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The Impact of Litigation on Combating Sexual Violence and its Consequences in Africa - Sharing experience and practical advice

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Sexual Violence in Africa: Legal Action Is Promising Yet Limited Due to Lack of Political Will

In the run-up to the Days of Activism against Gender-Based Violence (1), FIDH is releasing a report analysing the impact of litigation against sexual violence carried out in several African countries. These nine actions, several of which were carried out by FIDH or its member organisations, have frequently led to significant victories through emblematic convictions, legislative changes, and by creating a freer space for speaking out on this issue. However, when the judiciary lacks adequate resources, or when there is insufficient political will or an inadequate legal framework, these actions are undermined and likely to fail. In particular, the report shows how the political settlements of several African conflicts have given way to widespread impunity, with an utter lack of convictions, despite sexual violence having been committed on a large scale. Finally, the report identifies several courses of action and proposes practical advice.

Over the past 15 years, African countries have developed innovative frameworks and tools to combat sexual violence and violence against women. These include a court with special jurisdiction on human rights issues - the African Court on Human and Peoples’ Rights (2) - the adoption of the Maputo Protocol dedicated to women’s rights (3), and the Guidelines on combating sexual violence and its consequences in Africa (4).

Litigation led by by victims and associations can result in exemplary convictions. On 20 November 2014, the Tunis Court of Appeal sentenced two police officers to 15 years’ imprisonment for the rape of Meriem Ben Mohamed, following the mobilisation of numerous Tunisian movements and associations. Sparking broad public debate in the country, this trial contributed to the Tunisian parliament unanimously adopting its first national law against violence against women on 26 July 2017. In our report, Meriem describes the impact the trial had on her life. While it was tremendously painful, it also had a therapeutic effect by allowing her to testify publicly about the ordeal.

While such subjects are often taboo, bringing them to light can lead to considerable legislative changes, as seen in South Africa in 2017. In the context of a ruling handed down regarding rapes of minors, the country’s Constitutional Court abolished the statute of limitations for all sexual violence offences. In doing so, it ensured that victims - who are not always able to immediately press charges - have access to justice over the full course of their lives. In eliminating the statute of limitations, the Court also rejected the notion that penetrative sexual violence is more serious than non-penetrative sexual violence; the consequences on the health and lives of victims are comparable.

Conversely, victims of sexual violence can find themselves without recourse or even in danger if judicial resources are insufficient, magistrates untrained or poorly trained, political leaders indifferent, or if the legislative framework remains inadequate. The report details the case of a ten-year-old Senegalese girl who was raped, unable to have an abortion, and gave birth to twins. The attacker was released by the authorities while the investigation was still underway, thus allowing him to flee abroad and avoid legal consequences. The child was obliged to drop out of elementary school due to her pregnancy, with schools refusing to accept her as a student. Despite efforts of civil society actors, abortion remains prohibited by law in Senegal, even in cases of rape (5).

Moreover, political settlements of armed conflicts or electoral crises, during which sexual violence is often used to terrorise or even destroy opposing groups, leave little room for litigation - all but ensuring total impunity for the perpetrators and sponsors. This unfortunate phenomenon has occurred in several recent conflicts: no one was convicted for the massive sexual violence perpetrated in Darfur since 2003, Liberia (1989-2003), or Côte d’Ivoire (2010-2011), nor for the electoral violence in Kenya (2008-2009) or the 2009 massacre at the Conakry stadium in Guinea.

Some of these mass sexual crimes have been investigated by the International Criminal Court (ICC) or even led to the issuance of arrest warrants (Sudan). These investigations have, in some cases, contributed to the initiation of national proceedings, unfortunately without any conviction to date (Guinea). Moreover, the ICC’s record in trying those responsible for sexual crimes appears to be mixed, particularly in light of Jean-Pierre Bemba’s acquittal on appeal. However, the Court is equipped with significant tools and resources to better take these crimes into account and has recently made some advances, notably in the cases of Bosco Ntaganda and Dominic Ongwen (6).

Finally, victims and their families sometimes turn to national jurisdictions other than those of the country where the crimes took place. Whether on the basis of extraterritorial jurisdiction, before mixed courts (Hissène Habré’s sentencing in Senegal), or by leveraging the commission of other offences (the false declaration of asylum by a former Liberian warlord in the United States) to achieve the conviction of perpetrators of sexual crimes.

All too often, the obstacles to litigation aimed at convicting perpetrators of sexual violence can be attributed to the governments of the states concerned. In an attempt to overcome these difficulties, our report provides practical advice to human rights defenders and victims’ lawyers.

Read the report :

(1) The International Day for the Elimination of Violence against Women, on 25 November, launches 16 Days of Activism against Gender-Based Violence (25 November – 10 December 2019). (2) Adopted on 9 June 1998, the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (ACHPR) entered into force on 25 January 2004. (3) The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa – also known as the Maputo Protocol. (4) The Guidelines on combating sexual violence and its consequences in Africa were adopted in May 2017 by the African Commission on Human and Peoples’ Rights. They contain various measures that must be adopted by African Union member states to prevent, punish and redress acts of sexual violence and to support survivors. (5) The sole exception to the abortion ban is in the case of fatal risk to the woman or girl; however, this exception is strictly regimented and difficult to implement. (6) On 7 November 2019 Bosco Ntaganda was sentenced to 30 years in prison, including for rape and sexual slavery committed in the Democratic Republic of the Congo in 2002 and 2003. In an ongoing trial, Dominic Ongwen faces charges including sexual crimes committed in northern Uganda between 2002 and 2005.