Building vibrant and tolerant democracies
(Read the full article here or download it below) - By Judge Mary McGowan Davis, former acting Justice of New York Supreme Court - It is April, 2011 and the humidity is intense in Kamituga. I have been sitting for hours in a white plastic garden chair under a large tent pitched on a bluff in this remote hilltop town in South Kivu, in the eastern Democratic Republic of Congo (DRC). Mercifully, the tent is fully open on three sides, so what little air is moving on this sultry afternoon wafts in to relieve my torpor. I am embarrassed to be yielding to my lethargy – which is attributable to jet lag as well as to the stifling heat – when all around me throngs of villagers are standing patiently under a broiling sun. Some members of the crowd have babies on their hips, some are minding young children or shooing away the goats and chickens that wander in their midst, many appear to be dressed in their Sunday best, others are barefoot and sport faded T-shirts, but all are intently following the proceedings within the tent and have been doing for hours.
Inside the tent, behind five military judges seated at a long table, a banner announces that the Military Tribunal “in Partnership with the American Bar Association, is Holding Trials Before a Mobile Military Court at Kamituga from April 11 to April 22 Everyone Welcome.” The courtroom scene I am describing represents an innovative judicial undertaking: the lawyers and judges at the gender justice mobile court routinely brave impassable roads, primitive accommodation and long working hours in order to afford residents of far-flung villages in South Kivu a forum in which to hold their assailants accountable for abuses that have reportedly made eastern Congo ‘the worst place in the world’ to be a woman or child. As I listen to the teams of lawyers delivering their closing arguments in two rape trials, I am reminded of my first encounter with international criminal justice exactly ten years ago at the International Criminal Tribunal for Rwanda (ICTR).
When I arrived in Arusha, Tanzania as a recently retired New York State Supreme Court Justice, I marvelled at the distance I had travelled both literally and metaphorically. In contrast to the large, dingy courtrooms I had presided over in Manhattan, with their overstuffed wastebaskets, peeling paint, and harassed advocates and court personnel, the trappings of international justice seemed to herald a gleaming new era. The judges were elegantly attired in scarlet robes; the lawyers – some wigged – wore black gowns with white cravats; a computer terminal was provided for each person in the air-conditioned courtroom; instant video replay transmitted the trial to the public gallery, which was separated from the well of the courtroom by a translucent bulletproof wall; and, the proceedings were simultaneously translated into three languages. As I remarked in an earlier account of my first visit to the ICTR, I believed – naively as it turned out – that I had happened upon a transformative legal order, a wholly new paradigm for adjudicating heinous crimes, where the traditional figure of Justice holding her scales aloft would hereafter be draped in the universally identifiable, peaceful powder blue of the United Nations.
Yet now I am in Kamituga in a makeshift courtroom that, like the unadorned circuit courts of US President Lincoln’s day, is pared down to essentials: one laptop computer for the presiding judge; one French interpreter; one generator to power the few dangling light bulbs and sputtering public address system; a couple of soldiers with AK-47s to guard the prisoners who are seated on a wooden bench before the judges; and, white plastic lawn chairs for those members of the public lucky enough to find seats under the tent. Here is a very different model for delivering international justice, one that is decidedly less imposing than the expensive prototype on view at the International Criminal Court (ICC) and at the ad-hoc and hybrid tribunals established by the UN, but one that is perhaps better adapted to the actual task of providing timely redress to individual victims in communities still struggling with the chaotic aftermath of war and political upheaval.
While I contemplate the apparent disparity in the treatment of the Congolese leaders currently on trial in the ultra-modern courtrooms of the ICC in The Hague and the defendants now facing justice before the gender justice mobile court in South Kivu, I am roused from my reverie by hearing the word ‘Akayesu’ pronounced by one of the attorneys (referring to the ICTR’s venerable 1998 judgment with its ground-breaking definition of rape). At last, in this rudimentary hilltop courtroom in Kamituga, I discover a familiar and unmistakable link to comparable scenes I have witnessed at tribunals in Arusha and The Hague: counsel for the victim’s family and for the accused argue heatedly about the relevance to the case at hand of international precedent from the ICTR and the ICC, while the conscientious, good-hearted presiding judge futilely tries to enforce limits he has set on the time remaining for such debate. The tribunal labours on into the evening and the crowd of attentive bystanders grows larger despite ominous thunderclouds. I am heartened to observe that the grinding work of justice is no less serious and compelling a matter under a tent in Kamituga than it is in the more splendid courtrooms of the ICTR and the ICC. What distinguishes this scenario is the immediate impact of the endeavour. Because these courts travel to the affected communities, the Congolese judges and lawyers are visibly carrying out their respective responsibilities in the presence of rapt onlookers, who are directly connected to the victims and the accused, and are thoroughly – indeed, passionately – engaged in following the trial.
I have been invited to Kamituga – which is eight hours from Bukavu by a treacherous road over mountains and through otherwise impenetrable forests – by the Open Society Initiative for Southern Africa (OSISA) and the Open Society Justice Initiative (OSJI) to conduct an assessment of the effectiveness of the gender justice mobile courts they are sponsoring in partnership with the American Bar Association/Rule of Law Initiative (ABA/ROLI), which implements the project. I have been charged to determine whether the courts are successfully achieving their stated purpose to tackle head-on the pervasive impunity for crimes of violence against women and children in South Kivu, thereby filling in some measure the huge void created by the conspicuous absence of Congolese State institutions from large regions of the DRC.
In undertaking this assignment, I was mindful of the backdrop that prompted these organisations to support the gender justice mobile courts in the first place. Suffice it to record that years of armed conflict have resulted in an exponential increase in the incidence of sexual violence in the DRC, and that the survivors have been victimized several times over: “once when the crime is committed, again when they are rejected by their family and community, and yet again because of the near-total impunity enjoyed by the perpetrators of these crimes.”
Despite significant resources brought to bear in recent years to combat and contain this epidemic, it is notable that levels of sexual violence and rape in the DRC remain “simply the highest in the world.” Not only is the armed conflict in South Kivu continuing with its appalling levels of brutal sexual assault, rape by civilians is becoming a routine feature of daily life as the ‘normalization’ of sexual violence takes hold in the country. Indeed, increasingly it is young girls who are at risk of rape and other forms of sexual assault by those who betray positions of trust in the family or community.
To increase access to justice for victims of gender-based violence in eastern Congo, OSISA and OSJI, together with ABA/ROLI, created a pilot project to facilitate the operation of itinerant courts (both military and civil), which travel to remote areas of South Kivu and hear cases related to gender violence or other issues of particular concern to women. During the first two years of the project from October 2009 – December 2011, the courts held 14 sessions in hard-to-reach areas of the province, disposing of 248 cases, 140 of which resulted in convictions for rape and 49 in convictions for other serious offenses, including murder and property crimes. The courts generally operated on the ground for a period of two weeks at a time and on average tried 20 accused during each two-week session. In addition, ABA/ROLI staff organised training courses for justice sector officials and members of the bar on best practices for investigating and adjudicating gender-based crimes under domestic and international law, and conducted outreach sessions to raise public awareness with respect to the importance of reporting and prosecuting crimes of sexual violence.
ABA/ROLI has also opened legal clinics that will afford sexual violence victims help at the earliest opportunity and ensure the high quality of the investigative and legal work at all stages of the proceedings. In arranging for legal counsel to represent both the victims and the accused, the President of the Tribunal communicates directly with the head of the Bar Association in South Kivu, who actually selects the attorneys who will accompany the courts to the countryside.
To combat the prevalent culture of impunity by taking gender justice courts directly to the people, the organisers have capitalised on the considerable resources available from the national legal system in which these courts are firmly embedded. Indeed, one of the decided advantages of the gender justice courts is that the staff are wholly local: the judges, prosecutors, police, lawyers, court administrators, etc., are all Congolese and are fully invested in the effort to bring a semblance of governance back to the region. Moreover, in the DRC there exists a significant corpus of legal rules and penal statutes – under both international and domestic law – that provide a solid jurisprudential basis for prosecuting crimes of sexual violence. The DRC has ratified the Rome Statute and virtually all of the international human rights conventions, and Congolese prosecutors can rely on a revised – and progressive – sexual violence law passed in 2006 that clearly defines rape and specifically criminalises such acts as sexual mutilation and sexual slavery. A separate procedural law mandates expedited proceedings in rape cases and offers additional protections to victims such as the right to be examined by a doctor and a psychologist and to testify in camera should they choose to do so.
Furthermore, a new Constitution – in force since 2006 – provides for the independence of the judiciary and establishes important principles with respect to fair trial rights. In addition, Congolese domestic legisla- tion defines war crimes, crimes against humanity and genocide; although the prohibitions are not explicitly in line with comparable definitions in the Rome Statue, they are sufficient to permit prosecution and punishment of the most serious violations of human rights and international humanitarian law.
Notwithstanding these advantages, the gender justice mobile courts face huge challenges in delivering justice to the remote reaches of South Kivu. First and foremost, the faltering Congolese State itself lacks the resources and the will to maintain a functioning justice system. In addition, the fundamental tools to do the job properly are lacking: given the deplorable state of the roads, rural communities do not have access to courthouses, secure prisons or well-equipped medical centres; basic supplies such as computers, printers and writing paper are unavailable, which makes it difficult for judges and court officials to keep track of cases and produce written judgments as the law requires; written records customarily supplied by State authorities – such as birth and death certificates – are wholly wanting; there is little capability to collect and secure forensic evidence; and, the tight schedule under which the courts operate impedes the flexibility to summon witnesses. Finally, the State’s complete failure to pay its share of indemnities assessed in cases where the court holds the State jointly responsible for the actions of soldiers or police officers in its employ leads to understandable cynicism on the part of victims, whose civil-law-influenced view of justice mandates payment of reparations in addition to incarceration of the guilty party.
That said, as night wears on under the tent in Kamituga, it is obvious that there is much to commend in the on-going work of the mobile gender justice courts. Although the military mobile court at Baraka, in a widely publicised judgment, convicted high-ranking officers charged with crimes against humanity stemming from a rampage of mass rape and pillage in the town of Fizi on New Year’s Day, 2011, the tribunal in Kamituga is hearing lower-profile cases that might otherwise escape attention. The court’s creators, funders and implementers are justifiably proud of the Baraka court’s success in trying international crimes under the glare of international media attention, but my own view is that courts that operate beneath the radar screen like this one in Kamituga are of equal or, perhaps, greater value. The mobile gender justice court offers timely redress to the victims of ordinary crimes of violence, the kinds of crimes that beset every community every day. So – in the trials I have attended – a 13-year- old girl who is raped by a relative in her bedroom, and a 10-year-old who is attacked by a police officer while gathering grass to feed her guinea pigs now have the opportunity to insist that those to whom they look for security must answer for violations of that trust.
The long trial day is finally coming to a close. The lawyers are concluding their impassioned summations. The educational impact of these speeches, with their frequent invocation of legal authority and impressive elocution, has to be significant – at least for those in the large crowd who speak and understand French. The attorneys for all parties are eloquent and respectful, they speak about the law, about the value of Congolese lives, about the importance of security to their communities, about the military court’s competence – or lack of competence – to judge the accused, and about the legal procedures that protect their respective clients, while the patient audience listens attentively and nods in agreement. At the close of the argument in the first case, the President questions the accused: “Did you follow this? What did the civil party ask for? What did the public prosecutor ask for?” After demonstrating to the judge’s satisfaction that he comprehended the lawyers’ summations, the defendant has the last word and denies the charges: “All lies.”
The lesson I draw from my long day under the tent is the unremarkable reminder that the real measure of the justice on offer, whether in a secure courtroom in The Hague or on a hilltop in Kamituga, is the quality of the legal process. Although the mobile gender justice courts are obviously a work in progress and cannot be expected to meet stringent international due process standards immediately, in view of the significant constraints under which they operate, the perception in the local communities is that the courts are performing at a high level. Given the evident seriousness, diligence and sensitivity with which the Congolese judges and lawyers approach their mission to respect the rights of the accused, while offering the survivors of horrific crimes a forum in which to seek justice, there is every reason to believe that future sessions of the mobile courts will successfully build upon the auspicious work of the military court I have seen here in Kamituga. As one young woman who testified openly and fearlessly about the violence done to her by a soldier told me later, “Thanks to the mobile court at Kamituga I am beginning to believe that there is justice.”