A moratorium on the death penalty is just a stepping stone: conversations with former death row inmates in the DRC

In July 2022, during an advocacy visit to Kinshasa, I met two ex-military men who had been sentenced to death 20 years ago after being convicted by a military court of the assassination of the former president of the Democratic Republic of Congo, Laurent-Désiré Kabila. The fact that they are alive and free today is undoubtedly thanks to the moratorium on the use of capital punishment introduced in the country in 2003. This meeting made me realise the significance and fragility of this international measure aiming to prevent the execution of people sentenced to death, which was adopted in 2007 by UN General Assembly resolution 62/149. Until then, I had always contented myself with its application in the 15 African countries that are to date considered de facto abolitionists.

Today, of the 55 Member States of the African Union, 25 have abolished the death penalty in law and 15 retain capital punishment.

Declaring a moratorium on capital punishment is a way for a State to block or suspend further executions of people sentenced to death, even while the death penalty remains in effect in the country’s laws and death sentences are still being passed. It is a way of guaranteeing, at national and international levels, the right to life enshrined in the Universal Declaration of Human Rights without getting caught up in the debate on the legitimacy of the death penalty, which remains in force even in some democratic countries. In my work, I have often encouraged State officials in the African region to consider the moratorium as a stepping stone between retaining and abolishing the death penalty. Adopting a moratorium on executions should, in theory, be just one step before the final decision to ban the death penalty.

The problem with the moratorium is that it obscures the fact that those sentenced to death are deprived of their human dignity and the very meaning of life. This denial persists even after they are released, as I saw during my meetings in Kinshasa. I am convinced that the abolition campaign should be ramped up, especially in countries with a moratorium.

The torture of death row

The purpose of the moratorium is to preserve life. The right to life includes the right to live with dignity and the right for one's physical and mental integrity to be respected. Yet, in addition to being regularly tortured, people sentenced to death are detained in conditions that can amount to torture or cruel, inhuman or degrading treatment or punishment. The Special Rapporteur on Torture has stated in two reports, published in 2009 and 2012, that the death penalty is a form of torture because of the severe suffering and trauma it inflicts on those sentenced to death and their family members.

One of the two people with whom I spoke, Captain Itongwa, gave a detailed description of the torture he endured over several weeks and his detention conditions during the 20 years he spent on death row, where he was chained at the feet and hands for six months without being allowed to wash. For the first six months, his family was convinced he was dead, as some of his co-defendants were immediately executed. Lieutenant Richard Yav told me how his father, mother and wife ‘had heart attacks one-by-one, in the knowledge that I would be a dead man if the president so decided.’

Many countries—particularly in Africa—that support the death penalty have no way of supporting prisoners, who depend entirely on their families for food, healthcare and clothing. ‘My wife took care of my needs. She even paid $10 to each of my jailers to stop them physically attacking me,’ says Itongwa.

Death row syndrome is well known among all experts: it is the life of the living dead.

Life after detention: lost and hopeless

The men I spoke with were released by presidential pardon on 8 January 2021. They still claim their innocence. Following a complaint from the African Association for the Defence of Human Rights (Association Africaine de Défense des Droits de L'Homme, ASADHO), a member of OMCT's SOS-Torture Network, the African Commission on Human and Peoples' Rights found, in a 2012 decision, that their trial was unfair and requested their release. But it was to no avail. Those sentenced to death are often driven by a sense of injustice in a country where arbitrariness reigns.

Once released, many former death-row inmates return to a different life, having lost their bearings. They realise that people no longer believed they would be released. Public services are not prepared to rehabilitate and reintegrate them. If they were civil servants before their imprisonment, they discover they have been removed from the State payroll and other databases. They live without a salary, a pension or social security. The death sentence is often accompanied by the destruction or confiscation of property. Their relatives are persecuted and deprived of their assets. Families are dispersed and fractured. Children are taken out of school and discriminated against. ‘I found the children and grandchildren in disarray,’ says Lieutenant Yav. ‘They need to be reunited because they have been living scattered among friends and relatives. Some of them no longer recognise me or never met me. You come back to an environment where nobody knows who you are. I am alive without being alive.’

The former prisoners have many health problems but must continue to support themselves without any income. In the DRC, only NGOs such as the Alliance for the universality of fundamental rights (Alliance pour l'Universalité des Droits fondamentaux, AUDF), a member of OMCT's SOS-Torture Network, provide support for the rehabilitation of torture victims. The OMCT has provided these victims, including military and police officers, with multi-faceted support. Until I spoke with these two men, we had never previously received requests of this kind from former death row inmates. Itongwa and Yav also asked to talk to a psychologist.

The stress of constantly awaiting death is easy to understand. But the stress these former prisoners face after their release is just as severe. Memories of former comrades who died in detention make it harder for them to reintegrate, whereas the absence of rehabilitation exacerbates the consequences of torture and becomes a form of torture in itself. ‘We at least need to be rehabilitated. And, if not rehabilitated, then at least given something to live on. Our families mobilised for 20 years to support us—they have become impoverished. Now that we are free, we can't do anything to help them in return—we’re still dependent on them. You feel useless after your release. What kind of life is this?’ says Lieutenant Yav.

The risk of executions resuming: living in fear

Experience in Africa has shown that the moratorium is not an absolute guarantee that there will be no further executions, nor of a future ban. The reign of arbitrariness, the advent of populist governments, the proliferation of military coups and the emergence of numerous security challenges have led some autocratic or military governments to resume executions with no scruples, even after a 25-year moratorium. This has happened in Cameroon (after an 11-year suspension), Burundi (after 12 years), Libya (after 23 years), Comoros (after 22 years), Chad (after 12 years) and Guinea Conakry (after 17 years). Following the violence in the east of DRC, many people in the country are calling for a return to capital punishment to deter serious crime. The moratorium will therefore remain fragile unless the death penalty is abolished in law and by the constitution.

However, it is also very risky to question the moratorium, which at least guarantees that people sentenced to death are kept alive. In the DRC, more than 500 people are currently on death row living in inhumane conditions. The most recent death sentences were handed down in January this year by a military court against 51 people for the killing of two UN experts in 2017. Several of these sentences were passed in absentia. Fortunately, the moratorium preserves their lives, but it is a very fragile stepping stone that fails to preserve their human dignity.

Isidore Collins Ngueuleu is the Senior human rights adviser for Africa at the OMCT