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In Search of Justice for Rape and other Sexual Crimes

Very few of the tens of thousands of victims of sexual violence in eastern Congo attempt to initiate judicial proceedings for the crimes committed against them and even fewer—only a handful in recent years—have actually seen perpetrators convicted and punished. Years of war and the ensuing political disorganization, economic stagnation, and destruction of infrastructure have considerably weakened the judicial system. In addition, judicial authorities, virtually all of whom are men, rarely give priority to crimes of sexual violence. The prosecutions of combatants that have taken place have been marred by procedural faults, failure to seriously investigate command responsibility for crimes, and insufficient attention to the needs of the victim. 

A presidential decree promulgated in April 2003 granted amnesty to members of former rebel movements and armed groups for acts of war and political offenses, but it appropriately excluded war crimes, crimes against humanity and genocide from the amnesty. The amnesty therefore does not protect perpetrators who committed crimes of sexual violence that would fall under these categories.  The parliament has for some time considered passing an amnesty law, but to date has not done so.  Human Rights Watch opposes all amnesties for serious war crimes, crimes against humanity and genocide.

Prosecution of sexual violence in Ituri

The Gbadolite trial

In October and November 2002 MLC forces committed widespread crimes against civilians, including rapes and killings, during military operations against the RCD-ML.103 Known as “Effacer le Tableau” (Erase the Blackboard), these operations were carried out in Mambasa territory, Ituri district.  In November 2002, Jean-Pierre Bemba, the president of the MLC set up a military court that was known as the Conseil de guerre de garnison of Gbadolite (Bemba’s headquarters) in Equateur province. In February 2003 the court heard cases against twenty combatants, two of them charged with rape, David Biaruhanga and Sergeant Andonisi Metele. According to a MLC report issued February 26, 2003, the two were found guilty with David Biaruhanga sentenced to one year and Andonisi Metele to ten months in prison.104 The tribunal concluded that Biaruhanga’s being “drunk at the time of the commission of the facts” was an attenuating circumstance.

The prosecution’s investigation into the crimes was superficial, which may have led to the short sentences. There was apparently no investigation at the scene of the crime, some one thousand miles distant from the place of the trial. Victims were not approached to see if they would testify. Only fellow soldiers testified in these trials. Without an in-depth investigation, the prosecutor also failed to examine seriously the culpability of commanding officers for the numerous crimes. Colonel Freddy Ngalimo, who was in direct command of the operations, was found guilty only of permitting insubordination by forces under his control and was sentenced to three-years imprisonment.105

Prosecution of rape by the new tribunal of Bunia

In an effort to show dramatic progress in attacking the legacy of impunity and restarting judicial operations, Congolese authorities re-opened the Tribunal de Grande Instance106 in Ituri in February 2004. The court had been closed since May 2003, unable to function because of insecurity in the region. Backed by financial support from the European Commission (E.C.), judicial authorities were able to issue more than 150 indictments by September 2004.107 Rather than handing over cases involving combatants to a military tribunal, the civilian court asserted its jurisdiction over such cases since the perpetrators did not belong to recognized armed forces.108  Prosecutors brought cases against some important mid-level and senior-level leaders of local armed groups, thus demonstrating a commitment to break with the impunity that had protected such men in the past.109

From February to September 2004 the court handed down ten judgments in cases of rape, and a further nine cases are currently under investigation.Adults found guilty were sentenced to three to ten years imprisonment.110 To Human Rights Watch’s knowledge, there has been no effort by responsible authorities in Bunia to investigate whether superior officers have been complicit or tolerated acts of sexual violence by forces under their command.

Of the ten persons convicted of crimes of sexual violence, only three might be linked to an assault committed by an armed group. All were convicted of having participated in a gang rape, involving ten perpetrators in all, of two women near the Bunia airport on March 20, 2004. Two of the three convicted were adults and were sentenced to four years imprisonment each. The third was a minor of an unspecified age whose case was heard at the Juvenile Justice Chamber (Chambre d’Enfance Déliquante), which performs investigative and counseling functions rather than strictly criminal proceedings. He was also found guilty, was “reprimanded” and handed over to his family for “follow-up.”111

Four other cases judged by the Ituri court dealt with acts sexual violence committed by minors. In one case, the perpetrator was allegedly nine or ten years old. All cases were tried at the Juvenile Justice Chamber (Chambre d’enfance délinquante).

The re-opened court in Ituri has produced more convictions on charges of crimes of sexual violence than any other jurisdiction currently operating in eastern Congo, but given the scale of crimes of sexual violence committed by armed groups in Ituri, it is disappointing to see how few prosecutions address this enormous problem. 

The prosecution of an RCD-Goma soldier: precedent or human rights abuse?

On February 18, 2003, eight-year old Lisette K., was allegedly raped by a RCD-Goma soldier as she was walking home from school near the town of Kabare, north of Bukavu, in South Kivu.

According to Lisette K.’s testimony in court, the soldier took her to a field, forced her to remove her clothes and then raped her. He threatened to kill her if she resisted.112 Before leaving he gave her 40 Francs Congolais (about $0.10). When the girl came home she was deeply disturbed and refused to eat. She also did not want to sit down, presumably from the pain. Her mother asked what had happened and the girl told her. The next morning the girl’s father informed a local official and together they went to the local military commander who claimed that such a thing could not happen.113 But he did present several soldiers to the girl and she identified Djems Kakule Kambale, age twenty, as the rapist.114 The local officialthen sent the girl to a nearby hospital, where a doctor examined the injuries, including vaginal tears and external wounds caused by thorns on which the girl had lain. On February 20 the doctor certified that the girl had been raped.115 The same day, the military commander arrested Kakule Kambale and transferred him to the military prosecutor at Bukavu. According to the report of the pre-trial investigation, Kakule Kambale admitted his guilt under questioning and apologized for what he had done.

A Catholic priest urged the family to prosecute the case and put them in touch with Centre Olame, where staff in turn contacted Action for Rights Education (AED), an organization which provides legal assistance for victims of sexual violence. In addition to providing the lawyer for the victim, AED, together with Centre Olame and other NGOs campaigning against sexual violence in Bukavu, made the case publicly known. Probably as a result of this public attention to the case, the governor’s office pushed the military prosecutor to act. The military prosecutor in South Kivu, Colonel Gaston Shomari, had also been a prosecutor in civilian life and was apparently very ready to take this case of sexual violence seriously.

During the trial, held on June 5, 2003, the defendant denied having raped Lisette K. He said that he had had sexual relations with someone else, a fourteen-year old girl. After the military prosecutor contested this claim, citing the accused’s confession, the court found Kakule Kambale guilty of statutory rape under the Criminal Code which prohibits sexual contact with a girl under the age of fourteen years old.116 The judgment also referred to the 1972 Military Justice Code, as the new 2002 Military Code had not been applied by the RCD-Goma in eastern Congo. The court sentenced Kakule Kambale to five years in prison and a fine of $500. The military prosecutor appealed the decision, asking for a more severe punishment. On June 14, 2003, the military court sentenced Kakule Kambale to ten-years’ imprisonment and $5,000 of damages to the victim. He was also dismissed from the army.117

Local human rights and womens’ organizations applauded the military prosecutor and the lawyer for the victim (partie civile).  The human rights organization Heirs of Justicesaw the case as a precedent in the larger fight against sexual violence:

The particularity observed in this trial is that the lawyer of the civil party118 founded his argument in national and international legal instruments that contain clear prohibitions of sexual violence. This exemplary judgment starts, we hope, a fight against the impunity that surrounds the problem, because several cases of rape have reportedly been denounced but this is the only trial of this type.119

Local NGOs videotaped the trial. When they showed the tape to a group of victims of sexual violence, they said “So justice is possible.” They were particularly impressed because the victim was a child and one from a poor family. Several who saw the tape said they too would be ready to press charges if they were given support in doing so.120 Some local observers were encouraged by the father having joined the complaint as a civil party because they saw this as an example of victims taking control of their own situation.121

Kakule Kambale, serving his term in prison in Bukavu, escaped along with many other prisoners during the disorder caused by the Mutebutsi-Nkunda uprising in June 2004.

Lack of due process: violating the rights of the defendant

Hailed as a victory by many civil society organizations, the trial of Kakule Kambale was marred by grave procedural faults that turned the trial itself into a scene of right abuse.

In an interview after the trial with a Human Rights Watch researcher, Kakule Kambale claimed he had not raped Lisette K. and did not even know her. He said that he had had sexual relations with a fourteen-year-old girl. Believing this was the charge, he admitted to it and believed that he would be able to end the problem by marrying the girl. He claimed that his relations with the fourteen-year-old had been consensual.122

The rights of the defendant were violated in a number of ways. He did not have an opportunity to choose his own lawyer nor even to speak with his counsel at length before the trial began. Of his two lawyers, he met one the day before the trial, the other the day of the trial itself.123 From viewing the videotape, mentioned above, and interviews with two of the lawyers involved, it is clear that there were other serious procedural flaws during the proceedings.124 The court accepted the pre-trial report of the military prosecutor without question. In many countries that use the civil law system, the conclusions of the investigative magistrate are subject to review by another organ, such as the chambre d’accusation, but in the Congo the same magistrate conducts the investigation and carries on as the trial judge. The defense should therefore be permitted to investigate fully and present the results of investigation during the trial. In this case, the legal representatives for the accused had no time to prepare a case in depth and all their attempts to call witnesses - including two who were supposedly present at the time of the crime - were rejected by the court at the request of the prosecutor. The court also refused to question Kakule Kambale about the circumstances of his arrest and the interrogation at which he was said to have confessed to the crime.125 As a result the defense was unable to challenge the prosecutor’s contention that Kakule Kabale had confessed to having raped Lisette K. rather than to having had sexual relations with another girl.

The victim, scared and stigmatized

Lisette K. came out of the trial further traumatized by having had to face a crowded and noisy courtroom and many cameras.126 In part because the trial was hastily announced with little notice, in part because there were no local counselors available to help prepare her for giving testimony, the young child was bewildered and frightened by the experience.127 No one from the judicial system made any effort to understand the psychological situation of the child or to provide support to her and her family. Lisette K., who at first believed that the soldier was going to be executed because he had done something bad, was still afraid of any man in uniform months later. According to her father, “If she so much as sees a soldier, she wants to run away.”128 Asked to come to town six months later to talk about the case, the girl started to cry and refused to go. In comments to a Human Rights Watch researcher, her father indicated that he too failed to understand the depth of his daughter’s trauma and to see how to help her. The family had also suffered the burden of medical expenses for Lisette K.’s care, expenses they had originally told would be paid for them.129

Other convictions for crimes of sexual violence in areas held by RCD-Goma

On August 29, 2002, thirteen-year-old Violette J. was assaulted and raped by an RCD-Goma soldier on the outskirts of Bukavu town. The girl told her mother and was taken to the hospital, where a doctor examined her and certified that she had been raped. Several days later the family filed a complaint at the office of the military prosecutor.130 The alleged perpetrator was arrested and brought to trial soon after.131 On November 27, 2002, the conseil de guerre (court martial) found him guilty of rape and sentenced him to five years imprisonment. A soldier who had accompanied the rapist and had driven away the victim’s brother was acquitted. According to the military prosecutor, the convicted perpetrator, like Kakule Kambale, escaped from prison in June 2004.132

According to Violette’s mother, the girl remained traumatized and was obliged to change schools because of public attention concerning the rape. She also contracted a sexually transmitted disease, although she was not infected by HIV.133

Human Rights Watch researchers were able to document one case of a member of the Local Defense Force tried for a rape committed in Goma. Although supposedly a civilian and not actually a member of the armed forces, the accused was tried by the military court, the conseil de guerre. He was found guilty and sentenced totwenty years in prison.134 

[103] Human Rights Watch, Covered in Blood, pp.36-37, 44-45.

[104] MLC, Secrétariat Général, Rapport sur le déroulement du procès des militaires de l’Armée de Libération du Congo, ALC, impliqués dans les violations des droits de l’homme dans l’Ituri (February 26, 2003).

[105] See political analysis of the trial in Human Rights Watch, Covered in Blood, pp. 37-38.

[106] The civilian judiciary consists – from the lowest level up to the highest – of peace tribunals (tribunaux de paix), tribunals of major jurisdiction (tribunaux de grande instance), Courts of Appeal and the Supreme Court.

[107]  Human Rights Watch, Making Justice Work: Restoration of the Legal System in Ituri, Democratic Republic of Congo, September 2004.

[108] Human Rights Watch interview with the President of the Tribunal de Grande Instance, Bunia, October 8, 2004.

[109] For example, the conviction of Commander Rafiki Saba Aimable the former UPC Chief of Security, who was found guilty of arbitrary arrests, aggravated by torture and sentenced to 20 years in prison, August 17, 2004.

[110] Court Register, Tribunal de Grande Instance, Bunia. Three of the ten judgments concerned the same case.

[111] Court Register, Tribunal de Grande Instance, Bunia.

[112] Human Rights Watch interview with lawyer of Lisette K., Bukavu, October 15, 2003.

[113] Human Rights Watch interview with father of Lisette K., Bukavu, October 16, 2003.

[114] Documents on the case from AED, Bukavu.  In the initial interrogation, Kakule Kambale appears to have given the age of twenty. However later in court, he declared that he was fifteen years old. Under Congolese law, sixteen is the age of criminal responsibility. It seems that the defendant tried to change his age in order to avoid harsh punishment. His defense lawyer confirms that he was twenty years old.

[115] Human Rights Watch interview with father of Lisette K., Bukavu, October 16, 2003. A later test showed the girl had not been infected by HIV.

[116] In French: “Avoir par le seul fait du rapprochement charnel des sexes commis un viol à l’aide des violences sur une fille de moins de 14 ans…”. Audience Publique du 5 juin 2003, Conseil de Guerre, Jugement RP 081, Bukavu. RMP.0508/AM_020/OPS/MBJ/SHOF.

[117] Ministère public et partie civile Kahasha Cizungo contre militaire Djems Kakule Kambale. RPA 009. RMPA. 013/AM_020/ops/SHOF03.

[118] Under the Congolese justice system, inherited from the Belgian (Roman civil law) legal tradition, victims can join the prosecution as partie civile, alongside the public prosecutor,to seek the payment of damages by the accused.

[119] Heirs of Justice (Héritiers de la Justice), Coup de Châpeau au Conseil de guerre opérationnel de Bukavu, June 2003.  

[120] Representative of Centre Olame, at a consultation with local NGOs on sexual violence and justice, Bukavu, October 14, 2003.

[121] Human Rights Watch interview with women’s rights activist, Bukavu, October 14, 2003.

[122] Human Rights Watch interview with Djems Kakule Kambale, Bukavu Central Prison, October 16, 2003. According to Kakule Kambale, the 14-year old girl visited him in his tent and consented to having sex with him, and took off her own clothes.

[123] Human Rights Watch interview with Djems Kakule Kambale, Bukavu Central Prison, October 16, 2003. Telephone interview with lawyer in Bukavu, October 20, 2004.

[124] The following analysis is based on the video of the trial, on an interview with the defense lawyer (telephone interview with defense lawyer in Bukavu, October 20, 2004) and the lawyer of the victim, October 15, Bukavu, 2003.

[125] Under Congolese rules of procedure, there is no direct or cross examination; all questions to which the prosecutor and the defense want answers are suggested to the judges who then ask them to the witness.

[126] Human Rights Watch interview with lawyer of Lisette K., Bukavu, October 15, 2003.

[127] Human Rights Watch interview with father of Lisette K., October 16, 2003.

[128] Human Rights Watch interview with father of Lisette K., October 16, 2003.

[129] Human Rights Watch interview with father of Lisette K., October 16, 2003.

[130] Human Rights Watch interview with mother of Violette J., Bukavu, July 21, 2004.

[131] Information from AED, Bukavu.

[132] Human Rights Watch interviews with Military Prosecutor, October 15, 2003 and July 21, 2004, Bukavu. The Military prosecutor also provided a table with pending and closed cases. The parents of the victim had actually heard that the rapist escaped before June 2003 and committed another rape, but Human Rights Watch was unable to confirm this information.

[133] Human Rights Watch interview with mother of Violette J., Bukavu, July 21, 2004.

[134] Information from Action Sociale pour la Paix et le Développement, Goma, October 17, 2003. The conviction seems to have taken place in 2003.

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