Wakilii

S.A v Democratic Republic of Congo (Communication 502-14)

African Commission on Human and Peoples' Rights · [2023] ACHPR 8 · 2023 Communication Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging non-enforcement of a domestic court judgment awarding compensation for rape and theft by a state soldier
Decision
Communication granted; Democratic Republic of Congo ordered to enforce domestic judgment, pay damages and interest, and implement systemic reforms

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission held that the Democratic Republic of Congo violated Articles 1, 7, and 14 of the African Charter and Articles 4(2)(f) and 8 of the Maputo Protocol by failing to enforce a 2008 military tribunal judgment that awarded the complainant $10,000 in damages and ordered restitution of $120 stolen by a state soldier who raped her. The Commission found that non-enforcement of a final judgment constitutes a violation of the right to a fair trial, the right to an effective remedy, and the right to property. The state was ordered to execute the judgment, pay 6% interest from the judgment date, and establish legislative and institutional measures to prevent recurrence.

Outcome

Communication granted; Democratic Republic of Congo ordered to enforce domestic judgment, pay damages and interest, and implement systemic reforms

Facts

On 29 October 2008, during armed conflict in North Kivu province, Sergeant Shombo Chance of the Armed Forces of the Democratic Republic of Congo raped the complainant, who was two months pregnant, using an automatic rifle to threaten her. He also stole $120 in savings and a radio from the complainant and her husband. The complainant reported the incident and Sergeant Chance was arrested. On 17 November 2008, the Operational Military Tribunal of North Kivu sentenced Sergeant Chance to life imprisonment, dismissed him from the army, and ordered him and the state jointly to pay $10,000 in damages and return the stolen property. The radio was returned during proceedings, but neither the $120 nor the $10,000 compensation was paid. Despite multiple attempts by the complainant to obtain enforcement through the tribunal registrar and correspondence with the Governor's office in 2014, no payment was made. The complainant brought the matter to the African Commission in November 2014.

Issues

  1. Whether the Democratic Republic of Congo violated the complainant's rights under the African Charter and Maputo Protocol by failing to enforce a domestic court judgment awarding compensation for rape and theft committed by a state soldier.
  2. Whether the non-enforcement of a final court judgment awarding compensation constitutes a violation of the right to a fair trial and the right to an effective remedy.
  3. Whether the non-enforcement of a compensation award constitutes a violation of the right to property.

Orders

  • Declared that the Democratic Republic of Congo violated Articles 1, 7, and 14 of the African Charter and Articles 4(2)(f) and 8 of the Maputo Protocol.
  • Declared that the Democratic Republic of Congo did not violate Article 25 of the Maputo Protocol.
  • Noted that the Congolese courts had already recognized violations of Article 5 of the African Charter, Article 4(1) of the Maputo Protocol, Articles 2 and 18(3) of the African Charter, Article 2 of the Maputo Protocol, Article 11 of the Maputo Protocol, and Article 14 of the African Charter.
  • Called on the Respondent State to execute the OMT judgment including life imprisonment and resignation of Sergeant Shombo Chance from the army.
  • Ordered payment of $120 in stolen savings to the complainant.
  • Ordered payment of $10,000 in damages to the complainant.
  • Ordered payment of interest at 6% on the amounts ordered by the OMT judgment.
  • Requested the Respondent State to establish legislative and institutional measures to guarantee non-repetition of violations, including establishment of a compensation fund.
  • Ordered the Respondent State to report in writing within 180 days on measures taken to implement the recommendations.

Rules and key headnotes

Enforcement of Judgments — State Liability — Right to Effective Remedy
The right to be heard guaranteed by Article 7 of the African Charter includes the right to execution of a judgment. It would be inconceivable that this Article grants the right to bring proceedings before national courts for acts violating fundamental rights without guaranteeing enforcement of judicial decisions. The enforcement of a final judgment must be considered an integral part of the right to be heard protected by Article 7.
Enforcement of Judgments — Procedural Requirements — Burden on Victim
It is inappropriate to require an individual who has obtained a claim against the State as a result of judicial proceedings to subsequently initiate enforcement proceedings in order to obtain satisfaction. Requiring a person to initiate separate enforcement proceedings results in a violation of the right to a fair trial. It is for States to organize their judicial systems so that competent authorities can discharge their obligations to ensure enforceable judgments are enforced within a reasonable time.
Property Rights — Compensation Awards — Res Judicata
Monetary compensation awarded in a judgment which has acquired the authority of res judicata must be considered as property. A State's unmotivated refusal to honor a final judgment in favor of a complainant impedes the enjoyment of property and constitutes a violation of Article 14 of the African Charter.
State Obligations — Legislative Measures — Article 1 of African Charter
States parties have an obligation under Article 1 of the African Charter to adopt legislative or other measures to give effect to the rights, duties, and freedoms enshrined in the Charter. Where mechanisms established for enforcement of court decisions and payment of compensation to victims are not favorable to victims and do not facilitate their prompt entry into and enjoyment of their rights, the State has failed in its duty under Article 1.
Interest on Judgment Debts — Statutory Rate — Delayed Payment
Where a State fails to pay damages awarded by a final judgment, interest is payable on the unpaid amounts from the date of judgment. In the absence of an applicable regulation on statutory interest rates for unenforced judgments, the domestic law of the respondent State applies. Under Article 152 of the Code of Civil Procedure of the Democratic Republic of Congo, a proportional duty of 6% is payable on any sum awarded by a judgment that has become res judicata.
Reparations — Guarantees of Non-Repetition — Systemic Reform
Guarantees of non-repetition require States to take measures to combat impunity for violations committed, including establishing effective instructions to public officials, reviewing and revising laws, and promoting compliance with international standards. The objective is to eliminate the structural causes of violence. States must establish legislative and institutional frameworks necessary for the promotion and protection of human rights and execution of judicial decisions, including establishment of compensation funds.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 18(3)
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 2
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 4(1)
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 4(2)(f)
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 8
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 11
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol) Article 25
  • Code of Civil Procedure of the Democratic Republic of Congo Article 152

Cases cited (10)

  • Bissangou v Congo (Communication 253/02)
  • Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan (Communication 279/03-296/05)
  • Malawi African Association et al v Mauritania (Communications 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98)
  • Egyptian Initiative for Personal Rights & INTERIGHTS v Egypt (Communication 323/06)
  • Fernandez Ortega v. Mexico, Series C No. 215, Judgment (Merits, Reparations and Costs) of 30 August 2010
  • Aydin v. Turkey (1997), Appl. No. 57/1996/676/866, 25 September 1997
  • Prosecutor v. Kunarac, IT-96-23, Judgment of the Appeals Chamber, 20 June 2002
  • Scordino v. Italy (No.1) (1996), Appl. No. 36813/97, 29 March 2006
  • Zongo v. Burkina Faso
  • Mbiankeu v. Cameroon

Full judgment

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S.A v Democratic Republic of Congo (Communication 502-14) [2023] ACHPR 8 (2 August 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.