The police had identified the perpetrator and brought him to trial at the local court just up the road from my friends’ home. Trials like this didn’t often happen, and the evidence was clear: This man had raped the woman’s daughter. But as was unfortunately often the case, the judge had demanded money from both sides to make his decision.
Yes, victims had to pay for the court to consider their cases. The government did not effectively collect taxes, which meant the person bringing a suit had to pay the salaries and other costs for the court. Justice in those days went to the highest bidder, and, ultimately, the perpetrator won. He had just walked free.
It was too late for me or anyone else to give the mother the $11 it would have taken to outdo his $10 bid. Justice was $1 out of reach.
This type of injustice is no longer typical — but only for some
Within a few years, however, the situation for Congolese sexual assault survivors would dramatically change. As Milli Lake notes in her groundbreaking new book, “Strong NGOs and Weak States,” between 2010 and 2011, more than 76 percent of sexual assault cases monitored by the U.N. Development Program in three provinces were referred from the police to the prosecutor’s office. This is a percentage that far outweighs the norm in most advanced industrial democracies. Moreover, in most of these cases, justice did not simply go to the highest bidder. Instead, local judges largely made their decisions on the basis of evidence and detailed knowledge of human rights law.
What changed so dramatically in that short period of time? Lake’s book provides the answers. Using the cases of Congo and South Africa, Lake argues that the strength of nongovernmental organizations (NGOs) in a fragile state like Congo makes it possible for their priorities to take precedence.
While both Congo and South Africa have extraordinarily high rates of sexual and gender-based violence (SGBV), the level of prosecution and conviction for those crimes is paradoxically much higher in the weaker state, Congo. Why? In Congo, NGOs prioritized combating SGBV. The Congolese state is so weak that NGO priorities often eclipse or set the agenda for those of the government.
Combine these two factors, and a strong system for prosecuting perpetrators of SGBV crimes was the result. By contrast, in South Africa, which has a strong, functioning government and where NGOs play a smaller role in setting government priorities or agendas, SGBV crimes are prosecuted less, and less often result in convictions.
Congo now prosecutes sexual violence crimes
Lake brilliantly builds her argument with an astonishing and impressive array of data collected under extremely challenging conditions. She shows how the essentially nonfunctional Congolese justice system I observed in 2007 rapidly transformed to prosecute serious human rights cases. There was engagement with the American Bar Association, which created a special initiative to respond to SGBV crimes. Huge amounts of international donor funding went into training prosecutors and judges, bringing victims to testify, providing security, and other essential needs for the courts to function.
In South Africa, Lake argues, leaders actively resist prioritizing SGBV crimes. Because South African governing institutions are strong, there’s little opening for outsiders to shape the legal system in such profound ways.
But the Congolese system is not perfect. As Lake notes, the overwhelming NGO emphasis on training prosecutors and judges to get convictions for SGBV crimes shortchanged the need for defense attorneys and protections for the rights of the accused. Moreover, the courts’ focus on SGBV crimes means that the courts often overlook other serious human rights abuses. Requests for bribes are still a problem, and those who are convicted and sentenced can sometimes bribe their way out of prison.
And there are still few effective mechanisms for ordinary Congolese to pursue justice for less extreme — but still important — crimes. If a neighbor steals one’s cow, that will have a profound effect on one’s family’s well-being, but justice in that case is still largely out of reach, with court costs, to bribes for the decision in their favor and more still falling on the victims. As most Congolese lack the resources to pay those costs, justice for non-SGBV crimes is more often than not out of reach.
Lake’s book is a must-read that challenges much of the conventional wisdom about states with weak institutions and how the international community might go about “fixing” places like the Congo, Somalia and Afghanistan. By identifying this paradox of state strength as it relates to human rights concerns — that justice may be easier to obtain in weak states than strong ones — Lake raises profound questions about the notion that stronger, democratic countries are fundamentally “good” while fragile ones are always “bad.”
Lake’s analysis shows that when a government is weak, outsiders can profoundly shape the way that human rights cases are prioritized, prosecuted and decided. Protecting human rights seems like a good cause, of course — but what might happen when an outsider wants to shape outcomes for less desirable ends?
Editor’s note: This article has been updated to clarify the percentage of sexual assault cases referred for prosecution. We regret the editing error.
Previous posts in this year’s series: