FIDH : Known as the “world capital for rape”, the Democratic Republic of Congo (DRC) is the terrain of a conflict lasting twenty (20) years, marked by the massive and systematic perpetration of sexual violence and gender-based violence, now referred to as war crimes and crimes against humanity. What is your analysis of this phenomenon?
Soyata Maiga : The persistence and magnitude of sexual violence and other forms of gender-based violence in the DRC are the result of the impunity that the perpetrators and accomplices of these odious crimes continue to enjoy, particularly due to the inability of the Congolese Authorities to protect their women and their children. But, it is also a situation that should call on the conscience of the international community which has the obligation to act effectively, and sustainably, by combining several strategies to bring an end to the conflict which endures and which is, among other things, a deteriorating factor.
It is also the responsibility of all the actors involved in the protection of human rights in general, and women’s rights in particular, to show more commitment to the victims to break the silence of shame and assist in designing and promoting the implementation of an effective reparation mechanism for their benefit:
Soyata Maiga, Special Rapporteur on Women’s Rights of the African Commission on Human and Peoples’ Rights (ACHPR)
Articles 11 and 8 of the Protocol to the African Charter on the Rights of Women in Africa are clear: in conflict situations, states must protect women from sexual crimes and ensure that their perpetrators are brought to justice, states commit, furthermore, to guarantee women’s access to justice. However, several Congolese women who have been victims of sexual crimes continue still today to claim justice. How do we achieve effective implementation of Articles 11 and 8 of the Protocol in the DRC??
The relevant Articles quoted above involve a series of measures, actions, policies and programmes arising from the obligations of states parties which are likely to encourage effective access of women and girls to the public legal service, but not only. If these measures are implemented, they would guarantee that women and girls would exercise and enjoy their fundamental rights.
The DRC adopted laws, particularly Laws Nos 06/18 and 06/19 criminalising several forms of sexual violence, in addition to the incriminations contained in the Criminal Code, which in and of itself, is commendable, and denotes a certain political will of the government to confront the issues. But the implementation of these laws is not effective. It would have required commitment to true gender-sensitive legal reform programmes, including the availability and functionality of legal assistance in favour of victims, the strengthening of the legal apparatus, rehabilitation and equipment of police stations, as well as courts and tribunals, particularly in regions of the country where these types of violence are rampant. It would require also recruiting more women and men magistrates and judicial staff, and ensuring that they receive specialised training on sexual violence.
The police services should have multidimensional gender units capable of welcoming and supporting psychologically the victims, and offering them safe temporary shelters. The police and justice should work in synergy to establish warning mechanisms to intervene effectively to prevent crimes against women and girls throughout the country.
All this requires the mobilisation of admittedly huge material, technical and financial means, but which are not above the fiscal capacity of the DRC, with its mineral and other resources, if only the phenomenon of sexual violence had been taken to its just and tragic extent, that is to say, crimes against humanity.
In the context of normalization of sexual violence throughout the Congolese territory, including in areas unaffected by conflict, the authorities have shown a willingness to put an end to this violence. Two laws dedicated to the repression of the perpetrators of sexual violence were adopted in 2006, a national strategy was adopted in 2009 and President Kabila just announced the next nomination of a representative responsible for promoting the fight against sexual violence. If these efforts are to be applauded, how do you ensure that they have a real impact?
The gravity of the situation of sexual violence in the DRC can no longer be met with short-term piecemeal reforms or decisions, create or generate ad effects, resulting in political fallout to consolidate positions or relieve consciences, at any level whatsoever.
President Kabila must go further in the manifestation of the political will to end impunity. The campaign of the UN Secretary General and all the Resolutions of the Security Council on “Women, Peace and Security” offer it an environment and support favourable for action. All initiatives are to be encouraged, but we must now ensure the effectiveness of the decisions adopted by the highest authorities of the DRC, if they do not want to be overtaken by the step of world history.
The ACHPR spoke out against "the inability of the Congolese authorities to end impunity for the perpetrators of these heinous crimes despite the existence of two laws on sexual violence." Among the measures proposed to deal with this situation, the question of sending an ACHPR fact-finding mission, mandated to shed light on the circumstances of this violence, establish responsibilities and propose measures to ensure that perpetrators are prosecuted by the courts, has been mentioned several times. What about today? Is such a mission desirable? Achievable?
The ACHPR has taken several relevant and timely resolutions to denounce the intolerable nature of sexual violence in the DRC, and by its ACHPR/res.173 (XLVIII) 10 Resolution adopted at the 48th Ordinary Session held in the Gambia from 10-24 November 2010, it decided to seek the cooperation of the Peace and Security Council (PSC) of the African Union, to undertake a fact-finding mission, for both, making an inventory and identifying the armed individuals and groups guilty of these crimes. The ultimate objective being to make a report to the Conference of Heads of State and Government, I firmly believe in the useful purpose, and current relevance of such a mission. We are committed to playing our part. Dialogue with the PSC is ongoing, and our assistants have already received training and are equipped with the requirements of a mission of this nature.
In 2007, the ACHPR adopted a resolution on the right to justice and reparation for victims of sexual violence which calls on states to ensure the implementation of effective means of redress. During its last two missions to the DRC in 2012 and 2013, FIDH noted that if international efforts lead to the organisation of an increased number of trials and convictions of perpetrators of sexual violence, no decisions on reparation has been made. What actions must be undertaken to guarantee justice and reparation for victims?
The issue of the right to justice and reparation is central and fundamental since this is, for victims, having their rights recognised and restored. It is the culmination of a long journey without which justice would have no meaning for them. There are actually, from our point of view, small steps made with hearings and convictions recorded. It requires that the Congolese state be organized to establish a National Compensation and Reparation Fund with adequate financial resources with simplified procedures for accessing it, allowing a victim who has a final court decision to be compensated immediately. The state reserves the right to take action against the perpetrators to recoup its funds.
It is also important that all women who are victims of sexual violence receive from the Government and technical and financial partners economic support through projects and small micro credit to enable them to rebuild their lives and to become independent, as in the case of a country in conflict, many women and girls who are victims of rape, remain in abject poverty and are unable to recognise or identify their tormentors, which excludes them from the conventional legal system, where you need an author recognized as such, to be able to be compensated.
The enforcement of civil judgments for compensation is not automatic; it means that the victims engage in new proceedings, particularly extremely expensive in terms of the cost of the proportionate fees and subject lastly to the discretion of the Ministry of Justice. Are these proceedings compatible with the right to recourse such as defined by the Charter and the Commission, particularly in communication 253.02??
The victims of sexual violence in the DRC should have a special status that derogates from normal proceedings before the courts, and even with respect to the enforcement of their judgements. The procedures should be facilitated and simplified, deadlines shortened for the enforcement of accelerated decisions, without these characteristics that reflect the nature and extent of the tragedy, the harassments and judicial delays are additional suffering, making the right to a reperation ineffective or only useful for a handful of victims.
The inferior status of women relative to men, as enshrined in the Congolese legislation (including the duty of obedience to her husband, the need of approval from the husband to institute legal proceedings, etc.) helps to generate negative stereotypes on the status and role of women. What impacts do the discriminations against women have on the commission of violence against them? How do you fight these discriminations?
Discriminations contained in the texts perpetuate stereotypes, attitudes and behaviours that underpin the inferior status of women in relation to men, in the majority of African countries, including in those that, like the DRC, ratified CEDAW and the Maputo Protocol. There is a strong correlation between these discriminations and gender-based violence. Indeed, these discriminations legitimise, in the eyes of the vast majority, certain forms of violence, such as domestic violence, for example, widely tolerated by women themselves. That is why domestic legislation must be groomed and harmonised with duly ratified international and regional conventions.
Moreover, awareness-raising campaigns for men, religious leader and other traditional chiefs are needed to accelerate the change in social models adverse to the status of women within the family unit and the community. The networks of women’s organisations, the associations of female jurists carry out, in this regard, extraordinary work deserving of much praise in the DRC, regionally and internationally. Active solidarity with the networks of human rights must continue and intensify beyond borders to bring the perspective of human rights to the forefront of all issues.
The international community is particularly invested in the struggle against sexual violence in the DRC. But, as the FIDH report demonstrates, several challenges remain. Does the magnitude of the phenomenon require that international mobilisation be coordinated better? What would you see as the conditions?
FIDH, because of its influence, rigour and consistency in the analysis of violations of human rights is the standard bearer in the fight against sexual violence in the DRC. We must keep our eyes open, as you do so well, and continue to speak out against the unspeakable. The FIDH campaign contributed significantly to challenging consciences and supporting mobilisation around the issue. As long as women continue to be raped, beaten, sold and killed, mobilisation should be international. Alliances should expand and penetrate all layers of society in the DRC to heal this country from within and strengthen the assistance from outside.
Regarding the best way to organise mobilisation, it would be important to orient it more on the “reparation” and “economic independence” dimensions of the victims, essential for breaking the cycle of violence and insecurity which engulf them.
Civil society organisations, including women’s associations, play an important role for victims of sexual violence in the DRC. However, Congolese human rights’ defenders continue to confront various forms of barriers to their action (threats, intimidation, harassment), in particular when they argue in favour of the fight against impunity. How do you bring the Congolese authorities to fulfil their obligations to protect the defenders and promote an enhanced cooperation with them?
The ACHPR maintains a constructive dialogue with the DRC, and we have always had responses to our urgent appeals from the highest authorities. We must, through collaboration between our different special mechanisms and the national and local stakeholders, organise training by bringing together NGOs and government representatives to strengthen our strategies, identify the problems that human rights’ defenders encounter and make the competent authorities aware of them as a way of solving them. Human rights is our collective responsibility and we must all improve our understanding of the challenges and solutions, our methods and especially, our vision and our ambition for Africa.