"Africa is, indeed, coming into fashion." - Horace Walpole (1774)


doing justice

SOS Children's Villages reports on a new initiative to teach Congolese women and girls to take rape cases to court:
Sebbabi told villagers rape victims need to do three key things after an attack. First find medical help and take an HIV test. The next step she advised potential victims to take was to contact an aid organisation that deals with in human rights. And finally, the most important step to take, she said is to bring charges against the attacker.
This is a noble effort to end the culture of impunity that surrounds rape in much of the eastern D.R. Congo. However, a key piece of the puzzle is missing here: the vast majority of Congolese courts aren't equipped to give rape victims justice.

SOS's efforts are in Katanga. I've never been to the areas in which they're conducting this training, but there's little reason to believe that the justice systems in rural Katanga function any better than they do in the Kivus.

By and large, Congolese courts are not places in which justice is dispensed. Instead, they are a kind of quasi-institutional shell of the former structures. Because the Congolese state does not collect taxes that are then dispensed to the courts via budget and salary structures, anyone wishing to have a case heard must pay all court costs out-of-pocket. This means paying everything from the judge's salary to the court's costs for photocopies, candles or electricity, and any other incidental expense. Costs mount quickly; a land case can cost as much as $40,000 just to be heard by a judge.

But that's not the only problem in the Congolese justice system. In almost every court, judges accept bribes and make their decisions based on the outcome of bidding wars between the plantifs and the defendants. Winning bribes can be as little as $10-20 (which was enough to release a rapist in a case some friends dealt with in Goma in 2007) or can reach into the tens of thousands of dollars when the land rights to a Masisi cattle farm are at stake. Remember - Congolese judges are generally not paid the salaries they're owed by the state, so they depend on the income from court costs and bribes for their families' well-being.

The ineffectiveness of the courts in actually delivering justice is why many Congolese prefer to seek justice through traditional means, as the SOS story notes:
...even though it is illegal to come to an arrangement when a rape case is brought, the Congolese traditionally settle...sexual assault cases through their own customs. Also, a victim’s parents can force the rapist to marry her, after having been compensated both in kind and in cash. These kind of arrangements also bring the added problem that they can encourage rapists to rape again. "Here, you pay money, five goats, a rush mat and a loincloth to purify the image of the girl who has been dishonoured," a young man told Associated Press news agency.
These means of attaining justice are problematic for very clear reasons, but they also work, at least to the extent to which the rapist is held accountable and is unable to buy his way out of all responsibility. If you were a Congolese rape victim or part of her family, which would you choose?

As with everything else in the DRC, the problem of holding rapists to account requires a complex solution. There are some efforts underway to build capacity and accountability in the courts, including an excellent effort by the American Bar Association, especially via its mobile courts program. Simple measures like DNA testing for rape victims can only help to end the culture of impunity.

But ensuring justice for all Congolese victims of violence ultimately requires more than reliance on a non-functioning judiciary. It requires rebuilding the state to the extent that the judiciary exists to promote the common good rather than to sell justice to the highest bidder. How do we do that?


Anonymous Anonymous said...

Justice also runs against structural problems as part of the due process system that half-exists.

The news article says Mwitwobe is 400 KM from Lubumbashi. Under the 2006 Sexual Violence law, rape is now a serious felony, which means it must be handled at the Parquet (district criminal court), thus Lubumbashi and not a closer court. They must also have evidence, including the doctors statement, which often costs 10-20$.

So, the victim, the culprit, the police guards, and witnesses must now walk 400 KM to get to the court (and it takes very little bribery to encourage the guards to 'lose' the prisoner along the way, and save themselves the walk). They must then figure out where to stay for weeks in the big city, how to pay for it, and how to look after their homes. Then, they all must walk back.

Mobile courts help get around this problem, but they are very few. In some places, they only come when a sufficient number of criminals have been arrested (a certain logic to that). But should the prisoner be detained in a police jail without trial for 6 months or a year waiting for a mobile court to arrive? Prisoners have rights under the law too, and a time delay before they must be released.

Seeking justice requires an enormous further investment from the victim and her family, in terms of money and physical effort, all of which can be ruined by a well-placed bribe.

I imagine if they are doing some sensitization, they have plans to help solve some of these problems in that particular village. But the fact is that the law is very much a double-edged sword and cannot work without donors subsidizing women to come to court, as unsustainable as that is.

Thursday, February 18, 2010 1:15:00 PM

Blogger texasinafrica said...

Thanks for the very helpful info, anon. Is there really not a closer district court than Lubumbashi?

Thursday, February 18, 2010 2:58:00 PM

Anonymous Anonymous again said...

Some other commenter can correct me if I'm wrong, but I think the parquets are only at the district seats and in officially-recongized 'villes,' with perhaps the exception of Uvira.

In Katanga this would be Kalemie, Kolwezi, Kalemie, Kipushi (outside Lu'shi - as the capital it can't be a district seat), and Kamina. Not sure about Sandoa, and it is possible that Likasi, L'ushi and Kolwezi, recognized as villes might also have their own parquets for things in the cities themselves.

But none of that would help the people in the article, who I'm guessing live somewhere in Mitwaba, Pweto, or somewhere like that, in which case, the court is in Lubumbashi/Kipushi. If they're in Moba or Manono or something, then they need to go to Kalemie -- but that is still 400 km at least.

Friday, February 19, 2010 5:26:00 AM

Anonymous Daniel Levine said...

I say this as a philosopher of law rather than someone with a lot of on the ground knowledge, so take it with a grain of salt, but is the solution necessarily to build state court systems up? Or at least the whole solution?

As you point out, the "traditional" means have practical advantages, and I would imagine that people who use them consider them legitimate to a significant degree - even if they recognize many of the same problems/limitations that Westerners do.

First, without going all relativist, might it make sense to ask seriously, "what do *you* want by way of holding a rapist accountable?"

Second, rather than take traditional structures as a stop-gap until a state can be rebuilt, might it be possible to work *with* them to remedy some of their limitations? I know, e.g., USIP's rule of law program has done some interesting work on that with traditional legal structures in Afghanistan.

Saturday, February 20, 2010 12:40:00 PM

Blogger texasinafrica said...

Daniel, these questions are actually in the vein of my primary research agenda, which examines at how communities respond to state failure. I agree that often using the traditional structures are more pragmatic/practical/possible than any attempt at state reconstruction. The problem is that these ideas are quite difficult for Westerners - and, therefore, their governments - to swallow. We look at the situation and think, "Why should a thirteen-year-old girl have to marry a man twice her age who raped her?" Supporting such solutions poses ethical and practical problems for donors, and I just don't see that shift happening anytime soon.

Sunday, February 21, 2010 4:02:00 PM

Anonymous Daniel Levine said...

Ah, apologies for telling you what you already know, then.

Actually - my *other* AOS is moral philosophy (and how a moral philosopher ended up doing research in Goma, and hence finding your blog, is a long and boring story), so I'm going to have to look through some of your research now.

Without yammering on too much in your comments, this is something I'd be interested in your take on, as I find with most of the conflict/post-conflict-focused folks I encounter here inside the beltway the conversation ends up devolving into "look, our views about justice/human rights/etc are just right, and that's all there is to it," or "hey, these are different cultural traditions, so what are you going to do?" It strikes me that this fails to take the person who thinks having a woman marry someone who raped her as a worthy response to rape seriously, even if we disagree. On the other hand, I've been struck by the fact that most of the peacekeepers I've spoken with have a pretty nuanced view of how to reconcile their personal moral commitments with the situation they find on the ground.

Anyway, a long-winded way of saying, dang, I need to go read some of your stuff now.

Sunday, February 21, 2010 8:26:00 PM


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