The Court notes that the accused did not deny having sexual intercourse with the victim but
contests the fact that she was underage at the time of the events and in his defense has
shown the hearing the victim's voter card that proves that she was born in 1991.
The Court finds that this card was issued after the events of 2011 and in a suspicious time,
after Mr. BATACHOKA, father of the girl who has filed complaint to the Prosecution to
denounce the crime of rape committed by the accused. It thus certain that, having been
warned, the accused must have prepared his defense by obtaining this card for the victim, a
card that he holds to this day. The Court will thus pay no mind to this card once the child's
father himself denies the age stated by this card, and it is even denied by the victim herself
which when questioned by the Court has recognized and maintained that she was born in
1993, as attested by the school bulletins on file, and not in 1991. Still, in the absence of a
marital status registry and of a medical report, the Court is faced with uncertainty when trying
to determine the victim's age.
However, in conformity with article 110 of the Law number 009/001 of 10th January 2009
regarding the protection of children, it will maintain that the victim was underage at the time of
the events. The accused's appeal will thus be deemed unfounded.
Examining the basis for the Prosecution's appeal, the Court will also deem it unfounded, once
it finds the motivation of the 1st judge regarding the extenuating circumstances held in favor of
the accused pertinent and reasonable.
Acting on the civil lawsuit, the Court will deem it inadmissible, in effect, the civil party
BATACHOKA, which was party in the 1st degree procedure, cannot be admitted in appeal for it
requests the increase of the reparations of the damages without before contesting the
decision of the 1st judge.
The Court thus deems the appeals admissible but unfounded. It therefore confirms the
previous sentence in all its dispositions.
THEREFORE
The Court of Appeals, judiciary section,
Adjudicating after the public and due hearing of both parties, having heard the Prosecution,
receives the appeals of the OMP and of the accused, but declares both unfounded.
Declares the BATACHOKA civil party's appeal non-admissible, confirms the previous
sentence in all its dispositions. It sentences the accused to the same 1/3 of fees that of the
civil party. It places the remaining 1/3 under the responsibility of the Public Treasury.
Thus deliberated and pronounced by the Appeals Court of Bukavu, seated in a public
chamber in Uvira, in the public hearing of this 25th September 2012 in which have been
seated the Magistrates Emmanuel SHAMAVU MURHIMBO President, Vicky TSHIBOLA
KABALA and GABY MULE MADA Advisors, in the presence of Jean MULONGOY
KASONGO OMP with the assistance of Prospère MIDESO, Clerk of the Court
The Clerk of the Court
The Advisors
President