The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview
by Dunia Zongwe, Francois Butedi and Clement Phebe
Dunia Zongwe is a fellow of the Institute for African Development at Cornell University. He holds a law degree from the University of Namibia (2006). He currently studies towards his LLM at Cornell Law School (2008) where he is writing a thesis on human rights and the exploitation of mineral resources in the Democratic Republic of Congo (DRC).
Francois Butedi is a Congolese legal advisor and human rights activist with considerable experience in the courts of the DRC. The non-governmental organization (NGO) for which he works advised the government on several pieces of legislation and was actively involved in training and monitoring during the historic 2006 presidential and legislative elections in the DRC. He holds a law degree from the University of Kinshasa (2002) and is now reading for his LLM in Human Rights and Constitutional Practice at the University of Pretoria in South Africa.
Clement Phebe was assistant lecturer at the University of Kinshasa where he obtained a law degree. He also has an LLM in Human Rights and Democratization in Africa from the Centre for Human Rights at the University of Pretoria and is currently a PhD candidate at the Oliver Schreiner School of Law at the University of The Witwatersrand.
Read the Update!
Table of Contents
1. Introduction: An historical background
The Democratic Republic of Congo (DRC), formerly known as Zaїre, straddles the equator and is located in Central Africa. With the Congo River in the West, a low-lying plateau in the centre and mountains in the East, the DRC, which is roughly one-fourth the size of the United States, is a vast country endowed with fabulous natural wealth.
The first inhabitants of the DRC were the Pygmies. Pygmies (locally known as ‘Batwa’ or ‘Twa’) lived in small groups on the outer limits of the Equatorial forest and in other parts of the DRC. Subsequently, a second group, the semi-Bantus, entered the DRC from the North West and established small kingdoms. The semi-Bantus attempted to subjugate the Pygmies, but the Pygmies fled deeper into the Equatorial forest. A third group, the Bantus, arrived in the DRC from the North, went round the forest, and settled almost everywhere in the DRC. They would either subjugate or chase the Pygmies and the semi-Bantus.
The migration of Bantus in the DRC lasted five centuries. They founded kingdoms and empires, including the Kongo, Kuba, Lunda, and Luba kingdoms. Today, the descendants of these Bantu tribes still make up the majority of the Congolese people, estimated to be 60 million.
Congo’s history as a state has three milestones. First, the 1884-85 Berlin Conference consecrated the creation of Congo as a free state. Notwithstanding its creation as ‘Congo Free State’, the then Congo was actually the sole property of the Belgian king, Leopold II. In 1908, following the wishes of Leopold II, as expressed in his will, Belgium annexed Congo. The country became ‘Belgian Congo’, a colonial territory. Finally, on 30 June 1960, Congo gained its independence from Belgium, with Joseph Kasavubu as President and Patrice Lumumba as Prime Minister.
Shortly after Independence, however, conflicts and civil strife marred Congo. Lumumba was assassinated on 17 January 1961. Later, on 24 November 1965, Mobutu Sese Seko, staged a coup d’État. Under Mobutu’s rule, the country experienced a brutal dictatorship, the upsurge of corruption and the collapse of public service. On 17 May 1997, a rebellion – backed by Burundi, Rwanda, and Uganda, and which Laurent Désiré Kabila started earlier in October 1996 – toppled Mobutu. After Kabila decided that his Rwandan and Ugandan allies had to leave the country in August 1998, another armed conflict and civil war erupted. Though a cease-fire agreement was signed in Lusaka as early as July 1999, all parties to the agreement violated it. President Laurent Désiré Kabila, while fighting a civil war that had broken out in August 1998, was assassinated by one of his bodyguards on 16 January 2001. His son, Joseph Kabila, was named head of state. In December 2002, all warring parties signed in Pretoria a peace accord, known by its French title as ‘Accord Global et Inclusif’, in order to end the fighting. Admittedly, the 1996-1997 and the 1998-2003 Congolese civil wars and armed conflicts are the deadliest after World War II, causing directly and indirectly the death of 3.5 million people. A transitional government was set up in July 2003. The transitional government successfully organized a constitutional referendum for the adoption of a new Constitution (on 18 and 19 December 2005) and elections for the presidency, national assembly, and provincial legislatures in 2006. Kabila promulgated the new Constitution on 18th February 2006. In December 2006, Kabila was inaugurated President and a new government formed on 7 February 2007. However, the ongoing insecurity and humanitarian disaster in eastern DRC have frustrated expectations that with elections will start peace and stability.
The DRC is a civil law country and as such the main provisions of its private law can be ultimately traced back to the 1804 Napoleonic Civil Code. More specifically, the Congolese legal system is primarily based on Belgian law. The general characteristics of the Congolese legal system are similar to those of the Belgian legal system because the DRC received its law from the Belgian colonialists.
Customary or tribal law is another basis of the legal system of the DRC, where the majority of people live in rural areas. The various local customary laws regulate both personal status laws (like marriage and divorce laws) and property rights, especially the inheritance and land tenure systems in the various traditional communities of the country.
The Congolese legal system may be divided in three branches, namely public law, private law and economic law. Public law regulates legal relationships involving the state or state authority; private law regulates relationships between private persons; and economic law regulates interactions in such areas as labor, trade, mining and investment.
Overall, notwithstanding significant policies and legal reforms the government has formulated and adopted factors such as the lack of infrastructure, weak institutional capacity, and corruption undermine the effectiveness, stability and predictability of the legal system.
The distinction between public law and private law is fundamental in the Congolese legal system. Public law (droit public) – which includes constitutional law, administrative law, tax law, criminal law and the organization of the judiciary – regulates relationships to which the state, or a subdivision of the state, is a party. Public law thus regulates relationships between public bodies and private persons and between public bodies inter se.
The 18th February 2006 Congolese Constitution is the fundamental, supreme law of the DRC. The Constitution provides for both institutional law and human rights law.
In terms of the Constitution, the DRC is, short of a federal state, a highly decentralized unitary state. The Constitution establishes a government and a legislature at both national and provincial levels. However, in practice, the establishment of local governments and assemblies is yet to be completed.
The Congolese Constitution provides for a clear separation of powers and checks and balances. The President, elected by universal suffrage, serves a term of five years, renewable only once. He is the guardian of the Constitution, national independence, territorial integrity, and national sovereignty. He ensures the performance of international treaties entered into by the state and the running of national institutions, together with the government. The Constitution obliges the President to co-operate with the Prime Minister in the areas of foreign affairs, security and defence. These areas were previously the exclusive preserve of the President.
The Prime Minister leads the government and national policy, which he formulates in consultation with the President. The Prime Minister is accountable to the parliament, which has the power to sanction him by a motion of censure. The parliament can also sanction individual ministers by means of a no confidence vote.
The national assembly and the senate acting collectively (i.e. the congress) have the power to institute legal action in the Supreme Court of the DRC against the President and the Prime Minister for high treason. When established, the Constitutional Court will have exclusive jurisdiction to hear and determine such legal actions. Whereas the parliament enjoys legislative supremacy and the power of oversight over the executive, parliamentarians are not above the law: Their immunity can be waived and the President can dissolve the national assembly in cases of persistent conflict between the national assembly and the executive.
Finally, the Constitution ensures the independence of the judiciary. The judiciary is currently undergoing several reforms to comply with new constitutional requirements. The Constitution streamlines the judicial system and organizes it into three major jurisdictions, to wit, the judiciary, the administrative and the constitutional jurisdiction.
The Congolese Constitution also protects human rights. Drawing from the African Charter on Human and Peoples’ Rights which the DRC has ratified on 20 July 1987, the Constitution protects the three generations of human rights (civil and political; social, economic and cultural; and peoples’ rights) and imposes individual duties on citizens.
Administrative law is the branch of public law that defines and regulates public administration. Article 193 of the Constitution defines the administration as comprising the civil service as well as all affiliated organs and services. Administrative law thus applies to, among other areas, the management and delivery of public services, tenders and the status of civil servants. The Constitution also provides that the Congolese public administration is apolitical, neutral, and impartial. Further, article 194 of the Constitution mandates the state to enact important legislation (loi organique) on the organization, function of national, provincial and decentralized administrative entities. The government is in the process of modernizing the public administration, decentralization being a most important and challenging reform that the government has embarked upon.
Administrative law is closely related to constitutional law because administrative law concerns itself with administrative efficiency and the respect by the Congolese administration of the citizens’ fundamental rights, as provided for in title II of the Constitution. However, it is not always easy to distinguish between constitutional and administrative law.
The major sources of administrative power are the Constitution, primary legislation (loi organique or loi ordinaire) and subordinate legislation like ministerial regulations, decrees (décrets-loi) or municipal by-laws, and general principles of administrative law. The Court of Appeals (Cour d’Appel) and the Supreme Court have developed through interpretation some of these principles (principes de bonne administration), which the administration must respect in the administrative process. The Court of Appeals and the Supreme Court have developed these principles in spite of the absence of legislation elaborating on them.
Although the 2006 Constitution ushers in a new administrative law regime with specialized administrative courts, the DRC has not yet set up a system of administrative courts. The administrative section of both the Court of Appeals and the Supreme Court continue to adjudicate upon administrative law disputes.
There are at least two different types of administrative acts in Congolese law.
1. Unilateral administrative acts
The administration imposes its will to the people for which reason the action of the administration is said to be unilateral in nature. Developed by doctrinal writings, these acts, which can be written or unwritten, are grouped in two categories. The first category encompasses unilateral administrative acts defined in terms of the procedure for adopting, and the administrative bodies or officials performing, these acts (classification formelle). The second category encompasses unilateral administrative acts defined in terms of their contents (classification matérielle).
2. Bilateral administrative acts
Bilateral administrative acts are contracts which administrative bodies may conclude. These contracts may be private or public. In private contracts, the administrative body is but a private person in a commercial transaction. Ordinary courts mediate disputes arising from such contracts. In public contracts (contrats administratifs), on the other hand, the administrative body or official acts with state authority. For instance, the state enters into several public contracts in the area of government procurement. Administrative judges in the Court of Appeals or the Supreme Court mediate disputes arising from public contracts.
The fundamental principles of administrative law in the DRC are the principle of citizens’ equal access to public services (equality), the principle of legality of administrative acts, and the principle of continuity of public services.
An important principle is the principle of administrative legality, which requires the administration to abide by the rules particular to the type of administrative acts that a certain administrative body performs.
Another general principle of law prevents administration from performing retroactive administrative acts. However, there are certain exceptions to this legal principle. An administrative decision may be retroactive if the law explicitly or implicitly envisages it. The nature of certain decisions and certain situations may also require retroactivity.
In addition, administrative law has conferred on the administration two special privileges. The first privilege, ‘privilège du préalable’, empowers the administration to issue to itself the enforceable instruments it needs in order to fulfil its missions. This power enjoys a rebuttable presumption of legality. The onus is on citizens or other person aggrieved by the exercise of that power to prove that the administration acted unlawfully.
The second privilege, ‘privilège de l’exécution d’office’, empowers the administration to enforce acts it has itself adopted against the persons concerned.
A valid administrative act requires that the author of the administrative act have competence in terms of the subject matter (ratione materiae), in terms of geographical restrictions (ratione loci), and time requirements (ratione temporis). The general principle is that the administrative body or official entrusted with administrative power (compétence d’attribution) is the only person entitled to perform an administrative act.
Moreover, in order for an administrative act to be legally binding, the administration must first enact it. Second, the administration must publish the act after it has enacted it. Different additional publication requirements apply depending on the nature of the administrative act.
Administrative controls and judicial reviews of administrative acts are established to ensure compliance with the principle of legality of administrative acts. Administrative controls are internal in that they operate inside the administrative structure whereas judicial reviews are external in that they operate on the initiative of the citizens or other persons aggrieved by an administrative act. One must exhaust administrative controls before one can resort to the judicial review of an administrative act.
Administrative controls entail first demanding that the administrative official who performed the administrative act review her own decision (recours administratif gracieux) and second demanding that a superior official within the same administrative body review the act of the official who performed it (recours administratif hiérarchique).
Should the administrative controls fail, the aggrieved party can commence legal action before the competent courts (contrȏle juridictionnel).
Congolese criminal law, which is mainly set out in the 1941 Penal Codes, can be divided in two parts: The ordinary Penal Code for civilians and the Penal Code for the military. The corresponding Code of Penal Procedure and the Code for the Military Penal Procedure, respectively, ensure the implementation of the ordinary and the military penal codes. Over and above the Penal Codes, specific criminal legislation covers additional acts in branches of Congolese law other than criminal law. Criminal legislation also covers attempts to commit a crime; recidivism; concurrence; participation of several persons in a crime; justification grounds and grounds of excuse; extenuating circumstances; and extinction of punishments.
Unlike Belgian and French law, Congolese law does not differentiate between felonies (crimes), misdemeanours (délits), and contraventions (contraventions). Congolese law refers to violations of the criminal or penal law, whether ordinary or military, as infraction (infraction).
There are several fundamental principles of criminal procedure, some of which are set out in the Constitution. These principles include guarantees of due process during arrest and detention, the prohibition of retroactive laws, the presumption of innocence, and the right to a fair trial.
Conduct defined as crimes under criminal law can also constitute a civil wrong, which in turn can give rise to a claim for damages. A victim wronged by such conduct has two options. The victim can file an action before the public prosecutor’s department (le Parquet) contemporaneously with criminal proceedings. Alternatively, the victim can file a separate action before the civil courts and tribunals (cours et tribunaux) independently from the criminal proceedings. However, in order to avoid mutually inconsistent outcomes in both proceedings, a separate action for damages before the civil courts will cause a stay of the civil proceedings until the criminal court issues a final judgment under the criminal proceedings. The choice of forum has important implications for the applicable rules of procedure.
As far as the initiation of the proceedings is concerned, the victim can file an action for damages by filing a complaint with a magistrate’s court. The magistrate court’s judge (magistrat assis) is generally passive and thus does not have the power to conduct investigations. The general principle in criminal law is that prosecution is at the instigation of the state, represented in court by a public prosecutor (officier du ministère public or magistrat debout). Except for crimes, the victim may also directly assign the perpetrator before the court by way of a writ of summons. However, the use of writ of summons does not imply that the victim can prosecute the defendant. Only the officier du ministère public can prosecute people for violations of criminal law.
Before he or she can file a civil claim for damages, the plaintiff must have standing. The plaintiff must have quality and interest to act. The first requirement is that only people harmed by the conduct which gave rise to the claim for damages can file an action for civil claim. The second requirement is that the plaintiff must have an interest, that is a material or moral benefit deriving from the civil claim for damages and which can redress the plaintiff.
While public law governs relationships to which the state is a party, private law (droit privé) governs relationships between private persons, whether natural or juristic. The main aspects of private law are covered by the Civil Code.
Although not part of private law in the strict sense, economic law may be regarded as part of private law. Actually, economic law – which includes commercial law and other areas such as employment law, mining law and insurance law – is mixed in the sense that it exhibits features of both private law (predominantly) and public law.
Three books make up the Congolese Civil Code: The first book is the Family Code (droit civil des personnes), the second book is on property law (droit civil des biens) and the third is on the law of obligations (droit civil des obligations). The purpose of the Code is to implement the publication, effects and the application of the laws in general. Each book of the Code divides into titles, which in turn sub-divides into chapters, and sometimes chapters are further subdivided into sections. The basic legislative units of the Civil Code are the articles, which are characteristically short, often not exceeding more than eight or 10 words. There is an ethical and moral thread woven through several provisions of the Code. Effectively, the Code states that no derogation is allowed, by way of private conventions, from statutes which affect public order or good morals.
The first book is the Family Code. The Family Code addresses issues relating to status, legal capacity, domicile, marriage, inheritance, succession, and certain aspects of private international law. The second book of the Civil Code provides for matters relating to the acquisition, enjoyment, loss of movable and immovable property as well as other ancillary aspects, like usufructs and servitudes.
The third book deals with the law of obligations (obligations in general, including contract, quasi-contract and tort) and touches on topics like partnerships, gifts, marriage settlements, wills, and intestate succession. In addition, it covers sales, leases, other special contracts, as well as mortgages, liens, pledges and prescription.
The organization of the judiciary is in transition. To understand the existing and the projected organization of the judiciary in the DRC, one must distinguish between the judiciary as it currently stands and as it is contemplated by the 2006 Congolese Constitution.
The Supreme Court (Cour Supreme de Justice) is the highest court in the DRC. The Supreme Court has three sections: Administrative, legislation and judiciary. The Supreme Court is connected to the national department of public prosecutions (Parquet General de la République). ‘Connected’ means that, while the court is independent, the parquet is responsible for instituting prosecutions in criminal cases.
Second, the state security court (Cour de la Sȗreté de l’Etat) has jurisdiction to hear and determine questions relating to the security of the state.
Third, the Court of Appeals (Cour d’Appel) has two sections: Administrative and judiciary. The Court of Appeals is connected to another department of public prosecutions (Parquet General).
Fourth, the Tribunal de Grande Instance is a court with a wide jurisdiction and connected to a department of public prosecutions (Parquet de la République).
Fifth, magistrates’ courts (tribunaux de paix) are the only ones with the power to conduct investigations because they are not connected to any department of public prosecutions. They also have jurisdiction over disputes previously heard and determined by customary courts (tribunaux de zone).
Finally, traditional leaders (chefs coutumiers), though not part of the formal judicial system, are involved in the mediation and settlement of disputes in traditional communities.
As far as military courts are concerned, the highest court is the Military High Court (Haute Cour Militaire). The lower military courts are, in descending order of jurisdictional reach, cours militaires and cours militaires opérationnelles, tribunaux militaires de garnisons, and tribunaux militaires de police.
The 2006 Congolese Constitution dramatically re-arranges the judiciary. In terms of the Constitution, a judicial service council (Conseil Supérieur de la Magistrature) is responsible for the administration of justice. The judicial service council is composed of judicial officers and public prosecutors, but an amendment bill, introduced in the national assembly of the Congolese parliament on 5 November 2007, for a change in the composition of the council have ignited heated debates. The bill amends the Constitution so as to include the President, the minister of justice and independent personalities from the civil society into the judicial service council. The debates have pitted those who say that the amendment threatens the independence of the judiciary against those who say that the amendment will prevent a profound institutional crisis.
In order to improve effectiveness, specialization, and speedy justice, the Constitution divides the judicial system in three jurisdictions, ordinary or judiciary (i.e. civil and criminal), public law or administrative, and constitutional. The highest court in ordinary, including military, matters is the Court of Cassation (Cour de Cassation); the highest court in public law/ administrative matters is the State Council (Conseil d’Etat); and the highest court in constitutional matters is the Constitutional Court. Some of these courts, like the Constitutional Court and State Council, do not yet exist but the ongoing reforms in the judiciary aim at adjusting the existing court system to the one contemplated by the Constitution.
The Constitution connects these courts to certain public prosecutors (procureurs, magistrats de parquet and auditeurs militaires). For instance, the Constitution connects the Constitutional Court, the Court of Cassation and the State Council, to the procureur géneral près la Cour constitutionelle, the procureur géneral près la Cour de cassation and the procureur géneral près le Conseil d’État, respectively.
Legal education in the DRC takes five years to complete, after having finished secondary school. Thus, most students enrolling in the faculty of law of Congolese universities are between 17 and 21 years of age. Law students generally have a common curriculum the first years of their legal education and have in later years more freedom to choose the courses for which they would like to enrol. Generally speaking, law lecturers do not use the Socratic methodology. Instead, they impart legal knowledge in an authoritative manner without much interaction with the students. In addition, evaluation generally consists in writing examinations scheduled for the end of the semester, the year or a shorter period, depending on the availability of lecturers.
After the first three years, law students obtain a degree (graduat), which allows the holders of the degree to appear in court, from the Tribunal de Grande Instance down, on behalf of people as public defenders (défenseurs judiciaires).
Unlike some civil law countries, the Congolese legal education is not organized in two separate specializations, namely the avocature (specialization to become an advocate) and the magistrature (specialization to become a judge). The basic law degree (licence) entitles its holders to practise as judges or advocates, as they may wish.
Since the early 1990s, the Congolese government has liberalized education. This liberalization means that private universities like the Université Protestante du Congo (UPC) can offer degrees in law. Although law graduates from any university in the DRC can legally work in the judiciary, in practice, however, the government usually considers for appointments as judges only law students from state universities, notably the Université de Kinshasa (UNIKIN) and the Université de Lubumbashi (UNILU).
Restricted access to legal resources in particular and the unreliability of information systems in general characterize legal resources in the DRC. Effectively, with the exception of practising lawyers, very few people are able to access legal information readily or ascertain which laws have come into force and which ones have been repealed. In addition, most printed and online resources are only infrequently published and updated.
The principal legal publication of the DRC is the Journal Officiel, which is the government gazette, wherein the Congolese government publishes all its laws. The Faculty of Law of the Université de Kinshasa also publishes a periodical on Congolese law, namely the Revue Juridique de Droit Congolais.
Occasionally, the Presses Universitaires de Kinshasa (Kinshasa University Presses) publishes books on Congolese law. But the dearth of resources means that publication of these books is irregular.
In the early 2000s, cooperation between the Belgian government (through the Centre Wallonie-Bruxelles) and the Congolese government resulted in the publication of all the major codes of the DRC by the Larcier Éditions, a legal publisher in Belgium. The Larcier Éditions published Les Codes Larcier. These Larcier codes, organized in seven tomes, cover the major areas of Congolese law and all the major codes in those areas.
The vast majority of printed legal resources on the Congolese legal system are written in French. There is no known introductory book on Congolese law written in English.
Most government institutions do not have a website. Although there are not many Internet resources for Congolese law, two sources are commonly used. The first source is Congolegal. Congolegal is probably the most useful online resource for electronic versions of existing Congolese codes and other pieces of legislation.
The second source is Juricongo. Juricongo is another important online resource but it is not free and not as resourced as Congolegal.
Several Congolese legal instruments are scattered over a myriad of websites. Useful sites include the Agence National pour la Promotion des Investissements, Mission des Nations Unies au Congo (MONUC), and the UNDP.