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Act No. 11/007 of 09 July 2011 implementing the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction in the Democratic Republic of the Congo
Statement of Reasons
In the early 1990s, in almost all situations in which they were used, anti-personnel mines had caused serious human, health, economic and social consequences. This situation had prompted the International Committee of the Red Cross to declare in medical terms that anti-personnel mines had created an exceptionally serious "emergency".
Aware of the suffering and damage caused by mines and explosive remnants of war, particularly on civilians, several governments led by Canada, began in 1996 a process that culminated in the signing of the Ottawa Treaty on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction in 1997.
This Treaty aims to alleviate these sufferings and protect civilians.
In order to meet this international obligation and in the light of its specific situation due to the recurring armed conflicts, the Democratic Republic of the Congo deposited its instrument of accession to the Convention with the United Nations Secretariat on 02 May 2002.
It entered into force with respect to the Democratic Republic of the Congo on T" November 2002, the first day of the sixth month following the date of deposit of the instrument of accession in accordance with Article 17 of the Convention.
However, under Article 5, the deadline for the Democratic Republic of the Congo to destroy all anti-personnel mines is set on November 2012.
As a State Party and as part of the implementation of the Convention, the Democratic Republic of the Congo is taking this Act to enable it to assume its responsibilities in the face of the humanitarian, socio-economic and environmental consequences caused by these devices. However, it is required to:
• prosecute and punish persons engaged in activities prohibited by the Convention:
• submit annually to the Secretary-General of the United Nations a report on measures taken to fulfil the treaty commitments;
• Cooperate with other States parties to facilitate compliance with the Convention, including by cooperating with fact-finding missions to collect information on compliance with the Convention.
Specifically, this Act emphasizes assistance to victims of anti-personnel mines.
It includes 8 chapters:
Chapter I: Object and Definitions
Chapter II: General provisions
Chapter III: De la destruction des mines antipersonnel
Chapter IV: Fact-finding missions
Chapter V: Victim Assistance
Chapter VI: National mine action structures
Chapter VII: Sanctions
Chapter VIII: Transitional and final provisions. This is the general economy of this Act.
Act
The National Assembly and the Senate adopted;
The President of the Republic promulgates the following Act:
Section 1er: Object and definitions
Article 1:
The purpose of this Act is to implement the Convention of 3 December 1997 signed at OTTAWA on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction.
It aims to eliminate anti-personnel mines in the national territory.
Article 2
For the purposes of this Act:
1. Victim assistance: assistance, relief, comfort and support to victims (including survivors) to reduce the immediate and long-term medical and psychological consequences of their trauma;
2. anti-manipulation device: a device intended to protect a mine and which is part of it, is connected to it, attached to it or placed under it and which triggers in the event of an attempt to manipulate or de-icing the lamin;
3. mine action: activities to reduce the social, economic and environmental impacts of mines and unexploded ordnance;
4. mine: ammunition designed to be placed under, on or near the ground or another surface and intended to explode in the presence, proximity or contact of a person or vehicle;
5. anti-personnel mine: mine designed to explode in the presence, proximity or contact of a person in order to handicap, injury or kill one or more persons;
6. abandoned explosive ammunition: an ammunition that was not used in an armed conflict, that was left behind or thrown by a party to an armed conflict and that is no longer under the control of the party that left it behind or thrown it. An abandoned explosive munition could be initiated, equipped with a rocket, armed or otherwise prepared to be used;
7. Unexploded ordnance: an explosive ordnance that has been initiated, equipped with a rocket, armed or otherwise prepared to be used in an armed conflict, and used in an armed conflict; it could have been fired, dumped, launched or projected and should have exploded but was not;
8. international mine action standards: documents prepared by the United Nations on behalf of the international community to improve the safety and effectiveness of mine action by providing guidance, establishing principles and, in some cases, defining international requirements and specifications;
9. explosive remnants of war: unexploded ordnance and abandoned explosive ordnance;
10. transfer: in addition to the material removal of anti-personnel mines from the territory of a State or their material introduction into that of another State, the transfer of ownership and control over such mines, but not the transfer of a territory on which anti-personnel mines have been established;
11. Mined area: hazardous area due to proven or suspected mine presence.
Chapter 2: General provisions
Article 3
The development, manufacture, production, acquisition, storage, storage, supply, disposal, import, export, transfer and use of anti-personnel mines are prohibited in the national territory.
The same applies to spare parts and assembly elements of anti-personnel mines.
Article 4
It is prohibited to attend, encourage or incite in any way anyone to engage in the activities listed in section 3 of this Act.
Article 5
Notwithstanding the provisions of Article 3 above, a number of anti-personnel mines may be retained or transferred by the State for the development of detection, demining or destruction techniques and for training in such techniques.
The Minister with the defence in his or her powers determines the maximum number of anti-personnel mines that may be retained or transferred and may not exceed the minimum absolutely necessary for such purposes.
Article 6
Any holder of anti-personnel mines shall declare to the competent department of the Ministry of Civil Protection:
(a) types and quantities and, where possible, batch numbers of all anti-personnel mines retained or transferred for the development of detection techniques and for training in such techniques;
(b) types and quantities and, if possible, batch numbers of all anti-personnel mines transferred for destruction purposes.
Article 7
The Government shall prepare an annual report in accordance with Article 7 of the Convention on the Prohibition of Anti-personnel Mines. He diplomatically transmits it to the Secretary General of the United Nations no later than 30 April of the following year.
The report includes:
(a) the status of programmes for the destruction of stockpiles of anti-personnel mines, including details on the methods to be used for the destruction, location of all locations of environmental destruction;
(b) the types and quantities of all anti-personnel mines destroyed after 1 November 2002, including a breakdown of the quantity of each type and, where possible, batch numbers;
(c) facilities authorized to retain or transfer anti-personnel mines for the purpose of destruction or for the development of techniques for the detection of anti-personnel mines, mine clearance or destruction of anti-personnel mines and for training in such technologies;
(d) the status of programmes for the conversion or decommissioning of anti-personnel mine production facilities, including details of methods to be used.
Chapter 3: De la destruction des mines antipersonnel
Article 8
Subject to the provisions of Article 5, the State shall destroy all stockpiles of anti-personnel mines of which it is the owner, holder or under national jurisdiction or under its control.
Article 9
The Ministry of Civil Protection identifies all areas where the presence of anti-personnel mines is proven or suspected.
It shall mark such areas in accordance with the standards prescribed by the Protocol on Prohibitions or Restrictions on the Use of Mines in order to prevent civilians from entering them.
It prepares a report including the location of the site, the maximum possible clarification of the type and quantity of each type of anti-personnel mines and the date of their establishment.
Article 10
The Ministry in charge of civil protection ensures the destruction of anti-personnel mines in mined areas under the jurisdiction or control of the Congolese State, within the time and in the manner prescribed by Article 5 of the Treaty of OTTAWA.
Article 11
The identification and marking of mined areas and the destruction of anti-personnel mines referred to in Articles 9 and 10 may be entrusted to bodies and/or authorized persons.
A deliberate decree in the Council of Ministers sets the conditions and modalities for their approval.
Chapter 4: Fact-finding missions
Article 12
At its invitation or if the Assembly of the States Parties to the Treaty authorizes the sending of a fact-finding mission, the Democratic Republic of the Congo shall receive it in accordance with the conditions laid down in Article 8 of the Ottawa Treaty of 1997.
Members of the mission designated by the Secretary General of the United Nations, who have not been challenged by the Democratic Republic of the Congo, have access to all areas, facilities or facilities located in the national territory where it may be possible to collect relevant facts relating to the alleged non-compliance of the motor vehicle.
Access to these sites is subject to the measures that the State considers necessary to enact.
Mission members may speak with any person who may provide information on cases of alleged non-compliance.
Article 13
On the occasion of each fact-finding mission, the Government of the Republic designates an accompanying team.
It checks the inspection warrant and ensures its proper execution.
Article 14
For the performance of their duties, inspectors have powers and enjoy the privileges and immunities provided for in Article VI of the Convention on the Privileges and Immunities of the United Nations, adopted on 3 February 1946.
Article 15
Where the place under inspection depends on a public person other than the State, the authorization for access is given by the competent political or administrative authority of the place.
If the fact-finding mission relates to a place where access, for all or part of the specified area, depends on a private person, the Head of the accompanying team shall notify of that request the person who is qualified to allow access to that place.
In the event of a refusal or absence of the person authorized to give the permission to inspect a place, the President of the Court of Grand Instance of the Jurisdiction or his delegate may authorize such access by order.
Article 16
When the fact-finding mission requests access to areas, premises, documents, data or information of a confidential or private nature, the Head of the accompanying team, if any at the request of the person concerned, shall notify the Chief of the fact-finding mission in writing of the above-mentioned confidential or private nature.
The Head of the accompanying team shall make any provision that he considers necessary to protect the confidentiality and secrecy of the areas, premises, documents, data or information concerned and human rights.
Section 5: Assistance to victims of anti-personnel mines.
Article 17
Without prejudice to the provisions for persons with disabilities, the State guarantees protection for victims of anti-personnel mines in relation to their physical and intellectual needs.
It provides them with all necessary and available means to ensure their physical rehabilitation and to facilitate their social and economic reintegration.
Article 18
Health care for victims of anti-personnel mines is the responsibility of the State in both public and private medical training.
An Order of the Minister with health in his powers sets out the terms and conditions of application.
Article 19
The prostheses and any artifice necessary for the physical rehabilitation of victims are the responsibility of the Public Treasury.
An Order of the Minister with health in his powers sets out the terms and conditions of application.
Rule 20
Any company that uses victims of anti-personnel mines is exempted from double their professional income tax to a maximum of 30% of its profit tax.
Chapter 6: National mine action structures
Article 21
National mine action structures are:
(a) The National Anti-Personnel Mines Commission;
(b) The Congolese Mine Action Centre.
They are financed by budget allocations and donations from all sources.
Article 22
The National Anti-Personnel Mines Commission is responsible for the implementation of the Ottawa Treaty and for monitoring the implementation of this Act.
Article 23
The National Mine Action Centre is the focal point for coordinating mine action activities in the country.
He acts under the authority of the National Commission.
Article 24
The National Anti-Personnel Mines Commission is composed of members designated as follows:
(a) Parliament: two National Deputies and two Senators;
(b) Government: four Ministers: - Minister of Defence;
- the Minister of the Interior;
- Minister of Health;
- the Minister with Humanitarian Action in his or her powers;
(c) Civil society: five members working in mine action.
It may make permanent or temporary use, in accordance with the provisions of its Rules of Procedure, of any qualified person whose expertise is deemed to be useful as well as of any national or international organization accredited in accordance with the provisions of section 11 of this Act.
Rule 25
A deliberate decree in the Council of Ministers sets out the modalities for the application of articles 21 to 23.
Chapter 7: Sanctions
Rule 26
Subject to the provisions of section 5 of this Act, any violation of the requirements of sections 3 and 4 shall be punishable by a 10-year criminal servitude and a fine of ten million to twenty million Congolese francs or only one of those penalties.
When the offence is the act of a legal person, the penalty incurred is ten million to twenty million Congolese francs of fine.
Rule 27
For the offences set out in the preceding article, the judge shall make the following additional penalties:
(a) the prohibition of professional or social activity in the exercise or in the exercise of which the offence was committed;
(b) confiscation and destruction of anti-personnel mines, assembly elements or spare parts in possession or control of natural or legal persons.
Rule 28
Anyone who opposes or hinders the procedures for establishing the facts shall be punished with a criminal servitude from six months to one year and a fine of 20 million Congolese francs or one of those penalties only.
When the offence is committed by a legal person, the penalty incurred is five million to ten million Congolese francs of fine.
Chapter 8: Transitional and Final Provisions
Rule 29
Any natural or legal person producing anti-personnel mines, spare parts or assembly elements referred to in section 3 shall stop any production from the coming into force of this Act.
Rule 30
Any person, other than the Government or a competent public administration that produces or possesses anti-personnel mines, spare parts or assembly elements referred to in Article 3, shall promptly notify the Ministry of Defence and the Ministry of Civil Protection of the total stock including a breakdown by type, quantity and, if possible, by lot number for each type of anti-personnel mines stored.
Rule 31
Any person defined in the preceding article shall, as soon as possible, deliver to the competent departments of the Ministry in charge of civil protection, anti-personnel mines, spare parts and assembly elements possessed in violation of Article 3 of this Law for their destruction.
Rule 32
This Act comes into force on the date of its promulgation.
Done at Kisangani 09 July 2011
Joseph KABILA KABANGE
