Women and Justice: Location

International Case Law

Organisation Mondiale Contre la Torture et Ligue de la Zone Afrique pour la Défense des Droits des Enfants et Elèves (pour le compte de Céline) v. Democratic Republic of the Congo African Commission on Human and Peoples' Rights (2016)

Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The complainants filed suit on behalf of a 17-year-old girl who was violently attacked and raped by two men.  Local police, who allegedly knew the attackers, witnessed the beginning of the attack but did not aid the victim.  The complainants further alleged that the Kinshasa police knew that an organized gang had attacked the victim and other girls and the identities of the attackers, but refused to take action to dismantle the gang due to their limited financial resources.  The Commission held that the Democratic Republic of the Congo (“DRC”) had violated several articles of the African Charter on Human and Peoples’ Rights (the “Charter”) due to the failure of (i) police to take action to prevent the rape and (ii) competent authorities to provide justice to the victim.  The Commission requested the DRC (1) take measures to find and punish the attackers; (2) accord the victim adequate reparation as well as medical and psychological assistance; (3) take measures to prevent sexual violence and rape in the parts of its territory where these offenses are common; (4) take measures to change patterns of behavior linked to violence against women and girls, including sexual violence and rape; (5) establish rehabilitation programs for girls who are victims of sexual violence and rape; and (6) organize training sessions for law enforcement and judges on the treatment of sexual violence and rape, under conditions conforming to the pertinent dispositions of the Charter.



Legislation

Law No. 06/019 of 20 July 2006, Modifying and Completing the Decree of 6 August 1959 Relating to the Congolese Penal Procedure Code (2006)

Female genital mutilation or female genital cutting, Forced sterilization, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This law requires the courts to secure the privacy and dignity, as well as physical and psychological well-being of victims of sexual violence during proceedings.  However, it does not detail any specific measures to be undertaken.  The law also stops courts from inferring sexual consent from silence or lack of resistance and prevents courts from taking into consideration a victim’s sexual history in ascertaining a defendant’s guilt.



Law No. 06/019 of 20 July 2006, Modifying and Completing the Decree of 6 August 1959 Relating to the Congolese Penal Procedure Code (2006)

Forced and early marriage, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The 2006 amendment to the Congolese Penal Code has the explicitly stated aim of bringing Congolese law relating to sexual violence in line with international standards.  The age of minority was raised from 14 to 18, the definition of rape was widened, and new types of sexual assault were criminalised.



Constitution of the Democratic Republic of the Congo (Article 14 - Law n°15/013 of August 1st, 2015) (2015)

Gender discrimination

The DRC Constitution asserts the country’s commitment to gender equality under the law.  The preamble references the Universal Declaration of Human Rights and commitment to conventions pertaining to the rights of women, particularly toward gender equality in domestic and international institutions.  Article 14 gives legal effect to the commitment asserted in the preamble, stipulating that public authorities shall ensure elimination of discrimination against women and promote women’s rights.  More specifically, Article 14 requires authorities to take appropriate measures to ensure participation of women in the development of the nation and to take steps to combat all forms of violence against women in their public and private lives, and guarantees implementation of gender equality and fair representation at national, provincial and local government institutions.  The Law sets forth the application procedures of these rights.  Subsequently, Law n°15/013 of August 1st, 2015 was passed to establish specific procedures to implement Article 14 (weblink to full Constitution, pdf to Article 14 implementation law).



Constitution of the Democratic Republic of the Congo (Article 14 - Law n°15/013 of August 1st, 2015)

Gender discrimination

The DRC Constitution asserts the country’s commitment to gender equality under the law.  The preamble references the Universal Declaration of Human Rights and commitment to conventions pertaining to the rights of women, particularly toward gender equality in domestic and international institutions.  Article 14 gives legal effect to the commitment asserted in the preamble, stipulating that public authorities shall ensure elimination of discrimination against women and promote women’s rights.  More specifically, Article 14 requires authorities to take appropriate measures to ensure participation of women in the development of the nation and to take steps to combat all forms of violence against women in their public and private lives, and guarantees implementation of gender equality and fair representation at national, provincial and local government institutions.  The Law sets forth the application procedures of these rights.  Subsequently, Law n°15/013 of August 1st, 2015 was passed to establish specific procedures to implement Article 14 (link to full Constitution, pdf to Article 14 implementation law).



Domestic Case Law

Affaire Songo Mboyo Tribunal Militaire de Garnison Mbandaka (2007)

Gender-based violence in general, International law, Sexual violence and rape

In December 2003, members of the Congolese army (FARDC) under the command of Lieutenant-Colonel Bokila Lolemi stationed in the village of Songo Mboyo mutinied over unpaid wages.  They targeted the local population and committed mass rapes across two nights with as many as 119 victims.  Lolemi was charged with crimes against humanity for rape of 32 women by forces under his command and effective control.  The court of first instance was the Military Garrison Tribunal of Mbandaka, which found 7 of the 12 defendants guilty, including Lolemi. Lolemi was found to have failed to exercise appropriate control over his soldiers and prevent the mass rapes, which he knew or should have known his soldiers were committing.  The decision was appealed to and confirmed by the Military Court of Equateur. Though the defendants denied the rapes, the courts disagreed, citing survivors’ testimony and medical reports. This case is significant because it is one of the first instances of a Congolese Military Court directly applying the Rome Statute (in addition to DRC law n ° 024/2002 of November 18, 2002).  The decision was issued by the same court and in the same year as the Mutins de Mbandaka case.  The case is also significant because it represented the first time that government soldiers were put on trial for rape as a crime against humanity or war crime, a fact which is significant because the FARDC are believed to be responsible for a large proportion of sexual attacks in the DRC in recent times.  The decision therefore struck a blow against military impunity for such crimes. (Lower court decision available at: https://www.legal-tools.org/doc/166854/pdf/)



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.)



Request to access conformity with the Constitution of procedural rules of the Provincial Assembly of Tanganyika (Requête en appréciation de la conformité à la constitution du Règlement intérieur de l’Assemblée provinciale du Haut-Uélé R.Const. 172) Constitutional Court (2015)

Gender discrimination

The Constitutional Court considered a challenge to the internal provincial government’s procedural rules which included, among other claims, that one Article of the procedural rules violated the gender equality requirement of Article 14 of the Constitution.  The Court found the procedural rules to conform to Article 14, provided that they must be understood and interpreted in light of line four of Article 14, which requires equitable representation of women in provincial institutions (available at pages 46-50 on linked site).



Reports

"Now, The World Is Without Me": An Investigation of Sexual Violence in Eastern Democratic Republic of Congo (2010)

Sexual violence and rape

A Report by the Harvard Humanitarian Initiative With Support from Oxfam America, April 2010



Soldiers Who Rape, Commanders Who Condone (2009)

Sexual violence and rape

Human Rights Watch Report documenting persistent sexual violence by the army in the Democratic Republic of Congo, and the limited impact of government and donor efforts to address the problem (2009).