Democratic Republic of the Congo

PPLAAF DRC Report July 2021

Relevant legislation:

Summary

Legal protections for employees and citizens who speak out against crime, corruption and serious misconduct in the Democratic Republic of Congo (DRC) are virtually non-existent. The protections that do exist are weak, both in terms of legislation and enforceability. As a result, whistleblowers are exposed to all kinds of retaliation.

Protections offered to whistleblowers are limited to reprisals that are related to professional dismissals which they may have suffered as a result of whistleblowing. There is also no official channel for making a complaint and other forms of retaliations are not covered by the protections.

Media freedoms, while guaranteed by the Constitution, are limited in practice. Journalists face threats, intimidation, violence and arrests. Similarly, civilians enjoy the right to freedom of expression and association, yet the violent repression of demonstrators and the detention of numerous political detainees in the past demonstrate that these rights are not respected.

Despite the lack of legal protection and the presence of widespread fear in society, more and more Congolese are showing courage and sounding the alarm on the corruption they are witnessing. Several cases of whistleblowers can be cited; Jacques Lumumba, Israel Kaseya, Gradi Koko, Navy Malela or Claude Mianziula. Additionally, President Felix Tshisekedi affirmed his desire to adopt a law to protect whistleblowers.

Whistleblower laws and provisions

The DRC lacks whistleblower laws and policies. The only protection available to whistleblowers is enshrined in the Labor Code.

This code applies to “all workers and employers”. It provides that filing a complaint or taking part in proceedings against the employer for alleged law violations does not constitute grounds for dismissal. Workers who have been unjustly dismissed are entitled to reinstatement or to compensation set by the labor court depending on the nature of the services performed and the worker’s seniority, but limited to 36 months of the most recent salary of the worker. An external and neutral labor inspector is responsible for investigating complaints and violations of labor laws. They are required to treat the source of complaints as “absolutely confidential” and to refrain from revealing that the inspection is the result of a complaint. However, the effectiveness of these inspectors is limited by insufficient training and a lack of resources.

There are no legal protections, and few channels exist for citizens to report any type of misconduct. Two exceptions are to be noted. The first is the establishment of a financial intelligence unit as part of the government’s zero-tolerance policy against corruption (la Cellule Nationale des Renseignements financiers, CENAREF). The mandate of this unit is to receive, analyze and process financial information to establish the origin of transactions or the nature of the subject of the taxpayer’s suspicious transaction reports. CENAREF receives information from government agencies, including courts and the National Intelligence Agency, as well as anonymous sources. However, there is a “strong perception” that CENAREF is unable to investigate businesses and transactions involving senior Congolese officials and ruling elites.

As part of his anti-corruption policy, President Tshisekedi has established the Agency for the Prevention and Combating of Corruption (APLC). Its mandate allows it to analyze, examine and investigate any suspicion, act, information or report relating to corruption, money laundering and/or similar offenses. To this end, Article 3 of the ordinance establishing the APLC provides that the Agency is responsible for taking all appropriate measures to ensure adequate protection of witnesses and experts against reprisals or acts of intimidation. Details of the steps that must be taken to protect a whistleblower are not given. Protective measures taken by the agency also remain unknown.

A year after its creation, the Agency’s record is mixed. The concrete results are not yet visible and the APLC itself has been the subject of certain accusations, as members of the agency have reportedly received large sums of cash.

Various other laws, including the Anti-Money Laundering Law, the Financing of Terrorism and the Child Welfare Law, require citizens to report misconduct- a failure for which they are liable for prosecution. However, no protection is available for those who report such misconduct.

Weaknesses and Needed Reforms

The DRC suffers from an almost total lack of laws to protect whistleblowers. Employees are only protected against unfair dismissal cases, while citizens are unaware of the protection they will be afforded, or whether they will be afforded any protection against retaliation if they report any form of misconduct. The Constitution of DRC does not recognize such persons as whistleblowers. As such, no legal mechanism is provided for their protection.

In addition, the government agency that receives and investigates reports from whistleblowers in the workplace is underfunded, has limited powers and its members are undertrained. There is no agency available to support or provide legal advice to whistleblowers.

In conformity with international standards, comprehensive whistleblower legislation and a competent enforcement agency, needs to be established in the DRC. With this in mind, President Tshisekedi announced in a speech on December 6, 2020, that he wanted to adopt a legal mechanism recognizing and protecting whistleblowers. This legislation will need to provide legal protection against any legal action that may be taken against whistleblowers.

After the revelations about Dan Gertler and the Afriland First Bank, the whistleblowers who provided the information were taken to court. These prosecutions even led to the death sentences of the whistleblowers on September 7, 2020, in the Kinshasa court. These men found themselves convicted of speaking out against corrupt practices and have not had the opportunity to defend themselves.

Also, the reform of the legislative framework must revert to the confidentiality laws in force in the DRC. These provide heavy penalties for those who make disclosures and do not weigh in public interest. Legislation must not allow the principle of confidentiality to take precedence over the interests of the Congolese people. Finally, the dangers facing whistleblowers are numerous. Several are threatened with death and must leave the country. Thus, considerable resources must be provided to ensure the physical integrity of whistleblowers. They should not fear for their safety for having denounced the illicit practices they witnessed.

Privacy Laws

According to the Congolese Penal Code, anyone who holds state or professional secrets is liable to a fine and/or up to six months in prison for publication of such information, except in cases where the law requires it. The Code provides for up to five years imprisonment for public disclosure of any military information relating to national security and up to ten years for possession, reproduction or permission to publish such information. The Senate, DRC’s upper chamber, approved a law on access to information in 2015. The legislative measure was to make information held at all levels of government publicly available and free of charge. However, the National Assembly did not validate the text and a new legislature has since started.

The 2015 text contained certain flaws that will need to be addressed in the new bill. Indeed, agencies had the right to withhold a wide range of information, including documents relating to executive deliberations, national security, trade secrets, personal data, natural resources and criminal investigations. Anyone who disclosed such information could be held responsible for any resulting grievances. There was concern that the ambiguities in the law, associated with this provision could make agencies reluctant to provide information.

Media Law and Freedom of Expression

Although the Constitution provides for freedom of the press, this guarantee is subject to “respect for the law, public order and the rights of others.” Likewise, freedom of expression is guaranteed, subject to “respect for the law, public order and morality.” The Modalities of Freedom of the Press Act 1996 notes that freedom of expression requires the right to be informed without hindrance, is subject to respect for the law, public order and morality. Posts that violate this condition may be seized and censored.

The Congolese Penal Code provides for prison terms and fines for defamation and name-calling. In Congolese law, defamation is interpreted broadly. It includes any statement, whether true or false, publicly attributing to a person a specific fact that is likely to harm the honor or the consideration of that person, or expose it to public contempt.

The Freedom of the Press Act expressly prohibits the publication of messages that violate the “honor and dignity” of an individual and sets out journalistic “offenses” punishable by custodial sentences, particularly in cases of incitement to hatred and discrimination; publication of court proceedings. National and provincial governments systematically use these laws to intimidate and suppress critical journalists. Defamation lawsuits and actions are held in courts that sometimes have close ties to the government, and verdicts often reflect political bias. In addition, the 2006 “Dangerous Speech and Message in the Press” legislation prohibits the media from covering anything that could “incite hatred, disobedience, discrimination..[or] any act or uncivilized or non-civil behaviour”. Once again, it is worrying that the ambiguity of these laws and the extreme penalties for violations result in self-censorship by the press. The rights of journalists to protect their sources are set out in the Freedom of the Press Act but are subject to exceptions in cases provided for by law.

Freedom House’s 2020 report on freedom in the DRC considers the country to be “not free.” In particular, press freedom remains subject to numerous restrictions even though it is recognized by the Congolese constitution. Although 2020 saw an improvement in freedoms, the report shows that journalists continue to be the target of threats and arbitrary detention. In May 2020, journalist Fabrice Ngani was arrested for writing a critical letter to the governor of Mongala province. Released in June, he was banned from working as a journalist by the provincial authorities. In December 2020, RFI journalist Pascal Mulegwa was the subject of a libel lawsuit by the former Deputy Prime Minister of Transport, Jose Makila. A report by the Observatory of Public Expenditure (ODEP) accused the politician of embezzling money to finance his election campaign. The journalist published this report on the RFI antenna as well as on the website. The prosecution of the journalist clearly demonstrates how difficult it is for the press to do its job. Violence remains as President Tshisekedi has said he wants to make the media a fourth estate. Reporters Without Borders (RSF) ranks the DRC 149th out of 180 countries. The situation is slowly improving as the country has gained a place since 2020. RSF confirms that journalists are exposed to “threats, physical violence, arrests, long detentions and sometimes even murder.” Journalist in Danger, RSF’s partner organization in the DRC, has thus identified 116 abuses for 2020.

Whistleblower Cases

Since 2016, the DRC has had several cases of whistleblowing. Jean Jacques Lumumba, grandnephew of independence hero Patrice Lumumba, was a senior executive at the Congolese bank BGFI. When he uncovered suspicious multi-million-dollar transactions in 2016 between the bank and relatives of then-President Joseph Kabila, Lumumba tried to warn his supervisors. In response, he was threatened with a gun and left the country. The Lumumba Papers, documents he later released, shed light on the bank’s involvement in corruption, illegal financing and embezzlement, as well as suspicious transactions with the Independent National Election Commission. In 2018, it was Gradi Koko and Navy Makela’s turn to speak out against their bank’s harmful practices. As head of the internal audit and internal auditor, respectively, they worked for the Congolese subsidiary of Afriland First Bank in Kinshasa. Based on suspicion following the opening and atypical management of certain accounts, they conducted investigations. They discovered abnormally large case deposits amounting to several hundreds of thousands or even millions of dollars or euros, on these new accounts. Gradi Koko alerted his supervisors and, like Lumumba, was threatened (“You could get shot when you leave the bank”). The leaked documents enabled PPLAAF and Global Witness to write the report, “Undermining Sanctions.” This report denounces Dan Gertler’s practices in the mining sector in the DRC even though he was under US sanctions. During a press conference held on February 25, 2021, by the bank’s lawyers, the two whistleblowers, now refugees in France, learned of their death sentence in absentia by the “Tribunal de Grande Instance” of Kinshasa on September 7 for acts of theft and criminal association. This condemnation was strongly denounced, in particular by the American, French and Belgian embassies in Kinshasa, as well as by the United Nations and by the NGOs including UNIS, Whistleblowing International Network, Transparency International, and about fifty other organizations. These organizations wrote an open letter to President Felix Tshisekedi demanding a legal and institutional framework for the status of whistleblowers and immediate protection measures for the two threatened whistleblowers.

The open letter also takes up the case of Claude Mianziula. Mianziula, an expert in the valuation of rough diamonds in the city of Mbujimayi, denounced the embezzlement taking place within the mining company of Bakwanga. He evaluated a diamond pegged at 2.30 carats, after which the diamond, named the Fancy Green Diamond, disappeared, only to be replaced by a stone of less market value. Finally, and in order to intimidate Mianziula, a complaint was filed against him for damaging accusations and public insults. As part of this complaint, he spent 55 days in prison.

Keeping Score:

How the Democratic Republic of Congo’s Whistleblower Protection Laws Compare to International Standards

The following standards for whistleblower laws are derived from guidelines developed by the OECD, Council of Europe, Government Accountability Project, Blueprint for Free Speech and Transparency International.

Key

1 = The standard is comprehensively or very well reflected in the laws
2 = The standard is partially reflected in the laws
3 = The standard is poorly reflected or absent from the laws

Standard Public Sector Private Sector
A broad range of organisations and workplaces are covered 3 3
A broad range of offenses may be reported as whistleblowing 3 3
The definition of who may qualify as a whistleblower is broad 3 3
A range of disclosure channels to report internally or to regulators is in place 3 3
People who make disclosures to external organizations, the media or the public are protected 3 3
The threshold for protection is a reasonable belief that the information disclosed is true 3 3
There are opportunities and protections for anonymous disclosures 3 3
Whistleblower confidentiality is protected unless expressly waived 3 3
Organizations are required to establish internal disclosure procedures 3 3
Whistleblowers are protected from a broad range of retaliatory acts 3 3
Victimized whistleblowers have access to a full range of remedies and compensation 3 3
Those who retaliate against a whistleblower are subject to sanctions 3 3
A whistleblower oversight or regulatory agency has been designated 3 3
Whistleblower laws are administered and reviewed transparently 3 3