participating in demands and processes that deal with the larger social issues such as
reconstruction and development. The idea is that these processes benefit society as a
whole and may help change gender biases and attitudes in the long run. While such other
forms of justice are as important, justice through the legal process is among the only
response to sexual violence that institutionally acknowledges the seriousness of sexual
violence, validates a woman’s suffering and establishes it as a crime or harm worthy of
condemnation, accountability and a remedy.
1.4
The Manual
National constitutions, legislation and judicial institutions in various countries offer a host
of rights, the violation of which gives rise to a remediable legal action. Where conflict has
destroyed or significantly impaired existing legal systems and institutions, there is an
opportunity to build new ones that are compliant with international human rights standards
and the developments in international humanitarian and criminal laws. Countries like the
Democratic Republic of the Congo (DRC), Rwanda, Burundi and Kenya are among those that
have adopted new constitutions, made significant reforms in their national laws and
strengthened their enforcement agencies to improve the prospects of accountability for
crimes during conflict. Other States rely on their existing laws, systems and institutions,
lacking as they may be with regard to their compliance with international human rights
standards.
This Manual examines the different legal options available to a victim/survivor of sexual
violence or a rights group on her behalf. Although these legal options serve the overall goal
of justice, they have different requirements of documentation, need different levels of
victim participation and focus on a specific aspect of the remedy. In some national laws, a
victim cannot choose from among the legal options as the choice is made for her by the
State. For example, in some countries an investigation and prosecution begins as soon as
the police come to know of a murder; finding a rape victim or knowledge of a rape sue
motto triggers an investigation and prosecution. In other national legislation, the action
depends on the victim/survivor who may choose not to initiate a criminal proceeding but
file for a remedial action in civil courts. In yet others, the civil courts depend on a prior
criminal finding of guilt to proceed with the award of any civil or related remedy.
This Manual aims to provide an overview of the legal options available to women to pursue
justice for sexual violence and discusses the legal strategies that influence the choice of
any given option. The overview of the legal options at the domestic level are provided by
laying out laws and systems typical of the three broad types of legal system in Africa – the
common law system, the civil law system and Islamic law. For options at regional and
international levels, the manual lays out the basics of various regional and international
human rights mechanisms and the instruments applying international humanitarian and
criminal law. From a discussion of the practical possibilities or impediments at the
domestic level; the decisions of the regional and international human rights mechanisms;
and the judgments of the regional and international courts and tribunals emerge strategies
that women and victims of sexual violence may employ in their pursuit of justice, with
varying degrees of potential success.
1.5
The Purpose and Objectives of the Manual
The overall purpose of this Manual is to eliminate the knowledge gap about strategies
women may adopt to seek justice for sexual violence. It is also to encourage women to use
and exhaust all available avenues of justice within their domestic legal system and, if these
systems fail them, to explore bringing complaints under regional or international
mechanisms. The exercise is undertaken with the understanding that these systems and
mechanisms have their limitations and are flawed in their structure or their ability to
provide justice to women. Accordingly, the different legal strategies for justice may not be
available to all women, may not be accessible by all women, may not provide immediate or
effective remedy and/or may have other limitations and constraints. Advocacy for law
reform, ratification of regional or international treaties and/or general national compliance
with international human rights standards with regard to sexual violence take on an added
2
INTRODUCTION | REDRESS