a secondary

tribunal (at the level of the ‘groupement’).

This term is used by Rubbers and Galles 2012.

A donor report for example found that in 2004, of the 180 tribunaux de paix envisaged, only 53 were

functioning (Mission conjointe multibailleurs 2004: 76, cited in Rubbes and 2013: 18).

The district of Haut-Uele is divided into 6 territories (Dungu, Faradje, Niangara, Rungu, Wamba,

Watsa), which are in turn divided into chefferies. The number of chefferies has reduced considerably.

For example, in 1937, the territory of Dungu had 7 chefferies, 6 in 1939, 4 in 1952, and currently 3:

Wando, Ndolomo and Malingindo. Chefferies are in turn divided into groupements.

Table one: the legal system in Congo (Rubbers and Gallez 2012: 81)

‘Modern’ courts ‘Customary’ courts

Cours d’appel

Tribunaux de grande instance

Tribunaux de paix Tribunaux de territoire

Tribunaux de chefferie/secteur

Tribunaux de groupement

In Haut-Uele, the Grand Instance Court (‘tribunal des grandes instances’) and the

public prosecutor associated with it (‘parquet des grandes instances’) are based in the

capital Isiro. Normally, every territory should have a Peace Court (and associated

with it, a secondary prosecutor or ‘parquet secondaire’). While all six territories in

Dungu have Peace Courts, they are incomplete and/or lack personnel and

infrastructure including the secondary prosecutor. Moreover, the Grand Instance court

in Isiro is also incomplete, with only two instead of five judges.

The military have a garrison military court (‘tribunal militaire de garnison ‘) based in

Isiro (and, associated with it, an ‘auditorat de garnison’). There is supposed to be a

military prosecutor (the equivalent of a secondary prosecutor) in every territory; but

these are present in only 3 out of 6 territories.

The Congolese judicial sector has a range of problems, mirroring the general crisis of

the Congolese state. Corruption and a lack of resources are two major problems which

date back to the early days of independence. The judiciary had already become

strongly politicized and “clientelism and influence peddling among officeholders

became common” in the first phase of the Mobutu regime (Rubbers and Gallez 2012:

82). The general decline of the Congolese public sector (Schatzberg 1980; Young

and Turner 1985; Titeca and De Herdt 2011) further affected the judiciary sector. This

was particularly the case from the end of the 1980s, as new conditions for foreign aid,

and a shrinking internal economic base, accelerated the decline of the national

economy and the public sector. In this situation, “corruption was institutionalized as

the guiding principle of the behavior of the state representatives at all levels of society”

(Vlassenroot and Romkema 2007: 17). As with other sectors, salaries within the

judicial sector imploded, and the Mobutu regime encouraged corruption in the public

sector to supplement meager incomes. Courts were also largely left to ‘fend for

themselves’, which meant that salaries had to be raised locally. These tendencies

continue up to today. Few state resources are available for the judiciary: figures vary

between 0.1% of the state budget in 2008 (Vircoulon 2009: 94, cited in Rubbers and

Gallez 2012: 84) and 0.22% of the total state budget in 2009 (Boshoff et al. 2010: 10).

In common with other public sectors (cf. Titeca and De Herdt 2011; Titeca et al.

2012; De Herdt et al. 2013), the financing of this sector (and particularly the salaries)

therefore largely depends on the users; a reality which strongly encourages corruption

and affects the legitimacy of the judiciary. As Rubbers and Gallez (2012: 83) argue

with regards to the judicial sector in the 1990s “if their jobs gave them the opportunity,

they might also allow themselves to participate in fraudulent practices for money, e.g.,

destroying the evidence against someone charged for crime, making a judgment

contrary to the law, or moonlighting as legal advisers for private businesses”. A

similar analysis can be made of the situation today. Consequent reforms did little or

nothing to stop corruption or improve the expensive and unpredictable legal system

(Rubbers and Galez 2012: 84). As Vlassenroot and Romkema (2007: 25) summarize

“The enforcement of Congolese law suffers from a lack of capacities and resources,

high levels of corruption and the weak institutional organization of the criminal

justice system”. As a result, the legitimacy of the Congolese legal system is limited.

These general tendencies are reflected in Haut-Uele. In common with the rest of the

country, the justice sector started experiencing difficulties in the late 1980s and this

worsened during the 1990s. Salaries were no longer paid and the disconnection with

the national state increased – factors which had a negative impact on all state

institutions. As shown above, ‘modern’ courts are largely absent as a result. Therefore,

it was mainly the customary courts that kept the judicial system afloat and active.

Customary chiefs in the area are seen as particularly useful in ‘traditional’ or cultural

cases, particularly cases involving supernatural phenomena such as fetishes and

witchcraft, marriage problems and land issues. Also, even when ‘modern’ courts are

present, customary courts remain the preferred form of justice for most litigants.

Moreover, the legitimacy of modern courts is limited – actors from all levels of

society talk in very negative terms about the judicial sector, reflecting a general belief

that the modern justice system only reflects the financial power of the actors involved,

as judges can easily be bribed, favoring the wealthiest or most influential bidder.

is therefore not to be considered as a mechanism which is easily able to resolve

conflicts but is instead seen as a mechanism which further engenders conflict.

Customary authorities are perceived to have more advantages: they are perceived to

be closer to the population and to be more accessible; and also to be ‘cheaper’ i.e. less

money is charged than with the state. As a trader summarizes “they are closer to the

population and easier accessible. Also for the most vulnerable: you don’t have to

always pay for it”.

As one civilian from Bangadi commented: “it is much easier to

see the customary chief, and he doesn’t create any problems when people go to see

him”.

The result of this general situation was that in most of the territory, processes

of justice were largely monopolized by customary courts.

One final perceived

advantage of the customary chief is that he allows things to be solved in a “friendly

way”

where there is not too much conflict involved. This advantage also brings us to

the downsides: the judicial role of the customary court has become severely criticized

by human rights and civil society organisations, as customary judicial authorities

largely overstep their mandate. People can be held for a considerable time

although

customary chiefs are only allowed to hold people legally for 48 hours; forced labor is

Throughout the research, a number of ‘notorious’ cases kept being mentioned, in which for example

occupants were chased off their land by claimants who worked together with local political and judicial

authorities.

In doing so, this finding mirrors research by Rubbers and Gallez in Lubambashi, where they found

that “The exchange of complaint after complaint may culminate in the level of the conflict becoming

disproportionately high in comparison with the original problem” (Rubbers and Galllez 2012: 99).

Interview Dungu, 10 March 2013.

Interview civilian from Bangadi, Dungu, 07-03-13.

An international judiciary actor summarized this (by referring to the absence of modern courts)

“there was nothing on the judicial level when we arrived here, it was non-existent. (…) It was only the

first time with the chamber forain in Faradje, that people saw a tribunal there!” Interview international

judicial actor, 09-03-03.

Interview civilian Dungu, 09-03-13

In one research site, a man who had wounded his brother-in-law had been imprisoned for 4 months

with the customary chief, whereby he first had to build a hut, and then had to work on the chief’s land.

often used as a punishment; and, as will be explained below, the resolution of

conflicts in a ‘friendly way’ often leads to conflicts which remain unresolved (e.g.

with regards to sexual violence). Many of their practices are therefore in breach of the

penal code.

In this situation, access to formal justice is a major challenge. In general, courts are

rarely available, are often located (very) far away, often have few available staff, are

often corrupt and incur a high financial cost, and cases can take a very long time.

This situation naturally favors the wealthier and better-connected over the majority of

the population, and particularly the poor, who do not have the resources, connections

or knowledge to take cases to court. Moreover, language can also be a barrier as

judges and magistrates largely come from Kinshasa and speak Lingala, rather than the

Pazande spoken in Dungu. There is a consensus that access to justice remains

particularly difficult for women; or, as a civil society leader summarized “women

don’t have that much access to justice”.

This is related to several factors: in the

words of a woman representative, women feel too “inferior”

to go to court. “They

fear the court, they do not dare to go there. There are only a few women who dare to

go.”

It is also necessary to highlight that in this situation of weakly present state

institutions, the state itself has rather limited legitimacy. As a petty trader

summarized: “we feel abandoned by the state. We don’t see the authority of the state,

we don’t understand what it does for us”.

It will be explained below how this

became even more pronounced in the context of the (LRA) conflict. All of this

contributed equally (and continues to contribute) to the choice of the customary chiefs

as a first legal option, since they are seen as more legitimate than the state.

The security sector followed a similar trajectory as the judicial sector. During the

Mobutu era, police (at that time gendarmes

and civil guards) were in place in every

territory and every administration post (‘poste d’administration’) had small prisons

(‘cachots’). Mirroring the general evolution of the Congolese state, this became very

difficult from the late 1980s onwards, and particularly in the 1990s. During this

period, many police posts disappeared and the remaining posts were largely

concentrated in the large urban centers, which is still currently the case.

The police

continued functioning during the second Congolese war, but proved powerless in the

light of the different invasions. Generally, policemen are insufficient in number and

their salary is inadequate, hence they seek to supplement their salary by extracting

revenue from the population. In rural areas police are largely absent as not only are

they not based there, but they rarely visit these areas since they have no funds, or

means of transport.

This mirrors similar research in Eastern DRC by Scheye (2011: 13).

Interview civil society leader, Dungu, 12-03-03.

Interview women leader, Dungu, 11-03-13.

Interview women leader, Dungu, 11-03-13. This is also related to a lack of knowledge as they are

insufficiently informed about their rights. Their financial status also plays a role since women do not

have sufficient resources to pay for justice. This not only affects their access to justice, but also the

judicial process itself since those with more resources – usually men –can more easily corrupt the

court.

Interview trader, Duru, 12-08-12

With the ‘Zairianisation’ in 1975, the police became ‘gendarmes’, and were installed in several posts

on the territory (Ndedu, Bangadi, Doruma, Ngilima, Yakuluku, Gangala Na Bodiyo).

In Faradje, there are for example 15 police agents.

The lack of prisons is another problem. Dungu had a prison dating back to the

colonial era that was largely destroyed by a storm in 1998 and then looted by the

military before being partly rebuilt in 2012 by Monusco. The capital, Isiro, has no real

prison but merely a private home/depot where people are kept.

Fragmentation and concentration of power

In summary, Haut-Uele is characterized by a limited state presence and scarce

resources. This came about historically and is very visible in the justice and security

sectors. In generaly, state presence is largely concentrated in the few urban centers

(Isiro, Dungu, Faradje, Watcha), with very little state representation elsewhere in the

territory. ‘Modern’ courts and police are largely absent outside the few urban centers.

This section aims at explaining how this lack of state presence did not create a

vacuum, but rather the roles of the absent actors were taken over by others. A

frequently voiced statement throughout the field research was that “there is no politics

of empty chairs”,

as particular functions are taken over by other actors. However,

this has led to a particularly strong concentration of power in the hands of certain

actors such as the customary chiefs. This section will demonstrate the negative effects

of this on the beneficiaries.

In Haut Uele, processes of justice are very much localized, since the means to refer

cases to other, high-level courts are limited to non-existent. In theory, the most

serious cases should be referred to the ‘Tribunal des grandes instances’ in Isiro but in

practice most of these cases do not reach this level. Concretely, villages and towns

outside of Isiro do not have the means or resources to transport the accused to the

centers where higher-level judicial authorities are located. As described above, the

general transport infrastructure in the district is very bad. The road between the two

major towns – Isiro and Dungu – is for example only accessible by motorbike. Phone

communication is also difficult as phone coverage only exists in a minority of the

territory (e.g. Dungu, Isiro and Faradje). As a result, almost all cases – whatever the

matter – are treated locally. In a situation in which ‘modern’ courts are far away or

absent, but particularly because they are seen as largely corrupt, expensive and unfair,

they are never the first entry point. In the area cases are always handled by other

actors such as the customary authorities or the police.

The result is that many cases are dealt with by actors who often do not have the legal

authority or expertise to do so. Cases of sexual violence, for example, are not handled

by the relevant authority but are instead dealt with by customary authorities, or kept

by the police, or solved through arrangements between the families involved (with or

without a mediator).

This fragmentation, and concentration of power, is not only a consequence of the de

facto isolation of the different localities. Most interviewees stressed that different

actors try to concentrate power at their own judicial level by dealing with cases at

their hierarchical levels, since this constitutes a source of income. Fragmentation and

isolation therefore takes place in various ways: not only geographically, but also

among the different hierarchical levels. Those at particular levels of justice and

Interview civil society actor, Duru, 02-03-13.

security provision try to keep cases as much as possible at their level for financial

reasons, as this gives them more opportunities to make money. Judicial and security

actors use various mechanisms to do so. For example, they try to make the accused

believe that a transfer to a higher authority will land them a significant prison

sentence and that paying a certain amount of money to them is the best option. They

might warn litigants about high expenses, long procedures, and little to no satisfactory

results in modern courts. This situation reflects Englebert’s (2009) idea of legal

command, which highlights how state actors make use of their state power vis-à-vis

citizens for survival and enrichment. This works particularly well in circumstances of

isolation, fragmentation, and a non-transparent legal system. As a civil society actor

summarizes “everyone tries to profit as much as possible on his level”

. Hence, the

introduction of the Peace Courts also led to conflict between customary and state

justice actors (for example in Faradje), since the former were losing part of their

revenue through this introduction.

Similar dynamics can be seen at play in the case of the police, who also try to keep

cases as much as possible cases under their own authority. For example, although

cases of sexual violence are supposed to go to the secondary prosecutor as the police

can only keep the accused for 48 hours, this does not happen in reality and many of

these cases are dealt with by the police. In such cases, complaints are often dropped or

the accused have ‘escaped’, after payments have taken place. Moreover, the public

prosecutor to a large extent keeps cases at his level, despite the fact that he is legally

is not allowed to keep an accused for extended periods of time in prison. As a local

civil society report summarizes “there is a total malfunction and lack of collaboration

between the prosecutor and the tribunal, which explains why in most cases the

prosecutor does not bring cases before the tribunal, which leads to a total

dissatisfaction and disappointment among litigants. The proliferation of impunity is a

result of this situation.”

A factor which contributes to this situation (and is similar to

other sectors) is the lack of control by the various higher hierarchical levels - “il y a

une vide totale”

that gives the lower-level actors the opportunity to act in relative

freedom – particularly in more remote areas. A common complaint is the impunity of

the actors involved in these situations.

This concentration of power leads, however, to a number of tensions, as cases remain

unresolved, or lead to an outcome which is deemed unsatisfactory. Throughout the

research, examples were given of cases in which the customary chiefs did try to solve

serious issues (such as sexual violence) ‘amicably’, but which led to strong discontent

among one of the two parties, leading to violence, or threats of violence.

Thus, even

when cases are brought before the customary chief, tensions often remain in the

community - between the family of the victims and the accused, and between the

family of the victims and the judicial authorities who are accused of incapacity and

bias. In other words, as a religious actor summarizes, a major problem is “Conflicts

are never fully solved, and uneasy situations remain.”

For example, in one of the

Interview, civil society actor Dungu, 08 March 2013.

Coordination de la société civile du territoire de Dungu (2012) « Allocution à l’occasion de la visite

de son excellence madame le vice ministre de la justice et droits humains » Dungu, juillet 2012)

Local staff international NGO, 07-03-13

In this context, a church leader argued how “there only is judicial anarchy here: the police, military

and customary chiefs solve everything among themselves ‘à l’amicable’”.

Interview religious actor, Dungu, 08-03-13.

research localities in 2012, a man tried to kill someone but the victim survived the

attack. As there is no police presence in the area, the local chief arrested the culprit

and kept him for some time in his compound. Transporting the suspected attacker to

Dungu, the nearest town with police and relevant authorities, was not possible as the

chief only has a bike and the distance is too far (3 hours by car) and dangerous (as

there are frequent attacks on the road). Therefore, the chief eventually decided to

release the culprit, leading to major frustration among the family of the victim, who

threatened the kill the culprit. Tensions remained in the locality until the man was ‘re-

arrested’ by the army, to reduce tensions. These, and other examples, highlight how

such situations of impunity can lead to acts of popular justice or to the accused fleeing

the territory.

In sum, the concentration of power in the hand of a number of actors, in combination

with geographical isolation creates a range of negative effects for beneficiaries. There

are various unlawful and arbitrary practices, for example with regards to arrests and

fines: the accused are imprisoned for extended periods of time without trial; and

actors handle cases for which they often have no authority

. It has also created a

situation of strong monetization of the justice and security sector, which – apart from

the actual costs for the parties involved – creates a number of other negative

consequences: wealthier actors have better access to judicial and security services, it

creates unfair judicial practices, and so on. For many of those interviewed the judicial

system had little legitimacy, a situation which leads to tension and conflicts.

Importantly, many cases remain unresolved, as they remain stuck with a particular

actor - particularly the police and the customary chief – who is unable to resolve the

issue. Lastly, in this position of isolation and fragmentation there is very limited

external control from other hierarchical levels or actors and this only worsens the

situation.

The church and civil society in Haut-Uele

The church has played an important role in the history of the Congolese state, both in

terms of politics and of service provision. The ‘traditional’ churches (Catholic,

Protestant, Kimbanganuist) have an elaborate organizational structure “encompassing

almost every aspect of socio-economic life” (Tull 2005: 245). Thus, they provide a

wide range of services in the light of an absent state (such as education, health, social

affairs, and so on), and are “crucial points of access to the outside world” (Tull 2005:

245). These activities began during the colonial period, when they were part of the

colonial power (Young 1965: 10), and continued into the post-colonial period. The

church, and particularly the Catholic Church, has also played an important role in

Congolese politics. On the one hand, the Catholic Church has headed national

conferences and platforms for national dialogue, whilst on the other hand, it has

played an important role in political opposition, particularly in the protests against the

Mobutu regime (Boyle 1992).

The church has also played an important role in justice and security issues. This is

visible in Haut-Uele, where the Commission de Justice et Paix (CDJP) in particular

has played an important role. The CDJP is an organization of the Catholic Church that

For example, cases of murder and sexual violence can only be handled by the tribunal in Isiro.

was founded in 1996

to defend human rights and the dignity of human life. Its aim is

“advocacy, lobbying, civic education, the functioning of the judiciary in Congo, the

prevention and resolution of social conflicts, judicial assistance of victims, (…) small

arms, monitoring of violence.”

The ‘Commission Paroisse de Justice et Paix’ was

established to work at the local level and to get in touch with the headquarters if

necessary. The CDJP considers itself as a ‘counter-power’ of the administration, to

monitor abuses in the field of justice and protection. It plays an important role as a

“go-between for every problem, and particularly towards the state”

. For example,

when the army lootings started in 1992-1993, it was the church that passed on this

information to the state. Similarly, when the 1964 Simba rebellion erupted, it was the

church that ensured this information was made public. In the field of protection, the

CDJP started an early-warning radio system, which allows isolated communities to

communicate, and seek help in case of problems. In general, people have more

confidence in the church than in the state: the church is perceived to be easier to

approach, causes less harassment, and is generally more effective. The church is, for

example, quicker to take action when a problem arises. This is important in the porous

border region of Haut-Uele where armed threats can appear suddenly. As an

example, the church played a pivotal role in the LRA conflict: while the government

consistently minimized and even denied the LRA threat, the church has been very

vocal in informing the outside world about it and the church was the first to denounce

the LRA violence in 2008.

The church also played an important role in the foundation of an ‘official’ civil

society in Dungu. The first civil society platform was started in 1995 from an

initiative of the church, and the first three leaders of civil society were church

leaders.

After the launch of the civil society platform, many other individual civil

society organisations (CSOs) came into being. The pressure from civil society

organisations played an important role in reducing the ‘illegal’ practices of the

customary chiefs (at least in urban centers), but it has also led to tensions between the

CSOs and customary chiefs. Chiefs complain about CSOs – which go “directly to the

population without consulting them first” – but particularly about human rights actors.

According to one customary chief “they always operate aggressively (…) They act as

if they represent another government.”

The impact of the LRA conflict on justice and security actors

Fewer actors in the field of justice and security

The LRA conflict further intensified the above processes of isolation and

fragmentation: many state actors fled to urban centers (and particularly Dungu),

leaving rural localities with a limited or non-existent state presence.

For example, in

During the second Vatican Council that promoted this kind of initiative.

Interview Abbée Benoit, coordinator CDJP, 07-03-13.

Interview civil society leader, Dungu, 08-03-13.

The organisations that founded civil society were the ‘Bureau de développement Diocesaine’, the

‘Bureau des oevres medicales’, the ‘Encadrement de la jeunesse pour la musique’, the trade unions of

teachers, nurses and workers, and Caritas.

Interview customary chief, Dungu, 04-03-13.

The influx of various state agents into more stable zones did not necessarily have a generally positive

effect. For example, it led to a general increase in various fees, whereby the police demanded more

inflated fees than usual. The conflict also allowed security actors such as the police and army to erect

Duru, a town on the border with South Sudan, all the state institutions have left

including the police, border police, immigration services, and custom officials.

Moreover, rural areas became even more isolated from the rest of the region, due to

insecurity on the roads. This made it more difficult – if not impossible – for the

judicial system to physically communicate, for example by transporting the accused

or victims to higher-level authorities; or for higher-level authorities to visit other

locations. In early 2013 for instance, two minors were raped by a teacher in one of the

research localities. Although the chef de poste wanted to transfer the cases to Dungu,

this was simply not possible, as there was no way to transport the culprit safely. For

want of other means, this would have had to happen by motor-taxi that would have

had to travel along highly insecure roads.

In general, there was an increase not only of the isolation of physical areas, but also of

various categories of state actors. For example, in theory local chiefs should report

every month to their ‘headquarters’ - the chefferie. This hardly ever happens, as there

is a lack of resources and as the ongoing insecurity makes mobility a problem.

According to the overall chief, because of their isolation, the chefs de groupment “live

in a vacuum (..) they cannot report messages to us, and we cannot report messages to

them”. As a civil society actor summarized, because of the conflict, “There is a void

left by the state and a crisis of authority“;

which other actors described as a

“vacuum”

, or a “situation of crisis”

The conflict also had a mixed impact on the role, and particularly on the legitimacy,

of the customary chiefs. The Zande population, and particularly its chiefs, see

themselves as a “belligerent”

group, in which an important role of the chief is to

protect his population and to be ‘in charge’ of his population.

Frequent reference is

made to resistance to colonial rule. As the chef de groupement summarizes, “The

Azande were a combative group. During colonial times, a number of chiefs for

example refused to assimilate themselves, and have resisted.”

Another frequent

reference is made to a ‘purely Zande regiment’ which participated in the second world

war and defeated Italian troops in Ethiopia (at the battles of Gambela and Assossa).

Throughout the history of the area, several self-defence units have been formed. The

first time was in reaction to the 1964 Simba rebellion

, when a ‘voluntary corps’

assisted South African mercenaries who did not know the terrain in Haut-Uele. A

second time was in reaction to the 1998 SPLA attack mentioned above. This attack

led to the forceful repatriation and recruitment of around 17,000 Sudanese refugees,

after their settlements in Dungu were attacked. The SPLA troops stayed for about one

month in which they were engaged in “wide scale looting (…) of vehicles,

roadblocks where fees were demanded.

Interview civil society actor, Dungu, 20-05-13.

Religioius actor, Dungu, 08-03-13.

Interview chef coutumier du Wando, 04-03-13.

Even in pre-colonial times, the Zande used armed conquest both to defend and extend their territory,

and also to extend their trading network (Omasombo 2012: 87).

Chef de Groupement, Dungu, 04-03-13

The Simba rebellion entered Haut-Uele in 1964, and it installed ‘people’s tribunals’, judging and

executing many people, particularly targeting the political and intellectual elite (Omasombo 2012: 171-

173).

Started by a local Dominican father, father Sukala.

dispensaries, and food supplies in the area (…) and forcible recruitment of refugees.

The looting also caused many civilians to abandon their homes and fields”

. Self-

defence units were started all over Haut-Uele in response to the SPLA looting and to

defend the territory.

These self-defence units remained in place for a considerable

time afterwards

and customary chiefs played an important role in the creation and

functioning of these units.

Even today, chiefs are considered to be the ultimate protectors of the community and

they are expected to protect their communities. When the LRA started attacking the

population, the army was only weakly present and was unable to deal with the sudden

threat. The population therefore organized itself once again into self-defence groups.

Customary chiefs played an important role in the organization of these and it was the

overall chief of the Wando chefferie – chef Constant – who was a catalyst, organising

a successful self-defence unit in the locality of Doruma, that managed to fend off the

LRA. A helpful factor for this self-defence unit was the availability of weapons in the

porous border zone. At a local level, other chiefs followed his example. When the

LRA attacks had seriously increased, customary chiefs sensitized and organized their

villages, saying “We only have one village; if we leave, we no longer have a village.

We have to resist these rebellions”

. In a number of cases, the chiefs relied on

traditional or spiritual elements to defend their village and several stories circulated in

this regard. For example, it was argued that in Bangadi the LRA was defeated because

the customary chief ordered bees to assist the self-defence units, and in the village of

Kurukwata (45 km outside Faradje) the chief relied on the spirits of the ancestors, and

through rituals such as the sprinkling of weapons was able to resist the LRA. “The

LRA was using special fetishes to fight us; we also had to rely on special powers”

The self-defence units proved to be very effective in protecting against the LRA, but

were considered a political threat by the Congolese government. In other words, while

being effective for state security, they were considered at the same time as a threat to

state security and were thus declared illegal. Chef Constant, who had started the

initiative, had to flee first to Isiro and then to Kinshasa, claiming to be threatened by

the government.

However, the fleeing of customary chiefs, even in case of emergency, was not always

well received. Chief Constant was eventually forced to return to his people

, as his

departure had led to serious discussions about his legitimacy, in which his leadership

became more and more contested. As one respondent commented: “it is the chief who

assures the population. When he flees, the state flees, the tradition flees, the protection

Human Rights Watch ‘DRC: Casualties of War, Civilians, Rule of Law, and Democratic Freedoms.’

Web edition. The SPLA remained in the border town of Aba, on the border with South Sudan, from

1998 until early 2005, when they were driven away by force. (The SPLA actors were engaged in the

timber trade and poaching.) http://hrw.org/reports/1999/congo/Congoweb.htm. Consulted 20/05/13.

The SPLA withdrew, but remained for several years in Kengezi-base and Aba (Marks 2007:15).

For example, in Doruma, the units targeted and abducted SPLA actors.

In 2003, the army’s Park Regiment tried to disarm these groups along the Dungu-Duru axis, but it

was only in August 2006 that the Duru group “had collapsed under the military’s programme of

disarmament, intimidation, and torture” (Marks 2007: 24). Yet, there were soon reports that these self-

defence units were re-established to protect themselves from harassment by the army (Marks 2007:

24).

Interview local chief, 03-08-12.

Interview inhabitant Kurukwata, Dungu, 02-03-13.

Not to his main seat (which was still severely affected by conflict) but to Dungu.

flees!”

. In these circumstances, the population feels abandoned and powerless, they

feel “they no longer have the power to protect themselves”. A number of chiefs had

to flee the LRA violence and some were even specifically targeted

. Conversely, the

fact that some customary chiefs returned to their area of residence, for example the

chief of Duru, gave the population enough confidence to return to their home areas. In

certain localities, for example Kiliwa, chiefs were killed by the LRA when defending

their territory.

As mentioned above, it is worth noting that this strong reliance on the customary chief

should be understood in a context where people felt completely abandoned by the

state. This was further enhanced by the LRA conflict; as the Congolese government

minimized and even denied the LRA conflict, people felt it was not seriously

interested in resolving it.

In sum, the LRA conflict had a negative effect on existing mechanisms of security

and justice: isolation within the district increased, meaning that people had only

limited options for justice and security. This led to a further increase in the

concentration of power in the field of justice and security and customary chiefs in

particular wield much power within their communities. However, this did not

necessarily mean that their legitimacy increased. In many cases, their legitimacy was

further eroded due to their incapacity to handle the LRA threat. While the self-

defence units briefly empowered the customary chiefs (in 2009), it can be argued that

in general the conflict and the militarisation of the region during the LRA conflict has

eroded the legitimacy of the customary chiefs, who remained relatively powerless in

the light of these armed groups. As a customary chief summarized “the power of the

LRA has proven to be superior to the one of the chief”

New actors introduced through the LRA conflict

Through these processes of isolation and fragmentation the LRA conflict led not only

to a reduction in the number of decision-making actors in the field of justice and

security, but also introduced two new categories of actors to Haut-Uele: the army and

international organisations, both of which further limited the role of the customary

chief.

The army traditionally had a rather weak presence in Haut-Uele. During the Mobutu

regime, it only established a localised presence in the light of specific threats, such as

armed poachers in Garamba national park in the late 1980s. After the Congolese wars

the army re-established itself and from 2003 onwards the former rebel groups (MLC

and RCD-KML) were integrated into the new Congolese army, called the Forces

Armées de la Répubique Démocratique du Congo (FARDC). This created a weak and

undisciplined army presence in Haut-Uele and these troops were gradually withdrawn

from the area. When the LRA started exactions against the population at the end of

2007, the army slowly increased its presence in Haut-Uele. Through Operation

Rudia, it was planned that around 2,000 Congolese soldiers and 200 UN peacekeepers

Interview university assistant, 02-03-13.

Initially, the LRA specifically targeted a number of chiefs who had been collaborating with a DDR

programme and were therefore seen as collaborators. Their role in the self-defence units also played a

role.

Interview customary chief, Dungu, 03-03-13.

would be present in Haut-Uele by September 2008 in order to contain the LRA and

prevent attacks. In reality, only around 400 Congolese soldiers and around 150

MONUSCO troops arrived and these were only present in Dungu, the main town of

the affected area. They were unable to prevent any LRA attacks in September 2008.

By mid-October, 2,200 soldiers had arrived in Haut-Uele, all of whom were stationed

in or around Dungu and who were therefore unable to protect the population outside

this main town (HRW 2009: 26-27). Subsequently, troop presence was gradually

increased along the major axes (such as Dungu-Faradje) and in the major urban

centers and in May 2009, the Congolese government and MONUC launched

operation Rudia II in order to increase protection of the population. It is estimated that

between 3,000 and 4,000 Congolese soldiers were in Haut- and Bas-Uele districts

(HRW 2010: 52-53). Yet, the army faced major logistical challenges in its work, was

largely ineffective in countering the LRA threat, and was in itself a source of

insecurity for the population (Titeca and Costeur 2015). Moreover, after the eruption

of the M23 conflict in the Kivus, many troops were transferred from Haut-Uele to the

Kivus. Nevertheless, the mere presence of soldiers still acts to a certain extent as a

deterrent for the LRA threat, meaning that the population prefers the army’s presence

to a security vacuum. Most interestingly for this paper, the military also play a

(limited) role in local processes of dispute resolution. On the one hand, they are often

an important factor in abuses of power, in which they prey on the population

themselves, or help other actors, such as the customary chief or other local authorities,

to do so.

In these circumstances, FARDC actors can be involved in a variety of

cases that (in common with other areas in the DRC) include “the violent settling of

scores (e.g. revenge and rivalries) and accounts (e.g. debts and land disputes) arising

from envy and personal or family disputes. Examples are conflicts over heritage,

marriage, debts, real estate, love affairs, land, power positions and past wrongdoing”

(Verweijen 2013: 74). On the other hand, they can play a role in the resolution of

disputes either directly or by preventing escalation. For example, in one research site

once particular customary chief could not provide a legitimate solution for an

attempted murder, which led to tensions and threats within the village until the

FARDC ‘rescued’ the suspect. As a civil society actor argued: “When the soldiers

become involved, no one dares to do anything anymore”;

and the open threats to the

accused and his family stopped. As also shown by this example, the involvement of

military actors is particularly related to the weakness of other relevant authorities

(customary and other civilian authorities) in providing a solution to particular

disputes. Customary chiefs themselves claim that the military do not respect their

authority, and that they are powerless in the light of their use of violence. This is also

the case in other areas of the DRC - as Verweijen for example highlights for the

Kivus, the military involvement in dispute resolution is not only a result of civilian

demand, it also is the result of the military who “impose themselves in conflicts,

sometimes with force” (Verweijen 2013; Baaz and Verweijen 2013:8).

A second ‘new’ category of actors is represented by the range of international

organisations in the region. Previously, there were no, or very limited, activities by

It is worth noting that this example is nothing new, as there have been previous instances in Haut

Uele’s history in which the military collaborated with local authorities to act and prey upon the

displaced/refugees – this was the case in the first half of the 1990s with regard to Sudanese refugees in

Haut-Uele.

Interview civil servant, Dungu, 4 August 2012.

international organisations in Haut-Uele, all of whom arrived because of the LRA

conflict. After the ‘Christmas Massacres’ in December 2008, a wide range of

international humanitarian NGO’s (e.g. MSF, Intersos, Oxfam, Save the Children)

well as UN organisations (UNHCR, WFP, Unicef) arrived in the area.

Around 80

per cent of these are based in Dungu, which is the headquarters for humanitarian

interventions in the area. International actors are also present to a limited extent in

Faradje, Doruma, Bangadi, Niangara and Duru. All of these actors are engaged in

humanitarian interventions such as food security (World Food Programme, Intersos),

material infrastructure for schools and wells (Danish Refugee Council, Save the

Children), the reintegration of abducted children (COOPI) and so on. The main actors

in the field of security and justice are the UN peacekeeping brigade MONUSCO (and

more particularly the human rights section

) and the so-called ‘protection cluster’,

which brings together all international NGO’s

working on ‘protection’ issues,

and

which is coordinated by UNHCR. The main duty of these international actors is the

monitoring and follow-up of security and justice incidents and they have had a largely

positive impact. The problem of isolation was addressed by bringing the judicial

system closer to the people through the financing of mobile courts (‘chambre

foraine’) in which the main tribunal and prosecutor are transported to other places

(more particularly Dungu and Faradje

). This happened both for civil and military

cases.

Importantly, the protection cluster also helps to document and follow-up

individual judicial cases, where they assist with legal protection or the simple

functioning of legal procedures. For example, in cases where normal judicial

procedures are not being followed, the international actors hold the relevant local

authorities to account and lobby the relevant judicial authorities. The protection

cluster has worked with the FARDC to raise awareness of issues such as human

rights, humanitarian law, and sexual violence and to provide training and advocacy.

They also helped to rebuild the prison and the police station.

From 2012 onwards, humanitarian agencies gradually started leaving the area, a

process which became particularly intense after 2014. There is currently only a

minimal presence of agencies in the area.

Conflicts between the displaced and the local population

An important feature of the current conflict that allows us to further examine

processes of justice is the tension between displaced people and the local population.

The influx of refugees has a long tradition in Haut-Uele. The first influx of refugees

A limited consignment of MONUSCO was present in the area slightly earlier: from 2007 onwards.

The Human Rights section of MONUSCO is a collaboration between UNHCHR and MONUSCO.

Its main tasks are the sensitization of human rights and capacity building of state actors (army and

police) and civil society. They also have a protection unit that amongst other things protects witnesses.

Oxfam, Danish Refugee Council, COOPI, Intersos. Apart from the tasks mentioned, the protection

cluster also helps with psycho-social issues and provides medical assistance.

These are for example sexual and physical violence, theft, looting, arbitrary arrests.

In which the Danish Refugee Council financed the presence of the court for Faradje (6 civilian cases)

and Tadu (4 civilian cases).

This has been financed both by MONUSCO and International NGOs such as the Danish Refugee

Council

In this case Monusco.

comprised Sudanese in 1965 but their number remained relatively limited. A larger

influx occurred between 1989 and 1992 when around 40,000 refugees crossed to

Haut-Uele, mainly to Dungu, where they were spread over five refugee settlements.

The cohabitation between Sudanese and the local population was largely peaceful, as

many of the Sudanese refugees were also Zande. There were nevertheless minor

tensions, for example around hunting and poaching, in which the local population

claimed the Sudanese were taking away their animals, or around the use of land.

All

these tensions were resolved through the local authorities. However, their subsequent

participation in looting the area led to a major deterioration in relations. This occurred

for the first time in 1993 when Congolese soldiers started looting and the refugees

took advantage of this to loot UNHCR depots. This happened on a small scale,

however, and tensions remained limited. As explained above, major looting took

place in September 1998, when the SPLA invaded Haut-Uele to force the Sudanese

refugees to return. In this case, the Sudanese refugees played an important role,

guiding the SPLA soldiers in their looting efforts and even showing them where the

local population was hiding. After this, there were serious tensions with the local

population and education of refugee children ceased since they were no longer

allowed to go to school outside the camps and local people refused to teach them

inside the camps.

The LRA conflict caused major population displacement in Haut-Uele (in March

2011 around 250,000 people were displaced

), which created many tensions with the

local population. These centered particularly on access to land, the use of water, and

humanitarian aid.

With regards to humanitarian aid,

frustrations particularly erupted around perceived

unequal access, most commonly between the displaced and the local population, with

the latter contesting the fact that they were not benefiting from humanitarian

assistance while at the same time suffering equally from the LRA conflict. In some

cases the local population even prevented humanitarian assistance and distribution of

aid by attacking NGOs. When the NGOs changed their policy and began assisting

host communities, tempers subsided, but never completely disappeared until the

NGOs left the territory and humanitarian assistance stopped. In other areas, similar

tensions developed along ethnic lines that in some cases led to threats of violence. For

example, in the territory of Niangara, the Zande ethnic group claimed they were

receiving much less humanitarian aid than the other group in the territory – the

Ngbetu - while the Zande claimed that they were suffering most of the violence.

Sudanese people were important for trade in the area; they traded with Sudan and also opened up the

way to Ariwara.

There were also rumours that the refugees were hiding weapons in the camps, because of which

many locals feared going into the camps.

After fighting between the Sudan Armed Forces (SAF) and the SPLA in 2000, up to 71,000

Sudanese fled back into northern DRC, of which 36,000 to Dungu (Marks 2007: 15). Their presence

led to tensions with the local population who were no longer keen on taking in Sudanese refugees. The

remaining refugees left between 2000 and 2002, when UNHCR decided to repatriate them.

Figure from March 2011. Dungu had the biggest number of displaced – around 120,000 (Omasombo

2012: 73).

It is worth noting that tensions with humanitarian actors is nothing new, as this was a frequent

phenomenon throughout the 1990s, between the Sudanese refugees and humanitarian actors, in which

the former for example accused the latter of not giving correct distributions. This sometimes led to

violent confrontations.

Tensions rose to a point where the Zande threatened violence against the Ngbetu.

Both sides tried to solve this conflict at a local level – with the local chiefs and the

Administrateur du Territoire – but this failed. An international mission consisting of

MONUSCO (civil affairs, child protection), OCHA, civil society, and customary

chiefs also failed to resolve the conflict. The issue was only solved when

humanitarian interventions also visibly targeted the Zande population.

Land conflicts between the displaced and the local population often center on

different traditions with regards to land use.

This manifests itself concretely through

tensions around land use contributions, in which the displaced refuse to pay the

amount requested

which can be up to 10 per cent of their yield. Once again, a major

factor in these tensions is the concentration of power in the hands of certain actors,

particularly the customary chief. There has been a number of cases in which the

local/indigenous customary chiefs overstep their powers vis-à-vis the displaced

population, for example by trying to chase the displaced from their territory, by

demanding a significant portion of the yield of the displaced, or by obliging them to

participate in (forced) communal work.

For example, in one research site (with a

concentration of around 20,000 displaced people), the local customary chief wanted to

force them into extensive communal work. Since they did not accept his authority,

they refused; after which the customary chief used the military to force them to

cooperate, leading to the arrest and mistreatment of a number of displaced people.

This example shows the different layers of decision-making structures that are

involved in governing relations between displaced and local populations. This became

particularly clear when two young men, who were severely mistreated by the military,

tried to address their situation. They went to their customary chief – outside their

locality of displacement, in Dungu – who did not want to implicate himself, as he had

family relations with the other customary chief of the locality in question. Moreover,

he had no power over the locality in which the displaced were located. They ended up

consulting the regional civil society leaders, with whom they went to the highest

administrative authority in the territory (Administrateur du Territoire).

Representatives from international NGO’s were also involved, through whom they

managed to address the abuses from the military and the customary chief.

The above example not only shows the abuses that can take place against the

displaced, it also illustrates the regular procedure for resolving conflicts, as well as the

further fragmentation and complication brought about by the conflict and by

displacement. When resolving disputes, in general, both the local population and the

displaced seek assistance from local authorities in the first instance (including

customary authorities) and local civil society. Sometimes the church authorities are

also involved

; and in certain localities, ad hoc solutions are found, such as ‘comités

de suivi’ (follow-up committees) that particularly help to ensure existing tensions

(around land, water or humanitarian aid) do not erupt into conflicts. If conflicts are of

a more serious nature, and persist, then a range of higher-level authorities become

In Dungu, land conflicts have increased not only because of the large influx of refugees, but also

through the presence of international humanitarian actors, who occupy large parts of Dungu causing

hugely increased land prices.

E.g. in the locality of Ndedu, conflicts erupted with the people of Kiliwa

In certain localities, the Administrateur du Territoire also demanded this.

One case was encountered in which the displaced and local population tried to solve their conflict in

the local church: since they were praying from the local church, they deemed the priest was the best-

placed person to solve this conflict.

involved: these are high-level governmental and customary authorities, but also

international actors, such as MONUSCO civil affairs, or representatives from

International NGOs.

This is only a basic outline, since conflict and displacement guarantee that matters are

continuously complicated, and that new possibilities and difficulties continuously

arise. The displaced population is, for example, most familiar with their ‘own’

customary chiefs or civil society, and these may either be displaced with them or

remain in the ‘old’ locality. Certainly in a situation of tension or conflict with the

local host population, the displaced are likely to be distrustful of local authorities and

unwilling to accept the customary authority of the locality they reside in. Yet, the

power of the displaced (state or civil society) representatives is often contested in host

localities, since they exercise little power over such places.

The power of the

displaced chiefs may be contested not only in the host locality, but also in their home

locality, as ruling from a distance is difficult. This situation has led to a further

fragmentation of judicial procedures, in turn creating more isolation and the

concentration of power. For example, areas with a high degree of insecurity may have

most of their existing actors with authority in the field of justice and security

displaced, including the customary chief. This does not necessarily lead to a vacuum,

since the role of the customary chief is taken over by another representative, but this

can lead to problems. In a number of cases, the host population has raised complaints

about this local representative, who no longer communicates with the chief, and may

be considered to be more corruptible etc. This is facilitated by the fact that he is often

the only actor in the realm of justice and security who is actually present.

As already explained above, international actors have been active in attempting to

improve justice provision. It is worth highlighting that they also help to mediate in

case of conflicts, including those between displaced people and the host population.

According to many local actors, the fact that a representative of MONUSCO or an

international NGO is involved plays an important role in the resolution of conflicts, as

this strongly increases pressure on the conflicting parties. As a local civil society

representative summarizes “the local authorities are a bit afraid of MONUSCO”,

they can get in touch directly with the local authorities’ hierarchy. This is also

something which is particularly mentioned for judicial actors: “All this international

presence has instilled fear among Congolese judicial actors: they really have to try

and do their job now”

A last useful example in this context is the presence in Haut-Uele of the Mbororo,

who were mentioned earlier. A wide range of conflicts have erupted between the local

population and the Mbororo; as the Mbororo move around with large groups of cattle,

they occupy large areas of land, use common water resources, damage property etc.

This use of common resources has led to a range of conflicts where the host

population complains that the Mbororo refuse to pay any compensation. Moreover,

given the armed nature of the Mbororo, the local population feels threatened by them

and the Mbororo have been accused of collaborating with the LRA (Titeca and

Further complicating the situation is that new ‘camp chiefs’ were elected as representatives for the

displaced in the camps. Local chiefs sometimes formed a committee, but often lost their power. Also,

camp chiefs have very limited power, resulting in disputes with host (customary and state) authorities.

Interview civil society actor, Dungu, 27-02-13.

Interview lawyer, Dungu, 12-03-13.

Costeur 2015). The population pressured the customary chief and other local

authorities to act against the Mbororo so that they would be chased from their

territory. Yet, many of these local authorities – including the customary chief – have

received (or are suspected of receiving) cattle or other payments from the Mbororo,

making them they are less inclined to do so. In this situation, the population feels that

not enough action is taken against the Mbororo, and that the government and local

authorities (including customary chief) were complicit in the problem. As a

MONUSCO report argued “They feel they have been sold and abandoned to the

mercy of the Mbororo”

The population felt they were suffering too much and were not receiving any

compensation and from November 2010, the FARDC received orders to take actions

against the Mbororo. This was very much welcomed by the population but led to a

wide range of abuses by the army against the Mbororo (Titeca and Costeur 2015). In

this situation, the local authorities proved unable to find a solution to the tensions and

conflict. They were either considered biased as they had often received, or were

perceived to have received, cattle and thus lost their legitimacy, or they themselves

had similarly hostile feelings towards the Mbororo as the population. In either case,

they had become too implicated in the conflict to enable them to address it. Moreover,

military actors were also too much involved, through the military campaign against

the Mbororo. In the end it was international organisations that were particularly

successful in addressing these tensions – including actors such as MONUSCO (civil

affairs), and international NGOs such as Search for Common Ground – as well as

local civil society. In the eyes of both sides - the local population and the Mbororo -

these actors had sufficient legitimacy to address the tensions.

Conclusions

This paper discussed the justice and security mechanisms in Haut Uele district and the

impact of the LRA conflict on those mechanisms. It has been shown how a wide

variety of actors are active in the field of justice and security: customary chiefs,

military, civil society and church leaders, police actors, international NGO’s, and

representatives of the displaced, amongst others. Although in certain circumstances

this is reminiscent of Benda-Beckman’s term ‘forum shopping’,

the situation is

primarily characterised by a concentration of power in the hands of particular actors,

such as customary authorities and the police, that has created negative effects for the

beneficiaries.

The paper has shown how the region has a long history of weak state presence and a

lack of resources, that has led to this concentration of power among a number of

judicial and security actors. The region’s geographical isolation further enhanced this

concentration of power. In these circumstances the available conflict resolution fora

are relatively limited: conflicts are primarily resolved at the local level and thus the

available conflict-resolving actors remain limited to the local level. This was, and is,

Monusco (2008) ‘Special report about Mbororo’, Isiro, 23 February 2008, p.1.

In which “disputants have a choice between different institutions and they base their choice on what

they hope the outcome of the dispute will be” (von Benda-Beckman 1981: 117), but also highlights

how the forums themselves are involved in shopping, in which they “usually have interests different

from those of the parties, and they use the processing of disputes to pursue these interests” (von Benda-

Beckman 1981: 117).

the case partly because of geographic isolation and the limited possibilities of

transport, but also because the institutions themselves actively try to monopolize

power. It has been shown how a quest for financial profit has further accelerated the

concentration of power among particular actors. All of the above serve to create an

extremely difficult situation for the beneficiaries.

The LRA conflict has had a mixed impact on this situation. On the one hand, the

processes of isolation increased, as state actors withdrew still further from rural areas,

and as transport and communication became more difficult. This in turn increased the

power of the customary chief but did not necessarily increase his legitimacy, since

this was being eroded by the conflict. As a religious leader summarized: “part of the

void is filled by the customary chief, but the situation remains one of crisis”.

This

‘crisis’ is even the case in urban areas where state actors (and security and justice

mechanisms) are present: it has been shown how these are considered largely corrupt

and ineffective. The conflict further accelerated this and the presence of the LRA led

to a situation where the fees collected by state agents strongly increased - interviews

mention a doubling or tripling of fees demanded by police and other actors.

As a

trader explained “because of the LRA, the humanitarians are here, because of which

more money circulates. The police and other state agents took advantage of that to

increase their fees. (…) If you don’t want to pay, you are simply arrested.”

In other

words, this brought about a situation in which power was further concentrated in a

few hands and in which the legitimacy of the main actors was further eroded, both

issues creating negative effects for the beneficiaries.

Yet, on the other hand, a positive impact on judicial processes was brought about

through the conflict by the fact that new actors entered the justice and security arena.

These were primarily international actors such as international NGOs and (the human

rights section of) MONUSCO who sought to address abuses and follow legal cases

more closely. In this context, the shopping process became ‘thicker’, as the quality of

justice mechanisms generally improved. However, displacement and the multiple

‘shopping’ possibilities, also made things more complicated, since multiple modes of

interventions were possible, each relying on particular understandings of legitimacy

and power, for both disputants and the fora themselves. A displaced group may, for

example, find their customary chief the most legitimate actor to represent their

interests, but outside of his jurisdiction his power is limited. Local customary chiefs

are often a source of discontent, while international actors are found to be useful

allies. The fora themselves will have a different viewpoint, in which the local

customary chief might try to enhance his power by allying with the military and

relying on his connections to enforce his rule. In this situation, no single actor has

absolute power, and much depends on the particular situation and power-

configuration. For example, it has been shown how international actors played an

important role in the improvement of the judicial system. Although they wield

important leverage, their authority is certainly not absolute. A telling example is the

following: from 2010 onwards, a particular customary chief was collaborating with

local soldiers in forcing the displaced to pay financial contributions or part of their

yields to him. International actors – including an international NGO, MONUSCO’s

civil affairs section, and other protection cluster representatives – stepped in to

Interview, religious leader, Dungu, 08-03-13.

See also Oxfam (2011).

Interview, Dungu, 12-03-13.

mediate and asked the chief to stop this practice. Yet, the chief did not change his

behavior. According to a local civil society representative “for him [i.e.the chief],

MONUSCO is something far away, that has no influence on his work. MONUSCO is

not there. It is only in places where MONUSCO is present that one sees the

importance of this”.

This particular conflict was only resolved in 2011, when a new

district commissioner arrived and managed to influence the chief. In other words,

power remains a localized phenomenon, in which the reach of international actors is

also limited. In this particular case, it was the state representative who managed to

push through a solution.

In Haut-Uele, processes of justice have become increasingly multi-layered and

complicated, through the increased engagement of a number of actors, where it is not

clear a priori who will influence the outcome or be the most powerful. The way in

which the judiciary system – and governance in general – functions reflects Bavinck’s

idea of the ‘spatially splintered state’ or a “legal patchwork with strongly spatial

connotations” (Bavinck 2003: 633). Depending on the particular political

circumstances and centres of power at play, judicial processes, and regulatory

practices in general, will have different outcomes. As described in the literature of, for

example, the ‘negotiated state’ (Hagmann and Péclard 2010; Titeca and De Herdt

2011) or ‘practical norms’ (Olivier de Sardan 2010), this can to a certain extent be

argued for all states and regulatory practices

but as the above shows, a situation of

weak state presence, insufficient resources, geographical isolation and conflict make

this ‘spatial splintering’ more pronounced. In this case, different localities operate

largely independently in resolving conflicts and different actors have varying degrees

of powers in these localities. Thus, the power of the customary chief in a particular

locality depends on his local legitimacy, his relationship with the locality

(displacement or not), his interest in financial accumulation, and various other factors

such as his attitude towards the displaced. All these elements are by definition very

local and context-specific processes and this highlights the open-ended nature of such

mechanisms, since this complex of actors will not necessarily be able to find a

solution for particular conflicts and problems.

Interview civil society representative, Dungu, 07 July 2013.

By its very nature, we should see the state “as state personnel and physical resources, as being

spatially grounded on the territory of villages and cities. (…) The important thing to note is that one

can expect quite different relationships between village population and state apparatus that vary with

the spatial location of state institutions and resources”. (von Benda-Beckmann 1999: 132, cited in

Bavink 2003: 654).

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Apr 2011

In the Democratic Republic of Congo (DRC), the state administration has retreated from much of the public domain. The specific case of the education sector – a domain traditionally reserved for the state – shows how public services continue to be provided, and how the Congolese state continues to survive and transform itself. Although no overall power governs the system – there is no overall regulatory authority – this does not mean that the education sector is ungoverned. The state survives as an administrative framework whose role in providing public services has been redefined rather than evaporated. This article describes the organization of the educational system as the direct result of an evolving negotiation process between state and non-state actors. It shows how this negotiated nature of statehood, and the power differentials between the various actors, involve constant renegotiation. Instead of producing uniform results within the education sector, this form of regulation depends on power configurations in particular localities at particular times.

God and Caesar in the Democratic Republic of Congo: Negotiating church-state relations through the management of school fees in Kinshasa's Catholic schools

Article

Full-text available

Mar 2013

This article argues that state (re)construction and functioning involves negotiated governance between both state and non-state actors, in which power relations between local actors are not just implicitly present or co-influencing policies but are of uttermost importance to the formation of policy and state. One of the main nonstate actors in African service delivery is the church. State and church are two major poles of power which determine – through negotiation – large domains of service delivery, such as education. We discuss a major attempt by the Catholic Church to reform the school-fee system in Kinshasa (DRC). The attempt largely failed, but its analysis reveals the political capabilities of different actors involved. The arrangements of state and non-state actors largely evolve in a roundabout way, not at all along the lines of an explicit negotiation process, and are very much determined by local-level governance instead of higher-level policies.

Forum Shopping and Shopping Forums: Dispute Processing in a Minangkabau Village in West Sumatra

Article

Full-text available

Dec 2013

Keebet von Benda-Beckmann

Africa: Unity, Sovereignty and Sorrow

Book

Sep 2018

Pierre Englebert

The African Colonial State in Comparative Perspective.

Article

Oct 1996

A Reconfiguration of Political Order? The State of the State in North Kivu (DR Congo)

Article

Jul 2003

DENIS M. TULL

This paper argues that warlord or 'non-state' politics have not brought about as fundamental a political transformation as recent discourses about violent 'state collapse' in Africa seem to suggest. In the context of the territorial break-up of the central state in the DR Congo, it examines the reconfiguration of political power in North Kivu in the extreme weakness of formal state structures and looks at the strategies of local actors to deal with the violent transformation of the state. It demonstrates that the strategies of the ruling rebels and other strongmen reveal significant continuities with regard to the Mobutu era as the marketing of minerals provides the resources for the revisiting of time-tested political strategies such as the construction of patronage-based clientelistic networks. Similarly, the limited ambitions of 'non-hegemonic rule' provide current rulers with powerful incentives to exercise power by drawing on the support of intermediary actors such as traditional authorities. Far from indicating the 'end of politics', these strategies mimic President Mobutu's political set up and thus contribute to the reproduction of the postcolonial state despite its institutional erosion.

Politics and Class in Zaire: Bureaucracy, Business and Beer in Lisala

Article

Mar 1981
Int J Afr Hist Stud

Haut-Uele: Justice and Security Mechanisms in Times of Conflict and Isolation

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