The Politics of Punishment: Building Rule of Law in the Shadow of the State in Eastern Democratic Republic of Congo

Abstract

Governance is typically considered to be the responsibility and jurisdiction of the state. In areas of limited statehood, we might expect the practice of governance (the provision of basic public goods, such as security or judicial administration) to be correspondingly lacking. Yet even in states characterized by extreme fragility or weakness, certain public goods prevail. For example, over the past five years, courts in the Democratic Republic of Congo (DR Congo) have produced some of the most progressive judicial decisions against perpetrators of gender violence of anywhere in the world. Yet DR Congo is often described as the archetypal 'failed state' (Kabemba 2001). This article uses a case study of domestic courts in eastern DR Congo to analyze how and why complex functions of domestic governance - such as the production of frequent and high quality judicial decisions by domestic courts – are able to persist, even flourish, in an area where the state is characterized by extreme fragility and weakness. Based on data collected over five years in multiple locations in eastern DR Congo I argue that synergistic and mutually reinforcing activities by domestic and international non-state actors at three levels of governance - central state institutions, local institutions, and among individual members of conflict-affected communities – have resulted in surprisingly effective outcomes in the area of criminal justice, despite ongoing conflict and institutional fragility. Additionally, I argue that the characterization of DR Congo as a fragile post-conflict state, combined with the empirical realities of weak state infrastructure in DR Congo’s eastern provinces, have created certain opportunity structures for domestic and transnational actors to assume responsibility over basic functions of governance. These opportunities have allowed NGOs and other key organizations to exert considerable influence over judicial processes at each of the three levels that I examine.