Abstract

SINDANI, Jonas Kakule. The obligation to protect and gender-based discrimination: critical review of the Céline v DRC case before the African Commission. AHRY [online]. 2023, vol.7, pp.435-452. ISSN 2663-323X.  http://dx.doi.org/10.29053/2523-1367/2023/v7a20.

This commentary examines the decision of the African Commission on Human and Peoples' Rights in the case of Céline v DRC. The victim, a 17 year-old minor for whom anonymity was requested and who was referred to as Céline, had been the victim of assault and gang rape. Firstly, the African Commission's decision in this case reveals that the non-effectiveness of the judicial proceedings against the alleged perpetrators of the violations exacerbates the problem of violence against women, stigmatises the victims and thus constitutes gender-based discrimination. This comment shows that in its reasoning, the African Commission focuses on material due diligence and only addresses preventive due diligence as a recommendation. Yet the duty of due diligence incumbent on States in a matter as sensitive as sexual violence should begin with the prevention of such violence. The commentary argues that the assessment of substantive due diligence should complement that of preventive due diligence. Secondly, irrespective of the failure to prove the existence of any preferential treatment that their male counterparts or even other victims of sexual violence may or may not have received from the Congolese State, the African Commission found discrimination on the basis of gender. This decision is firmly based on the international human rights standards that have been developed with regard to equality. The traditional examination of grievances based on the violation of the right to non-discrimination, and a fortiori when this discrimination is based on gender, does not require perfection in identity. The search for equivalence between men and women ignores the structural differences that give rise to inequality.

Keywords : violence sexuelles; non-discrimination; egalité; diligence raisonnable; Charte africaine; Republique Democratique du Congo.

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