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On 10/13/2009 3:32:23 PM Lieutenant Colonel Sam Mubangu, Office of Legal Counsel wrote
Executive-Level Seminar on Legal Aspects of Combating Corruption
From September 21-25, 2009 a team of active duty and reserve component military lawyers traveled to Kinshasa, DRC to lead an executive-level seminar on legal aspects of combating corruption. This training was a one-year follow-on to a program delivered in September 2008, except that this time the focus of the training was on Whistleblower and Witness Protection issues and DRC anti-corruption laws.
The team consisted of Brigadier General Jack Nevin of the U.S. Army Reserve, Lieutenant Colonel Walt Green of the U.S. Marine Corps Reserve, Lieutenant Colonel Sam Mubangu of the U.S. Africa Command's Office of the Legal Counsel and Major Kevin Ingram of the Defense Institute of International Legal Studies (DIILS). The U.S. military team was augmented by a Congolese instructor, namely Professor St. Augustin Mwendambali who serves as Director-General of the "Observatoire du Code d'Ethique Professionnelle" (OCEP). OCEP was established by presidential decree with specific mission to champion anti-corruption efforts and propose anti-corruption policies. It could roughly be described as the DRC-equivalent to the U.S. Office of Government Ethics. The U.S. Embassy Kinshasa provided a pair of Congolese interpreters to assist Congolese participants and non-French speaking DIILS-led team instructors.
The participants were all Congolese officials drawn from the Office of the Prime Minister, the Supreme Council of the Magistrature, the Congolese National Police, the Congolese military justice system, OCEP, various ministries and governmental agencies/departments as well as members of the local media and Non-Governmental Organizations (NGOs),. The Seminar focused primarily on three themes: (a) public service and the protection of whistleblowers; (b) the protection and security of witnesses; and (c) means of collaboration. Instruction subjects included the following: an overview of integrity and corruption in the public service; transparency and accountability in government; the protection of whistleblowers; the protection of witnesses and the right of the accused to confront his accusers, etc. There was wide agreement among the participants in Kinshasa that no level of power in the DRC has been spared from corruption practices and effects. In fact, international and DRC national surveys have consistently shown that corruption permeates all walks of life in the country. According to Transparency International's Worldwide Corruption Perceptions Index ranking the countries of the world since 1995 according to "the degree to which corruption is perceived to exist among public officials and politicians, the DRC ranked 166 out of 180 countries for the period from 2002 -2008. Transparency International defines corruption as "the abuse of entrusted power for private gain." This year, the DRC ranks 176 out of 180 countries on the human development index (HDI) published each year since 1990 in the United Nations Human Development Report.
The Kinshasa participants asked many questions of the U.S. military team, including: (a) how does the average American feel about corruption? What keeps American public officials, especially prosecutors, from being corrupt? Throughout the seminar, a lion's share of allegations of corruption appeared to be aimed at Congolese civilian prosecutors (known as "Magistrats"). During one of the seminar's many question and answer sessions, a top prosecutor attempted to explain the difficulties that prosecutors face in their effort to investigate and prosecute top officials alleged to have embezzled public funds. According to such top prosecutor, Congolese prosecutors are often stopped in their effort to take action against wrongdoers due to the privileges and immunities set forth in the Congolese Constitution for the benefit of certain senior civilian and military officials. No prosecution against such officials may go forward, until their privileges and immunities have been lifted by proper authority, as specified in the Constitution.
However, a female participant challenged this explanation by remarking that in the past ten years she has seen no resignation in protest by anyone from the Ministry of Justice based upon the failure of the President or any minister to lift the privileges and immunities in a given case. The female participant added that it would be ludicrous to blame the endemic corruption within the Congolese civilian "Magistrature" on the Constitutional privileges and immunities or the failure of others to lift them.
There were two highlights that drew a great deal of interest from the Congolese participants. The first involved the right of the accused to confront his accuser(s) in open court by cross-examining them under oath. Because the American judicial mechanism of cross-examination does not exist in Congolese law, a demonstration was necessary to illustrate the doctrinal instruction. Serving as Defense Counsel for someone hypothetically accused of robbery, General Nevin demonstrated the technique of cross-examination by questioning Lieutenant Colonel Mubangu who appeared in a fictitious criminal court as a prosecution witness. What ensued was a battery of cross-examination questions aimed at discrediting Lieutenant Colonel Mubangu's credibility as a prosecution witness on the stand. Under the weight and fire of vigorous cross-examination, Lieutenant Colonel Mubangu's credibility was shredded into pieces when Defense Counsel Nevin got him to admit that he was not in the position to see the accused in the store from where he had been standing on the day of the alleged robbery and that he no longer could remember a thing.
The second highlight involved the U.S. judicial institution of guilty pleas, which does not exist under Congolese jurisprudence. Lieutenant Colonel Green discussed the pros and cons of this judicial institution and asked the participants what they thought about it. Many participants felt uncomfortable about introducing it in the DRC due to fear of abuse or corruption by Congolese prosecutors. But some other participants felt that it could be useful in appropriate high stakes cases involving criminal enterprises, state security, provided appropriate safeguards and controls are put in place.
In sum, the seminar in Kinshasa was very successful and generated a lot of good thoughts and lessons learned that we hope the Congolese participants took back with them and would share with their comrades who were not selected to attend the seminar.
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