Democratic Republic of Congo
Text reviewed by Lynn Gertiser
Sexual and reproductive health is included in the Constitution of the Democratic Republic of Congo through the following articles:
- Article 14 “The public authorities see to the elimination of all forms of discrimination against women and ensure the protection and promotion of their rights. They take in all areas, and most notably in the civil, political, economic, social and cultural areas, all appropriate measures in order to ensure the full realization of the potential of women and their full participation in the development of the nation”.
- Article 53 states that “All persons have the right to a healthy environment that is favorable to their development….The State ensures the protection of the environment and the health of the population.”
- In Article 42, the health of youth is specifically addressed…”The public authorities are obliged to protect the youth against any attack on their health, education or integral development.
Sexual and reproductive rights implementation
The Congolese Penal Code states that abortion is only permitted to save the life of the woman as reported by the United Nations World Abortion Policies. All other situations, including in the event of rape and incest, are illegal. In cases where persons are found to be conducting an illegal abortion, both the practitioner and patient can be charged and receive 5-15 years imprisonment (Women on Waves).
People Living with HIV/AIDS
In 2008, the Democratic Republic of Congo (DRC) adopted Bill 08/011 on the protection of people living with and affected by HIV. The law aims to reduce the prevalence of HIV/AIDS, stop all forms of stigma and discrimination and protect the rights of people living with HIV. However, articles 41 and 45 of the law have caused debate with a number of stakeholders including the UN The Global Commission on HIV and the Law. Article 41 obliges a person to disclose their positive status to her/his sexual partner upon gaining test results. This can lead to a breach of confidentiality by medical personnel in disclosing test results. Article 45 criminalises the voluntary transmission of HIV.
Rights of sexual minorities
In October 2010, the Sexual Practices against the Nature Bill, to criminalize homosexuality and zoophiles, was presented to the DRC parliament. As of December 2013, the bill had not been passed (International Lesbian, gay, bisexual, transgender and intersex). Same sex marriage is not recognized in Article 40 of the Constitution of the Democratic Republic of Congo “All individuals have the right to marry a person of their choice of the opposite sex and to create a family”. Lesbian, gay, bisexual, transgender and intersex (LGBTI) groups are minority groups in DRC whose rights are not guaranteed (Women’s Network for a Better World).
The 2006 Constitution of the Democratic Republic of Congo outlines that sexual violence is punishable by law:
- Article 14 states that “They [the public authorities] take measures in order to fight all forms of violence against women in their public and private life”.
- In Article 15, the constitution states, “The public authorities are responsible for the elimination of sexual violence used as an instrument in the destabilization and displacement of families”. Additionally, “International treaties and agreements notwithstanding, any sexual violence committed against any person with the intention to destabilize or to displace a family and to make a whole people disappear is established as a crime against humanity punishable by law”.
The DRC Government has also established the following to assist in halting sexual violence.
- In 2006, the DRC passed a sexual violence law amending the Penal Code to provide protection against sexual violence. The sexual violence law outlaws rape and other forms of sexual assault, sexual harassment, sexual slavery, forced marriage, sexual mutilation, the deliberate transmission of sexually transmitted diseases, sexual relations with minors (children under 18) and forced pregnancy, among other acts UNHCR. The law does not specifically prohibit spousal rape. The National Strategy against gender-based violence (2009-2010).
- The establishment of the National Agency for Eliminating Violence against Women and Adolescent and Very Young Girls.
- National Fund for the Promotion of Women and the Protection of Children (OHCHR).
In addition to the laws outlined in the constitution, the Democratic Republic of Congo is signatory several UN conventions and declarations against gender violence including:
- United Nations Declaration on the Elimination of Violence against Women (UN Res/48/104).
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) -ratified by the DRC in 1986.
- The Beijing Declaration and Platform for Action.
- Security Council Resolution 1820 and 1325 -in 2010, the DRC government re-affirmed its commitment to implement the National Action Plan for 1325 that calls on all parties to armed conflict to take special measures to protect women and girls from gender-based violence (UNSCR 1325 Civil Society Monitoring Report).
- Additionally, the DRC has ratified the Rome Statute of the International Criminal Court.
Despite the above laws, strategies and acts; the use of sexual violence is still widely condoned in the country. There have been numerous UN special reports on the situation and rape has been described as ‘a weapon of war’ (UN OHCHR). The 2013 CEDAW report titled “Concluding observations on the combined sixth and seventh periodic reports of the Democratic Republic of the Congo 2013” acknowledges the efforts of the state to curb sexual violence. However, the Committee is extremely concerned about several issues including:
- Mass rapes, sexual violence and sexual slavery used as a weapon of war by the Armed Forces of the Democratic Republic of the Congo (Forces armées de la République Democratique du Congo-FARDC) and armed groups in the eastern part of the country.
- The shocking levels and the nature of the violence and sexual atrocities committed against women, the failure of the authorities to prioritize the protection of civilians and the denial by key State officials of the extent of the violence committed against women in conflict-affected areas.
- The lack of centres providing medical, judicial, psychological and socioeconomic support to women and girls who are victims of sexual violence in conflict-affected areas.
- The ineffective implementation of the 2006 law on sexual violence, the 2009 National Strategy against gender-based violence and the zero-tolerance policy on sexual violence.
Sexual and reproductive health rights challenges
- Laws that subordinate women and do not allow them to have control over their sexual and reproductive health. This includes Article 444 of the Family Code that defines the man as the head of the household in which his wife must obey him (Social Institutions & Gender Index).
- Forced marriage and sexual slavery.
- Child marriage and early child bearing.
- Limited access and resources for maternal health and family planning services.
- Limited trust in the Congolese judicial system to bring forth cases of violations and fear of reprisals against women when cases of sexual violence are brought forward.
- Large scale impunity for rebels and soldiers who perpetrate sexual violence and the low number of women judges and prosecutors specialized in sexual violence.
- The non-payment of compensation and limited enforcement of court sentences for acts of sexual violence by state agents.