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 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.)