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Abstract
Politically fomented restrictions on citizenship eligibility are on the rise in Africa. This has proven particularly so in the Democratic Republic of Congo, where, over more than 40 years since independence, the citizenship of the “Rwandophone” minority (peoples of Rwandan/Burundese heritage, including the much-discussed “Banyamulenge”), has been switched on and off as expediency dictated, a key element in the divide-and-rule strategies of political elites, and in the outbreak of two recent wars. Recognizing this, in 2004, the post-war Transition Government promulgated a new law on nationality. But it is far from clear that this will resolve the core problem. First, at the level of legal principle, this law does not seem likely to eliminate the many ambiguities concerning the national status of Rwandophones. Second, citizenship in the DRC has as much to do with the politics of implementing the law on the ground as with the law itself. Third, does the political relationship between the individual and the state really encompass everything that it means to be a full “citizen”? There are two important dimensions of full citizenship in Africa which continue to be denied to Rwandophones: local rights and obligations between the individual and customary authority, with implications for land allocation and other vital entitlements; and the ethically vital, lived sense of belonging and existential security for the individual within society as a whole. Without addressing these other dimensions, the question of Rwandophone citizenship remains open to further manipulation—an injustice and a potential cause for conflict to resume.
Acknowledgements
The author would like to thank Gerry Bennett, Batabiha Bushoki, Francesca Bomboko, Deirdre Clancy, Serges Demefack, Laura Frost, Agnès Hurwitz, Georges Kapiamba, Marcel Wetsh'okonda Koso and Andy Storey for their advice in preparing this paper, along with multiple anonymous informants in the DRC and elsewhere in Central Africa interviewed between 1997 and the present, and a number of anonymous reviewers.
Notes
1 The distinction between nationality and citizenship can be a little unclear, even semantic; for the purposes of this article I understand “nationality” to mean the (by no means) simple fact of the recognition that an individual belongs, in a legal sense, to the national collectivity, while citizenship connotes the further fulfilment of rights and obligations that attach to and stem from that belonging. The distinction may be clearer with an example: a three-year-old may certainly be a national, but not, in the fullest sense, a citizen, in that he/she cannot vote, cannot stand for elected office, may face restrictions on ability to own property, etcetera.
2 Though other cases of exclusion exist, particularly with regard to the rights of certain peoples in the southern Katanga province, scene of frequent bouts of intercommunal strife and secessionist tendencies. See, for example Bakajika Bankajikila (Citation1997) and Open Society Justice Initiative (Citation2004b).
3 Literally people of Rwandan-language (Kinyarwandan) expression. Nomenclature in this region is notoriously politicized, fluid and difficult; some analysts refer to the same collective population as Banyarwanda, while others use this term either to mean only those Rwandophones from North Kivu (in contradistinction to “Banyamulenge” from South Kivu) or only Congolese Hutu (as opposed to Congolese Tutsi). Hence my preference for the precise—and popularly used—collective name “Rwandophone”. The term Banyamulenge will be discussed later in the text.
4 Though by far from the only factor. Two successive rebellions centrally involving Rwandophone actors were the triggers for the wars; but these were strongly supported by both Rwanda and Uganda for reasons involving both the desire to suppress armed groups operating against them from Congolese national territory and also to assert control over the DRC's political and economic trajectory.
5 DesForges shows that the colonial pressure on the Rwandan court to extend full control over quasi-independent princedoms in what is now northwest Rwanda incited a full scale rebellion in 1912 which was a key factor in forging the “Hutu” and “Tutsi” as separate ethnic identities (DesForges, Citation1986).
6 The common prefix Banya- might best be translated as “people originating from …”
7 See Willame (Citation1997). Substantial numbers also migrated north to British Uganda: as early as 1923, the Governor-General of Ruanda-Urundi was boasting “we have the finest reservoir of labour in Central Africa” (Lyons, Citation1996).
8 Willame (Citation1997).
9 Just how fluid remains a matter of debate (see, for example, Newbury, Citation1993; Lemarchand, Citation1994; Chrétien, Citation2000; Pottier, Citation2002).
10 This formulation replaced two earlier ones: the colonial Ordonnance Législative no. 25/554 of 6 November 1959 (on the eve of independence, in other words) and Résolution no. 11 of the Congolese “Table Ronde” that negotiated in Brussels for independence from Belgium and which stipulated that “the right to vote is accorded to Congolese, to men of Congolese mothers, and to ressortissants of Rwanda-Urundi [sic] residing in the Belgian Congo for at least ten years”. The Table Ronde thus accorded nationality to Rwandophones; but by doing so explicitly, it—advertently or inadvertently—also drew attention to the fragility of the claim …
11 Some legal interpreters suggested a broader reading of the 1964 provisions, one sympathetic to Rwandophones, arguing that even late migrants had a claim since as either Hutu or Tutsi they are members of “tribes” already established on the territory before 1908, even though their particular direct ancestors might not have been (Ndeshyo Rurirhose, 1992).
12 Decision of the MPR's Political Bureau of 28 July 1970, published the next day by the Agence Congolaise de Presse (Ndeshyo Rurihose, Citation1992).
13 L'Ordonnance-Loi No. 71-020 du 26 Mars 1971 Relative à la Reconnaissance de la Nationalité Congolaise aux Personnes Originaires du Ruanda-Urundi Etablies au Congo au 30 Juin 1960. Its adoption “est justifiée par la répétition des contestations, des exactions et de mauvais traitements à l'endroit de cette population”. Article 15: “les personnes originaires du Ruanda-Urundi établies au Congo à la date du 30 Juin 1960 sont réputées avoir acquis la nationalité congolaise à la date susdite”.
14 Though a further new law in 1972 moved the cut-off date backwards again to the 1st January 1950—La Loi No. 72-002 du 5 Janvier 1972. Article 17 of that law stipulates that “les personnes originaires du Rwanda-Urundi qui étaient établies dans la province du Kivu avant le 1er Janvier 1950 à la suite d'une décision de l'autorité coloniale et qui ont continué à résider depuis lors dans la République jusqu'à l'entrée en vigueur de la présente loi ont acquis la nationalité zaïroise à la date du 30 Juin 1960”. Ndeshyo Rurihose (Citation1992) notes (tongue in cheek?) that this new law was enacted “sans doute pour éviter la confusion! Laquelle?” He also notes that this article was in contradiction with the Bureau Politique's statement on the matter and that it violates the rights acquired by those who established themselves in Zaire between 1950 and 1960. Finally, he argues that the population d'expression kinyarwanda should not need special legislation anyway since their nationality should already have been confirmed by the Table Ronde and Article 6 of the Constitution.
15 There are, of course, many other ethnic groups currently split between border areas of the DRC and neighbouring countries, such as the aaLund and the Tchokwe, split between DRC and Angola. On occasion cases of denial of citizenship or identity card have been reported concerning these populations too. But these have seldom reached the kind of public prominence that the Banyarwanda case has.
16 Congolese human rights lawyers in interview with the author, 22 July 1999, Goma.
17 Bembe was from Uvira in South Kivu; his attention was therefore interpreted by Rwandophones as relating to rivalries between the Banyamulenge and his ethnic group, the Babembe.
18 La Loi No. 81-002 du 29 Juin 1981 (O.R.Z. No. 13 du 1er Juillet 1981, p. 8). It is clear, Ndeshyo Rurihose (Citation1992) argues, that this new law cannot act retrospectively, annulling and violating the rights already acquired. The relevant paragraph of the new law is “Aux termes de l'article 11 de la Constitution, à la date du 30 Juin 1960, toute personne dont un des ascendants est ou a été membre d'une des tribus établies sur le territoire de la République du Zaïre dans ses limites du 1er août 1885, telles que modifiées par les conventions subséquentes”.
19 It is not uncommon to hear Congolese activists ask, “Why were the Rwandophones the only problematic population with regard to nationality, given that there were and still are many other transborder populations who might have been affected in this way?” Part of the answer lies in the (national) political and (local) economic prominence to which the population rose, with the land question in North Kivu proving particularly incendiary. More recently, anti-Rwandophone and specifically anti-Tutsi animus owes much to the close involvement of these populations in the wars that have riven the DRC since 1996.
20 Though the MAGRIVI (a new Hutu agricultural cooperative movement soon to spawn its own militia) and the (Hutu) Ndeze chiefs of Bwisha did manage to be represented (Willame, Citation1997).
21 Some Banyamulenge believe that subsequent developments were due to a change of heart by Maliba after the Kivu delegations to the CNS threatened to withdraw their support for his party leader, Etienne Tchisekedi (Ruhimbika, Citation2001).
22 Memorandum des Banyamulenge a la Conférence Nationale Souveraine, Kinshasa, 6 July 1991 (Ruhimbika, Citation2001).
23 Résolution sur la Nationalité du Haut-Conseil de la République—Parlément de Transition, Kinshasa, 28 April 1995 (Ruhimbika, Citation2001).
24 This ambiguity goes beyond formal citizenship to rely on more politico-cultural notions of belonging expressed through the language of “autochthony”, as touched upon earlier (Jackson, Citation2006).
25 Communication from UN Under Secretary-General Marek Goulding to the High Commissioner, Subject Masisi Refugees, New York, 24 May 1996 (cited in Ogata, Citation2005).
26 A study by the Open Society Justice Initiative (Citation2004a), which briefly discusses the “Banyamulenge” case as one amongst several in which racism and citizenship denial coincide, notes that “… State Parties to the ICERD could be in breach of Article (2) if their nationality laws have the effect of discriminating against persons of a particular national origin … Notes that the denial of citizenship to large number of long-term residents, where it results in disadvantaging them in access to employment and social benefits, violates the ICERD's anti-discrimination principles, including Articles 5(e)(i) and 5(e)(iv) … [and] Clarifies that, for the purposes of this General Recommendation, the term ‘non-citizens’ whose rights are at issue includes not only refugees and migrants, but all persons who are not nationals, or who cannot establish nationality, of the state on whose territory they live, including persons who have never crossed an international border.”
27 “Est congolais d'origine, toute personne appartenant aux groupes ethniques et nationalités dont les personnes et le territoire constituaient ce qui est devenu le Congo (présentement la République démocratique du Congo) à l'indépendance”; the entirety of the new law is very helpfully reproduced in Les Analyses Juridiques (Lubumbashi), 5, 2005.
28 Some of these were strongly rumoured to hold passports of neighbouring countries such as Tanzania or Uganda. Others—many of whom had been in exile from the country during the Mobutiste or early Kabiliste periods—held French, Belgian or other European nationalities.
29 A fine French idiom which, literally meaning a “Spanish inn”, can be translated, according to one's degree of optimism, as either a “potluck” or a “madhouse” …
30 Congolese legal specialists in interview with the author, Kampala, Uganda, 8 April 2005 and in subsequent communications.
31 The new law might, of course, have tried to provide just such a list of population groups deemed “nationals by origin”. This is exactly the approach taken by the Ugandan Constitution of 1995. In a similar formulation, its Article 10a states that “citizenship by birth” belongs to “every person born in Uganda one of whose parents or grandparents is or was a member of any of the indigenous communities existing and residing within the borders of Uganda as at the first day of February, 1926 and set out in the Third Schedule to this Constitution” (my emphasis). Schedule 3 then lists 56 populations groups. Where possibility of confusion arises because of multiple names, both are given: for example, “34. Ik (Teuso)”. But even if the objective historical evidence were clear for arriving at a definitive list (which it is not), the fragility of post-conflict Congolese politics would have made it unthinkable to try.
32 Such tricky legal determinations of belonging are by no means confined to Africa; ethnic or “tribal” belonging has often meshed uncomfortably with Western jurisprudence. For an illuminating example of a US Federal Court grappling maladroitly to determine upon the legal personality of a Native American tribe, see Clifford (Citation1988).
33 In 1998, government radio in the eastern town of Bunia called on the general populace to use “a machete, a spear, an arrow, a hoe, spades, rakes, nails, truncheons, electric irons, barbed wire, stones, and the like, in order, dear listeners, to kill the Rwandan Tutsis” (Human Rights Watch, Citation1999).
34 Aleinikoff and Klusmeyer's (2002) approach makes a distinction between the citizenship rights of the “first generation” (people born and raised in another country who immigrate to the new country as adults) and those of the “second” and “third” generations (the immigrants' children and grandchildren born and raised in the host country). Because their parents have been “socialized in the country of immigration” the third generation would qualify for citizenship of the host country from birth. For those of the second generation, a combination of birth-plus-residency would enable automatic citizenship (with a “reasonable” residency requirement set at 10 years before age 18 or six years of schooling). Aleinikoff and Klusmeyer slightly amend the usual definitions for the second generation by urging that members of the so-called “1.5-generation”—foreign-born immigrants who migrate at an early age with their parents and are thus substantially raised in the host country—be considered as part of the second generation, not the first, and they propose citizenship rights for these individuals also. Finally, for the first generation, naturalization should be simple and based on a reasonable period of residency.