Women and Justice: Court: Court of Greater Instance of Bukavu

Domestic Case Law

Public Ministry and Civil Party v. Mulume, Mitima, Chebey & Mushagalusa Court of Greater Instance of Bukavu (1995)

Statutory rape or defilement

The Civil Party brought suit on behalf of his 13-year-old daughter and sought criminal sanctions against four men whom he accused of violently raping his daughter.  The four men jumped on her, held her down and one by one proceeded to engage in sexual relations with her when she was returning home from laundering clothes with her little sister.  The case proceeded in expedited fashion as a flagrant intentional crime.  The Tribunal found the four men guilty of violent rape, noting that even if the girl consented, her mere thirteen years of age prevented any clear and free consent to sexual relations which would mitigate the charges.  The Tribunal imposed criminal sanctions of five years imprisonment for each of the four men, imposed equitable damages equivalent to $100 each payable to the girl’s father, and charged the men with paying court fees.

Public Ministry v. Busudu Tina Court of Greater Instance of Bukavu (1995)

Abortion and reproductive health rights, Gender discrimination

Busudu Tina (“the accused”) was prosecuted by the State for having aborted her pregnancy, punishable under Articles 165 and 166 of the Congolese Penal Code.  She attempted to abort her pregnancy using different methods, including ingesting quinine, manioc infusion, and a product described as ‘cloveganol’, and admitted to the Tribunal that she had aborted a previous pregnancy in 1991.  The Tribunal became aware of the abortion when an acquaintance, worried for the accused’s health, sought assistance despite being sworn to secrecy by the accused.  The fetus was hidden in a laundry bag, which found its way to the prosecutor’s office.  The Tribunal applied the minimum sentence of five years imprisonment, taking into account as a mitigating factor that she and her husband were estranged after six months of pregnancy. (Available at pages 128-130 on the linked website.)

Public Ministry and Civil Party Kakonya Minamu v. Bahige Kanywabahize & Kahamire Nzigire Court of Greater Instance of Bukavu (1989)

Divorce and dissolution of marriage

Tthe “Civil Party” brought a case against his “ex-wife” and Bahige Kanywabahize “Bahige”, or together with the ex-wife, the “Accused”, for abandoning the conjugal home and adultery.  The Civil Party and his ex-wife cohabitated as a married couple until she decided to leave their home, obtained a divorce from the Tribunal for the City of Bukavu, and decided to get married to Bahige.  The Civil Party claims his ex-wife abandoned him with the intent to marry Bahige.  The Civil Party seeks customary reimbursement of the dowry he paid to his ex-wife (6,000 zaires, a goat, two cases of beer, a case of Fanta, a can of a local drink called Kasiksi and a hoe) and damages of 150,000 zaires from the Accused under the Congolese Family Code.  The Tribunal determined the Civil Party was not entitled to the customary reimbursement of dowry since his spousal rights ceased upon divorce; adultery and abandonment of the conjugal home occurring subsequent to a duly obtained divorce are not subject to sanction. (Available on pages 144-46 on linked site.)

Public Ministry and Civil Party Mawazo Safi v. Mewnyibamba Kabale & Passy Nyakura Court of Greater Instance of Bukavu (2001)

Divorce and dissolution of marriage

The “Civil Party” brought allegations of adultery against her husband and the “cohabitant”, claiming her husband abandoned her to live with the cohabitant despite her earlier marriage with her husband in 1980.  The Civil Party and her husband had three children before he moved away. A dowry was regularly paid on the marriage throughout and no party contests the 1980 marriage.  As such, the marriage could generally qualify under Congolese law as a ‘monogamous customary marriage’ under the law of November 30, 2000, which does not require the date of the marriage or any registry number to be filed with the State.  The Civil Party’s husband and his cohabitant claim the civil party knew and authorized their cohabitation because she refused to relocate with her husband when his work required him to do so and that she visited them at their home, all of which she contests.  Despite the lack of contest by any party to the prior marriage and recognition that a monogamous customary marriage exists here, the Tribunal suspended the case until the marriage was registered because Article 380 of the Congolese Family Code requires a ‘monogamous customary marriage’ to be registered before either party can exercise rights in court. (Available on pages 136-137 on linked site.)