PART II LITERATURE REVIEW
CHAPTER 3 MALE-FEMALE ROLES, SEX IN RELATIONSHIPS AND
3.7 DETERMINANTS OF MALE ATTITUDES AND BEHAVIOUR
3.7.6 CULTURE OF IMPUNITY
National and local laws around women and violence against women, as well as inheritance rights decrees, domestic and sexual violence laws, marriage and divorce laws, and laws around cultural practices such as female genital mutilation and early marriage are generally different. Many countries accept both constitutional and traditional legal structures, even though the two often contradict each other, and the power of and limits between the two are not always clear (Benninger-Budel, 2000).
Additionally, the degree to which the laws are implemented differs, particularly at the community level. There are many reasons for insufficient implementation of woman- friendly regulations, including low political commitment or popular support at the local level, conflict between traditional and constitutional law, and lack of training for institutional staff in the policies and protocols, sometimes due to budgetary constraints. Women may not have access to the information necessary to recognize their rights and to negotiate the legal system if they feel that their rights have been violated. It is in this context that convicting perpetrators of gender-based violence is difficult (USAID, 2006).
The Democratic Republic of Congo juridical system is still far of bringing perpetrators to book. Impunity spreads to the heart of the conflict in the Congo after the transmission from the Rwanda genocide in the Congo, both wars saw massive human rights violations with civilians taking the brunt of violence. Accountability is necessary in the post conflict societies to ensure new government with „legitimacy‟9. Human Rights (2005) indicate that the redress and justice have been low on the Congo‟s agenda. Moffett (2009) corroborates that these seem low comparatively to the one of countries like South Africa and Sierra Leone. Instead the Congo has been looking to secure peace at all costs with justice and accountability being left to the international community and superficial transformations such a Truth and Reconciliation Commission which has proved ineffective due to its opposing membership and lack of funding or following as a result enforcement powers, has failed to achieve any results. Human Rights (2005) argue that the Congolese courts themselves are inadequately financed and basically weak. According to the report of
9 Repairing the Past: Refugees, displaced Persons, Land and Property, in International Council on Human Rights Policy, Negotiating Justice? Human Rights and Peace Agreements (2006)
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the UN Secretary General on the situation in DRC, addressed in March 2007 to the Security Council, the Congolese national justice system really lacks capacity. It has never been independent and has never had the resources necessary to investigate and prosecute offenders and to ensure that court decisions are implemented. Low salaries have contributed to corruption and very few people have access to legal aid. Under 60% of the 180 courts of first instance that the country have created, laws are out- dated and the judicial structures, the courts and the prisons are in a state of disrepair (Human Rights, 2008). Although the military courts have recently rendered a small number of decisions on human rights violations, the ruling culture in Democratic Republic of Congo is on of generalised impunity. In 2006, the President of the DRC officially proclaimed two laws empowering rape. However, they remain almost entirely unimplemented, as acknowledged by the former Congolese Minister of Human Rights, at a meeting with FIDH in November 2007. In the nonexistence of effective advocating campaigns, awareness of the laws amongst victims, perpetrators, actors in the justice system and the public is particularly lacking (Human Rights, 2008).
Statistics are rare, however, in 2005 in South-Kivu, of 14,200 cases of sexual violence recorded by the health services, only 287 were taken to court (UN Office for Human Rights in South-Kivu), representing under 1% of recorded cases. The Office of the UN High Commissioner for Human Rights in the Province Orientale has discovered that between January and October 2007 1000 cases of bail have been given to those suspected of crimes of sexual violence, in disrespect of the applicable law (providing that bail should be opposed on the following reasons: risk of escape of the accused, risk of dissimulation of evidence, risk of retaliations or threats to victims and witnesses). Among the above cases eleven received a trial. Many suspects of sexual assaults are released on bail and never reappear. The few that receive convictions generally receive very short sentences. An alarming number of perpetrators often succeed to escape from prison, though victims and witnesses are not given with protection. Police and army chiefs and local authorities keep on supporting families of rape victims to seek an amiable settlement outside the courts (Human Rights, 2008).
Human Rights (2008) report that during their mission in Kinshasa in November 2007, they heard the testimony of a 10 year old girl who was stopped on her way to school, raped several times, and then abducted for several days. A complaint was filed with
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the police in Kinshasa, but the accused, after being briefly incarcerated, was released while the girl was detained by the authorities. A second complaint was filed with the public prosecutor's office, but the accused was able to buy his freedom. Adding to her physical and psychological suffering, as a result of the crime the victim was rejected by her own family and for the last year she has been living in a care centre.
As long as impunity remains there will be no deterrence and will rather perpetuate further conflict as victims interests remain unaddressed by the government forcing them to restore the situation themselves. The use of rape as a weapon of war in the conflict has ensured a bitterness and horror for many women, which is only intensified by seeing their abusers act without remorse and impunity ensuring that such actions will continue until the problem is addressed (Moffett, 2009). He adds that the government and armed forces as well as rebels groups needs to face the tests of accountability in order to ensure legitimacy, the lessons learnt from Rwanda is that failure to prevent those responsible to avoid facing accountability caused the consecutive wars in the Congo as the interahamwe (Hutu rebel) continued their cycle of violence in the Congo in almost impunity.
Years of prolonged conflict may cause an „ethical vacuum‟, as the difference between combatants and civilians becomes indistinct. In a war-affected society, traditional norms and social values concerning the status of women and children and their protection may progressively fade, the consequences of which may be disastrous for the civilian population10. Particularly in a situation where the court system fails to prosecute the offenders and to bring them to book, this situation can give rise to serious social tensions within the community. Weak, ineffective or even out-dated legal systems and the low investigative capacity of local police forces, combined with the isolation and social stigmatisation of the victims, may create an environment that is conducive to an increased incidence of sexual violence against women, children and adolescents, instead of preventing it (UNHCR, 2000). The unpredictable and uncertain political environment is another hindering factor, the impact of which should not be underestimated. Men and women representing political parties that are
10 „ARC. Critical Issues. Abuse and Exploitation. Revision Version 04/01‟, http://www.unhcr.ch.
Accessed 16 July 2010
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evidently guilty of organized rape occupy high political positions. This was the case, for example, of the Minister of Women and Family Affairs, who experienced serious difficulties in proving the public opinion of her dedication to fighting sexual violence and seeking justice for the victims. She is a member of the Congolese Assembly for Democracy (RCD - Rassemblement Congolais pour la Démocratie), one of the armed opposition troops involved in the war, which was also reproached of having used rape as a weapon of war (Bosmans, 2007). Perpetrators of sexual assaults perceive themselves as untouchable since impunity is prevalent. Years of war have left the country completely impoverished. The national and local authorities have been completely weakened and destroyed by the war and have little or no resources for paying salaries or cannot even supply pens to state officials working at the National Court of Justice to write their reports. There is generally lack of competence, power and backup supply among the judiciary to enforce the application of the DRC legislation on sexual violence (Pinel, 2006). A lack of confidence in the courts hinders victims from seeking justice, including the lack of care and understanding of needs and requirement from judges, lawyers, police officers and the military in dealing with issues of sexual violence. However, the situation is gradually changing and
„examples‟ are being set. In 2006 seven combatants from the RDC got life sentences at a military court for the gang rape of more than one hundred women and girls in December 2003 in Northern DRC (Pinel, 2006).