The Legal System of the Republic of the Congo
(Congo-Brazzaville): Overview and Research
By Dunia P. Zongwe
Dunia P. Zongwe specializes and publishes in the areas of finance and development, and human rights, with a focus on Africa. He was educated at the University of Namibia (law), Université de Montréal (humanities), and Cornell University (law), where he earned a Master’s degree and a PhD (foreign investments in mining and infrastructure in Africa).
Published January 2014
Table of Contents
3.1.1. Fundamental Principles
3.1.2. Popular Sovereignty
3.2.1. Civil and Political Rights
3.2.2. Socio-Economic Rights
3.2.3. Collective Rights
3.3.1. The Executive
22.214.171.124. The Presidential Electoral Process
3.3.2. The Legislature
126.96.36.199. The Workings of Parliament
188.8.131.52. The National Assembly and the Senate
3.3.3. Other Institutions
184.108.40.206. Political Parties
220.127.116.11. The Economic and Social Council
18.104.22.168. The National Human Rights Commission
22.214.171.124. The Freedom of Communication Council
6.1. Local Government
6.2. The Force Publique
7. Private Law
7.1. Civil Law
7.2.1. Business Organizations
7.2.2. Commercial Law
8.1. The Court System
8.1.1. The Constitutional Court
8.2. The Legal Profession
8.2.4. Clerks and Bailiffs
9.1. Online Resources
9.2. Printed Resources
The Republic of the Congo, or Congo-Brazzaville, is a civil-law jurisdiction located in Central Africa. Congo-Brazzaville is not to be confused with its much larger neighbor, the Democratic Republic of the Congo, or Congo-Kinshasa. A former French colony, Congo-Brazzaville has a legal system substantively based on French civil law and Congolese customary laws.
The formal sources of law in the Congo are the Constitution, legislation, international law, customary laws, judicial precedents, and publications by academic scholars. The Constitution is the supreme law of the land. Adopted by referendum on 20 January 2002, the Constitution provides for a bill of rights, creates state institutions, and defines the fundamental principles, powers, functions and obligations of the state. Legislation is the means by which the government regulates various facets of national life. There are two types of legislation: Ordinary and organic laws. Unlike ordinary laws, organic laws regulate central issues as specifically designated by the Constitution and require a special procedure for their adoption and amendment. Similar to most civil law countries, juristic writings (la doctrine) and judicial decisions (la jurisprudence) do not have binding force, but only enjoy persuasive authority.
What was until then known as the French region of Middle Congo acceded to Independence on 15 August 1960. In 1891, the region of Middle Congo became a French colony. Colonialism lasted until Independence. A Constitution was adopted in 1963. Five years later, a military coup was staged, and a socialist government led by Marien Ngouabi came to power. President Ngouabi was assassinated in March 1977. Joachim Yhombi-Opango replaced him as Congo’s President. Yhombi-Opango served in that capacity up till his forced resignation in 1979. Denis Sassou N’Guesso, who had participated in the coup that brought Ngouabi to power, ruled the Congo as President for more than a decade from 1979 to 1992. Sassou N’Guesso’s leadership was marked by both socialism and a dose of pragmatism.
In March 1992, a new Constitution was adopted by referendum that paved the way for multi-party elections that Pascal Lissouba won in August that same year. Shortly afterwards, the democratically elected Lissouba installed his government. Subsequently, a brief civil war broke out in 1997. Assisted by the Angolan military, Denis Sassou N’Guesso toppled President Lissouba and succeeded him as Head of State. President Sassou N’Guesso established its power with the Fundamental Act on 24 October 1997. The Fundamental Act suspended the 1992 Constitution. That turning point in Congo’s constitutional history heralded a period of ethnic and political unrest. The Congo Civil War took place from 1997 to 1999. Eventually, Southern-based rebel groups agreed to sign a final peace agreement in March 2003.
The Congolese people adopted a new Constitution by referendum on 20 January 2002. The 2002 Constitution repealed the 1997 Fundamental Act. Two months later, Denis Sassou N’Guesso won the presidential elections by a landslide and got re-elected in 2009 for another seven-year term under the 2002 Constitution amid accusations of electoral fraud and irregularities.
The 2002 Constitution of the Republic of the Congo is a third generation constitution. It (1) enshrines a bill of rights, (2) outlines the fundamental principles of the Republic, (3) defines the rights and duties of citizens, and (4) fixes forms of organization and operating rules of the state. It applies to all persons in the Congo.
The Constitution provides for its own amendment and mandates the Congolese parliament to enact specific organic legislation on the procedure for amending the Constitution (articles 185-187). It is at the initiative of the President and members of Parliament that the Constitution can be amended. When an amendment bill is tabled at the President’s initiative, the draft bill must be directly submitted to a referendum; when it emanates from Parliament, it must be approved by two thirds of the members of both houses of Parliament in a joint session (article 186). In both cases, the bill can only be subjected to a vote only after the Constitutional Court has certified the bill complies with Congolese law (article 186).
Nonetheless, certain constitutional provisions are entrenched. The President and members of Parliament may not amend: the republican form and the secular nature of the state, popular and state sovereignty, the number of presidential terms, and the human rights protected by the Constitution (article 185). Furthermore, no amendment can take place or continue if its object would lead to a violation of the country’s territorial integrity (article 185).
In its preamble, the Constitution spells out the fundamental principles that underpin the state. First, the Constitution declares its adherence to the universal principles proclaimed and endorsed by the 1945 United Nations Charter, the 1948 Universal Declaration of Human Rights, and the 1981 African Charter on Human and Peoples’ Rights. It then signifies its adherence to the Congolese national unity charter (La Charte de l’unité nationale) and the rights and freedoms charter (La Charte des droits et des libertés) adopted by the national conference (the Conférence nationale souveraine) on May 29, 1991. It finally condemns coups, the tyrannical exercise of power and the use of violence as a means to gain or retain power.
The Constitution defines the Congo as sovereign, indivisible, secular, and social democratic (article 1). The Constitution embodies the principle of popular sovereignty. Repeating the famous formulation in the Gettysburg address by US President Abraham Lincoln, the Congolese Constitution states that “government of the people, by the people and for the people” is a principle of the state (article 2). It goes on to say that national sovereignty belongs to the people, which they exercise through universal suffrage by electing representatives or through a referendum (article 3). No cession, exchange or addition of territory is valid without the consent of the Congolese people, who will decide such issues by referendum (article 180).
The Constitution protects both the rights and duties of citizens. The rights of citizens are entrenched by the Constitution (article 185) while foreigners, beside the right to seek asylum (article 15), enjoy the same rights and freedoms as Congolese citizens in accordance with international law and subject to reciprocity (article 42). Like most civil-law constitutions in Africa, the Congolese Constitution has no general limitation clause. Derogation provisions and limitations imposed on constitutional rights are embedded in the text spelling out those rights.
In adopting the text of the Constitution in the 2002 referendum, the Congolese people expressed their firm desire to build and live in a liberal society reaffirming and consecrating the right to life, the right to property and the right to be different (see preamble). They voiced their eagerness to enrich the common heritage of humankind by relying on the socio-cultural values unique to the Congo. They proclaimed their commitment to a society based on the rule of law and a nation built on brotherhood and solidarity (preamble). More specifically, they embraced the universal values of peace, freedom, equality, justice, tolerance, honesty, and the virtues of dialogue, as primary reference points for the new political culture (preamble).
The Congolese Constitution considers the human person as sacred. It imposes on the state the absolute obligation to respect and protect the right to life while granting every citizen the right to the full development of his person subject to the rights of others, public order, morality and decency (article 7). The Constitution also protects equality and prohibits discrimination. All citizens are equal in the eyes of the law, and any discrimination based on origin, socio-economic status, membership of a racial, ethnic or county-based group, education, language, religion, philosophy or place of residence, save for presidential and legislative elected offices (articles 8, 58 and 96). Women have the same rights as men. The law assures the promotion and representation of women in all political, elective and administrative positions (article 8). It finally defends the rights of children against economic and social exploitation (article 34).
The Constitution provides for the security and the inviolability of the human person. It does so by upholding the rights of the accused during arrest, detention and trial and the right of people to be free from torture, cruel, inhuman and degrading treatment (articles 9, 10 and 138). Moreover, any citizen, any agent of the state is relieved of his duty of obedience when an order from a superior officer or any authority clearly violates human rights and fundamental freedoms (article 10). The Constitution protects privacy, too (articles 14 and 20). Searches can only be ordered under strict conditions laid down by law (article 14).
Fundamental freedoms are another ingredient of the Congolese Constitution. Every citizen has the right to move freely within, leave and return to the Congo (article 16). He is free to practice any religion and hold any beliefs (article 18). The use of religion for political purposes and the manipulation of beliefs and indoctrination imposed by religious, philosophical or political extremism and sectarianism are prohibited (article 18). Article 19 of the Constitution grants freedom of expression, prohibits censorship and provides free access to information subject to limits and conditions set out in relevant laws. It recognizes and guarantees freedom of association, assembly and the right to petition and stage demonstrations (articles 21 and 40).
There is a bundle of socio-economic rights in the 2002 Constitution. Property, private enterprise, and labor are salient constitutional features. The Constitution guarantees the right to property, including the right of inheritance (article 17). Expropriation is allowed if it conforms to the law, if it is for a public purpose, and if just compensation is paid beforehand (article 17).
The Constitution confers on everyone the right to undertake business in the areas of their choice (article 27). Article 26 states that no one may be enslaved or perform forced labor, except in the case of a court-ordered custodial sentence. The state extends to all citizens the right to work (article 24), intellectual property rights (article 29), and the right to rest and leisure, which entails within specified limits reasonable working hours as well as public and periodic holidays with pay (article 28). With the exception of police officers, Congolese citizens enjoy the freedom of association and the right to strike under conditions set by law (article 25).
The right to education is stipulated in the Constitution. Education in public schools is free and compulsory until the age of 16 (article 23). The establishment of private educational institutions is governed by a law to that effect (article 23).
The state is, by virtue of article 30 of the Constitution, the guarantor of public health in the Congo, though the Constitution makes space for the private sector to render social and medical services. The elderly and persons with disabilities are entitled to protection measures commensurate with their physical, moral and other needs, so that they can realize their full potential (article 30). In the same vein, the state has the obligation to assist families as custodians of good morals and values compatible with the republican order in the Congo (article 31).
The right to marry and found a family are protected (article 32), so are the rights of mothers and children (article 31), including children born out of wedlock (article 32). It is prohibited to employ children under the age of 16 (article 34). Lastly, the Constitution secures the right to culture and the respect for the cultural identity of each citizen so long as the exercise of such rights do not prejudice the rights of others, public order or national unity (article 22).
Collective rights or group rights figure in the Constitution. The Constitution extends protection to vulnerable groups, such as children (article 33), protects the people’s right to a healthy, satisfactory and sustainable environment (articles 35, 36 and 37), and forbids and punishes any agreement or arrangement having the direct consequence of depriving the nation of the fruits of its resources, natural or otherwise (articles 38 and 39).
The Constitution boasts a list of duties for citizens as well. However, unlike human rights, civic duties are not entrenched in the Constitution (see article 185). Obviously, citizens have the duty to comply with the provisions of the Constitution, the laws and regulations of the state (article 50).
More specifically, citizens have the duty to respect public property (article 47) and their fellow human beings without discrimination, to promote and strengthen tolerance, to preserve national cultural values and to contribute to national cohesion (article 44). They owe a duty to preserve peace, national independence, and territorial integrity and contribute to national defense (article 45). Other obligations comprise the duty to work and pay tax (article 46) and duties towards family, society and other legally recognized communities (article 43).
Following Montesquieu’s seminal ideas on the separation of powers, the power in the Congo is divided into three branches, namely the executive, legislative and judicial branches. The terms of the 2002 Constitution indicate the Congo’s is a presidential system of government. The executive power vests in the President of the Republic.
The President of the Republic is the chief executive: He is the Head of State and Head of Government (article 56). The incumbent is Denis Sassou N’Guesso. The President embodies national unity and ensures the proper functioning of state institutions and compliance with the Constitution (article 56). He determines and conducts foreign policy, enjoys the power to pass subordinate legislation, enforce laws, and guarantees territorial integrity and the continuity of the state (article 56).
The 2002 Constitution and a 2001 special electoral law contain provisions regarding the process of presidential elections in the Congo. The Constitution enables parliament to enact a special electoral law (article 64), provides for the mode of election (article 57), and delineates the distinct steps of the electoral process (article 61-68).
The President is elected by direct universal suffrage for a term of seven years, renewable once (article 57). The latest elections took place in 2009 and the next ones are scheduled for 2016. The Council of Ministers calls for presidential elections by decree (article 61). The Constitution sets conditions for a person to be elected and serve as President, such as Congolese origin, good character, a minimum of 15 years of professional experience, a minimum age of 40, and a maximum age of 70 (article 58). The President is elected by absolute majority of the votes cast, failing which there shall be 24 days later a second round in which the candidates who received the most votes in the first round will compete (article 59).
The first round takes place at least 30 days, and more than 40 days before the expiry of the outgoing President’s term in office (article 62). If, before the first round, a candidate dies or is permanently incapacitated, the Constitutional Court must postpone the elections. In case of withdrawal of one of the two candidates who garnered the most votes in the first round, the elections will proceed with the third best candidate replacing the candidate who withdrew (article 63).
If no objection is raised and if the Constitutional Court finds that the elections were not tainted by irregularities likely to vitiate the results, it will proclaim the winning candidate President of the Republic within fifteen days of the referral (article 65). If a dispute arises and is referred to the Constitutional Court, the Court shall rule within 15 days from the date of referral and announce the results (article 65). If the Court cancels the results or if the newly elected President dies or is permanently incapacitated, new elections must be held 45 or 90 days later, in which case the outgoing President will stay in office until the swearing-in of an elected incoming President (articles 66 and 67). Presidential terms start on the day of the swearing-in ceremony, which takes place 20 days after election results are announced by the Constitutional Court (article 68).
Additional conditions and procedures for eligibility, presentation of candidates, vote counting and announcement of the presidential results are set out in the special electoral legislation, whose purpose is to ensure that elections are free, fair and transparent (article 64).
After taking the oath of office (article 69), the President appoints ministers, who are answerable to him and responsible for the implementation of his decisions, and to whom he may delegate some of his powers (articles 74 and 82). He also appoints senior civilian and military officers, ambassadors as well as special envoys to foreign countries and international organizations (article 77). He negotiates, signs and ratifies treaties and international agreements, provided they do not violate the provisions of the Constitution (articles 178 and 183).
The President is the supreme commander of the armed forces and chairs national defense boards and committees (article 78). He presides over the Cabinet meetings, known in French as Conseil des ministres (article 81), and the Judicial Service Council or the Conseil supérieur de la magistrature (article 79). He has the power to issue pardons (article 80) and to declare a state of emergency (article 131).
Once a year, the President addresses a message on the state of the nation in a joint session of Parliament (i.e. Congress) (article 85). And, at any time, he may send a message to the National Assembly or the Senate, a message that may not be open to debate (article 85). Where state institutions, the independence or the integrity of the Congo, or the fulfillment of international commitments face a serious and imminent threat, the President, after consultation with the Presidents of the two Houses of Parliament and the President of the Constitutional Court, must take such measures as dictated by those exceptional circumstances (article 84).
The President and Cabinet Ministers enjoy several amenities and immunities. The President and Cabinet Ministers receive a salary, the amount of which is fixed by regulation (article 73). The President lives in an official residence (article 73) while former Presidents, with the exception of those convicted of treason, economic crimes, war crimes, genocide or crimes against humanity, receive state benefits and protection as allowed by law (article 88).
At the same time, the President and Cabinet Ministers are subject to a number of liabilities and incompatibilities. The President is personally liable for high treason and impeachable by the Parliament deliberating in joint session and by secret ballot by a majority of two thirds of its members (article 87). The High Court (the Haute cour de justice) has jurisdiction in criminal matters involving Ministers (article 76).
While in office, the President and Ministers may not assume any other elected office, accept any employment, in the private sector or in the military, or engage in any professional activities or in activities within a political party (articles 72 and 75). They may not, directly or through an agent, buy or lease state property, take part in public procurement or in a bidding process involving institutions in which the state has an interest (article 73).
If – on request by the Speaker of the National Assembly – the Constitutional Court declares a vacancy following death, resignation or any other form of permanent incapacity of the President, the President of the Senate will serve as President of the Congo and perform presidential functions, except the powers to appoint ministers, to issue pardons, to take exceptional measures when state institutions are threatened, to submit bills to a referendum, to initiate constitutional amendment bills (article 70). The Senate President may not serve in that interim capacity for more than 90 days and stand as a candidate in the presidential elections (article 71). Presidential elections must take place at least 45 days after the declaration of the vacancy, in any event not later than 90 days after that declaration (article 71).
The Parliament or the legislature is another branch of government. The legislative branch is bicameral: the National Assembly (Assemblée nationale) and the Senate (Sénat). The National Assembly and the Senate are each headed by a bureau, composed of a President, two Vice-Presidents, two secretaries, and two questors (article 106). The Parliament exercises legislative power and controls the actions of the executive (article 89). It controls governmental actions by means of subpoenas, questions, committee hearings and parliamentary inquiries (article 89).
Candidates for the Senate and the National Assembly are presented by political parties or stand as independent candidates (article 97). The Constitutional Court adjudicates disputes over the validity of parliamentary elections (article 99). Once elected, members of the Senate and the National Assembly begin their term on the second Tuesday following their election (article 93). Terms may – on request by the President of the Republic – be extended by the Constitutional Court when extraordinary circumstances prevent the normal conduct of legislative elections (article 92).
While in office, members of the Senate and the National Assembly may not hold another office of a public character or engage in any other activities they are prohibited from engaging in by applicable laws, or else they will be replaced by their deputies (article 95). They lose their status as members of Parliament if they contravene eligibility or incompatibility provisions, if they resign or get sentenced to a prison term for an offense or a misdemeanor (article 98).
In such cases, partial elections are run in order to find a replacement (article 98). Should there be a vacancy at the Presidency of either house, following death, resignation or other forms of permanent incapacity, the house will elect a new President within 15 days after the vacancy is left Parliament is in session (article 109).
The Constitution enables Parliament to pass a law that will provide for the status of parliamentarians, constituencies, the number and distribution of seats per constituency, voting, eligibility criteria and the conditions for new elections to fill vacancies (article 94). Moreover, members of Parliament are entitled to the reimbursement of their travel expenses and the payment of compensation at a rate and conditions determined by law (article 91).
Members of Parliament have a personal right to vote, which they may delegate in particular circumstances (article 102). No parliamentarian may be prosecuted, detained or tried for opinions expressed or votes cast during sessions of Parliament without the authorization of the house or the bureau to which he belongs, save in cases of flagrante delicto, authorized prosecutions and final judgments (article 101).
Each house of Parliament adopts legally binding rules of order (Règlement intérieur) that determine its operation and detail the legislative process and how to control government action (article 107). Parliament meets at the request of the Presidents of both houses in 3 regular sessions 3 times a year, i.e. on March 2nd, on July 2nd and on October 15th (article 103). Each session lasts 60 days, at most, and when Parliament meets in congress, the bureau of the National Assembly chairs the proceedings (article 103).
The Conference of Presidents set the agenda of each session (article 104). The President of either house of Parliament may convene an extraordinary session on a specific agenda item at the initiative of the President of the Republic or an absolute majority of the house (article 105). The sittings of both houses are public, and parliamentary proceedings are fully published in the Hansard, although the President of the Republic, the President of either house or a third of its members may request that proceedings be held behind closed doors (article 108).
Bills are sent to a standing committee of either house or, at the request of the house or the President of the Republic, to an ad hoc committee (article 122). The National Assembly and the Senate examine bills in sequence with a view to harmonizing their inputs into single text (article 124). In case of persistent disagreements between the two houses over the text of a bill, the President of the Republic may mediate their differences by calling a joint committee, with members from both houses, or by asking the National Assembly to decide the issue definitively (article 124).
While it shares with the President of the Republic the power to initiate bills and referenda, Parliament is exclusively empowered to vote on bills (articles 86 and 110). It votes on taxes as well as the execution and control of the national budget whose draft it receives during the October session (articles 110, 127 and 126). What is more, with the assistance of its audit, evaluation and investigative arm, the so-called Cour des comptes et de discipline budgétaire, Parliament audits state accounts and controls government revenues and expenditures (article 128). The Cour des comptes et de discipline budgétaire is a court and consequently part of the judicial branch of government.
Article 110 of the Constitution lists a number of matters that could be the object of legislation, including citizenship; the determination of what acts constitute crimes; electoral constituencies; the administrative divisions of the national territory; labor, trade unions and social security laws; social and economic development plans; environment; property and property rights; and national defense (article 110). The Constitution further lays down that Parliament, through legislation, formulates the fundamental principles guiding the following aspects of national life: Education; health; science and technology; industry; culture, arts and sports; and agriculture, livestock, fisheries, waters and forests (article 110).
The National Assembly is the lower house of Parliament. Justin Koumba has been the Speaker of the National Assembly since 2007. Members of the National Assembly are called “députés” (article 90). They must be Congolese and at least 25 years old at the time of their election (article 96). Elected by direct universal suffrage for a renewable five-year term, they each represent the entire Congolese nation and they each have a deputy, a suppléant (articles 90 and 92).
They hold regular sessions and, should those sessions take place outside regular periods, they will automatically convene a special session lasting 15 days (article 93). The Speaker of the National Assembly opens and closes the regular and special sessions of the National Assembly (article 107). Their terms end upon the inauguration of the new Assembly, and elections are held at least 20 days and no later than 50 days after the expiry of the terms of the outgoing députés (article 93).
The Senate is the upper house of Parliament. André Obami Itou has been its President since 2007. Members of the Senate are called “sénateurs” (article 90). Senators must be Congolese and at least 45 years old at the time of their election (article 96). Indirectly elected by local councils (the conseils des collectivités locales) for a renewable six-year term, they represent the local authorities of the Congo, and, in addition to their legislative duties, they act as the moderators and advisors of the nation (articles 90 and 92). The Senate is renewed by half every 3 years by drawing lots (article 92). The President of the Senate opens and closes the regular and special sessions of the Senate (article 107).
The executive has nevertheless a major role to play in the legislative process. The Cabinet deliberates on bills, draft ordinances and draft decrees (article 81) and the President has the power, concurrently with members of Parliament, to initiate bills to be tabled in Parliament (article 83). The President promulgates enacted bills within 20 days after receiving them from the National Assembly (article 83). He may – before the lapse of that time period – ask Parliament to undertake a second reading of an enacted bill or some of its provisions, though he may not refuse to promulgate a law after the second reading if the Constitutional Court finds the law is in tune with the Constitution (article 83).
The Constitution puts limits on the legislature by instructing it to collaborate with the executive in some specified circumstances. More specifically, the Speaker of the National Assembly and the Senate President notify the President of the Republic of the agenda of both houses of Parliament (article 115). In addition, Parliament may not legislate any matter not listed in article 110 as legislative fields; such matters are dealt with by the executive by means of administrative regulations, not by the legislature by means of legislation or Acts of Parliament (articles 110, 113 and 120).
The executive and the legislature have in certain cases similar functions and can thus check and balance each other’s powers. The President and members of Parliament share the power to amend bills (article 123). The President may dissolve the National Assembly and, conversely, the National Assembly may remove the President (article 114). Even if Ministers have access to sessions of Parliament, members of the National Assembly and the Senate may request that a Minister appear before them or before a parliamentary commission (article 118).
Finally, Congress has the power to authorize a declaration of war, but the President may make such a declaration in the Council of Ministers if Parliament is not in session (article 130). The President may declare a state of emergency but needs Congress for any extension of its duration (article 131). He has the power to ratify treaties and international agreements, but he needs the approval of Parliament before he can ratify them (article 178). Further, he needs Congress if, in order to execute his program, he wants Congress to vote a law empowering him, for a limited period of time, to take measures by dint of ordinances regarding matters that constitutionally fall within the legislative competence of Parliament (article 132).
As recalled in the preamble, the Congolese people have chosen pluralist democracy as the foundation of the values that guide the development of the country. Multiparty democracy stimulates the country’s moral, cultural and material growth while meeting the demands of collective welfare. The Congo actually has several political parties, with the Parti congolais du travail (the Congolese Labor Party) as the ruling party.
The Constitution endows political parties with legal personality and obliges the state to fund political parties (articles 51 and 54). It enumerates the conditions that political parties must satisfy before they can be recognized: they must, among other obligations, respect, preserve and consolidate national unity, fundamental rights, the rule of law and national sovereignty (articles 53 and 55). However, the Constitution forbids parties that lack a national character and identify themselves with an ethnic group, a region of the country, a religion or a cult (articles 52, 53 and 55).
The Constitution institutes an Economic and Social Council, the Conseil économique et social, and mandates Parliament to pass an organic law providing for the organization, composition, operating rules and membership of the Council (articles 157 and 160). The Council is a consultative assembly that may – on its own motion or on request by the President of the Republic, the President of either house of Parliament – tackle any economic or social issue in the Congo (article 158). Jean-Marie Tassoua became President of the Council in 2009.
The Council can examine draft treaties or international agreements, draft decrees, bills, or any government document, except the national budget, if they bring up social or economic questions (article 158). Members of the Council may not be at the same time parliamentarians, Cabinet Ministers, members of the Constitutional Court, prefects, mayors, or municipal councilors (article 159).
Article 167 of the Constitution creates a National Human Rights Commission, the Commission nationale des droits de l’homme. The National Human Rights Commission is a body tasked with monitoring the promotion and protection of human rights (article 168). Jean Martin Mbemba is the President of the Commission.
Another constitutional body is the Freedom of Information Council, the Conseil supérieur de la liberté de la communication (article 161). The Council is responsible for ensuring the effective exercise of the freedom of information and gives technical advice and makes recommendations on issues related to the field of information and communication (article 161). An organic law covers the responsibilities, organization, composition and functioning of the Council (article 162). Philippe Mvouo is the President of the Board.
International law is one of the sources of Congolese law. International law is the field of Congolese law and the body of rules that deal with legal relationships between the Congo and other states, international organizations and other members of the international community. In words reminiscent of article 55 of the French Constitution, article 184 of the Congolese Constitution lays down that treaties or agreements duly ratified shall, upon publication, prevail over Acts of Parliament, subject, with regard to each agreement or treaty, to its application by the other party.
The Congo has formally recognized the jurisdiction of the International Court of Justice (ICJ), the African Court of Justice, and the African Court Human and People’s Rights. It does not however accept the jurisdiction of the International Criminal Court. Nonetheless, article 11 of the Constitution empowers Parliament to pass a law criminalizing and penalizing war crimes, crimes against humanity and genocide, which it describes as ‘imprescriptible’ crimes.
Criminal law is the complex of legal rules proscribing and punishing legally proscribed conduct. Criminal conduct is contrary to peace, order, safety, health or public morality in the community; in short, the proscribed conduct refers to behavior so offending the fundamental values of the society that an infamous character attaches to it. When that behavior is considered serious, it is defined as ‘crime’ and may be punished with a prison sentence. Murder, assault, theft and fraud are obvious examples of serious crimes or felonies. Unlike felonies, misdemeanors are not punishable by a prison term but a fine.
In criminal law, it is the state, not the victims, who presses charges against the perpetrator of a crime. The reason is that the primary purpose of the prosecution in particular and criminal law in general is to punish behavior deemed to be a wrong against society as a whole and not to compensate the damage suffered by the victims, the overriding objective of civil law. Thus, the state can file a charge without the consent of the victims, even though in practice it is essential victims cooperate with the state. Without victims’ cooperation, the state is very unlikely to prove the accused committed the alleged criminal offense beyond a reasonable doubt.
Articles 9 and 10 of the Constitution and criminal laws provide the accused with safeguards throughout the criminal justice process. Among other safeguards, nobody may be arbitrarily accused, arrested or detained. When charged, every criminal defendant is presumed innocent until proven guilty following a procedure guaranteeing the rights of the defendant. Furthermore, the principle of legality prevents judges from convicting accused persons for an offense under a law that was not in force at the time the offense was committed. The 1963 Criminal Procedure Code (Code de procédure pénale) lays down the rules of criminal procedure.
In criminal cases, the state is represented by the Attorney-General (Procureur général) or one of his or her deputies (the substituts du procureur). The Attorney-General’s office appear in courts with jurisdiction in criminal matters and follow the rules of procedure and the rules of evidence specific to criminal law. The state must prove beyond a reasonable doubt that the accused committed the offense with which he is charged, which is burden of proof heavier than the one in civil cases, to wit proof by a preponderance of probabilities.
When the law grants a judge discretion in assessing the appropriate sentence, he or she must consider three sometimes conflicting criteria: retribution, deterrence and rehabilitation. The desire to punish offenders as an end in itself needs no further explanation. With deterrence, the judge seeks to discourage the offender, or others who might be tempted to imitate the offender, from repeating the offense. That penal philosophy suggests that the more severe the punishment, the more it acts as a deterrent, but it must not be so severe as to preclude any possibility of rehabilitating the offender, which is the purpose of the rehabilitation criterion. With rehabilitation, the offender must be punished in such a way as to allow him to eventually reintegrate society as a responsible citizen.
Administrative law governs state administrative bodies and officials in their interactions with citizens. The right to administrative justice is enshrined in article 41 of the Constitution, which stipulates that every citizen who has suffered harm caused by administrative bodies or officials has the right to take legal action in the manner prescribed by law. Put another way, administrative law regulates the conduct of the state towards citizens.
Congolese citizenship is guaranteed by law, and all Congolese citizens are entitled to change their nationality or acquire a second one (see also the 1993 Citizenship Code). As for the state, Brazzaville is the capital of the Congo and the seat of government and state institutions. During the colonial days, Brazzaville acted as the capital of French Equatorial Africa (AEF). The Congo, a country of 4.5 million inhabitants, is made up of 2 communes and 10 regions, namely Bouenza, Cuvette, Cuvette-Ouest, Kouilou, Lekoumou, Likouala, Niari, Plateaux, Pool, Sangha; and the two communes, Brazzaville and Pointe-Noire. The national anthem is La Congolaise, and the motto of the Congo is “unity, work, progress”. The official language is French while Lingala and Kituba are national languages.
Whereas article 41 of the Constitution gives citizens the right to bring suit against administrative bodies and officials, article 42 grants them the right to petition appropriate organs of state. On such organ is the Ombudsman, the Médiateur de la République. The Ombudsman is an independent authority created in order to simplify and humanize relations between the government and citizens. Indeed, any person, natural or juristic, who believes that a state official or institution has not acted according to its official mission or obligations may take the matter to the Ombudsman.
Government can be divided in two parts: The central and decentralized governments. The Central government consists of the government and its various ministries. It has within its reach other state institutions like the Tender Board (Law on government procurement). Decentralized governments include cities, communes, school boards, professional bodies, state corporations, commissions, and other similar corporations that do not fall under the direct authority of the central government.
Local government is a sub-field of administrative law. Departments and communes constitute local governments in the Congo. Local governments are created by statutes and administered by elected councils. An organic law provides for the placement of local governments and decentralized entities under trusteeship by the central government.
Unlike local governments, security forces, the force publique, are not decentralized entities. They fall under the direct authority of the central government. They are composed of the national police, the gendarmerie and the armed forces. Laws and regulations pertaining to security forces are another area of administrative law. The Constitution says that security forces must be apolitical and under civilian authority, observe the laws and regulations of the country, and act in the latter’s general interest. This provision means that nobody may use security forces for his own personal purposes and that the creation of militias is a criminal offense.
Private law refers to the laws regulating the relationships between natural or juristic persons among themselves. It encompasses civil law (droit civil), business organizations (droit de l’entreprise) and private international law.
Some fields of law such as labor law (Labor Code) or judiciary law (droit judiciaire) defy classifications. Because of their peculiar characteristics, they do not fully fall under public law, nor do they completely belong to private law. While primarily regulating interpersonal relationships, labor law and judiciary law both contain an active state and public law element, making it difficult to classify these fields of law as components of public law or private law. Effectively, labor law and judiciary law as they regulate the rights and obligations of persons, regardless of whether they are private person or state institutions.
Civil law governs persons, families, estates, property, bonds and securities. The part of civil law that deals with the law of persons focuses on the rights attached to the status of natural persons, for instance the right to life and the right to privacy, and on elements related to the person like domicile, death and legal capacity. The area of civil law on families is mostly codified as rules relating to families are found in the Family Code (Loi no 073/84 portant Code de la famille) and, to a lesser extent, in the Social Security Code (Code de sécurité sociale). The Family Code provides for marriage and divorce, matrimonial property regimes, parental authority, filiation, maintenance obligations, women’s rights, succession and inheritance. Succession law is concerned with the transfer of property belonging to a deceased person to his or her heirs, with or without a will.
Property law covers the different types of property and its various modes of acquisition and disposition, and the administration of another person’s property. The law of obligations is the field of civil law that is concerned with obligations in general, their sources, performance and extinction, and especially with civil liability and the obligations arising from the diverse types of contracts. The law of secured transactions concentrates on collateral and on ways to ensure the repayment of debt obligations. Pledges, security deposits and mortgages are classic examples of collateral.
Business organizations play a central role in the Congolese economy, which is an oil-dependent economy. Subsistence agriculture and government spending are other important sources of government revenues. Once one of Africa's largest oil exporters, the Congo is still one of its top producers, though its production is declining. External shocks caused by the global crisis and the drop in commodity prices reduced oil revenue by about 30%, but since then commodity prices went up and stimulated the Congolese economy while improving short-term and medium-term prospects.
In this macroeconomic contexts, business organizations are key players in the sense that spending by businesses, including oil exporters, account for the bulk of the country’s gross domestic product. The state bolsters the contribution of business organizations as it has embarked on a privatization drive by among other things setting up a steering committee for the promotion and development of the private sector in the Congo (The Comité de pilotage pour la promotion et le développement du secteur privé national).
The law of business organizations regulates the status of traders, commercial acts and corporations (see also the law on commercial corporations and the law on the general accounting principles for business organizations). A trader regularly engages in economic exchanges, purchases and sales of large quantities of goods or services for a profit. The trader may carry out its activities alone or in partnership with another or other people. Alternatively, he or she may form a worker cooperative (société coopérative) or a corporation, which has a legal personality distinct from that of the trader and its other owners, thus decreasing or eliminating their risks, particularly their contractual liability for the debts of the corporation.
The 2011 Commercial Act (the Acte uniforme portant sur le droit commercial general) codifies commercial law. The Congolese Commercial Act adds a clever twist to its law of business organizations by harmonizing it with the business laws of 17 West and Central African nations. It does so by integrating in the Act the business rules of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), which is an organization aimed at harmonizing business laws in Africa. Congolese commercial law comprises a number of other sectors of the economy, for example, the Marine Code.
The state encourages foreign business organization to invest in the Congo. It crafted an Investment Charter (Charte des investissements) in 2003 and founded an Investment Promotion Agency in 2012 (Agence pour la promotion des investissements). Last but not least, it has signed into law an Oil and Gas Code in 1994, an Investment Code (Code des investissements) in 1992, a Mining Code (Code minier) in 2005, and a Forestry Code (Code forestier) in 2000.
Article 133 of the Congolese Constitution vests judicial power in the Supreme Court, the Cour des comptes et de discipline budgétaire, appellate courts (the Cour d’appel) and other courts in the country. It further enables Parliament to pass an organic law on the structure, composition and operation of those courts and the Judicial Service Council. The primary function of the judiciary is to adjudicate disputes arising from the application of the law and regulations and to administer justice on behalf of the Congolese people. The Constitution reaffirms the independence of the judiciary, subjects judges to the rule of law and insulates the judiciary against interference from the executive and the legislative branches of government.
The Judicial Service Council (Conseil supérieur de la magistrature) is responsible for the administration of justice in the Congo. It is chaired by the President of the Republic, who guarantees the independence of the judiciary. The Council acts as a disciplinary committee and a management board for judges in the country, who are appointed by the President of the Republic on recommendation by the Council.
The court system is composed of the Constitutional Court, the Supreme Court, the High Court and other national courts, including the Cour des comptes et de discipline budgétaire. The 1992 Judiciary Code organizes the judiciary.
The Constitutional Court (Cour constitutionnelle) was established in 2002 by virtue of the 2002 Congolese Constitution. Its membership, organization and functioning are provided for in the Constitution and detailed in an organic law and rules of court. Decisions of the Constitutional Court are final (i.e. they cannot be appealed against), and they bind the state, all government bodies and officials, and all persons in the Congo.
The Court consists of nine members, appointed for a renewable nine-year term. The President of the Republic appoints three members of the Court, the rest are appointed by the President of the Republic on recommendation by the President of either house of Parliament and the Supreme Court. The President of the Republic appoints two from people recommended by the Senate President, two from those recommended by the Speaker of the National Assembly, and two from those recommended by the Supreme Court, which must recommend candidates nominated from Supreme Court judges.
The President of the Republic appoints the President of the Constitutional Court by choosing from the members of that Court. Since September 2012, Auguste Iloki has served as President of the Constitutional Court. The President of the Court has a casting vote in case of a tied vote.
Membership of the Court is incompatible with employment or a position inside government, Parliament or the Supreme Court. People convicted of a serious crime may not be members of the Court, and the law provides for further incompatibilities. Membership of the Court is renewed by thirds every three years.
The Constitutional Court is responsible for monitoring the constitutionality of laws, treaties and international agreements. It ensures the regularity and proper conduct of referenda; presidential, legislative, and senatorial elections, except for local elections and pre-electoral procedures, which are provided for by law. It hears and decides claims and challenges related to the referenda and elections, and it announces referenda and election results. A separate electoral law provides for jurisdiction to hear disputes on local elections and pre-electoral procedures.
Matters may be referred to the Constitutional Court by the President of the Republic, the Speaker of the National Assembly, the Senate President or a third of the members of each house of Parliament. They can refer matters to the Court for an advisory opinion on the conformity of organic laws and rules of order of either house of Parliament to constitutional law. In such event, referrals to the Court suspend the promulgation of organic laws and the implementation of parliamentary rules of order.
Any individual may refer a matter regarding the constitutionality of laws to the Constitutional Court directly or by a special procedure through a preliminary exception (procédure de l’exception d’inconstitutionnalité) raised in another court in which he or she has commenced legal action. If the Court finds a law to be inconsistent with the Constitution, the impugned law can be neither promulgated nor implemented.
The Supreme Court (the Cour suprême) is the country’s highest court. Placide Lenga is the Chief Justice (the Premier président de la Cour suprême) of the Congo. With its seat in the capital Brazzaville, the Supreme Court asserts its jurisdiction over criminal and civil matters throughout the national territory. The Court hears appeals from lower courts and only litigation that poses questions of law. It issues advisory opinions on all referrals from the President of the Republic, government officials, and the bureau of the Parliament.
Beside the Chief Justice, one Vice-President, five Chamber Presidents, and judges sit on that Court. The Court is divided in five types of chambers: One Criminal Chamber, two Civil Chambers, one Administrative and Financial Chamber, one Commercial Chamber, and one Social Chamber.
The High Court (Haute cour de justice) is composed of députés and senators elected in equal numbers by their peers and members of the Supreme Court, also elected by their peers. The Chief Justice of the Supreme Court presides over the High Court. Placide Lenga is currently the President of the Supreme Court and ex officio the President of the High Court.
The High Court is competent to decide high treason cases against the President of the Republic. It equally asserts jurisdiction over cases against members of Parliament, Cabinet ministers and members of the Supreme Court and the Constitutional Court for criminal offenses committed while in office. These senior officers can only be impeached by the Congress, voting by secret ballot by a majority of two thirds of its members. A 1999 organic law determines the organization, composition and functioning of the High Court.
Most legal professionals in the Congo are educated and trained at the faculty of law at the country’s main university, Université Marien-Ngouabi, formerly Université de Brazzaville.
Judges are appointed by the government, which chooses them among the members of the Bar. The judge's role is to hand down judgments taking into account the facts and the evidence adduced by the parties. He or she sees to it that hearings proceed properly and makes his decision based on the facts and the law. Sometimes the judge may – without stepping into the shoes of the parties’ lawyers – intervenes in the conduct of a trial if he wants to obtain clarification on certain elements or if he finds that the evidence is insufficient or that further details are necessary in order for him to better appreciate the parties’ oral evidence or testimony.
Once a trial is over, the judges may render his judgment immediately or he may reserve judgment. Writing judgments calls for an intimate knowledge of legal issues, good research skills and sound analytical and synthetic skills. The judge must perform his functions independently and impartially, as required by the Constitution. His behavior must be beyond reproach in order to preserve justice and the appearance of justice. A judicial code of ethics exists that governs the conduct and duties of judges towards the parties to the dispute, their lawyers and the public. In addition, the Judicial Service Council has the power to discipline and sanction judges who breach judicial duties.
The Congolese Bar has about 140 members licensed to practice law in the Congo. Given the sheer complexity of the law and the procedure in civil and criminal matters alike, litigants often seek the services of a lawyer (avocat). Though, in popular imagination, the role of lawyers is to represent people in courts, in reality, only a small percentage of lawyers represent their clients in courts in civil or criminal cases. Further, the proportion of lawyers practicing criminal law or civil law is quite small relative to all the other areas of the law.
Indeed, many lawyers do not attend court proceedings. They work outside courts where they write legal opinions, draft contracts or commercial agreements, negotiate business transactions, incorporate businesses or act as counsel. By virtue of the law on the legal profession, the Ordre national des avocats du Congo, the national bar association, is the body in charge of the regulation of the profession.
Born in Europe as a way to clear the judicial backlog, the institution of the notary (notaire) also obtains in the Congo. The law formalized the status of notaries in 1989. Appointed by the minister responsible for justice, the notaire is a legal professional who deals with paperwork in non-contentious matters. He or she is a legal advisor, a public officer, and assists in the administration of justice. Like lawyers, the code of ethics of notaires imposes on them fiduciary duties and duties of good faith towards their clients and other parties involved.
Notaires try to prevent conflicts rather than litigate cases after a dispute erupts. They act as legal counsel advising clients and informing them of their legal rights and duties and on how the latter can best protect their rights. Notarial practice covers various fields of law, such as marriage and family, wills and estates, corporate and commercial law, real estate, financial planning.
Legal education and training also enable students and learners to become clerks. A clerk (greffier) is the person responsible for the administration of a court. As such, he mainly performs administrative tasks, ranging from the preparation of hearings, the setting of the court agenda, and transcription of testimonies.
For their part, bailiffs (huissiers) deliver by hand various court documents issued by a court, for instance a divorce petition, subpoenas, and summons. The law officially created the profession in 1992. He ensures injunctions and judgments handed down by the court are enforced, especially by effecting foreclosures and executing warrants or eviction orders.
There are very few online research resources on the legal system of Congo-Brazzaville, and the bulk is naturally written in French. The following resources could be mentioned. The best place to find primary legal sources is the Official Gazette (the Journal officiel de la République du Congo). The Official Gazette is where laws, administrative regulations, and some government decisions are published. The different issues of the Official Gazette are accessible and on sale on the Official Gazette’s website.
Second, useful information on Congolese commercial law is available on the website of Droit-Afrique.com. The Natlex website of the International Labor Organization has a section on Congolese law that contains 41 pieces of legislation and a greater number of labor-related laws. Fourth, there is some legal information on the official Congolese government portal and on the website of the Centre d’études stratégiques du bassin du Congo (CESBC).
Lastly, the Clinique Juridique de Bacongo has written a few reader-friendly guides on civic rights and duties, marriage law and divorce law, family law, succession law, women’s rights, and human rights.
France’s largest publisher, L’Harmattan, publishes many books, monographs, periodicals and articles on Congolese law. One notable legal periodical is Revue congolaise de droit et des affaires, which gives in-depth analyses of applicable laws in the Congo.
However, very few of those printed resources are written in English. Below is a sample of the leading treatises (in French) on Congolese law.
· Adouki, Delphine & Mario Bettati. Le Congo et les traités multilatéraux (L’Harmattan 2008).
· Amboulou, Hygin Didace. Le divorce et la séparation de corps en droit congolais (L’Harmattan 2011).
· Amboulou, Hygin Didace. Le droit des collectivités locales au Congo (L’Harmattan 2010).
· Amboulou, Hygin Didace. Les libéralités et les successions en droit congolais (L’Harmattan 2009).
· Amboulou, Hygin Didace. Les personnes, les incapacités et la filiation en droit congolais (L’Harmattan 2013).
· Amboulou, Hygin Didace. Pratique et déontologie notariales en droit positif : Congo Brazzaville (L’Harmattan 2012).
· Amboulou, Hygin Didace. Traité congolais de droit pénal et de procédure pénale (L’Harmattan 2012).
· Amboulou, Hygin Didace. Traité congolais de procédure civile, commerciale, administrative, financière et des voies d’exécution (L’Harmattan 2012).
· Clinique Juridique du Bacongo. Le guide du citoyen (La Clinique Juridique du Bacongo).
· Droit-Afrique. Congo – Code général des impôts 2012 (Droit-Afrique.com 2012).
· Gamba-Nasica, Christine. Le droit du divorce au Congo (L’Harmattan 2004).
· Gamba-Nasica, Christine. Le droit du licenciement au Congo (L’Harmattan 2000).
· Iloki, Auguste. Le droit des parcelles de terrain au Congo : l’immatriculation des parcelles de terrain (L’Harmattan 2012).
· Iloki, Auguste. Le droit des parcelles de terrain au Congo : droits fonciers coutumiers (L’Harmattan 2010).
· Iloki, Auguste. Le droit des successions au Congo : le partage des biens. Les droits des héritiers et de l’état. L’option des héritiers (L’Harmattan 2006).
· Iloki, Auguste. Le droit des successions au Congo : l’ouverture de la succession. La qualité d’héritier. Les biens indivis (L’Harmattan 2006).
· Iloki, Auguste. Le droit du mariage au Congo : le pré-mariage. Le mariage à l’état civil (L’Harmattan 2008).
· Iloki, Auguste. Le recours pour excès de pouvoir au Congo (L’Harmattan 2003).
· Kebi-Mounkala, Antoinette. Droit congolais de la famille : filiation, régimes matrimoniaux, successions et libéralités (L’Harmattan 2008).
· Kianguebeni, Ulrich Kévin. Le droit du patrimoine culturel congolais (L’Harmattan 2012).
· Makosso, Anatole-Collinet. Droit de regard – témoignage d’un messager du Congo-Brazzaville (L’Harmattan 2005).
· Markus, Jean-Paul & Placide Moudoudou. Droit des institutions administratives congolaises (L’Harmattan 2005).
· Matokot, Ounimé Fred Jonas. Droit civil congolais (Cesbc Presses).
· Moudoudou, Placide. Droit administratif congolais (L’Harmattan 2003).
· N’Gaka, Pierre. Système de protection sociale au Congo Brazzaville (L’Harmattan 2011).
· N’Gaka, Pierre. Le droit du travail au Congo-Brazzaville (L’Harmattan 2006).
· Nguila, Paulin. Traité de droit congolais de la fonction publique (L’Harmattan 2007).
· Obenga, Théophile & Denis Sassou N’Guesso. Histoire générale du Congo, des origines à nos jours : le Congo moderne (L’Harmattan 2010).
· Olombi, Jean-Claude. La profession d’huissier de justice au Congo (L’Harmattan 2008).
· Olombi, Jean-Claude. Le commissaire-priseur judiciaire : statut, organisation professionnelle et responsabilité (L’Harmattan 2009).
· Yenga, Roger. Connaître le Conseil supérieur de la liberté de communication (Publibook 2007).
· Yenga, Roger. La Constitution du 20 janvier 2002 et le régime politique de la République du Congo (Publibook 2007).
· Yenga, Roger. Le droit de la nationalité (Le Manuscrit 2008).