Beyond Legal Measures: A Review of the DRC's Initial Report under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

Abstract

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) established a reporting process to monitor compliance. Despite its shortcomings, this process provides an opportunity for states to engage in a frank, constructive and open dialogue with the African Commission on the measures they have adopted to realize women's rights and the challenges they face. The DRC's initial report on implementing the Maputo Protocol provides an opportunity to assess how the country has advanced women's rights. This article notes that the DRC has adopted legislation and policies to comply with some of its obligations under the protocol. However, these have not brought about much transformation in terms of effective enjoyment of rights due to the contested nature of many women's rights and the community's patriarchal mindset. The article argues that states should focus on extra-legal measures that can counteract negative attitudes and beliefs towards women's rights.

Full text

RESEARCH ARTICLE
Beyond Legal Measures: A Review of the DRC’s Initial
Report under the Protocol to the African Charter on
Human and Peoples’Rights on the Rights of Women in
Africa
Trésor Muhindo Makunya1,2*
1
University of Pretoria, Pretoria, South Africa and
2
University of Goma, Goma, Democratic Republic of Congo
Email: tresormakunyamuhindo@gmail.com
(Accepted 14 October 2022)
Abstract
The Protocol to the African Charter on Human and Peoples’Rights on the Rights of Women in Africa
(Maputo Protocol) established a reporting process to monitor compliance. Despite its shortcomings, this
process provides an opportunity for states to engage in a frank, constructive and open dialogue with the
African Commission on the measures they have adopted to realize women’s rights and the challenges they
face. The DRC’s initial report on implementing the Maputo Protocol provides an opportunity to assess
how the country has advanced women’s rights. This article notes that the DRC has adopted legislation
and policies to comply with some of its obligations under the protocol. However, these have not brought
about much transformation in terms of effective enjoyment of rights due to the contested nature of many
women’s rights and the community’s patriarchal mindset. The article argues that states should focus on
extra-legal measures that can counteract negative attitudes and beliefs towards women’s rights.
Keywords: Maputo Protocol; African Commission on Human and Peoples’Rights; state reporting; safe abortion; access to
justice; political participation; domestic violence
Introduction
The obligation imposed on state parties to report on the progress made and challenges faced in real-
izing human rights is a salient feature of international human rights treaties.
1
The presentation of state
reports and their consideration by human rights bodies play a critical role in ensuring regular
appraisal of the promise made by states to improve human rights. The state reporting process
seeks to ensure that states’human rights obligations are implemented, complied with and enforced.
2
* Licence en Droit, LLM LLD (University of Pretoria). Postdoctoral research fellow and publications coordinator, Centre
for Human Rights, Faculty of Law, University of Pretoria; associate professor of public law, Faculty of Legal, Political,
Administrative Studies and International Relations, Department of Legal Studies, University of Goma. The author
wishes to thank Dr Ashwanee Budoo-Scholtz and Marystella Simiyu for their comments on earlier drafts of this article
as well as the anonymous reviewers.
1 L Hennebel and H Tigroudja Traité de Droit International des Droits de l’Homme [Treatise on International Human
Rights Law] (2nd ed, 2018, Pedone) at 276–77; R Ben Achour “Les protocoles normatifs à la Charte Africaine des
Droits de l’Homme et des Peuples”[The normative protocols to the African Charter on Human and Peoples’
Rights] (2020) 4 Annuaire Africain des Droits de l’Homme 83 at 93.
2 F Viljoen International Human Rights Law in Africa (2nd ed, 2012, Oxford University Press) at 35–38; VO Ayeni
“Introduction and preliminary overview of findings”in VO Ayeni (ed) The Impact of the African Charter and the
Maputo Protocol in Selected African States (2016, Pretoria University Law Press) 1 at 5.
© The Author(s), 2023. Published by Cambridge University Press on behalf of SOAS University of London
Journal of African Law (2023), 1–16
doi:10.1017/S0021855323000141
https://doi.org/10.1017/S0021855323000141 Published online by Cambridge University Press

It aims to foster internal and external scrutiny of a country’s human rights record,
3
and allows human
rights stakeholders to engage in “constructive dialogue”, which reduces hostile confrontation between
the monitoring body and states.
4
It is because states often avoid confronting their human rights record
that a mechanism founded on mutual collaboration and dialogue was established to monitor human
rights compliance.
5
State reporting enables the state to reaffirm its commitment to human rights
ideals, undergo scrutiny, and receive support from other national and international human rights
actors. It is an opportunity to improve human rights protection in the country.
The state is free to decide which of its institutions will develop and submit initial and periodic
reports before human rights bodies. In practice, the ministry dealing with human rights, justice, the
interior, foreign affairs or women’s issues generally performs that role in the African context, with
the support of relevant government institutions.
6
If the entire reporting process is left to state organs
alone, they may present a sanitized picture of the state’s human rights achievements that barely
reflects reality.
7
Therefore, human rights monitoring bodies require that the drafting of the state
report includes government departments, and national and international civil society organizations
(CSOs) involved in protecting and promoting human rights.
8
In addition, they provide clear guid-
ance on the type of measures states must adopt. For example, the African Commission on Human
and Peoples’Rights (African Commission) urges states to explain the progress realized, the level to
which rights have been implemented and whether individuals are fulfilling their duties.
9
Interested
parties, such as CSOs, can challenge the accuracy of state information or complement it by submit-
ting shadow reports that contain empirical data to guide the African Commission when it examines
state reports.
10
Part of these reports may aim to explain how states did or did not realize the rights of
vulnerable categories, understood to be groups of persons (such as indigenous populations)
11
most
likely to suffer or experience harm due to, inter alia, their social status, and economic and historic
conditions.
12
In effect, the domestic organ in charge of state reporting must ensure that the report
provides a holistic, objective and frank picture of the human rights situation in the country.
However, this picture must not merely provide an account of legislation adopted or bills the gov-
ernment has introduced to realize its obligations under the Protocol to the African Charter on
3 Viljoen, id at 38.
4 J Krommendijk The Domestic Impact and Effectiveness of the Process of State Reporting under UN Human Rights
Treaties in the Netherlands, New Zealand and Finland: Paper-Pushing or Policy Prompting? (2014, Intersentia) at 3–5.
5 P Alston “The purposes of reporting”in Manual on Human Rights Reporting under Six Major International Human
Rights Instruments (1997, UN) 19 at 20.
6 The fifth and sixth periodic country report of the Federal Democratic Republic of Ethiopia (2014) was submitted by the
Ministry of Foreign Affairs but prepared by a committee made up of senior officers from the Ministry of Foreign Affairs,
Ministry of Justice, Ministry of Women, Children and Youth Affairs, Ministry of Finance and Economic Development,
Ministry of Communication Affairs, and the Ethiopian Human Rights Commission. The reporting process in Mauritius
for the sixth to eighth combined report on the implementation of the African Charter (2016) was prepared by a com-
mittee under the leadership of the prime minister’s office. Nigeria’s sixth periodic report to the African Commission on
Human and Peoples’Rights (2017) was produced under the leadership of the Federal Ministry of Justice.
7 Alston “The purposes of reporting”, above at note 5 at 20.
8“Guidelines for initial reports of state parties under the African Charter on the Rights and Welfare of the Child”(2013,
African Commission on Human and Peoples’Rights) at 14, para 10.
9“Guidelines for state reporting under the Protocol to the African Charter on Human and Peoples’Rights on the Rights
of Women in Africa (2010)”in C Heyns and M Killander (eds) Compendium of Key Human Rights Documents of the
African Union (6th ed, 2016, Pretoria University Law Press) 200.
10 See “Guidelines on shadow reports of the African Commission on Human and Peoples’Rights”, adopted during the
African Commission’s 72nd ordinary session held from 19 July to 2 August 2022.
11 “SOS pour le peuple oublié: Etat des lieux de la situation des violations des droits des peuples autochtones pygmées en
RDC”[SOS for the forgotten people: State of the art of the violations of the rights of indigenous Pygmy peoples in the
DRC] (September 2018, Ligue Nationale des Associations des Peuples Autochtones Pygmées du Congo and Others),
available at: <https://www.upr-info.org/sites/default/files/document/congo_democratic_republic/session_33_-_may_2019/
rapport_alternatif_peuples_autochtones_epu_-_rdc_2018.pdf> (last accessed 20 April 2022).
12 I Nifosi-Sutton The Protection of Vulnerable Groups under International Human Rights Law (2017, Routledge) at 5.
2 Trésor Muhindo Makunya
https://doi.org/10.1017/S0021855323000141 Published online by Cambridge University Press

Human and Peoples’Rights on the Rights of Women in Africa (Maputo Protocol).
13
To guarantee
the rights of women effectively, it is widely recognized that non-legal measures (such as awareness-
raising and the education of community members) should complement states’legislative, judicial
and administrative efforts.
14
This is because human rights regimes and the drafting of human rights
norms, particularly those relating to women and children, are alien to many communities and
somewhat antithetical to local practices in Africa.
15
The tension that characterizes liberal human
rights standards protecting women, and the retrogressive and harmful practices tolerated in the
name of culture, religion and tradition in most parts of Africa, also show the limits of legislation
and policies in ameliorating the lived realities of women on the continent.
16
It is through knowledge
dissemination that a state can obtain the community buy-in to realizing the rights in the Maputo
Protocol. This position is valid to a large extent for many African countries, including the
Democratic Republic of Congo (DRC), given that the 2006 DRC Constitution (the Constitution),
which preceded ratification of the Maputo Protocol, already contains rules and principles that, if
implemented, could enhance women’s rights.
17
This article examines the extent to which measures adopted by the DRC to realize rights recog-
nized under the Maputo Protocol actually advance women’s rights.
18
It assesses the nature and type
of legal and extra-legal measures the DRC has adopted pursuant to article 26(1) of the protocol.
This provision, read together with article 62 of the African Charter on Human and Peoples’
Rights (African Charter), enjoins states to report, every two years, on legislative and other measures
they have put in place to realize women’s rights.
19
In 2009, the African Commission adopted
Guidelines for State Reporting under the Maputo Protocol (2009 Guidelines) to indicate the legis-
lative, judicial, administrative and other measures states must adopt to fulfil their reporting obliga-
tions. The contested nature of some women’s rights calls for states to complement the adoption of
legislation and policies with relevant extra-legal measures for the greater realization of women’s
rights.
20
Extra-legal measures may reduce existing tensions around the “radical provisions of the
African Women’s Protocol”,
21
such as safe abortion, political participation and domestic violence.
Two reasons provide ample justification for this article. First, the dearth of research on state
reporting under the Maputo Protocol, in particular, scholarship that tackles, through a case
13 Adopted by the second ordinary session of the Assembly of the African Union, Maputo, Mozambique, 11 July 2003;
entered into force 25 November 2005.
14 Viljoen International Human Rights Law, above at note 2 at 258–59. See further Maputo Protocol, arts 2(2) and 5; and
UN Convention on the Elimination of All Forms of Discrimination against Women, art 2 (adopted and opened for
signature, ratification and accession by General Assembly res 34/180 of 18 December 1979; entered into force 3
September 1981).
15 AA An-Na’im “Possibilities and constraints of the legal protection of human rights under the constitutions of African
countries”in AA An-Na’im (ed) Universal Rights, Local Remedies: Implementing Human Rights in the Legal Systems of
Africa (1999, Interights, Afronet and GTZ) 5 at 16–17.
16 A Johnson “Barriers to fulfilling reporting obligations in Africa under the Protocol to the African Charter on Human
and Peoples’Rights on the Rights of Women in Africa”(2021) 21 African Human Rights Law Journal 176 at 190.
17 KP Muzaliwa “Publication of the Maputo Protocol in the Official Gazette: Does it make any difference in the Congolese
criminal law?”(2020) (copy on file with the author).
18 The obligation to report is provided under the Maputo Protocol, art 26.
19 F Viljoen “An introduction to the Protocol to the African Charter on Human and Peoples’Rights on the Rights of
Women in Africa”(2009) 16 Washington and Lee Journal of Civil Rights and Social Justice 11 at 35; J Biegon
“Towards the adoption of guidelines for state reporting under the African Union Protocol on Women’s Rights: A review
of the Pretoria gender expert meeting, 6–7 August 2009”(2009) 9/2 African Human Rights Law Journal 615 at 637.
20 “Concluding observations and recommendations on the periodic and combined periodic report of the Democratic
Republic of Congo on the implementation of the African Charter on Human and Peoples’Rights (2008–2015) and
the initial report on the Maputo Protocol (2005–2015)”(African Commission) at 20–22.
21 Johnson “Barriers to fulfilling”, above at note 16 at 189; W Nowicka “Sexual and reproductive rights and the human
rights agenda: Controversial and contested”(2011) 19/38 Reproductive Health Matters 119 at 126; S Tamale
“Crossing the bright line: The abuse of religion to violate sexual and reproductive health rights in Uganda”(2016)
155 Journal of Theology for Southern Africa 136 at 136.
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study analysis, how the reporting mechanism has or has not strengthened the promotion and pro-
tection of women’s rights, and furthered constructive dialogue among women’s human rights sta-
keholders.
22
Scholarly evaluation of state reports using empirical information will assist the African
Commission in reviewing state compliance with the Maputo Protocol. This is notwithstanding that
states are failing to submit their initial or periodic reports. Over half of the 42 states that by
September 2022 had ratified the protocol have failed to comply with their reporting obligations.
23
Secondly, evaluating the initial reports, submitted ten years after a country has ratified the Maputo
Protocol, provides an opportunity to understand how women’s rights are being realized.
24
Informed
by empirical reasons, this article selects five rights to examine: access to justice; political participation;
harmful practices; protection of women against domestic violence; and safe abortion. The aim is first
to explore rights that are an innovation of the Maputo Protocol (such as the freedom from all forms
of violence, including domestic violence, and the right to medical abortion) and, secondly, to discuss
the rights that remain controversial in Congolese society, in particular the right to safe abortion.
The next section of this article provides a background to the ratification of the Maputo Protocol,
highlighting the rationale behind its ratification by DRC. The article then offers a brief overview of
issues arising from consideration of the DRC’s initial report and its drafting process. It then analyses
the realization of the five selected rights by emphasising the nature and type of extra-legal measures
states must adopt for their full realization. In conclusion, the article shows that the DRC’s focus on
legislation and policies to comply with the Maputo Protocol has not brought about much trans-
formation in terms of women’s effective enjoyment of rights. This is due to the contested nature
of many rights, the patriarchal mindset, and the conservative attitude of the community at large
towards women’s rights.
25
Background to the ratification of the Maputo Protocol
The DRC signed the Maputo Protocol in December 2003, ratified it in July 2008 and deposited the
instrument of ratification in February 2009.
26
The ratification was preceded by parliamentary
approval of the Maputo Protocol in 2006 and the authorization to ratify it as contemplated
under article 214(1) of the Constitution.
27
The Maputo Protocol was published in the Official
Gazette in March 2018.
28
It thus forms part of the DRC’s domestic law.
29
22 See Johnson, id at 176–203; A Budoo “Analysing the monitoring mechanisms of the African Women’s Protocol at the
level of the African Union”(2018) 18/1 African Human Rights Law Journal 58.
23 “50th and 51st combined activity reports”(4 December 2020 to 5 December 2021, African Commission) at 9, para 32.
24 F Banda “Blazing a trail: The African Protocol on Women’s Rights comes into force”(2006) 50/1 Journal of African Law
72 at 76–82; LA Obiora and C Whalen “What is right with Africa: The promise of the Protocol on women’s rights in
Africa”(2015) 2 Transnational Human Rights Law Review 153 at 157–58.
25 TM Makunya “Fostering a gendered approach to peacebuilding in the African Great Lakes region: Perspectives from the
Democratic Republic of Congo”(13 October 2021) Kujenga Amani, available at: <https://kujenga-amani.ssrc.org/2021/
10/13/fostering-a-gendered-approach-to-peacebuilding-in-the-african-great-lakes-region-perspectives-from-the-democratic-
-republic-of-congo/> (last accessed 10 February 2023).
26 “List of countries which have signed, ratified / acceded to the Protocol to the African Charter on Human and People’s
Rights on the Rights of Women in Africa”, available at: <https://au.int/sites/default/files/treaties/37077-sl-PROTOCOL
%20TO%20THE%20AFRICAN%20CHARTER%20ON%20HUMAN%20AND%20PEOPLE%27S%20RIGHTS%20ON
%20THE%20RIGHTS%20OF%20WOMEN%20IN%20AFRICA.pdf> (last accessed 28 April 2023).
27 Act 06/015 of 12 June 2006 Authorising DRC to Ratify the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa.
28 “RDC: Le Protocole de Maputo enfin publié au journal officiel”[DRC: Maputo Protocol finally published in Official
Gazette] (18 June 2018), available at: <https://safe2choose.org/fr/blog/drc-maputo-protocol-legalization-abortion>
(last accessed 27 April 2023).
29 The Constitution, arts 153(3) and 215. Its direct application in domestic litigation has been met with serious resistance
from conservative judges.
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The signing of the Maputo Protocol coincided with the settlement in 2003 of the political and
military crises that had split the country into three parts for almost half a decade.
30
Ratification was
supported by the commitment of participants in the Inter-Congolese Dialogue (DIC) and the gov-
ernment to improve the plight of women, combat sexual violence
31
and enable women’s political
participation at all levels of decision-making.
32
The active participation of women during the
DIC facilitated the consideration of women’s human rights issues during the negotiations.
33
The
DRC, as a country transitioning to democracy, seems to have adhered to the values and standards
encapsulated in the Maputo Protocol in showing its willingness to protect women.
34
The ratification
of the Maputo Protocol also responded to demands by national and international human rights
activists for the adoption of a legal framework to protect various women’s rights.
35
The Maputo
Protocol complements domestic standards on the protection of women’s rights and constitutes
the benchmark against which the effectiveness of domestic laws at protecting women’s rights can
be assessed.
36
However, the process of ratification faced resistance, as some religious and political groups
believed the Maputo Protocol could be used to allow abortion under any circumstances.
37
Through its not for profit organizations, the Catholic Church spearheaded the resistance on account
that faith and culture prevent the suppression of innocent life.
38
As a consequence, academics, law
students and the population at large strongly criticized the right to safe abortion, which they
regarded as being pervasive, and advocated that some ground-breaking provisions that empower
30 AMB Mangu “DR Congo: The long road from war to peace and challenges for peaceful transition and national recon-
struction’(2004) 34/2–3Africa Insight 34.
31 “Report of the mapping exercise documenting the most serious violations of human rights and international humani-
tarian law committed within the territory of the Democratic Republic of Congo between March 1993 and June 2003”
(2010, Office of the UN High Commissioner of Human Rights), paras 606–21 and 312–16, available at: <https://www.
ohchr.org/sites/default/files/Documents/Countries/CD/DRC_MAPPING_REPORT_FINAL_EN.pdf> (last accessed 10
February 2023).
32 Global and Inclusive Peace Accord, sec III(1), available (in French) at: <http://www.justiceinfo.net/media/k2/
attachments/RDC/Accord_global_transition_rdc_2003.pdf> (last accessed 10 February 2023); NO Rashidi “L’an I
de l’Accord Global et Inclusif en République Démocratique du Congo: De la laborieuse mise en place aux incessants
atermoiements”[Year one of the Global and Inclusive Agreement in the Democratic Republic of Congo: From labori-
ous implementation to incessant prevarications] (2003–04) L’Afrique des Grands Lacs: Annuaire 110 at 119 and 133;
C Odimba, PR Namegabe and JB Nzabandora “La participation des femmes dans les processus de paix et la prise de
décision politique en République Démocratique du Congo”[Women’s participation in peace processes and political
decision-making in the Democratic Republic of Congo] (2012, International Alert) at 38–39, available at: <https://
www.international-alert.org/wp-content/uploads/2021/08/Gender-Political-Equality-DRC-FR-2012.pdf> (last accessed
10 February 2023).
33 S Whitman “Women and peace-building in the Democratic Republic of the Congo”(2006) 6 African Journal on Conflict
Resolution 29 at 39–40.
34 J-LE Kangashe La Constitution Congolaise du 18 Février 2006 à l’Épreuve du Constitutionnalisme [The Congolese
Constitution of 18 February 2006 and constitutionalism] (2010, L’Harmattan) at 80.
35 Odimba et al “La participation des femmes”, above at note 32 at 10. See also AM Ngemba and M Malchiodi Freins à la
Participation Politique des Congolaises, Notamment en Période Electorale [Brakes on political participation of the
Congolese, notably during elections] (July 2017, UCOFEM et al) at 107–08, available at: <https://internews.org/
wp-content/uploads/legacy/2017-10/Internews_DRC_WomenParticipation_French_FullReport_2017-10.pdf>(last
accessed 29 April 2023).
36 S Aroussi Rethinking National Action Plans on Women, Peace and Security (2017, IOS Press) at 43.
37 “La RD Congo en voie de ratifier le Protocole de Maputo”[DRC on track to ratify Maputo Protocol] (25 June 2007)
Kakaluigi, available at: <http://kakaluigi.unblog.fr/2007/06/25/la-r-d-congo-en-voie-de-ratifier-le-protocole-de-maputo/>
(last accessed 10 February 2023).
38 “Kananga: Les parents s’insurgent contre le Protocole de Maputo”[Kananga: Parents protest against the Maputo
Protocol] (1 August 2007) Radio Okapi, available at: <https://www.radiookapi.net/sans-categorie/2007/08/01/kananga-
les-parents-s%25e2%2580%2599insurgent-contre-le-protocole-de-maputo#:∼:text=Cette%20manifestation%20intervient
%20le%20jour,pendant%20plus%20de%203%20heures.> (last accessed 10 February 2023).
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women in the community (for example in the political sphere) be set aside.
39
The activism against
the ratification of the Maputo Protocol also created a distorted view of what it seeks to achieve.
This article emphasizes the role that extra-legal measures can play to change this misleading under-
standing, by presenting other protections that the Maputo Protocol offers to improve women’s
rights, starting with how the DRC should fulfil its reporting obligations.
A brief overview of issues arising from consideration of the DRC Report and the
drafting process
The report the DRC submitted to the African Commission in 2017 (the DRC Report)
40
was both an
initial and combined periodic report. The DRC is one of 21 state parties to the Maputo Protocol that
have, as of April 2023, complied with their reporting obligations.
41
The DRC Report was considered
at the African Commission’s 61st ordinary session, which took place from 1–15 November 2017 in
The Gambia.
42
The concluding observations were however only adopted two years later at the
African Commission’s 65th ordinary session held from 21 October to 10 November 2019.
43
Given that concluding observations help countries to improve their human rights track records
by highlighting factors that hinder the realization of women’s rights and areas of concern, they
should be adopted and published timeously. This can help states to address issues requiring
improvement and to receive necessary support from national and international women’s rights
actors. Adopting concluding observations at almost the same time as another state report is due
may impede the effective redress of issues raised in the previous report. However, states can partly
be blamed for the late adoption of concluding observations, especially when they delay responding
to the African Commission’s follow-up questions.
In any case, the successful drafting of the DRC Report was due to an effective institutional
organization and to international support. The African Commission undertook promotional visits
to the DRC, during which it reiterated the importance of submitting state reports under the African
Charter and the Maputo Protocol.
44
The government’s political commitment and will through its
various ministries involved in the reporting process were also critical in facilitating the drafting
of the report. In 2009,
45
the DRC government created the Inter-Ministerial Technical Committee
for the Preparation and Monitoring of Initial and Periodic Human Rights Reports
(Inter-Ministerial Committee).
46
However, the drafting of the DRC Report remained state-centred and less inclusive of
sub-national entities. According to the report, the process of its preparation involved “civil society
organisations including associations and human rights organisations”.
47
This statement is vague.
39 S Vyas-Doorgapersad and TM Lukamba “The status and political participation of women in the Democratic Republic of
Congo (1960–2010): A critical historical reflection”(2011) 62 New Contree 91 at 94.
40 “Report to the African Commission on Human and Peoples’Rights on the implementation of the African Charter on
Human and Peoples’Rights from 2008 to 2015 (11th, 12th and 13th periodic reports) and of the Protocol to the African
Charter on Human and Peoples’Rights on the Rights of Women from 2005 to 2015 (initial report and 1st, 2nd and 3rd
periodic reports)”(2017, DRC).
41 In March 2023 and June 2022, Zambia and Mauritania submitted their respective reports. See generally “50th and 51st
combined activity reports”, above at note 23 at 9.
42 “43rd activity report of the African Commission on Human and Peoples’Rights”(June to 15 November 2017) at 5,
para 18.
43 “Concluding observations”, above at note 20 at 1. At the time of writing, these concluding observations and recommen-
dations had not yet been published on the African Commission’s website.
44 The Commission undertook missions in 2011 and 2016 and discussed the issue of reporting, including the technical
support the country needed for such a process.
45 The committee was initially established in 2001, revised in 2007 and then strengthened in 2009.
46 DRC Report, above at note 40 at 28–29, para 104.
47 Id at 4, para 5.
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Although the drafting committee provided names of government departments and organs involved
in the reporting process,
48
it failed to mention the CSOs involved in the process and their geograph-
ical reach. The report also failed to mention the focus areas of these CSOs. It further appears that
organizations working on the promotion and protection of the rights of women with disabilities and
older women, sexual and reproductive health, violence reduction and prevention, the rights of
internally displaced women, indigenous women and women living with HIV/AIDS were not con-
sulted. The possible exclusion of such critical stakeholders may indicate that the drafting committee
was not equipped with sufficient expertise to report on the realization of the rights of vulnerable
women. Furthermore, some members of CSOs involved in the drafting process indicated that the
process did not benefit from the expertise of organizations operating outside the capital city,
Kinshasa.
49
The involvement of CSOs based in provinces other than Kinshasa would have diversi-
fied the information. Further, although they participated in the drafting process, the representatives
of the National Human Rights Commission and the Cadre Permanent de Concertation de la Femme
Congolaise [Permanent Consultation Framework for Congolese Women] lamented their exclusion
from the final meeting on the adoption of the report before it was submitted to the African
Commission.
50
In a sense, the drafting and adoption of the report were not as inclusive as is pre-
sented. The Inter-Ministerial Committee may have ensured that the DRC Report does not contain
information that may tarnish the image of the state. If a state has nothing to hide, there is no logical
reason to refrain from submitting the final report to entities that participated in its development.
The extent to which selected women’s rights have been realized
The main issues addressed in this section are, first, whether (with regard to the rights under study in
this section) effective legislative, institutional, administrative and policy frameworks were adopted.
Secondly, whether extra-legal measures were taken in terms of sufficient awareness-raising and edu-
cation around access to justice, political participation, the prohibition of practices harmful to
women, domestic violence and the right to safe abortion.
Access to justice including legal aid
Access to justice ensures the protection and realization of many women’s rights.
51
It is an important
measure of the rule of law.
52
The Maputo Protocol requires that women have access to “judicial and
legal services”.
53
Local, national and regional initiatives must be established to help women access
justice and strengthen the capacity of law enforcement officials in their understanding, interpret-
ation and enforcement of equality between men and women.
54
Did the state meet its obligations
under article 8 of the Maputo Protocol?
The Constitution establishes, on paper, a solid foundation for equality before the law and equal
protection.
55
Article 14 of the Constitution enjoins the state to eliminate all forms of discrimination
48 Id at 25, paras 79–83.
49 Interview with Mwamba Mushikonkwe, then president of the DRC National Human Rights Commission, Kinshasa,
DRC, 14 October 2019.
50 WhatsApp discussion with Rose Mutombo Kiesse, then president of CAFCO, November 2019.
51 A Rudman “Women’s access to regional justice as a fundamental element of the rule of law: The effect of the absence of
a women’s rights committee on the enforcement of the African Women’s Protocol”(2018) 18 African Human Rights
Law Journal 319 at 320.
52 CM Fombad and E Kibet “Editorial introduction to special focus: The rule of law in sub-Saharan Africa: Reflections on
promises, progress, pitfalls and prospects”(2018) 18 African Human Rights Law Journal 205 at 206; CM Fombad
“An overview of the crisis of the rule of law in Africa”(2018) 18 African Human Rights Law Journal 213 at 218–28.
53 Maputo Protocol, art 8(a).
54 Id, art 8.
55 The Constitution, art 12.
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against women. Although article 12 on the right to equality and equal protection does not make
specific provision regarding women, the non-discrimination clause requires that women and
men are treated equally.
56
Given that men and women enjoy the right to be heard by a competent
judge within a reasonable time, it is clear that women have a constitutional right to an effective rem-
edy.
57
However, one of the key issues facing women or disproportionately affecting them, is the lack
of adequate means to access justice effectively. The obligation on litigants to pay administrative fees
to institute lawsuits hampers women’s prospects to exercise their right to be heard before competent
tribunals.
58
These fees have been identified as an obstacle to persons living in poverty accessing just-
ice, although tribunals may waive the fees when litigants are indigent.
59
The Civil Procedure Code
provides for conditions under which individuals may be considered as indigent to benefit from the
waiver of legal fees, but this is a discretionary power conferred on the president of a tribunal.
60
There is no guarantee that (female) litigants will have legal assistance should they need it. If one
considers the historical marginalization of women and the unequal distribution of resources and
power between men and women, it is clear that the absence of a constitutional guarantee on
legal assistance and its discretionary nature is likely to deprive women of an effective right of access
to justice more than men.
61
This is particularly true because, except in matters related to sexual vio-
lence, obtaining legal assistance may be time-consuming and any assistance may be ineffective.
62
Various legislation has attempted to strengthen access to justice for women. One relevant act is
the 2006 Sexual Violence Act, which criminalizes 14 forms of sexual violence, including rape, forced
prostitution, sexual harassment and forced marriage. The adoption of this legislation was accom-
panied by intensified awareness-raising campaigns led by government organs and CSOs, as well
as the enforcement of the act by courts and tribunals.
63
These efforts enabled victims of sexual vio-
lence to have their cases heard by competent tribunals.
64
Despite such progress, numerous victims
of rape and other forms of sexual violence to whom courts have allocated monetary compensation
as a remedy rarely cash these sums.
65
A number of reasons may be invoked. First, victims do not
follow-up with the registrar of the court or tribunal to enforce the verdict against the perpetrator.
66
Secondly, before courts can enforce any criminal or civil-related judgments, including those related
to sexual violence, victims are required to pay 10 per cent of the total compensation.
67
In addition,
56 Id, art 13.
57 Id, arts 19 and 21.
58 A Meyer Etude sur l’Aide Légale en République Démocratique du Congo [Study on legal aid in the Democratic Republic
of Congo] (January 2014, Avocats Sans Frontières) at 17, available at: <https://www.asf.be/wp-content/uploads/2014/02/
ASF_RDC_EAL_2013.pdf> (last accessed 10 February 2023).
59 Ibid.
60 Civil Procedure Code, art 146.
61 S Fredman Discrimination Law (2011, Oxford University Press) at 2.
62 The victim has to be indigent and must hold a certificate from social affairs on their indigency, which they submit to the
president of the High Court or the Court of Appeal (depending on the substantive issue). The head of the court will
then select one from a number of advocates to plead the case pro bono. The advocate is supposed to be paid by the
government, but rarely is. Consequently, the quality of legal assistance is poor. Furthermore, victims are still required
to pay some procedural fees, even if they are indigent.
63 DRC Report, above at note 40 at 31, paras 119–22.
64 Ibid.
65 “RDC: Les victimes des crimes sexuels obtiennent rarement justice et jamais réparation: Changer la donne”[DRC:
Victims of sexual crimes rarely get justice and never reparation: The need for a paradigm shift] (2013, Fédération
Internationale des Droits de l’Homme) at 59–64, available at: <https://www.fidh.org/IMG/pdf/rapport_rdc.pdf> (last
accessed 10 February 2023).
66 T Makunya “Violées oui, indemnisées non!”[Raped but not compensated] in Justice et Droit au Quotidien: Recueil des
Articles Publiés dans le Cadre du Projet Contribuer à la Liberté d’Expression en RDC de 2011 à 2013 (2014, RCN Justice
& Démocratie) at 109–10.
67 Criminal Procedure Code, art 129; and Civil Procédure Code, art 152; T Kibangula “Viols en RDC: Quand les victimes
doivent ‘payer pour obtenir justice’” [Rape in DRC: When victims must ‘pay for justice’] (5 December 2013)
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in cases involving sexual violence committed by soldiers, compensation is generally ordered but not
paid by the state as the soldier’s employer.
68
Furthermore, there is an urban and rural divide in accessing justice mechanisms, which the DRC
did not report.
69
Many judicial institutions are located in urban areas. This leaves women and a
large segment of the population without proper access to justice.
70
To circumvent the limited num-
ber of courts in rural areas, the judiciary organized mobile courts or audiences. However, mobile
courts rely heavily on non-governmental organizations (NGOs) for funding and often prioritize cer-
tain types of cases, for example sexual violence-related cases, over others.
Collaboration among government institutions, and international and national NGOs has facili-
tated awareness-raising campaigns and educative meetings on women’s access to justice with
youth,
71
traditional leaders and relevant state officials and security forces.
72
The establishment of
legal clinics by CSOs enabled victims of sexual violence and other acts to be sensitized about
their rights and existing legal remedies.
73
These clinics were not established in many rural areas.
If they had been, they could have educated victims of gender-based violence who do not understand
legal mechanisms and procedures (such as what a competent tribunal is, what the procedure is to
approach it, what the alternative dispute resolution mechanisms are and how to access free legal
assistance). Fear of retaliation may also increase the impunity of violators of women’s rights.
Political participation and decision-making
The Maputo Protocol and domestic laws have provisions related to women’s political participation.
Under the protocol, the right to political participation and decision-making is three-tiered: partici-
pation in the electoral process without discrimination;
74
equal representation in the process;
75
and
equal partnership between men and women when establishing and implementing state policies.
76
The Constitution enjoins the state to safeguard women’s full participation in the nation’s develop-
ment process and to ensure equitable representation of women in the national, provincial and local
spheres of government.
77
A myriad of legislative measures have been taken.
78
Some of the notable
ones that deserve examination include the Act on Gender Parity and the electoral act.
JeuneAfrique, available at: <https://www.jeuneafrique.com/166930/politique/viols-en-rdc-quand-les-victimes-doivent-
payer-pour-obtenir-justice/> (last accessed 10 February 2023).
68 Act 22/065 on Fundamental Principles on the Protection of Victims of Conflict Related Sexual Violence and Other
Serious Crimes Against Peace and the Security of Humankind was promulgated on 26 December 2022. As stated in
the preamble to the act, it aims, inter alia, to remove “all conditions related to legal fees and other formalities likely
to impede or restrict the exercise and benefit of redress”by victims of sexual violence.
69 Although in para 120 of the DRC Report, the government argues that “it has recruited judges and established
magistrates’courts in all the provinces”, this approach raises a number of issues. First, some crimes cannot be tried
by magistrates’courts as they are beyond their jurisdiction. Secondly, the law provides that magistrates’courts must
be established in all the 27 cities and 145 territories. This has not been done. Thirdly, there are still too few magistrates,
despite efforts to recruit 2,000 magistrates and prosecutors in 2010 and 2011.
70 69.24 per cent of Congolese people live in rural areas: DRC Report, above at note 40 at 44, para 208.
71 Within universities, student clubs have been created to disseminate knowledge about certain human rights, particularly
those that affect women and girls.
72 DRC Report, above at note 40 at 31, paras 121–22.
73 Id at 31, para 119.
74 Maputo Protocol, art 9(1)(a).
75 Id, art 9(1)(b).
76 Id, art 9(1)(c).
77 The Constitution, art 14.
78 Many of the laws mentioned by the government are not effective on the ground. The 2004 Act on the Organisation and
Functioning of Political Parties prohibits any discrimination based on gender; under art 3(5) of Act 08/005 of 10 June
2008 on Public Financing of Political Parties, parties are required to submit lists of candidates, taking account of parity
between women and men, before they can be funded. Not only is this provision not implemented by the Electoral
Commission, the law on Public Financing of Political Parties has never been enforced.
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It is contended that neither of these laws promotes women’s political participation. The provi-
sions of Act 15/013 of 1 August 2015 on Parity between Women and Men do not contain rules that
require political parties or state organs to ensure that equality between men and women is enforced.
Equally, although the 2017 amendment to the electoral law provides that parties should have male
and female candidates, it also admits that the absence of either of the genders on the list does not
render the list invalid.
79
Following a constitutional petition in 2018, the Constitutional Court ruled
that article 13 of the electoral law did not uphold inequality. It indicated that:
“[G]ender equality cannot be conceived of either in arithmetic terms or as a mathematical
equation, with regard to equal opportunities between men and women, and secondly that com-
mitment to political parties are [sic] free so that the number of women and men actually
engaged in the life of political parties is likely to vary from one political party to another
and could not be foreseen in advance to render inadmissible lists which would not provide
a determined number of seats for women.”
80
This ruling of the Constitutional Court and the absence of equal representation of women and
men in the national and provincial legislative assemblies underscore the patriarchal mindset of
the judiciary, legislature and government. Parliament disregarded the National Human Rights
Commission’s plea to enforce the constitutional requirement of gender representation.
81
Anum-
ber of reasons have been proposed to explain why the legislature and the Constitutional Court
were reluctant to push for equal representation. It is said that women usually do not engage
much in political activities at any level.
82
Afewwomencandidatesareoftenchosenrandomly
without any previous political experience. If political parties are forced to have an equal number
of male and female candidates on their lists, they might end up failing to find suitable female can-
didates.
83
These justifications are generally a result of male chauvinism. In past elections, female
candidates were removed from party lists and replaced by male candidates.
84
There is also growing
activism on the part of women politicians, which suggests that their efforts should be bolstered
with the removal of legislative and institutional barriers to their participation. Awareness must
be raised to overcome cultural and social beliefs that politics is only for men. During the presi-
dential elections in 2006, there were four female candidates; there were none in 2011
85
and
79 Act 17/013 of 24 December 2017 Amending and Complementing Act 06/006 of 9 March 2006 on the Organisation of
Elections, art 13. A new amendment came into force in 2022 but leaves much to be desired with respect to incentives for
women’s political participation.
80 (Author’s translation). Decision R Const 624/630/631 (Constitutional Court) of 30 March 2018. The original French
reads: “La Cour considère que l’incise de l’article 13 visé au moyen trouve son explication non point dans une
volonté de compromettre le principe de la promotion de la femme proclamé par le constituant, mais uniquement,
d’une part dans le fait que l’égalité genre ne peut se concevoir ni en des termes arithmétiques, ni en une équation
mathématique, s’agissant d’une égalité de chances entre l’homme et la femme, et d’autre part par le fait que l’engage-
ment dans les partis politiques est libre, en sorte que le nombre de femmes et d’hommes effectivement engagés dans la
vie des partis politiques est susceptible de variation d’un parti politique à un autre et ne peut être maitrisé en amont
pour justifier l’irrecevabilité de toutes listes qui n’auraient pas prévu un nombre déterminé de sièges aux femmes.”
81 B Kahombo “The Democratic Republic of the Congo’s National Commission on Human Rights”in CM Fombad (ed)
Compendium of Documents on National Human Rights Institutions in Eastern and Southern Africa (2019, Pretoria
University Law Press) 101 at 120.
82 Ngemba and Malchiodi Freins à la Participation, above at note 35 at 81 and 171.
83 Kangashe La Constitution Congolaise, above at note 34 at 75.
84 Testimony of a female political candidate during a political campaign session in Bukavu, 2016. See also Ngemba and
Malchiodi Freins à la Participation, above at note 35 at 110.
85 “Rapport sur les violences contre les femmes au Nord et Sud-Kivu, en République Démocratique du Congo”[Report on
violence against women in North and South Kivu, DRC] (2013) at 5, available at: <https://tbinternet.ohchr.org/Treaties/
CEDAW/Shared%20Documents/COD/INT_CEDAW_NGO_COD_13432_F.pdf> (last accessed 28 April 2023).
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one female candidate in 2018. The reality is alarming with regard to national legislative and pro-
vincial elections.
86
Political party activists, government officials, church and traditional leaders, and members of the
rural community should be sensitized for effective implementation of the right to political partici-
pation and the presence of women in decision-making processes. These categories of persons wield
power to induce a change in their respective level of influence. According to the DRC Report,
awareness-raising activities that were organized targeted “political parties and their leaders, journal-
ists, the media, community and opinion leaders in order to incorporate gender, civic and electoral
education in their programmes and activities”.
87
It is unfortunate that there is no mention of sta-
tistics regarding activities that were conducted and their geographical reach in the 26 provinces.
Since the report itself acknowledges that rural communities have been left behind in many of
these activities and in the absence of any numbers, it is therefore questionable whether the govern-
ment has realized this right holistically.
88
Moreover, the lack of steps taken to overcome various
challenges, as required by the 2009 Guidelines, implies that the burden to conduct awareness-raising
campaigns has been left to NGOs alone.
Practices harmful to women
Harmful practices against women are perhaps the most serious infringement of the Maputo
Protocol that the government has left unaddressed. Although a definitional issue existed before
the adoption of the protocol,
89
the latter has defined harmful practices broadly to encompass
“behaviour, attitudes and / or practices which negatively affect the fundamental rights of women
and girls, such as their right to life, health, dignity, education and physical integrity”.
90
Article 5
of the Maputo Protocol demonstrates that harmful practices cannot be cured by legislative measures
alone. It emphasizes the need to educate the public through both formal and informal education
channels. States were aware of the possibility that a holistic approach was needed to address harmful
practices.
Existing legislation can be said to have curtailed some aspects of harmful practices in the DRC,
particularly the two laws on sexual violence that prohibit and criminalize “sexual mutilation,
exploitation of minors for purposes of debauchery, pimping, forced prostitution, harassment and
sexual slavery, forced marriage, slavery, zoophilia, the deliberate transmission of sexually transmit-
ted infections, child trafficking and exploitation for sexual purposes, pregnancy and forced steriliza-
tion, prostitution and pornography involving children”.
91
The institution of a specific unit within the National Congolese Police, tasked with protecting
women and children, contributed to combating impunity for those who conduct or abet harmful
practices in the country.
92
The police approach, however, is more reactive than pre-emptive. To
86 JOM Yahisule Elections et Changement Politique en République Démocratique du Congo: Six Décennies Perdues pour le
Développement [Elections and political change in the DRC: Six lost decades for development] (2021, L’Harmattan)
at 309.
87 DRC Report, above at note 40 at 33–34, para 135.
88 Id at 44–45, para 208.
89 C Yusuf and Y Fessha “Female genital mutilation as a human rights issue: Examining the effectiveness of law against
female genital mutilation in Tanzania”(2013) 13 African Human Rights Law Journal 356 at 367; F Banda “Building a
global movement: Violence against women in the African context”(2008) 8 African Human Rights Law Journal 1at
12–14.
90 Maputo Protocol, preamble, para (g).
91 DRC Report, above at note 40 at 37, para 160.
92 “Avancées et obstacles dans la lutte contre l’impunité des violences sexuelles en République Démocratique du Congo”
[Progress and obstacles in the fight against impunity for sexual violence in the DRC] (April 2014, UN Stabilization
Mission in the DRC) at 12, available at: <https://www.ohchr.org/Documents/Countries/CD/UNJHROApril2014_fr.
pdf> (last accessed 10 February 2023).
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be pre-emptive, it should prevent the occurrence of harmful practices, some of which are supported
by customs and traditions. For instance, sexual mutilations are practised by the Ngwaka tribe, in the
northern DRC.
93
The mutilation of the genital parts of survivors of sexual violence is one of the
practices perpetrated by rapists.
94
Conflict-related harmful practices, particularly in areas still con-
trolled by armed groups and where the government does not exercise control, remain pervasive.
Some scholars have argued that society does not generally challenge traditional practices that dehu-
manize women and girls.
95
Fewer efforts have been made to conduct public awareness through “information, formal and infor-
mal education and outreach programmes”.
96
The DRC Report does not mention any of the activities
organized by CSOs in different provinces to change societal perception about harmful practices. Clear
government policy and programmes directed to solve, “(i) early marriages of girls, marriage by abduc-
tion, (ii) girls dropping out of school, (iii) prostitution of young girls, (iv) sexual violence and abuse of
widows”,
97
and continuous awareness raising would have achieved the goals in the Maputo Protocol.
Domestic violence
In the DRC, seven out of ten women are victims of domestic violence.
98
Nevertheless, the state has
not adopted specific legislative measures,
99
probably because domestic violence is included in the
violent acts criminalized under the Criminal Code as well as in specific laws combating sexual vio-
lence.
100
This approach, however, fails to consider the specific nature of domestic violence.
Domestic violence is usually perceived as violence committed under the conjugal roof.
Consequently, acts such as “unwanted or forced sex”between partners known as marital rape are
rarely prosecuted, as it is believed that rape “primarily happens between strangers”and that it
could not occur within a marriage.
101
These acts are trivialized both by the community and the
state, which makes it difficult for victims to report incidents and access justice.
102
Domestic violence
may be psychological, physical, sexual or take the form of discrimination against girls committed in
private or public.
103
The negative effects of this violence require the establishment of a coherent
legal and institutional framework to combat them and raise public awareness. The consequences
include, but are not limited to, women’s impoverishment, sudden death,
104
physical and psycho-
logical trauma, and the woman’s lack of control over her body.
105
93 DRC Report, above at note 40 at 37, para 159.
94 Ibid.
95 SP Tunamsifu “The right to justice: A challenge of survivors of conflict-related sexual violence in the eastern
Democratic Republic of the Congo”(2015) 15 African Human Rights Law Journal 473 at 475–81; S Kitharidis
“Rape as a weapon of war: Combating sexual violence and impunity in the Democratic Republic of the Congo, and
the way forward”(2015) 15 African Human Rights Law Journal 449 at 451–64.
96 Maputo Protocol, art 5(a).
97 DRC Report, above at note 40 at 37, para 158.
98 “Les violences domestiques à l’égard des femmes en République Démocratique du Congo: Un silence coupable”
[Domestic violence against women in the DRC: A culpable silence] (May 2014, Femme au Fone) at 1, available at:
<http://deboutcongolaises.org/wp-content/uploads/2017/04/violences_domestiques_rdc_-Rapport-FemmAuFone.pdf>
(last accessed 10 February 2023).
99 DRC Report, above at note 40, para 175.
100 Ibid.
101 D Finkelhor and K Yllo “Rape in marriage: A sociological view”in D Finkelhor et al (eds) The Dark Side of Families:
Current Family Violence Research 119 at 121.
102 Ibid.
103 “Les violences domestiques”, above at note 98 at 14.
104 “Congo: Un homme bat sa femme à mort après 2 ans de marriage”[Congo: Man beats wife to death after 2 years of
marriage] (15 March 2018) koumpeu.com, available at: <https://koumpeu.com/congo-un-homme-bat-sa-femme-a-
mort-apres-2-ans-de-mariage/> (last accessed 10 February 2023).
105 “Les violences domestiques”, above at note 98 at 14.
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From another perspective, it can be argued that the absence of a specific law on domestic vio-
lence does not mean that domestic violence cannot be prosecuted under the current legal frame-
work. First, unwanted sex is sanctioned under the provision of rape, whether between married or
unmarried couples.
106
The sanction is between five and 20 years imprisonment, and a fine of
CDF 100,000 (approximately USD 50). The accused is not entitled to bail and the prosecutor
does not need permission to prosecute the offender.
107
Secondly, acts of domestic violence falling
under sexual slavery,
108
voluntary transmission of sexually communicable diseases,
109
forced preg-
nancy
110
or sexual harassment
111
are also sanctioned under sexual violence laws. Thirdly, other
types of non-sexual domestic violence that represent physical or emotional, socio-cultural, profes-
sional or institutional violence
112
may be prosecuted according to the Penal Code, Child Rights Act,
Labour Code or any other relevant laws.
It is relevant to consider fundamental societal attitudes and behaviours that prevent existing sex-
ual violence laws from addressing domestic violence. Otherwise, even a specific law on domestic
violence may fail to address the main problems. As the African Commission rightly noted in its
concluding observations, “[t]he large proportion of men in the DRC, even among the highly edu-
cated ones, do not approve of gender equality and are still so much attached to stereotyping”.
113
On
a positive note, however, the DRC Report indicates that the government is willing to draft a bill on
domestic violence. The bill would be informed by the level of trivialization of such violence in the
community and the fact that such acts are no longer solely in the private domain.
114
Such a law
would strengthen the existing 2009 National Strategy on Combating Gender-Based Violence by
the Ministry of Gender, Family and the Child, which lacks specific directives on domestic vio-
lence.
115
This strategy aims to ensure that laws are enforced to combat the impunity of perpetrators
of sexual violence. Given that legal mechanisms do not play a pre-emptive role, the strategy ensures
that prevention of and protection from sexual violence are made a priority, and that reforms of the
army, police and justice system take the gender dimension into account.
116
The focus on the army
and the police is guided by the belief that these two security sectors are the number one perpetrators
of sexual violence. This implies that, unlike what the state claimed in its report, policies still overlook
aspects of domestic violence when combating gender-based violence.
117
Further, the strategy is
underpinned by the adoption of the 2009 UN Security Council (UNSC) resolution 1888 to combat
sexual violence, particularly that committed during armed conflict.
118
106 Act 06/018 of 20 July 2006 Modifying and Complementing Decree of 30 January 1940 Relating to the Criminal Code of
DRC, art 170.
107 Act 06/019 of 20 July 2006 Modifying and Complementing Decree 06 August 1959 Relating to Criminal Procedure Act,
preamble.
108 Act 06/018, above at note 106, art 174(e).
109 Id, art 174(i).
110 Id, art 174(k).
111 Id, art 174(d).
112 These acts are enumerated under the 2009 National Strategy on Combating Gender Based Violence by the Ministry of
Gender, Family and the Child (November 2009) at 11–12, available at: <https://monusco.unmissions.org/sites/default/
files/old_dnn/PlanNational.pdf> (last accessed 10 February 2023).
113 “Concluding observations and recommendations”, above at note 20 at 31.
114 DRC Report, above at note 40 at 39, para 175.
115 Id at 40, para 176.
116 “Lancement de la Stratégie de Lutte contre les Violences Basées sur le Genre en RDC”[Launch of the Strategy to Fight
Gender-Based Violence in the DRC] (25 November 2009) reliefweb, available at: <https://reliefweb.int/report/
democratic-republic-congo/lancement-de-la-stratégie-de-lutte-contre-les-violences-basées-sur> (last accessed 10 February
2023).
117 Ibid.
118 Adopted at the UNSC’s 6195th session on 30 September 2009. See also UNSC res 1325, adopted at the UNSC’s 4213th
session on 31 October 2000; UNSC res 1820, adopted at the UNSC’s 5916th session on 19 June 2008; and UNSC res
1889, adopted at the UNSC’s 6196th session on 5 October 2009.
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The absence of a specific law on domestic violence is exacerbated by the scant attention paid to
sensitizing the community. The DRC Report does not explain the extent to which the state engaged
with community members (religious or traditional leaders, youth, journalists or unions) on possible
roles they might play to help women realize their rights. One CSO recommended that women
should be sensitized because the persistence of domestic violence could be attributable to their
ignorance of their rights and possible legal remedies. Most victims are not aware that acts of domes-
tic violence are sanctioned by the law.
119
A number of other extra-legal measures were suggested:
establishing local committees to protect families in rural areas; conducting studies to understand
reasons that inform the persistence of domestic violence; establishing a favourable environment
for family members, colleagues and friends to discuss domestic violence; and ensuring the provision
of psycho-social support to victims.
120
The importance of these measures is linked to the nature of
domestic violence: it is generally committed in the absence of external witnesses. Empowering vic-
tims and the community through knowledge dissemination is perhaps one of the prerequisites for
preventing domestic violence.
Provision for safe abortion
The Maputo Protocol enjoins states to adopt necessary measures to “protect the reproductive rights of
women by authorizing medical abortion in cases of sexual assault, rape, incest”and in situations where
“the continued pregnancy endangers the mental and physical health of the mother or the life of the
mother or the foetus”.
121
Through General Comment No 2 on article 14(1)(a), (b), (c) and (f ) and
article 14(2)(a) and (c), the African Commission provides guidance to state parties with regard to
the nature, extent and scope of the right to safe abortion to facilitate its enforcement and implemen-
tation.
122
Under the Maputo Protocol, states have the obligation to respect, protect, promote and fulfil
this right.
123
As argued by the African Commission, when women are forced to maintain a pregnancy
that resulted from rape, incest or sexual assault, they are kept in a constant state of trauma that can
affect their mental health.
124
This provision has met serious challenges, as noted in the DRC Report.
The DRC Report clearly indicates that the state has not taken any legal measures to give effect to
the right to medical abortion.
125
It quotes articles 166 and 167 of the Penal Code, which still crim-
inalize abortion.
126
The resistance is justified by the need to protect society and this must have been
suggested by “discussions, studies and other proposals”that took place before the ratification of the
Maputo Protocol.
127
The only avenue for authorized abortion is when the pregnancy endangers the
mental and physical health of the mother, or the life of the mother or the foetus, which reflects one,
but not all, of the aspects covered by the Maputo Protocol.
128
The government’s failure to take
further steps to legalize safe abortion is based on the understanding by pro-life members of the
community that life at any stage should be protected, and rape, incest or sexual assault should
not justify depriving a human being of life.
Resistance against article 14 of the Maputo Protocol is largely informed by people’smisconception
of what the provision entails. The then vice prime minister proposed the decriminalization of abortion
119 “Les violences domestiques”, above at note 98 at 9.
120 Ibid.
121 Maputo Protocol, art 14(2)(c).
122 General Comment No 2 on Article 14.1 (a), (b), (c) and (f ) and Article 14. 2 (a) and (c) of the Protocol to the African
Charter on Human and Peoples’Rights on the Rights of Women in Africa, preamble.
123 Id, para 63.
124 Id, para 37.
125 DRC Report, above at note 40 at 48, para 231.
126 Five to ten years imprisonment for the woman who aborts and five to 15 years for the person who encourages her to
abort.
127 DRC Report, above at note 40 at 48, para 231.
128 Id at 48, para 232.
14 Trésor Muhindo Makunya
https://doi.org/10.1017/S0021855323000141 Published online by Cambridge University Press

to reduce the likelihood of children being abandoned,
129
butthisproposalhasnotbeenfollowed
through. According to pro-life campaigners, legalizing abortion will undermine Congolese mores.
130
Not only can it be argued that such “Congolese mores”do not exist, but the concept itself remains
controversial and its content may be subject to change over time and place. The DRC Report does
not mention “mores”as a ground on which to reject safe abortion, but rather “philosophical founda-
tions”oftherighttoprocreateandtherefusaltoprocreate.
131
The unsubstantiated reference to
philosophy raises more questions than answers. Regardless of whether one approves or disapproves
of the right to safe abortion, it is important to note that the Maputo Protocol is only concerned
with pregnancy conceived as a result of sexual assault, rape or incest, and therapeutic abortion.
132
Interpreting this provision as authorizing persons to abort whenever they so wish is misleading.
There are empirical reasons that warrant the authorization of safe abortion.
133
Despite its crim-
inalization, abortion has been practised secretly. Reports indicate an increase in foetuses found
thrown away by those who have secretly practised unsafe abortion.
134
Another element to consider
is the fate of a child born from rape or sexual assault, considering the number of women who have
been raped during armed conflicts. In addition, some have drawn a link between the increase in the
rate of maternal death and the prohibition of abortion in the country.
135
A study by the University
of Kinshasa and the Guttmacher Institute estimated that:
“146,713 induced abortions occur every year in Kinshasa, yielding an abortion rate of 56 per
1,000 women aged 15–49. We also calculated that more than 343,000 unintended pregnancies
occur annually, resulting in an unintended pregnancy rate of 147 per 1,000 women aged 15–49.
Taken together, these findings show that two in five unintended pregnancies end in abortion.
Women in Kinshasa are clearly struggling to prevent unintended pregnancies, which often
result in unwanted childbearing and abortion.”
136
In the absence of any government interest in furthering the right provided under article 14(2)(c) of
the Maputo Protocol, CSOs have continued to raise awareness of the importance of contraception
and family planning methods. Organizations are making efforts to promote legislative reforms to
harmonize provisions of the Penal Code and the Maputo Protocol.
137
However, the government
has made no efforts regarding the right to safe abortion.
129 Ibid.
130 “Faut-il dépanaliser l’avortement en RDC”[Should abortion be decriminalized in DRC] (8 August 2015) Radio Okapi,
available at: <https://www.radiookapi.net/emissions-2/parole-aux-auditeurs/2015/04/15/faut-il-depenaliser-lavortement-en-
rdc> (last accessed 10 February 2023).
131 DRC Report, above at note 40 at 48, para 230.
132 Maputo Protocol, art 14(2)(c).
133 J Kalonda “Sexual violence in Congo-Kinshasa: Necessity of decriminalizing abortion”(2012) 33 Revue Medicale de
Bruxelles 482 at 482–86.
134 “Bukavu: Un foetus retrouvé sur Avenue Saïo dans la commune d’Ibanda”[Bukavu: A fetus found on Avenue Saïo in
the commune of Ibanda] (30 August 2018) La Prunelle.
135 “Clandestine abortion is common in Kinshasa, and procedures are often unsafe”(Guttmacher Institute news release,
7 November 2017), available at: <https://www.guttmacher.org/news-release/2017/clandestine-abortion-common-
kinshasa-and-procedures-are-often-unsafe> (last accessed 10 February 2023).
136 S Chae et al “The incidence of induced abortion in Kinshasa, Democratic Republic of Congo, 2016”(2 October 2017)
Plos One, available at: <https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0184389> (last accessed 10
February 2023).
137 The Association of Congolese Women Lawyers is currently exerting pressure on the government to align domestic laws
with the Maputo Protocol: Y Amekeya “RDC: Des femmes réclament à legaliser l’avortement”[DRC: Women call for
legalized abortion] (5 September 2018) Africa Rdv, available at: <https://www.africardv.com/societe/rdc-des-femmes-
reclament-a-legaliser-lavortement/> (last accessed 27 April 2023).
Journal of African Law 15
https://doi.org/10.1017/S0021855323000141 Published online by Cambridge University Press

Conclusion
The several measures adopted by the DRC to advance women’s rights demonstrate that the country
has made strides since it ratified the Maputo Protocol. For a country that was pejoratively named the
capital of rape because of the high number of reported cases of sexual violence,
138
these efforts indi-
cated the state’s willingness to adopt a constitutional and legislative framework to prevent violations
of women’s rights. The number of laws, institutions and policies the DRC has put in place and the
partnership it has developed with national or international organizations on women’s rights have
started to show the emergence of a political will to improve the lived realities of women. This
political will also facilitated a frank and constructive dialogue between the delegation and the
African Commission during the presentation of the DRC Report. However, the scrutiny of five
selected rights shows several areas of concern.
This article has noted that most of the promises made have not been implemented in practice,
and that concrete steps to improve, in reality, the fate of several women have been hindered by a
patriarchal attitude towards women’s rights.
139
Men and women have internalized the supposed
“inferiority”
140
of the latter to justify their unequal participation in the conduct of state affairs.
State institutions have made few efforts to change this mindset.
141
While the presentation of the
report to the African Commission did foster a constructive dialogue, the DRC focused mainly on
legislation and policy. Many of the rights in the Maputo Protocol require the DRC to take additional
measures in terms of awareness raising, both in rural and urban areas, and a radical transformation
of the educational curricula at primary, secondary and tertiary levels, so that a culture of promoting
and protecting women’s rights takes hold in everyone’s mind. The African Commission’s conclud-
ing observations also note the dearth of extra-legal measures with respect to rights to political
participation and decision-making, safe abortion, protection from domestic violence and access
to justice, which are some of the areas where much still needs to be done. Actors involved in pro-
moting and protecting women’s rights in the country can leverage the head of state’s commitment
to appoint women to key government positions to ensure that the promotion and protection of
women’s rights is prioritized through concrete awareness raising and education activities in
urban and rural areas of the country.
Competing interests. None
138 C Lewis “The making and re-making of the ‘rape capital of the world’: On colonial durabilities and the politics of sexual
violence statistics in DRC”(2021) Critical African Studies 1at2–3.
139 “Concluding observations”, above at note 20, para 77(ii).
140 Id, para 77(iii).
141 Id, para 77(ii).
Cite this article: Makunya TM (2023). Beyond Legal Measures: A Review of the DRC’s Initial Report under the Protocol to
the African Charter on Human and Peoples’Rights on the Rights of Women in Africa. Journal of African Law 1–16. https://
doi.org/10.1017/S0021855323000141
16 Trésor Muhindo Makunya
https://doi.org/10.1017/S0021855323000141 Published online by Cambridge University Press