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05KINSHASA2065 2005-12-21 09:55:00 CONFIDENTIAL Embassy Kinshasa
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1. (C) A December 14 Supreme Court decision (made public
December 17) opens again the contentious issue of amnesty for
the group of individuals accused (and convicted to death in
absentia) of involvement in the assassination of former
president Laurent Kabila. The Court ruled that such a crime
is a "violation of common law," rather than a political
crime, thereby excluding the accused from the amnesty
specifically accorded by the draft law to those accused of
having committed war or political crimes during the war years
and until the inception of the transition (ref).

2. (C) In the behind-the-scenes contest between President
Kabila's PPRD and Vice President Ruberwa's RCD, the ruling
represents a victory for the PPRD, which has nimbly changed
its ground from insisting that the assassination of a
president is a de jure and de facto political crime. The
ruling effectively puts the ball back in the RCD's court, as
Ruberwa must now decide whether to insist that the text of
the law be revisited in Parliament (which would risk
reopening the debate surrounding the definition of "political
crime" which had paralyzed progress on the law for more than
a year), to stand by the Supreme Court's ruling on the law,
effectively leaving the fate of the alleged assassins (who
are close to the RCD) to a post-electoral debate, or to seek
a new, and mutually acceptable to the PPRD, compromise.

3. (C) President Kabila's senior advisor, Augustin Katumba,
told PolCouns December 18 that the President is prepared to
sign the law in support of the principle of "general" amnesty
and in the interest of national reconciliation. (Comment:
Kabila is actually now prepared to sign the law, in contrast
to his position two weeks ago, precisely because the supposed
killers of his father will not be included in the amnesty.
End Comment.) When asked why the party no longer insists that
the killing of a president is an internationally recognized
political offense, Katumba (somewhat heatedly) replied that
if the Congolese Supreme Court chose to take a different
interpretation that was the Court's right and neither he nor
Congolese politicians are qualified to debate their decision.

4. (C) Vice President Azarias Ruberwa equally heatedly
insisted to PolCouns December 18 that Kabila had unfairly
influenced the Court's decision in flagrant violation of
judicial independence (although he admitted when pressed that
he had no evidence of this), and that the ruling was arguably
the most ridiculous imaginable, from a legal perspective.
(Note: Ruberwa is himself a lawyer.) Tacitly acknowledging
the potential problem in the National Assembly (and the
danger that the RCD's tenuous support from the MLC on this
issue could collapse if pushed a second time), Ruberwa
admitted that he is "not eager" to insist that the draft bill
be returned to Parliament. He said he would be open to a
compromise such as retrying the accused in a valid Congolese
military court, with international community observers, but
said he doubted that the PPRD would agree to such an idea.

5. (C) Comment: Amnesty -- specifically for Laurent Kabila's
killers -- remains a potential flashpoint as the transition
winds down and electoral campaigns heat up. Under the terms
of the Sun City Accord an amnesty law must be passed before
the end of the transition, but the Accord does not
specifically insist that the question of Kabila's assassins
be addressed. This apparent loophole is at the heart of the
PPRD's latest posture, i.e., President Kabila will ensure
that the terms of the Accord are met by signing the law
which, after all the RCD not only approved but fought for,
and which remains intact. And at the same time, Kabila will
ensure that his father's alleged killers do not benefit from
the terms of said law.

6. (C) Comment, cont. An hour-and-a-half diatribe from three
Tutsi businessmen to PolCouns in Goma December 17, however,
underscores the highly emotional dimensions of the problem on
the ground, as distinct from Kinshasa's political debating
society. They demanded (rhetorically) why one man's death
should count more than that of hundreds of others, and why
one group (the RCD) should effectively be held more
accountable for its crimes than others (such as the PPRD),
and concluded by speculating that without a truly broad
amnesty some "unstable elements" might make it difficult even
to hold the elections scheduled for next year. While we find
this statement hyperbolic, it is obviously desirable to find
a compromise which will both allow Kabila a way forward which
won't allienate him from his family and the extremist
elements of his party, while also enabling Ruberwa to keep
his own extremist elements satisfied. A conditional amnesty
with supevised retrial in a military court (since Ruberwa
categorically excludes having such a trial in the "tainted"
Supreme Court) could be one possibility. We think it more
likely, however, that the court ruling will stand. The
underlying issue regarding those accused of Kabila's
assassination will be left unresolved, another of the
contentious sources of tension that characterizes the
transition process and government.