Judgement RPA 2872: MP and PC Divine Mihigo against the accused Makabu Kabanga
In his declaration, formalized and enacted on the 27 th August 2011, to the clerk of the Court of
First Instance of Uvira, the accused MAKABU KLABANGA has appealed the judgement RP
2018, pronounced on the 28th April 2010 by the above mentioned Court . In the terms of its
judgement, said Court declared established under the eyes of the law the crime of rape of
which MAKABU was accused, having sentenced him to 5 years of imprisonment and to a fine
of 100.00 FC; it declared equally established the crime of qualified theft by the same accused
and sentenced him to 3 years of imprisonment, declared the infractions materially concurrent
and declared a cumulative sentence of 8 years of prison and a 100.00 FC fine payable within
the legal time frame, under the threat of 30 days of prison; sentenced him to pay the
proceedings' fees at a reduced rate within the deadline or face 15 days of detention; lastly
sentenced him to paying the victim the equivalent in Congolese Francs of 2.000$ in damages.
In the public hearing of the 24th September 2012 in which this case is appealed, argued and
taken into deliberation, the parties were present of their own accord, the plaintiff assisted by
its counselor Lawyer Darius ATULINE and Lawyer Daniel MONGANE, while the accused was
assisted by his counselor Lawyer Serge MISEKA BAKANA WA BAKANA, all lawyers at the
Bukavu bar.
The procedure taken is in conformity;
In his closing arguments, the accused requested to be relieved of the deadline given that he
appealed the judgement, which has been pronounced beyond the legal time frame, and that
in any case has not yet been communicated to him.
The Court notes that after taking this matter into deliberation on the 13th April 2010, the 1st
judge pronounced his judgement on the 28th April 2010, that is after the 8 days stipulated by
article 80 of the CPP; said judgement not having yet been communicated, the accused will be
relieved of the deadline and his appeal shall be received. The Court receives parts of the file
and elements gathered during the investigation, considering that the facts of the present case
can be summarized as follows: On the night of 15 to 16 th January 2010, while Madame
DIVINE MIHIGO slept in her room without her husband, who was on police duty, she realized
that the weight on her belly was caused by an intruder other than her husband, of whom she
dreamed. The smell of the person lying on her and the presence of hair on his head, unlike
her husband, convince her that a man is raping her. She screams for help, calling out to her
husband's older brother – the accused – as well as the other members of her in-laws who live
under the same roof; that is when the man lying on her, having failed to prevent her
screaming, releases her of his grip and runs away: She chases him to the doorstep and
realizes that the rapist is none other that her brother-in-law MAKABU which, naked, hides
behind the WC in the premises. She takes the clothes he left by his door, which is adjacent to
hers, for they all live in the same building; she then screams while showing said clothing to
the members of her family gathered there. Feeling exposed, the accused MAKABU comes
back of his own accord and forcefully removes his clothes from the victim's hands. Being an
internal matter of her in-law's family, her mother-in-law asks that she calms down and go back
to her bed, with the promise of taking up the matter the next morning. She returns to her

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