Judgement RPA 2599: Prosecutor and plaintiff Mbeherwa against the accused Saleh Farah
In his statement made and registered on the 22nd of June 2010 at the Registry of the Court of
First Instance of Uvira, the accused SALEH appealed Judgement RP 2056 delivered by the
above mentioned Court that, on the 14th June 2010, established both in law and in fact the
crime of rape with resort to violence attributed to him, sentenced him to 5 years of
imprisonment and the payment of a fine of 100.000 Congolese Francs or the equivalent of 30
days of arrest, otherwise sentencing him to paying the amount equivalent in Congolese
Francs of 3500$ in damages to the plaintiff MBEHERWA SHEMWENGE, lastly having
sentenced him to pay the cost of the proceedings.
In the public hearing of the 8th September 2010, in which this case was appealed, pleaded
and deliberated, both parties appeared in person voluntarily, the plaintiff assisted by her
counsel Advocate ALAIN MAYUTO, as well as the accused assisted by his counsel Advocate
DIDIER CIMUSA, all lawyers at the Bar of Bukavu.
The procedure is thus in conformity with the law.
Filed in conformity with the rules and legal deadlines, the appeal of the accused will be
It follows from the elements on file and from the information gathered in the investigation that
the facts of the present case can be summarized as follows: SALEH FARAH, mechanic and
the present accused, is the biological father of the 2-and-a-half-month old baby that KITUZA
SHEMWENGE, its mother, holds in her arms. The latter became the wife of the above
mentioned mechanic when she was still a minor, being 17 years old. In fact, it was when
Kituza's family was made aware of the sexual intercourse that took place on the 19 th January
2009 between SALEH and their daughter, still a minor, that they decided to take her into the
boy's family, where the victim was accommodated and placed under the care of the rapist.
The two end up living together for several months like husband and wife due to the behavior
of both families. It wasn't until the 23rd March 2010 that the victim's family, following the efforts
of her older brother MBEHERWA SHEMWENGE Daniel, regained its senses, reclaimed the
already pregnant girl and presented her before the Official of the Judiciary Police of the
national police battalion in charge of the protection of children, Uvira division.
The accused SALEH is arrested and when questioned, he admits to having had sexual
intercourse with Kituza, who became his wife, when the latter was still a minor. Before the
Prosecutor, the 1st Judge and the Court, he will attempt to claim that the girl was 18 years old
at the time of the events. In any case, the 1st Judge sentenced the accused as mentioned
above, and the latter contested this decision and formulated the present appeal. In the
grounds for his appeal, the accused reproaches the 1st Judge for having applied a law dated
after the facts committed on the 9th January 2009. Further, he claims that on this latter date,
he was also a minor under the eyes of the law, given that he was born in 1990, and thus the
1st Judge was not competent and could have not inflicted upon him a penal sentence. He also
claims that the Judge who sentenced him had not been sworn in as requested by law. Finally,
he declared that there was a contradiction In establishing the age of the victim because her
family claimed at times that she was born in 1996 and at others that she was born in 1992.