By Eric Firmain Mbadinga
A 2002 law outlining the sanctions, incriminations, and procedures related to misdemeanours involving members of the armed forces in the Democratic Republic of Congo is back in focus as the judiciary cracks the whip on one of the more severe offences in the military playbook: the act of desertion.
Between May and July this year, a total of 50 Congolese soldiers have been tried and sentenced to death by military courts for what is considered an act of high treason.
They have all been held guilty of desertion – variously described as "cowardice" or "fleeing in the face of the enemy" — during a military mission in North Kivu, where M23 rebels are said to be becoming increasingly active.
While handing down these sentences, the judiciary has repeatedly emphasised that "the law remains the law", referring specifically to Law No. 024/2002 of the Military Penal Code enacted on November 18, 2002.
Since then, there have been calls for clemency and the law to be used sparingly, albeit without being seen as encouraging desertion.
This school of thought believes that although desertion should be viewed as an unpardonable offence equivalent to treason, deterrents incorporated into the law shouldn't reflect an antiquated mindset.
Frontline lapses
So, what has prompted the government and the military to think otherwise?
In March, DRC's justice ministry lifted a moratorium on the death penalty, citing treason and espionage in recurring armed conflicts as the reason for allowing a resumption of possible executions.
The country introduced the moratorium on the death penalty in early 2000.
The March 13 circular quoted justice minister Rose Mutombo as saying that capital punishment had been reintroduced to rid the army of traitors and curb the resurgence of terrorism and banditry.
The council of ministers had endorsed the decision on February 9.
Article 55 of the Military Penal Code stipulates that "any soldier or person in a similar position who is found to have deliberately rendered himself unfit or unfit for service, either temporarily or permanently, with the aim of evading his military obligations, shall be punished".
The quantum of punishment differs depending on the circumstances.
In peacetime, a soldier found guilty of desertion, as defined by the law, can be imprisoned for ten to twenty years of penal servitude and disqualification from exercising civic and political rights for five to ten years.
In times of war or exceptional circumstances, the sentence is life imprisonment or the death penalty. The court would pronounce death sentence if the soldier "were in the presence of an armed band or the enemy".
Different perspective
In judicial matters, sentences outlined in laws governing various aspects of enforcement should be applied.
However, in some instances, circumstances and context are used to mitigate the rigour of the law.
In this regard, the Nobel Prize winner Albert Camus wrote in his essay Réflexions sur la peine capitale (Reflections on capital punishment), "Legislation that is too severe defeats its purpose."
The Convention for the Respect of Human Rights (CRDH), a Congolese NGO, has used Camus' words as motivation in its commitment to defending soldiers accused of desertion in the DRC.
The CRDH argues that unless they have committed a crime such as colluding with the enemy, Congolese soldiers should not be sentenced to death for leaving the battlefield.
The NGO agrees with the principle of punishment but does not want "fleeing death" to be "condemned by a death stamped by the state".
''More than 70 soldiers have been tried for fleeing from the enemy. The CRDH recommends that the government first respond to the needs of soldiers before condemning them," says the NGO.
According to some analysts, salaries and working conditions of military personnel also need to be considered.
Official position
In response to these voices, the authorities maintain that a soldier must not turn his back, whatever the perils that lie ahead.
"The purpose of these hearings is to deter and educate. They aim to prevent soldiers from abandoning their posts on the frontline," Captain Melissa Kahambu Muhasa, representing the public prosecutor, told the press at the beginning of July.
Her statement followed the sentencing to death of 16 soldiers in Lubero in North Kivu, some of them for desertion.
President Felix Tshisekedi, too, took a tough stand. "This sad and sombre reality (desertion) demands a firm and determined response. Although the Democratic Republic of Congo is firmly committed to respecting human rights and the rule of law, it cannot afford the luxury of passivity when its security and people are threatened," he said.
Prof Pamphile Biyoghé, who teaches at Ecole Normale Supérieure in Gabon's Libreville, approves of the principle of punishing deserters but has reservations about the nature of the penalty applied in the DRC.
"Yes, capital punishment, in this specific case, could be a response, but not the response to discourage desertions from the ranks of the army," he tells TRT Afrika.
Dr Houenou believes that the military art referred to by his university counterpart can be cultivated and developed through a combination of elements that are currently lacking in the DRC.
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