2. DOMESTIC JUSTICE PROCESSES FOR SEXUAL VIOLENCE In theory, there are often a host of different legal options a victim/survivor of sexual violence may pursue at the national level. She could report an offence initiating a criminal prosecution, bring a civil action for damages or reparations, file a constitutional case for violation of fundamental rights or claim damages in applications before a quasi-legal institution such as a national human rights commission for violation of her rights. A brief understanding of what these options entail is discussed below: Criminal prosecution: Sexual violence, though often understood exclusively as rape, is a crime in almost all the penal legislations in Africa. 2 Torture too is also a crime in many national laws. This may mean that it is possible to report sexual violence as torture. Though application of torture legislation to acts of sexual violence is not common in national legal systems, the recognition of rape as a form of torture is established in jurisprudence at the regional and international levels, at least in respect of acts carried out by State officials or in which the State did not take sufficient steps to protect the victim from the crime (see sections 4, 5 and 6 below). Reporting an incident of sexual violence to the police is usually all that is required to initiate a criminal proceeding. Indeed, when a crime is recognised and prohibited in national legislation, it is often treated as a crime against the State. The police therefore have an obligation to act if they are made aware of the incident, even if no formal complaint was filed. Civil action: The victim/survivor may simultaneously or alternatively file a civil action against the perpetrator or in some cases the responsible State, to claim compensation for the infraction of sexual violence or torture. In some jurisdictions there is no need to file a separate civil action. In such situations, civil claims form part of the criminal procedure and are determined after and on the basis of the judgment in the criminal case. Constitutional cases and proceedings before NHRC: Constitutions of some countries explicitly prohibit sexual violence as a violation of fundamental rights. National Human Rights Commissions (NHRC) or other similar institutions have also adjudged sexual violence and State failures to respond to it as a violation of human rights. 2.1 Justice under Different Legal Systems In Africa, one of three different formal legal systems applies –civil law, common law or Islamic law. Local customs and traditions passed down orally from generation to generation have also acquired the status of informal or quasi-formal laws in some African countries. However, given how oral culture passed down through generations lends itself to being ‘dispersed and corrupted’, the rules and laws derived from it tend to be interpreted and applied arbitrarily. Moreover, customs and traditions are typically ‘informed by and seeped in patriarchal values that prioritise women’s traditional roles over women’s human rights. Justice from such a system is more inclined to “enforce and perpetuate the patriarchal values that deny women their rights rather than secure it”. 3 Therefore, while many women approach these informal systems for justice, these systems fall beyond the scope of the Manual. 2 However, in many countries, marital rape is not explicitly covered under domestic laws relating to rape and other forms of sexual violence. 3 Nainar, V, ‘In the Multiple Systems of Justice in Uganda, Whither Justice for Women?,’ FIDA-Uganda, 2011. REDRESS | DOMESTIC JUSTICE PROCESSES FOR SEXUAL VIOLENCE 5