21/07/2014. Suspected leader of the rebel group Union of Nationalist for Renewal, Etienne Kabila smiles at the South Gauteng High Court were he and 19 others are accused of plotting to overthrow the government of President Joseph Kabila. Picture: Masi Losi

The last five of 20 men accused of planning to topple President Joseph Kabila are free, writes Peter Fabricius.

Johannesburg - On Friday a very strange but somehow typical chapter in the rich and often murky saga of South African-Congolese relations ended in the Pretoria High Court.

Judge Billy Mothle acquitted the last five of 20 Congolese men arrested two years ago and charged with trying to topple Joseph Kabila, President of the Democratic Republic of Congo (DRC) in a coup.

Nineteen of the men had been arrested on a farm in Limpopo on February 5, 2013, after an elaborate sting operation by undercover police agents who posed as co-conspirators, infiltrated meetings and then took them to the Limpopo farm for training.

Four days later Etienne Kabila, accused number 20, handed himself over to police in Cape Town, after hearing the police were looking for him as the mastermind of the plot.

Etienne Kabila claims to be the true biological son of the former DRC president Laurent Kabila, who was assassinated in Kinshasa in 2001 and has said that Joseph Kabila is just an adopted son of the late president and that his biological parents are Rwandan.

Fifteen of the 20 were released last November for lack of evidence. The charges remained against Kabila and four other alleged ringleaders.

All 20 of the men had been charged under the Regulation of Foreign Military Assistance Act of 1998 for engaging in “mercenary activity” and rendering “foreign military assistance” as well as collectively conspiring to “commit murder” under the Riotous Assemblies Act.

The state had presented evidence and witnesses to support claims of a plot to kill President Kabila, senior officials and other prominent members of DRC society.

But Mothle said the state had failed to prove the men’s intention to carry out those crimes or to provide a reasonable version of events to dispute the evidence of one of the accused who had testified that the whole operation had been a ruse and that he was in it only for the money.

The accused had also testified that they were told they were being taken to the Limpopo farm to be trained to man an anti-rhino poaching unit.

Mothle questioned the undercover cops’ role in luring the men into a trap, saying they had created an opportunity for crime: “They used deceit and trickery to entice them to develop a plan that clearly didn’t exist.”

And so his judgment was a very damning indictment of the Hawks and seems destined to be cited extensively by the 20 Congolese men if they go ahead with their intention to sue the state for wrongful arrest as one of their lawyers said on Friday they would do.

What was this strange story about after all? Was it yet another poorly-constructed case by the Hawks?

Or did the case perhaps fail because of the inherent weakness of the Foreign Military Assistance Act which has never secured a conviction to date – probably because its origins were more ideological than legal? Or is there a more sinister explanation?

“It’s a plot mounted by the South African intelligence service with the Congolese government,” Etienne Kabila said after the case was thrown out on Friday. “From the beginning, the South African police knew there was nothing, it was a montage.”

He seems to believe that his namesake feared that his claim that he, and not Joseph Kabila, is the biological son of Laurent Kabila, undermined his own dynastic credentials and legitimacy. And so he wanted him out of the way.

Susanna Dodgson, an American who had campaigned for the release of the 20, said on her website before the men were acquitted that they were “caught in a legal system that looks like it will spare no expense to get them convicted and sent to Congo to get shot”.

Whether Pretoria would go to such lengths to please its undoubted ally, Joseph Kabila, is, of course, a very large question. Perhaps the civil case, if it happens, will provide some answers.

* Peter Fabricius is Independent Media’s foreign editor.

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