De la séquestration des mamans insolvables et leurs enfants

Pascal Kakudji Yumba, De la séquestration des mamans insolvables et leurs enfants dans les maternités des établissements de santé de Lubumbashi : Cas de l’hôpital général Jason Sendwe in: RiA Recht in Afrika | Law in Africa | Droit en Afrique, page 78 – 96. RiA, Volume 18 (2015), Issue 1, ISSN online: 2363-6270, https://doi.org/10.5771/2363-6270-2015-1-78

This analysis (in French) offers the first legal study of the history of medical detention, tracing its current form to the Bamako Accords of 1989. In the research, he examines the epistemological underpinnings of the practice, tracing it back to an Ancient Roman Legal practice of sequestration for debt, known as manus iniecto (English: the laying-on-of-hands). Kakudji’s article deals with the institutionalization of medical detention public health, in spite of the fact that the practice amounts to “private justice”, or an independent (and prohibited) juridical and penal process that effectively strips citizens of constitutional and human rights entirely outside of the procedures established by the State.

Kakudji’s work is not only legal-historical, but offers one of the first institutional ethnographies of the practice, as he deftly ties his legal analysis to the specific case of the maternity ward at Jason Sendwe Hospital in Lubumbashi, Congo, looking in turn at the way that nurses, discharge paperwork, and medical language normalize an effectively illegal and extrajuridical process.

English Abstract:

Our study deals with the carrying out of the medical contract in the maternity of the Jason Sendwe General Hospital in Lubumbashi. The enforcement of the medical contract conveysa notable discrepancy between what is in reality and what should come into force in thematernities of Lubumbashi medical institutions, particularly in the maternity of the abovementioned general hospital. This accounts for the existence of a set of prohibited and ques-tionable practices, namely the sequestration of the mothers and their babies, the over in-voicing, and the tip phenomenon that does not take into account the jurisdictional control.The sequestration of the insolvent mothers and their babies reminds one of the ancient Ro-man institution manus iniectio. This practice is prohibited and in contradiction to the princi-ples of the law. The fore-mentioned sequestration disparages the human person who, like apledge, warrants the fulfillment of the obligation. There is ground for concluding that thehospital is doing justice to itself in the place of competent jurisdictions entitled to settlesuch cases of legal dispute.

The article is freely available here: “De la séquestration des mamans insolvables et leurs enfantsdans les maternités des établissements de santé deLubumbashi : Cas de l’hôpital général Jason Sendwe