He asks the Court to declare his appeal founded, to nullify the work of the 1 st Judge, to rule
again and to pronounce that the 1st Judge was incompetent.
In reply, the plaintiff claims that the accused's appeal is unfounded in the sense that he
confessed the facts. She demands the Court to confirm the previous Judgement in all its
provisions.
In its arguments, the Prosecution asks the Court to confirm the previous Judgement after
declaring the accused's appeal unfounded, due to the fact that the latter admitted his guilt.
The Court find the accused's allegations that the he was also a minor at the time of the events
unfounded; In fact, having been born on the 29th August 1990 according to the verbal
proceedings of the OPJ on the 23rd March 2010, the accused had, by simple calculation, 18
years on the 9th January 2009, thus this appeal in unfounded and the Court rejects it.
Concerning the legal oath of the responsible Judge, the Court notes that according to
judiciary practice, once the lawyer or the defense counsel or the Magistrate is nominated, he
takes an oath for the ensemble of cases to process during a certain period. Under these
conditions it is hard to research the verbal process of the said oath in all of these cases. Thus,
this appeal is also unfounded;
Regarding the contradiction about the birth date of the victim Kituza, the Court finds that her
age has no impact, whether she were born in 1992 or 1996, given that she was still a minor at
the time of the events, the 9th January 2009.
Furthermore, the Court is of the opinion that the 1st Judge should have applied the law that
was most favorable to the accused from the moment when he was faced with a conflict of
legislation, in this case the law number 06/018 of the 20th July 2006 applied at the time of the
events and the law of the 10th January 2009 at the time of the prosecution. Having chosen the
latter where the minimum sentence is set at 5 years of imprisonment, the 1 st Judge did not
apply the law that was most favorable to the accused and his work is nullified in all its
provisions.
Evoking the article 107 of the CPP, the Court notes that in order to be punishable, the crime of
rape with resort to violence demands that the following constitutive elements: the material act
of rape, the victim, the lack of consent, guilty intention ( LIKULIA Bolongo, Droit pénal spécial
zaïrois, Tome 1, 2e Edition, L.G.D.J. Paris 1985, p.328-338};
In the present case, the accused admits having had sexual intercourse with the girl KITUZA;
the sexual conjunction constitutes a material act by default in the case of the crime of rape
and thus this element is established and awarded to the accused. It is in this sense that he
was put on trial only for the matter of rape with resort to violence, the law punishes the simple
fact of sexual conjunction with a person or with the help of a person apparently under the age
of 16 years ( to be read under the age of 18) according to the current legislation. E.C.S.J du
5/3/1974, M.P.C.N, R.J .Z 1974, p 40 quoted by Ruffini LUKOO MUSUBOO, la jurisprudence
congolaise en droit pénal, vol 1, et on s'en sortira, Kin .RDC,2006,p.260).