Judgement RPA 11.698: Prosecutor against accused Makiese Nzukulu Héritier
In his unnumbered letter of the 26th May 2010, received at the Registry of the Court of First
Instance of Kinshasa/Kalamu, on the 27th May 2010, the accused MAKIESE NZUKULU
Héritier appealed the judgement pronounced on the 10th May 2010 by the Court of First
Instance of Kinshasa/Kalamu under R.P. 10.062, which after having declared established,
both in fact and in law, the offense of rape awarded to the accused MAKIESE, sentenced him
to 10 years of imprisonment and to a fine of 100.00 Congolese Francs to be payed within the
legal deadline or face 30 days of detention; Sentenced him to pay the victim the amount of
2000.000 Congolese Francs in damages-interests and lastly it sentenced him to the payment
of the proceedings' fee;
Raised within the legal rules and deadlines, the present appeal is in conformity and
admissible;
In the public hearing of the 29th April 2011in which this case was taken and deliberated, the
accused MAKIESE appeared voluntarily whereas the plaintiff did not appear, nor any
representative despite being notified of the audience's date by the bailiff BAKUBELA;
The procedure taken is thus in conformity;
It follows from the elements on file to which the Court had access that the one called
LITAMBALA ELEMBO Sephora declared being a victim of rape committed by her uncle, the
accused MAKIESE, on three separate occasions: once in Matete in their living room and
twice in the Commune of Bumbu; Questioned before both the Official of the Judiciary Police
and the Prosecutor, both the first Judge and the Court, the accused denies all the facts held
against him;
IN LAW
The accused MAKIESE NZIKULU Héritier is indicted by the legal branch for having, during
the month of December 2009, period not yet covered by the prescription of the public action,
by the simple fact of carnal approximation of the sexes committed rape with resort to violence
upon the person of Miss Sephora LITAMNBALA, aged 11; Facts provided for and punished by
articles 167-170 of the law number 09/001 of the 10th January 2009 regarding the protection
of children.
The offense of rape of minors supposes the consummate conjunction of the sexes, the
underage status of the victim and guilty intention; the crime of rape of a child younger than 14
years involves, like the rape of someone older, the consummate sexual intercourse and not
just the contact of the genitals, the latter being punishable as indecent assault; Only the other
conditions are not demanded, the law presuming that the young age of the victim does not
allow her to give her consent to the sexual act (cass. 24th July 196, Paris, 1917, p.72 Quoted
by A.MARCHAL and JP JASPAR, Criminal law. Theoretical and Practical Treatise, Tome 1,
Brussels 1952, p.260);

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