Open Society Initiative of Southern Africa (OSISA)

In 2009, an innovative project began in South Kivu in the east of the Democratic Republic of Congo to try and bring the perpetrators of sexual crimes to book and so help to combat the prevailing culture of impunity. By supporting mobile gender courts that specifically target sexual crimes, the project sought to bring some measure of justice to communities that had long since given up on the rule of law – and give survivors hope that their attackers would pay for their crimes.

The American Bar Association/Rule of Law Initiative (ABA/ROLI) is currently co-ordinating the operation of the gender mobile courts, which operate within the structure of the DRC’s justice system and travel to remote areas of South Kivu, where they afford victims of gender-based violence and other crimes a forum in which to hold their assailants – both military and civilian – accountable for abuses.

In its first 20 months of operation (from October 2009 through August 2011), the mobile gender courts held 14 sessions – hearing 248 cases, with 140 convictions for rape, 49 convictions for other offenses (mostly murder and property crimes) and 44 acquittals. The mobile court also heard the Fizi case, which resulted in the conviction of Lt. Colonel Kibibi for crimes against humanity for his role in the mass rape of over 60 women in the town of Fizi on New Year’s Day 2011.

But the impact of this kind of project can never be measured solely in numbers, especially given the size of the South Kivu (let alone the rest of the country) and the scale of sexual crimes. So the Open Society Initiative for Southern Africa (OSISA) – which funds the ABA/ROLI mobile court initiative in South Kivu – commissioned Judge Mary McGowan Davis to conduct an independent assessment of the effectiveness of the mobile court project and to prepare a report addressing the performance of the mobile courts themselves.

Specifically, Judge Davis – who was an acting Justice of the Supreme Court of New York and is a member of the managerial board of the International Association of Women Judges and active with several organisations focusing on human rights and traditional justice – was charged with evaluating whether the project is actually helping to tackle head-on the pervasive impunity for crimes of violence against women and children in South Kivu and to punish those found responsible.

After an exhaustive desk review, numerous interviews and a visit to Congo to see a mobile court in action, Judge Davis concludes that, despite the many challenges and frustrations that inevitably attend a project of this magnitude, the gender justice mobile courts have unquestionably delivered on their undertaking to bring justice to remote reaches of eastern Congo. Their work is notable for concrete, tangible results that demonstrate to the host communities that actions have consequences and that crime will be punished.

“The genius of the ABA/ROLI-supported gender mobile courts is that they have significantly transformed the prevailing discourse,” says Judge Davis. “Now, punishment is no longer theoretical.”

Judge Davis highlights a few areas of concern as well as providing some recommendations to improve the performance of the mobile courts. But overall, Judge Davis finds that the ABA/ROLI-supported gender justice mobile courts have contributed to changing people’s perceptions and tackling the prevailing culture of impunity.

Some of Judge Davis’ key conclusions are:

• The gender justice mobile courts have unquestionably delivered on their undertaking to bring justice to the remote reaches of eastern Congo;
   
• The mobile courts are performing at a high level to deliver impartial trials in remote communities and are ably filling the void created by the Congolese government’s abdication of its own responsibility to maintain a functioning justice system;
   
• The ABA’s emphasis on positioning these gender justice courts squarely within the Congolese justice system and on fortifying Congolese judges and lawyers, who are visibly carrying out their law enforcement responsibilities before local communities, is key to the programme’s effectiveness;
   
• Given the wholly Congolese cast to the project, the value of the mobile courts in the context of the complementarity provisions of the Rome Statute is considerable;
   
• While these courts have jurisdiction over crimes and matters other than those relating to issues of special pertinence to women, they have taken a clear stand to support women’s claims to equality and justice – and this resolve to promote women as important to the economic and social wellbeing of the community has had measurable effects;
   
• Notwithstanding social mores that stigmatize rape, young women are speaking out at mobile court sessions without shame and are putting the onus for crimes of sexual violence on the perpetrators, where it belongs; and,
   
• There is ample room for these courts to continue to thrive in the event that hybrid courts should be established to try international crimes dating back to 1993.

And while, the goal of ending the culture of impunity in eastern Congo requires a long term commitment and will not be achieved in a matter of months, each mobile court session represents a building block to a future where accountability will be a matter of course and where victims and accused alike will find justice.

Judge Davis concludes, “In view of recent reports that the alarming incidence of civilian rape is no longer confined to eastern Congo but is occurring in other regions of the country, I strongly endorse widespread replication of the ABA/ROLI gender mobile court model. Since mobile courts are a familiar – indeed, essential – feature of the Congolese criminal justice system, and since the mobile gender courts are wholly staffed by Congolese judges and lawyers, if and when the faltering State is ready to assume its fundamental responsibility to deliver justice to its people, transition to full government control should be relatively seamless.”

Documentation: 

Open Learning - Helping to combat impunity for sexual crimes in Congo