ii)
Procedures
Prosecutions of a criminal nature including for torture or sexual offences such as rape are
under the remit of the Director of Public Prosecution (DPP). A victim/complainant would
ordinarily file a complaint with the police, following which the police undertake
investigations and gather evidence. The evidence is submitted to the DPP for prosecution.
Prosecution may be in the High Court for very serious offences or in the Chief Magistrates
Court for other offences. While in the law, the punishments associated with rape or
attempted rape make it a serious offence, in practice, as seen below, there are numerous
challenges with regards to prosecution.
One may opt for a private prosecution and this entails preparation of a charge sheet
and requesting the court to issue a summons. The DPP however reserves the right to take
over the private prosecution when deemed necessary.
iii)
Limitations and Challenges
Initiating private prosecutions are problematic in torture cases or sexual offences because
of the lack of legislation on protection for anybody involved. Additionally, the complainant
bears the costs of investigation and evidence gathering as the police play no role in these
circumstances. There are however very few private prosecutions on sexual violence
because of the security risks involved.
In a discussion, Judge Kasule of the Magistrate Court in Gulu district of Uganda, listed the
following as among the impediments to a successful prosecution of sexual assault:
2.3
The enforcement institutions do not spend resources to perform some of the
basic investigative functions such as visiting the crime scene, interrogation of
key witnesses, forensic testing and medical examinations of victims and
survivors. Poor investigation by the police is often the reason for acquittal of
offenders for lack of evidence.
Police or those related to the offender often intimidate the woman at the stage
of investigation to prevent them coming to court and as such, the cases are
often compromised.24
Legal Action in Civil Courts
2.3.1 Proceedings in the DRC
Survivors of sexual violence can file a civil action independent from the criminal
proceedings. To avoid inconsistent outcomes, criminal proceedings take priority. Civil
action for damages will be stayed (suspended) until the criminal court issues a final
judgment.
When an infraction is committed, there can be a penal or/and civil action which has the
effect that the victims can ask the criminal tribunal (tribunal repressif) for reparation by
constituting herself civil party (joining the penal action initiated by the “ministère public”
(art 69 Congolese code of penal procedure), or she can wait for a judgment and use it in an
action before civil jurisdictions to claim reparation. The first option (civil party) is the most
common. Also, according to article 144 of the Congolese Civil Procedure Code, victims have
to pay to lodge such a complaint25.
24
supra note 3, pps. 27-28.
25
7 mars 1960, Décret portant Code de procédure civile congolais ; Article 144 : « Lorsque, (…) le demandeur
fournit les éléments nécessaires à la rédaction de l'assignation, il consigne entre les mains du greffier la somme de
Z. 200,00 (zaïres deux cents) au premier degré, et de Z. 300,00 (zaïres trois cents) au degré d'appel » ; Available
at: http://www.leganet.cd/Legislation/Droit%20Judiciaire/Decret.7.03.1960.htm#TITRE_IV.
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DOMESTIC JUSTICE PROCESSES FOR SEXUAL VIOLENCE | REDRESS
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