She described having to live in difficult conditions under another identity. The other person E2 spoke to described spending two periods of detention in Kin Maziere during which he was interrogated and ill-treated before being released on the intervention of a relative who paid a bribe. This other person also described being asked about his activities in the UK and accused of dishonouring his country by saying things against it abroad. He was also asked about how he had got out of the country. WY was adamant the Red Cross could provide a letter and photograph of him.
She records him as confirming in reply that they took all his documents. In reply to his wife the British Embassy official had said he would record the complaint and that his Embassy would write to the DRC government. Tribunal Country Guidance It reiterated that there continued to be a real risk for those with a political or military profile and that each case was to be judged on its own facts.
Our emphasis. The Tribunal concluded that it did not afford a sufficient basis for modifying the conclusions on failed asylum seekers reached in AB and DM. On the basis of the evidence before us, the current position is as follows. The national police have primary responsibility for law enforcement and maintaining public order. The ANR is responsible for internal and external security. The internal section has a prison known as Ouagadougou. In addition during the year the government worked with MONUC and members of the international community to train police.
There was some police improvement, specifically among the rapid police force, following the training by a foreign country of three thousand officers for riot control and emergencies. These officers were properly armed with tear gas and rubber bullets to handle volatile situations and significantly reduce human rights violations.
At year's end the international community was training and professionalizing traffic police. During the year members of the police, military, and security forces attacked, detained, robbed, and extorted money from civilians. The government prosecuted and disciplined some abusers; however, the vast majority acted with impunity. Although there were mechanisms available to investigate human rights violations by police, they were used sporadically. These reforms have not been without success; for example, when the elections were postponed in June , demonstrations in Kinshasa were handled well for the most part.
The bulk of the effort has focused on Kinshasa, and there is virtually no long term plan. The twenty-first report from the UNSG in June reported that while the national police in Kinshasa had demonstrated an ability to control political demonstrations without violating human rights, there was a tendency to use excessive force. According to Mr. Swing the aim was to train 50, police by the date of the election. On 16 December , Radio France International reported that a police academy, funded by France, had been inaugurated in Kinshasa. The academy will receive trainees each year. Since the PN have organised the Mbakana Training Centre, and trained a police battalion and other units in anti-riot, and anti-terrorism.
In Angola, they have held a course for trainers in public order, and trained 80 staff in the motorbike brigade for special anti-terrorism units. Article 20 also states that police custody should not exceed 48 hours; after this period the detainee should be brought before a competent judicial authority. The same Article states that treatment should be in accordance with maintaining life, physical and mental health, and dignity. A report compiled by the Canadian Immigration and Refugee Board in February also stated that in theory, the Congolese constitution guarantees impartial justice, defendants have the right to appeal in most cases, and the right to defence is recognized by all courts.
Several reports indicated that although the law provides for a speedy process, access to family and lawyers, and prohibits arbitrary arrest and detention, these provisions were not followed in practice. When authorities did press charges, the claims were rarely filed in a timely manner and were often contrived or overly vague. Reportedly security forces regularly held alleged suspects for varying periods of time before acknowledging that they were in custody or allowing the detainees to have contact with family or legal counsel.
For example on August 5, police in Lubumbashi arrested and severely beat Mimi Balela Mbayo in place of her husband, who was wanted for stealing 24 thousand dollars from a former employee. Mabyo's buttocks were flayed, tearing off large pieces of flesh and muscle. At year's end no action had been taken against OPJ Donat Atwena, the police officer who ordered the beating. The MONUC report recommended a number of measures to improve the situation of illegal detention, and to reduce the number of people held in preventive detention and limit its duration.
Many people spent long periods in detention without charge or trial. A number were reportedly ill-treated or tortured. Human rights defenders and journalists engaged in legitimate investigation and criticism were also threatened and unlawfully detained. The civilian population is subject to violence by the military and police, often for financial reasons; most such offences go unpunished. The successful completion of the local elections planned for next year should be a vital next step. This progress, and the end of major fighting in most of the country, has had a positive effect on the humanitarian situation.
Over the last four years, the total number of internally displaced has decreased from 3. In Katanga Province alone, some , people returned home last year. Most of the country is beginning to experience greater calm and stability, even if MONUC should not yet even start to contemplate leaving. Nevertheless, serious humanitarian problems remain, particularly in the east, for hundreds of thousands of civilians are still displaced and more continue to flee fighting and violence, and where illegal armed groups terrorise large parts of the population.
While the position in Ituri has improved significantly, continuing insecurity in north and south Kivu has particularly severe humanitarian consequences. North Kivu alone represents almost two-thirds of this number, including about , more since November last year. From the Amnesty International Report, May , it is clear that torture and ill-treatment committed by government forces and armed groups continue to take place as do attacks on human rights defenders with impunity and diminished risk of arrest and being put on trial.
In response to a request from the Tribunal for figures of asylum-related returns from the UK to the DRC, the respondent furnished us with figures covering the period January — September The covering letter stressed that whilst figures from January to June are from published information, those from July September have yet to be verified by auditing processes. The total of unsuccessful asylum seekers given for is and for Jan September it is The information on returns also states that in the period January until December there were 45 non-asylum cases concerning nationals of the DRC removed to the DRC.
Treatment of failed asylum seekers returned to the DRC The first letter confirmed the letter of 9 December which stated that the FCO had no evidence that DRC nationals face persecution from DRC authorities on being returned to Kinshasa after a failed claim for political asylum in a third country. Flights carrying returnees from Schengen countries are met by a French Airport Liaison Officer who ensures that, on arrival, the returnee holds a satisfactory document before passing them on to be landed by DRC Immigration officials.
We have no evidence that returned failed asylum seekers are specifically targeted for adverse treatment. The second letter from the embassy states that the Ambassador had met with the Vice-Minister for the Interior in late December to discuss the return of failed asylum seekers from the UK to the DRC. He could not guarantee that individual failed asylum seekers had not been harassed by individual members of immigration or security services. But they had definitely not been ordered to do so by the Interior Ministry. In response to an information request on the subject of the treatment of rejected asylum seekers in the DRC the UNHCR stated on 19 April , that after the press coverage following the BBC programme their officials in Kinshasa had contacted various organisations and institutions in an attempt to gather more information.
In addition, it sent staff to the airport on days of arrival of flights from Europe. The following were its findings: 1. In the best case scenario, they are freed within one to three hours. In the worst case, they are sent to a detention facility in the centre of town, and released after further verification. The NGO have an office at the airport and are closely monitoring the situation.
As reported above, UNHCR staff were at times present at the airport, but they have not witnessed arrests made at the airport. However, it has to be kept in mind that arrivals at the airport are difficult to monitor, and UNHCR does not have a regular presence at the airport. The latter person was, upon arrival, interrogated for some three hours and then released without further problems.
In general, the situation in the prisons and detention centres in DRC are extremely dire, and detainees have to rely on relatives to bring them food. With the limited information available to UNHCR, it does not have evidence that there is systematic abuse, including detention and mistreatment, of failed asylum seekers returned to the DRC through Kinshasa airport. It wishes to highlight, however, that it advises against the forced return to Kinshasa of persons of Banyamulenge ethnic origin.
An EU Report on Illegal Migration published in June dealing with the subject of returned asylum seekers states that the majority of failed asylum seekers particularly in the UK do not take up the offer of voluntary repatriation. Member states therefore mostly rely on forcible repatriation. The report goes on to state that no EU member state has run charter flights of failed asylum seekers to the DRC since The DRC authorities have resisted attempts by member states to restart them.
However, many member states have signed or are hoping to sign agreements to allow charter flights and guarantee a minimum level of service from Congolese embassies and immigration directorate. Some who have signed agreements have not been satisfied with their results. The report continues to say that there is no reliable evidence of failed asylum seekers being specifically targeted for harassment by the security services.
Although some returnees have been harassed, this is seen as part of a trend of opportunistic crime against random civilians by unpaid or underpaid officials. Harassment is experienced by the majority of travellers, both Congolese or foreign. The Belgian and Dutch governments stated that, like the FCO, they have not seen any evidence to indicate that returned failed asylum seekers are persecuted.
Both the Belgian Embassy in Kinshasa and the Belgian Immigration Department monitored the treatment of returned failed asylum seekers to the DRC from Belgium and had not seen any evidence to indicate that returned failed asylum seekers were at risk of persecution. A letter from the Dutch Embassy in London of July stated that the Dutch Government also enforced the return of failed Congolese asylum seekers to the DRC, and that the Dutch Embassy in Kinshasa had not seen any evidence to indicate that returned failed asylum seekers were at risk of persecution.
Congolese officials are reported to have obtained confidential documents on several deportees and then abused them. Dutch media reports that human rights organisations had also warned that deportees faced the serious risk of imprisonment, extortion and assault if unmasked as asylum-seekers. Asylum is generally granted to Tutsis, but not to persons of mixed origin. In principle, failed Congolese asylum seekers are returned to the DRC. There is a freeze on taking decisions on applications by persons giving their place of origin as Ituri.
Congolese asylum seekers who have exhausted all legal remedies are returned to Kinshasa. Congolese asylum seekers who have exhausted all legal remedies are de facto deported. Tutsis and persons who were in close contact with the Mobutu government are not deported.
Congolese asylum seekers who have exhausted all legal remedies are deported to Kinshasa. It was stated that caution should be exercised and a case-by-case approach was necessary in dealing with these individuals. The plane arrived in Kinshasa at hrs local time. Despite this two of the FAS were declared non-Congolese by the Congolese migration authorities DGM following interviews, in which they said they were respectively Mozambican and Senegalese.
Two of the FAS even reached the embassy to enquire about appeals and visas later that morning. The Embassy who observed the process stated that there were no obvious abuses of human rights. He and his wife were shot outside their home in Kinshasa. During a news conference the suspected ringleader, Second Lieutenant Mungande Kimbao Joel, denied having any part in the murders and said he only confessed under torture. The six judges did not read out the charges. A spokesman for Journaliste en danger JED alleged that Ngyke was killed because of an article on embezzlement of government funds.
Le Potentiel has the largest circulation, at 4, copies a day. There are few newspapers in the rest of the country. However, since the resumption of national air traffic, the Kinshasa newspapers are getting to cities in the rest of the country, if only in small quantities. While many newspapers remained critical of the transitional government, many showed bias towards it or particular political parties.
Submissions Since we deal with the main points raised by each side in submissions on the general issues in our assessment below, we need only briefly outline their main thrust here. Partly with reference to his skeleton argument Mr Jacobs submitted that there was now a significant body of compelling fresh evidence placed before the Tribunal, which necessitated a major change in its existing country guidance on the DRC, so as to accept that returned failed asylum seekers FAS generally are at risk.
There were 4 categories of risk to FAS on return to the DRC: risk of ill treatment at the airport; risk of ill treatment at Kin Maziere; risk of ill treatment at Makala prison or other detention facilities; and inhuman and degrading prison conditions throughout the DRC. We should accept the first-hand evidence that W1, W2, W3 reinforced by their current airport contacts were able to give about abusive conditions at the airport. This was reinforced by the written account given by a former DRC security agent in the 16 September Observer article and other sources.
FAS are regarded by airport officials as traitors for having gone abroad and said negative things about their country. Most FAS are ransomed and money is extorted from them. The norm is for FAS to be transferred to Kin Maziere or other detention centres, where the likelihood of torture and other forms of ill treatment is even greater. Such visits often lead to re-arrest, imprisonment in dire conditions and further ill-treatment. Mr Jacobs said that the situation for returnees sent back from the UK has currently specific characteristics arising out of events in October when there were attacks in London on Kabila aides.
So there was an added risk for UK expellees. The Kabila regime has many agents who spy on the Congolese community in the UK. Neither systematic nor incidental monitoring is being carried out by any European country. FAS would not be safe until proper monitoring safeguards were put in place. Both the experts, he submitted, should be accepted as balanced, objective and highly informed about their subject. The various case dossiers Miss Atherton and others had been able to assemble disclosed many accounts on similar lines of ill treatment at the airport or thereafter.
They had a powerful corroborative effect. Of the 40 people who returned on the February charter flight, we had information in respect of 10 and all 10 have accounts of being ill treated at the airport. In relation to one of them, WY, we had, inter alia, ICRC photographic confirmation of his injuries sustained shortly after security agents had raided his home within hours of his arriving off this flight.
The British Embassy evidence should be treated with caution. The Embassy correspondence betrayed an unwillingness to investigate and a willingness to disbelieve. There had not been frank and full disclosure from the Embassy of a number of matters.
John R. Lynch
Why, instead of asking VSV if it had an office at the airport, did not the Embassy official go to the airport to check for himself? Miss Giovannetti asked that we consider the issues in this case in the context of the country evidence as a whole. She confirmed that it was conceded by the respondent that for the purposes of this appeal conditions in DRC prisons and detentions centres were contrary to Article 3. Given that NGOs needed money to do their work, it was very hard to be confident about individual stories. Failed asylum seekers would also have a motive to lie since they would know that if their stories of ill treatment on return were accepted, they might succeed in a future asylum claim.
E1, in his comments on the Tribunal country guidance case of AB, had had every opportunity to disavow his earlier position, as put to the Tribunal in AB that there was no violence or ill treatment at the airport , but had not done so, despite other criticisms. E2, despite her ability to obtain one or two documents verifying certain matters e. Significantly none of her 50 cases covered during her December - February investigations, made any complaint of torture at the airport. Although they referred to rough handling, out of the 50 cases, only one punch was specified.
Yet, she pointed out, the individual concerned was described in that VSV press release dated 13 March as having been imprisoned on arrival in November That was a date falling outside the period covered by the VSV report. As for E2 having managed to trace three quarters of those expellees VSV interviewed in its report, only for all of them to deny any contact with VSV, they had been approached over two years later and it was hardly surprising they were cautious about saying anything regarding VSV to E2 and her organisation.
The Tribunal should reject the evidence of W1, W2 and W3 as badly flawed. There were, she said, very significant discrepancies and implausibilities. The February charter flight took place at a time when Miss Atherton and others had already begun holding consciousness-raising meetings within the DRC community in the UK. In January W2 and W3 had also written a paper. If FAS were regarded as traitors, you would have expected these bodies to have heard about it. Key witnesses have failed to attend to give evidence. Miss Giovannetti emphasised that she was not suggesting there were no cases of ill treatment at the airport on return, but there was no reliable evidence to show a consistent pattern.
She accepted that some of those involved in this case who had tried to find out what had happened to returned FAS such as Miss Cuffe, Miss Atherton, DW genuinely believed there were causes for concern, but the evidence did not stand up. Among the observations made by Mr Jacobs in reply was that the points made by Miss Giovannetti about the likely motives of illegal emigration networks and FAS appeared to rely on the idea of a conspiracy theory.
Legal Framework Changes were also made in the Immigration Rules by means of a Statement of Changes in the Immigration Rules also taking effect on 9 October Cm The burden of proof is upon the Appellant. The question is answered by looking at the evidence in the round and assessed at the time of hearing the appeal.
Our Assessment: Specific Matters Identification as failed asylum seekers It was common ground between the parties that persons involuntarily returned or expelled from the UK to the DRC will not be seen as normal returnees. They will be questioned with a view to establishing what type of expellee they are; and in particular whether they are either a failed asylum seeker or a deportee. It will have already been observed that much of the evidence in this case does not always distinguish between these two categories. The fact that failed asylum seekers have substitution documents a laissez passez will suffice to arouse initial interest.
In respect of those who have travelled with escorts, the fact that they are not ordinary returnees will be known to the DRC airport officials in any event, from the flight manifest. Those who are handed over to DRC airport officials by UK immigration officials as happened on the February charter flight , will observably not be normal returnees.
Asylum seekers as traitors For a number of reasons we consider that this contention fails.
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We note first of all that the DRC is a full party to the Refugee Convention and its Protocol as well as to the OAU Convention governing the specific aspects of refugee problems in Africa. Manifestly the DRC is also a country which is very familiar with the problems of refugees and displaced persons: the latest MONUC report, as well as a number of other reports, refer to the large numbers of former Congolese refugees who have returned to the DRC since the end of the war in It is difficult to follow why, if the DRC authorities regarded the mere act of fleeing the DRC to claim asylum abroad as a betrayal legitimising reprisal , these large-scale returns would be taking place with UNHCR approval and without in general any adverse reaction on the part of the DRC authorities.
We note in this regard that the DGM together with the ANR in common with most of the other security personnel who have a presence at the airport are national organisations and the DGM controls the DRC borders generally. Leaving aside the fact already noted that they work as part of a state which is a full party to the Refugee Convention and the OAU Convention, it is clear that the DGM has a number of dealings with its counterparts in European government with responsibility for removing asylum seekers we also note from the EU Report that France, Belgium, Netherlands and the UK have run training programmes for officers from the DGM and provided equipment for immigration services over the past few years.
The experts also tell us that there is a network of DRC agents in the UK who keep a close eye on the Congolese community here and feed back to the DRC authorities anything of interest. We think it reasonable to assume, therefore, that the DRC airport officials know that asylum seekers make their claims for asylum in host countries certainly in European countries in a relatively confidential setting and that it will only be when asylum seekers have become politically active that what they have said about the DRC is known more widely.
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Knowing that those they were dealing with were failed asylum seekers, they would also very likely presume that what such persons have told their examiners in such relatively confidential settings, has been disbelieved. Allied to this, it is abundantly clear from the evidence we have heard that the current Kabila regime has serious anxieties about the activities of all DRC nationals abroad who involve themselves in political activities or organisations opposed to it.
Miss Atherton emphasised the need for care when doing her work to ensure those she spoke to were not in truth government agents. The high-ranking airport official interviewed by Jenny Cuffe made plain that one of the reasons why failed returning asylum seekers were interrogated was to find out what they had said about the DRC government.
If the DRC authorities believed that the mere act of claiming asylum was traitorous, such lines of questioning would be largely superfluous. Further, there is ample evidence to show that the DRC authorities are well aware that many of their nationals who go abroad to Europe do so for reasons of economic betterment. They are clearly well aware too that legal routes of migration to Europe are very restricted. Naturally the government is reluctant to take what would be unpopular action against them. Fifthly, there have been no official government or pro-government or indeed any public statements or reports brought to our attention which portray asylum seekers as traitors.
If the DRC authorities seriously believed that the generality of DRC asylum seekers in Europe or the UK were traitors, then we would have thought they would have sought to publicise the fact, so as to deter further acts of betrayal. As the above information indicates, the position would seem to be quite to the contrary, that the government sees many of them as benefiting the economy. Another prominent feature of the appellant's case was that failed asylum seekers returned from the UK would run a risk additional to that facing those returned from other countries because of the fact that the ruling group in Kinshasa perceives the Congolese community in the UK as aggressively anti-regime.
More than one returned failed asylum seeker whose cases were given in some details by E2 and others, spoke of airport officials accusing them of being involved in the attack on Okitundu. However, we consider that such concerns and claims are not borne out by a critical approach to the available evidence. The incidents affecting Kabila aides have not been confined to the UK. E1 himself mentions an incident in Brussels and an incident in Paris around the same time. Numbers from France and Belgium would add significantly to that figure. Furthermore we come back to the point that elsewhere in his evidence E1 like E2 emphasises that the Kabila regime has a number of agents in the UK who pay particularly close attention to the political activities of DRC nationals in the UK and who are said to have photographs of everyone who has attended demonstrations or other anti-Kabila events.
Witness 1 W1 is a person who was found credible in his asylum appeal. As such we take the account he gave then as a starting-point when assessing his evidence in this case. As we have seen, W1 described the wide use of physical ill treatment against returned failed asylum seekers and deportees and the risk to women even those who were not deportees or failed asylum seekers of being raped - on such a regular basis as to be fairly described as commonplace.
Bribery and extortion were also said to be routine. We have considerable difficulty with this portrayal for a number of reasons. First of all, from his recent witness statements and oral evidence it was clear that W1 considered it accurate to describe himself as a high-ranking official with a key role in the Military Court as principal assistant to the chief prosecutor. Furthermore, for much of the last year or so in this post he was heavily involved in the prosecutions mounted against those and there were many of them suspected of involvement in the assassination of President Kabila in January there can hardly have been a more intensive and high-profile job in the DRC at that time.
He further spoke of having an ongoing, wide-ranging, multiple set of liaison responsibilities covering both military and civilian government services, all of which fell under the jurisdiction of the Military Court. He was also a standing magistrate. He spoke of various missions taking him elsewhere in the country on numerous occasions during his period of employment there. He claimed to visit there several times a week. In our view, W1 could not realistically have had the involvement at the airport which he claimed and his attempt to enhance the extent of his airport and Kin Maziere knowledge and involvement is a deliberate embellishment designed to bolster his efforts to have his evidence on airport and Kin Maziere procedures treated as empirically based.
When asked how he could therefore have continued his claimed work base at the airport, W1 said that his successor was not up to the job and so he needed to go with him often. In our view that explanation did little to enhance the credibility of his original claim. Secondly, the recent portrayal of himself as someone closely involved with airport matters is very different from the portrayal he gave of himself in the context of his asylum claim. We take into account that W1 appears not to have been asked any questions about his airport or Kin Maziere role.
However, his claim of risk on return solely related to having helped his half-brother to escape, his desertion and of his been recognised on return on account of his high profile. Furthermore, two other witnesses, FL and TA, made no reference to his airport role. The statement of FL 29 April confirmed the role of W1 as part of the Military Court prosecution team and as personal assistant to a high ranking officer, but made no reference to W1 being involved in Kin Maziere or Makala Prison or in any role supervising the DGM at the airport.
TA, in a statement dated 29 April , dealing with his having entered the United Kingdom in company with W1, makes no reference to W1 having a role in the airport. The chief of the DGM would surely, in our view, have had routine responsibility for disciplinary matters involving DGM officers. Thirdly, the portrayal W1 presents in common with that of W2 and W3 is extremely discordant with that indicated by other weightier sources, including, the EU HoM in their April report and E1.
Indeed, if W1 is right, then E1 has been misinformed for several years. We find it inconceivable that they would have failed to have come to learn of such an appalling and long-standing pattern of abuses. To say that airport officials kept these abuses away from view and maintained a code of silence does not answer the problem with the evidence here. All or most victims would have had family or friends - many desperate, we think it safe to infer, to tell the media what was going on, in the same way as family and friends of detention victims have done.
Even assuming a significant number had protection from high-placed relatives, W1 did not suggest that this prevented him from arresting them; only from them been sentenced and dismissed from their posts. Yet on his general account the patterns of torture, rape and dispossession were openly displayed and practised. Fifthly, we do not consider that W1 gave a truthful account of the nature of his own involvement in wrongdoings at the airport.
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Although he sought to convey that he spent a considerable amount of time at the airport trying to prevent abuses and in several cases taking action to arrest and punish wrongdoers, he was unable to explain to our satisfaction why he would only have accepted a bribe on one occasion. If, on his account everyone was doing it routinely, why would he confine himself, as he maintained before us, to just one occasion? We cannot overlook, either, that even on his own somewhat coy account, he had practised torture. We accept that W1 has recently sought to say that since arrival in the UK he had more fully recognised how appalling the conduct of officials at the airport and in Kin Maziere was and now wishes to do what he can to help stop it.
But we do not accept that at the time his own role was an enlightened as he now seeks to say it for the most part was. However, he has insisted that his portrayal continues to describe the current situation, because he has a number of reliable sources who have been and are keeping him up-to-date. Whilst we take fully into account the complex dialectics of DRC politics, with e. We can accept that given his previous high rank he may well be someone with whom some current high-ranking officials would want to contact discreetly, but his account of a significant number of such sources ready to up-date him through unencrypted means about airport abuses even knowing he was involved in this case as a potential witness, is not credible.
In addition we do not find W1 to be a credible and reliable witness in connection with his coming to the United Kingdom. W1 was in due course released, returning to his work, presumably in or about May through to December How that could be so remains unexplained. If W1 was a high official as he claims of the significance that he was in the Military Court, we are also puzzled as to why he would have been taken from Kinshasa to Lubumbashi, a very substantial distance to be held or interrogated about rebel involvement as claimed: it is simply not credible as presently explained.
We find it far more likely that W1 was not detained in the way he claimed and knew his wife had left and that he was very probably involved in the arrangements for her to do so. It is apparent that if she was of any interest, her conduct in the way she departed did not give rise thereafter to any adverse consequences for W1.
On the one hand he has claimed not to know the whereabouts of his wife. On the other hand there is the supporting letter to his asylum application through his solicitors, which shows that, within two days of his arrival, the whereabouts of his wife and her Home Office reference number had been notified to the Home Office. W1 sought to explain this in terms of his solicitors having found out this information from their own inquiries. This wider claim covered not just being principal assistant to the chief prosecutor and heavily involved in prosecuting Kabila assassination suspects but also being engaged in diverse liaison duties, missions, actions throughout the country, assisting various high level individuals and having a prominent role and base at the airport.
But the omission of those various matters which are now claimed to have taken place at the same time seriously affects the reliability of that decision so far as we are concerned. We did not find W2 a credible witness. In his screening interview W2 gave a largely incoherent explanation for his presence, but in the SEF statement he claimed that he had been a DGM immigration official at the airport in and gave as his reason for leaving that in October he had been involved in dealing with two arrivals at the airport on a UN flight of two individuals who he later learnt were brothers of Joseph Kabila.
Discovery of his error led to him being denounced for his insulting conduct, and being detained in Makala Prison for two months. W2 claimed that on or about 20 December he had been taken to the airport, having been provided with his DGM uniform. There he found inside his pair of socks and shoes his DGM identity card for use at the airport, this property having been mixed up apparently with the property of other detained people.
Having arrived in the United Kingdom, he made a claim for asylum based only on the above stated circumstances relating to the detention of the two individuals, and on 11 August Mr A. The adverse decision was not the subject of an appeal. That brings us to the first reason why we did not find W2 credible. Save in one limited respect, his asylum claim was found not credible by an Adjudicator.
His account was found implausible in a number of respects and we would observe that his escape account also relied on a quite remarkable number of fortuitous events e. Furthermore, W2 cannot be said to have no personal interest in the portrayal he has given of the situation at the airport being believed.
He is an absconder who for several years has failed to notify the Home Office of his address or whereabouts. He stated that he has made or is in the process of making a fresh claim. Jennifer Davis recalled the "quip that states that some people have 20 years experience and others have had the 1 year of experience 20 times. Among them are an "analytical mind" Devamalya De , the "personal value system" Fabina Schonholz , and a "compelling vision" Joel Whitaker. Some dismissed the question as too simplistic, in the process posing other more interesting propositions for consideration.
Tony Wanless emphasized the importance of knowing the way leaders learn from experience, suggesting the need for "a synthesis of thinking that adds value to the experience. Several questioned whether judgment or experience could be defined clearly enough to even address the premise. For example, B. Krishnamurthy commented, "It is … important to define good judgment—good from whose perspective? Few questioned that good judgment can be acquired, possibly at some risk and cost of mistakes. This still leaves us with the question of whether it can be taught.
Michael Hogan and Al Scheid both expressed doubts about this. But if it can be taught, can it be done more efficiently and at lower risk than in the "school of hard knocks" assumed in many responses? David White's comment that "… the only way to improve judgment is to make mistakes" was typical of these. Can, for example, professional schools play some role in this effort? If so, what kind of training would be required for those teaching "judgment"? To what degree could this supplement and perhaps accelerate a process of individual self-discovery in the real world?
What do you think? The publication of a new book, Judgment: How Winning Leaders Make Great Calls , by Warren Bennis and Noel Tichy warrants attention if for no other reason than the range of experiences that they bring to the topic. The event coincides with an issue that has arisen in the U. Going back to early American sources, we find Benjamin Franklin corresponding with the wealthiest man in the American colonies, the financier of the Revolution, Robert Morris.
In all cases, law creates property. That goes for all types of property. Because all property exists subject to legal consent, law can either recognize a claim of ownership or deny it. What law cannot legitimately assert is that the value of the wages of servitude, in whole or in part, belongs to the master of the worker in pursuit of wealth. But, as we see, law readily and constantly does both. The Federalists who devised that law conflated the right of the wealthy to be free from community governance with the right of all people to be free of servitude.
In further service to the opulent minority, the Federalists then denied freedom from servitude as a general right. American law has acknowledged a right to be free from involuntary servitude, including but not limited to slavery, since adoption of the Thirteenth Amendment in It allowed the enslavement of people convicted of crimes.
Liberty is one of three specific examples of unalienable rights mentioned in the Declaration of Independence. Servitude subtracts liberty from the person and is a direct violation of a fundamental right. But when rights are bestowed upon the property itself, as when corporate property becomes the repository of Bill of Rights protections, then law acts to protect additive acquisition privileged property.
The essence of unalienable rights is that they cannot be separated from the person, not even voluntarily. The law allows it. What can be sold, surrendered, or volunteered is not by law unalienable. And thus, in the eyes of the law, freedom from servitude is not an unalienable right. Accumulation of privileged property wealth requires the confiscation of value from the past and future industriousness of many others. Legalized servitude makes wealth possible. Possession of privileged property, such as a corporation, affords its owner the legal tools to protect wealth from redistribution by the community at large, from which the wealth flows.
Thus law creates a one-way gated pump for work converted into added value to flow away from its human producers and into privileged property, from which only the propertied minority is authorized to withdraw.
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The character of property as sovereign power compelling service and obedience may be obscured for us in a commercial economy by the fiction of the so-called labour contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment. But … there [is] actually little freedom to bargain on the part of the steelworker or miner who needs a job … Today I do not directly serve my landlord if I wish to live in the city with a roof over my head, but I must work for others to pay him rent with which he obtains the personal services of others.
The money needed for purchasing things must for the vast majority be acquired by hard labour and disagreeable service to those to whom the law has accorded dominion over the things necessary for subsistence. Once personal constitutional protections are waived by private contract, public law and the protections of the Bill of Rights are powerless to intervene.
The employee may be required to surrender freedoms of speech, assembly, privacy, and religion, and other rights on the job as a contractual condition of employment. Each unalienable right becomes alienable. Each conditional right becomes moot. Rights of persons are made subordinate to rights in corporate property. Private law as noted earlier, law related to contracts and corporations is given deference over public law which sets policies and places sanctions on anti-social behavior. It deals with issues of general concern to the community at-large. Minority interests trump general rights. Beyond that nominal regulation, the employer and not the worker or the law decides whether that right includes a paycheck adequate to cover the necessities of life.
Ownership of privileged property gives the employer this power to decide. Often, the portion of wages taken by government will serve the interests of the employer and others similarly in possession of privileged property, and not those of the worker. There is no inherent reason for this. There is a bias in the law.
A viable economy would still be possible if unalienable rights took precedent over property amassed as wealth. Empire, however, might not be possible. Law creates property in all its forms by sanctioning its existence. But how the law treats personal property contrasts sharply with how it treats privileged property, as we are beginning to see. The species of privileged property have proliferated unchecked for a century and a half through modification of the law. It matters how all of this is understood. The author tells the story from the droll perspective of victimized corporations struggling for justice and how they gained constitutional rights from the Supreme Court.
He compares the pursuit of legal advantages for wealthy people and their corporate property to a civil rights movement. It is a clever device. But Winkler makes a more serious historical observation that, whereas it only required that the wealthy ask for those rights for their chartered property, it took decades of abolitionist struggles, a civil war, and three constitutional amendments to free African Americans from the status of rightless property.
A laughably baseless interpretation of the Fourteenth Amendment let the Supreme Court change corporate property into a person with constitutional protections that rival those afforded to real people. That was in , thirty-four years before the Constitution was amended to recognize the right of women to vote. To this day, women lack an equal rights amendment. Corporations have been guaranteed equal rights with men under the Fourteenth Amendment for over a century.
Winkler holds our ordinance up as an example of how we might push back against the hegemony of wealth and the privatization of the federal Bill of Rights. In a region where water is scarce and widespread hydraulic fracturing fracking was being proposed, county residents grew concerned. Fracking uses immense quantities of water to force natural gas out of the ground. In the process, the water is tainted with poisons and not reusable. The county law declared that, because water is indispensable to life, it is an unalienable right.
And it held that unalienable rights supersede the inferior rights in property. Later that same year, the Independent Petroleum Institute of New Mexico and a couple of similarly interested individuals sued Mora County for adopting an ordinance banning the extraction of fossil fuels within the county. It was a civil rights suit against the county. There was no appeal.
Wealth has deployed its arsenal of legal advantages against a few of them, punishing municipalities financially, even threatening to bankrupt them, while blaming CELDF for bringing grief and costly litigation upon them. Lower courts, unwilling to make decisions about constitutional issues, generally rely on such mechanisms as state preemption to safeguard the interests of property and wealth. Federal courts lean on Supreme Court precedent to protect the civil rights previously bestowed on corporate property.
That may not seem like much of a win, but in the context of public obliviousness to the true nature of American law, it is a necessary first step toward building a community rights movement. The community rights movement into which you are being invited conceives of a much more inclusive definition of community than the framers of the US Constitution had in mind. For them, white men who own property were the legitimate rulers of the nation.
Women, Native Americans, African Americans, paupers of all sorts had no place in the governance of the community or the nation.
We can reconstitute community as it should exist: people living in harmony with nature, rather than as parasites. Nature is the greater community, and we are a part of it. We are not helpless to begin the task of correcting and making amends for the cultural, genocidal, and ecocidal errors of the past. Or if we are, then the visceral longing for freedom and real justice and preservation of the planet are lost causes.
But that is an intolerable outcome.
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Liberating the planet from those who claim to own it must coincide with liberating We the People and all of us in nature from the dictatorship of property. These inextricably interwoven causes have the same goal: right relationship and true freedom. The people of Tamaqua thought that was a bad idea.