Congo Justice: Unintended Consequences

Z.B. is sixteen, apparently, and most definitely pregnant. After giving testimony during the trial here of the 30-year-old soldier accused of raping her, Z.B. sat down on the edge of a bench, buried her face in her hands, and sobbed. She was the only witness who wept during the proceedings before the Kamituga mobile court. Z.B. was not, however, crying because she had been the victim of a traumatizing sexual assault. Nor was she crying because testifying about being raped had traumatized her a second time.

Z.B. was sobbing, and perhaps traumatized, because she is in love with the accused rapist, Kasereka Bawere. She was testifying because she wants Kasereka to be set free. She wants to be his wife, and Kasereka wants to be her husband. They want to follow the age-old, and now-illegal, tradition of this land where it is still commonplace for teenage girls to marry. The Democratic Republic of Congo is a land of short life expectancy and, for many people, perhaps especially rural women, modest life expectations. Many people get on with marriage early in life. They have children early. And they take joy in them.

There is no doubt that violent rape has devastated many thousands of women in Congo. There is no doubt that, in order to protect women and girls and punish convicted rapists, robust efforts needed to be taken, including passage of strict statutes on rape and the creation of judicial institutions capable of putting accused rapists on trial. And there is little doubt that, at the same time, Congo’s parliament attacked traditional forms of marriage-making that in too many instances forced girls to enter into marriages against their will.

But statutes are the work of committees of politicians; and, for this reason, statutes often go awry.

Kasereka began seeing Z.B. in August 2010. By December she was pregnant. Kasereka followed the tradition. He approached Z.B.’s parents with a pre-dowry offering: a mbuzi ya mazarau, a goat. He offered Z.B.’s father, as a dowry, anything he wanted from a small village shop if he would allow Z.B. to become his wife. Z.B.’s mother accepted his offer. It was Z.B.’s father who rejected Kasereka’s overtures and insisted on pressing charges.

The new statute protecting minors in the Democratic Republic of Congo is rigid: sex with anyone under the age of 18 is rape. This covers both violent, forced sexual intercourse, the kind of rape for which the mobile court in Kamituga has handed down 15 to 20 year sentences. It also covers what is known in the United States as statutory rape: consensual sex between two people, at least one of whom is under the legal age.

Kasereka was arrested in January. The quarrel between Z.B.’s parents grew so bitter that the mother accused the father of never having given her parents a dowry for her hand in marriage—which effectively meant that, under the traditional law, Z.B.’s father had no legal standing to represent her in the Kamituga case against Kasereka.

The Kamituga mobile court heard eleven rape cases during its two week session. Kasereka’s was one of three rape cases that involved accusations of sex with consent, albeit by a minor. These cases reveal what might be a flaw in Congo’s laws governing rape—laws that too few people know about and too few consider a deterrent to following traditions. Many of these people are illiterate and live far from urban areas.

***

Kasereka’s trial commenced on a hot afternoon. The judges turned up the back wall of the tent for better ventilation, and a passing goat took the opportunity to gaze into the tent, seeking grass perhaps, or a lost kid. The presence of the goat, combined with the household drama of the case, turned the crowd giddy and boisterous.

Kasereka admitted to having had sexual relations with Z.B. a dozen times, either at his house or at Z.B.’s, since they began seeing each other in August 2010.

“Have you lived together with her yet?” The presiding judge asked him.

“Her parents brought her to my place,” Kasereka answered.

Z.B. now stood before the judges.

“It is all my fault,” she said, practically crying. “I told him that I was 18, because I was already pregnant.”

“What outcome do you desire now?” the presiding judge asked.

“I want him to be let free.”

The crowd applauded and cheered.

“Does this come from deep in your heart?” the presiding judge asked.

“It does.”

The guards demanded silence, and pointed and hissed at people making noise.

Z.B.’s father was the last witness called. He is a diminutive man, and wore a dress shirt with a loud black and white print. He became angry as the judges questioned him concerning the dowry Kasereka had offered and his intentions in pressing for Kasereka’s prosecution.

“Do you want to accept money or some other payment and hand over this girl as a bride?” the presiding judge asked.

“No,” Z.B.’s father insisted. “I have already rejected a whole store shelf filled with rings offered up for her. I refuse now.” The crowd mumbled.

The president seemed to be seeking a way to break down the father’s resolve, so the dispute could be settled and the case dismissed with an immediate bench ruling. “Don’t be a dictator,” the president advised Z.B.’s father. “I can tell you from personal experience. I lost a 17-year-old girl. Now, I’ve ended up regretting it.”

The father did not relent.

In their final arguments, the prosecuting attorneys and the lawyers representing the interests of Z.B’s father, the presumed victim in the civil dimension of the trial, sought long prison terms and damages exorbitant enough to excite the greed of any illiterate peasant.

The lawyer for the defendant argued that the prosecution had presented no convincing proof that Z.B.’s father was even qualified to represent her before the court. He argued that the prosecution had also failed to present proof that Z.B. was under 18 years of age: “When we compared her with another girl presented here, everybody who has two eyes could see that our future bride is older than the one who said she was sixteen.”

Then the defense attorney called upon the judges to show the wisdom of Solomon: “The victim is pregnant. The child to be born is the accused’s. She does not want to be committed to some nongovernmental organization running a home for unwed mothers in Kamituga. Who will welcome the infant into this world? That is the defendant’s job. We want only for you to let the accused prepare for the arrival of this infant and to live together with his wife.”

***

The justice system had swept everyone in the Kasereka case up like destiny sweeping up the characters in a Greek tragedy. Every one of them—Kasereka, Z.B., and Z.B.’s mother and father and unborn child—seemed destined to be ruined.

Kasereka would lose because he would go to jail and be separated from Z.B. and their child, and because he would be under a court order to pay damages to Z.B.’s father.

Z.B. would lose her intended husband: the father of her child and a breadwinner. An official court document would effectively certify that she had been raped, which carries a terrible stigma in the local culture. Z.B.’s father, who was already angry at her, could drive her from the family home, rendering her destitute and perhaps relegated to the life of a concubine or worse. No other man would marry her because she had been raped. And, because she was a minor, she would not be the recipient of any damages the court awarded. The recipient would be her parent-guardian, the same father who just happened to be the person pressing hardest, against Z.B.’s wishes, for a conviction and an award of damages.

Z.B.’s child, if he or she were born alive and survived infancy, not foregone conclusions in the villages of these mountain hollows near Kamituga, would be without a father, protector, and breadwinner and be estranged from his or her maternal grandparents.

Z.B.’s mother would lose both a daughter and a son-in-law.

And Z.B.’s father? He did not explain to the mobile court why he was pressing charges. Perhaps he was seeking to restore the family honor that was diminished when Z.B. became pregnant. But loss of family honor is something the father could easily have recovered by resolving the conflict using the age-old system and accepting the mbuzi ya mazarau—the dowry goat.

Perhaps there was a more materialistic motivation. Earlier mobile courts have ordered men convicted of rape to pay civil damages amounting to upwards of $10,000 in Congo currency. Word of these damage awards has spread throughout the country. For people suffering penury who are used to obtaining goats for their pregnant daughters, the size of these awards represents an enormous sum. The fact is, however, that Z.B.’s father and most, if not all, of the other victims will probably never collect a withered banknote worth a dime in damages.

In these cases, all parties are indigent. Kasereka has no assets and, if found guilty, would be consigned to jail, rendering him unable to earn any money for perhaps years. The lawyers for the “victims” have to obtain any damages payments from the state, on the theory that the state is somehow responsible to pay based upon the criminal behavior of rapists in uniform.

Even the army of the Democratic Republic of Congo stands to lose, because, by all accounts, Kasereka was a decent guy.

Confronted with an argument that the only real victims in the case were Z.B. and her unborn child, and certainly not Z.B.’s father, the attorneys who argued in favor of a conviction and an award of damages cited an old lawyer adage that allows pettifoggers to wipe their hands and consciences clean when justice is not served by a legal outcome: “justice and the law are two different things.”

They insisted that the father was a legitimate aggrieved party. One of the lawyers who argued that interests of the father outweighed those of Z.B. had even married a sixteen year old woman—but before the new law on child protection came into effect over the past few years.

***

It rained on the night of Kasereka judgment. Water pooled on the roof of the tent, causing it to sag and begin to leak onto the people below. A soldier drained off the water by pushing up on the plastic with the butt of his loaded assault rifle.

The victim, Z.B.’s father, was not present to hear the judge announce that Kasereka had been found guilty, ordered to pay him $3,000 in damages, and sentenced to a three-year prison term.

The crowd stood in a stunned silence.

Then came the next judgment:  again, a soldier accused of having had consensual sex with a girl who was pregnant and said to be under age. This time, the court found the woman to be over the age of 18 at the time of conception. At these words, the defendant leapt into the air and threw up his arms like Zidane after scoring a goal. The defendant’s pregnant wife-to-be rushed to his side. “I wasn’t afraid,” the defendant said, before he departed the court’s tent. “I knew I was innocent. I knew this prosecution was based upon a jealous commanding officer who was in love with my girl and wanted revenge.” Jubilant onlookers laughed and sang as they followed the happy couple down National Road 2.

They passed the guards leading Kasereka in handcuffs to the local jail.