: 
UPDATE:
The Legal System and Research of the Democratic Republic of Congo (DRC): An
Overview
By Dunia Zongwe, François
Butedi and Phebe Mavungu Clément
Dunia Zongwe [[1]] is
a former graduate fellow of the Institute for African Development at Cornell
University. He holds an LL.M. from Cornell Law School (2008) and an LL.B. from
the University of Namibia (2006). He is a doctoral candidate at Cornell Law
School where he is writing a dissertation on foreign direct investments in
mining and infrastructure in Africa.
François Butedi is a Congolese legal advisor and human rights defender
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 completed his LL.M. in Human
Rights and Constitutional Practice at the University of Pretoria in South
Africa. He now works in human rights advocacy in the Southern African region.
Phebe Mavungu Clément is assistant lecturer at the University of
Kinshasa where he obtained his first law degree. He has an LL.M. in Human
Rights and Democratization in Africa from the Centre for Human Rights at the
University of Pretoria. He is currently the Legal Officer at the Africa
Regional Program of the International Commission of Jurists as well as a Ph.D.
candidate at the Oliver Schreiner School of Law at the University of The
Witwatersrand.
Published August/September 2010
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the Archive Version!
Table of Contents
1.
Introduction: An historical background
2.
Overview of the Congolese
legal system
4.1.2.
Fundamental principles and privileges
4.1.4.
Validity and control of administrative acts
4.2. Key administrative
institutions
5.2. Fundamental principles of criminal procedure
7.1. Constitutional provisions
8.1. The existing court system
8.2. The court system as set out in the Constitution
8.2.1. The judicial service council
8.2.2. The Constitutional Court
8.2.3. The Court of Cassation and the State Council
PART IV Education and research
10.3.1.
Books and nonperiodic materials
10.3.2.
Articles and periodical materials
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 (country
profile).
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 70 million in June 2010. The DRC comprises no less than
450 ethnic groups.
Congo’s
history as a state has three milestones. First, the 1884-85 Berlin Conference
consecrated the creation of Congo as a ‘free state’. A colonial charter (Charte de l’État Indépendant du Congo)
served as a constitution for the newly created state of the Congo.
Notwithstanding its creation as ‘Congo Free State’, the then Congo was actually
the sole property of the Belgian king, Leopold II. Systematic violence, massive
forced labor and the extermination of millions of innocent Congolese were the
hallmark of King Leopold II’s horrid rule in the Congo. In 1908, following the
wishes of Leopold II, as expressed in his will, Belgium annexed Congo. The
country became ‘Belgian Congo’, a colonial territory. Another colonial charter
replaced the older charter as the fundamental law of the Congo. 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 by ousting Kasavubu. Under Mobutu’s rule, the
country experienced a brutal dictatorship, the upsurge of corruption and the
downfall of public service. On 17 May 1997, a rebellion – backed by
Burundi, Rwanda, and Uganda, and which Laurent Désiré Kabila had 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 erupted. Though a cease-fire agreement was signed in Lusaka as
early as July 1999, all parties to the agreement violated it.
Admittedly,
the first (1996-1997) and the second (1998-2003) Congo civil wars are the
deadliest after World War II, causing directly and indirectly the death of more
than 5 million people . For more information look here . In particular, during the second Congo war, often
referred to as ‘Africa’s World War,’ Uganda and Rwanda each backed a major
rebel group in Congo. Angola, Namibia, Zimbabwe, Chad and Libya intervened to
support the government of Laurent Kabila in his fight against rebels in the
Congo.
President
Laurent Désiré Kabila, while fighting the 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.
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. Joseph Kabila
promulgated the new Constitution on 18 February 2006. In December 2006, Joseph
Kabila was inaugurated President after winning the second round of the
presidential elections. He formed a new government on 7 February 2007.
In spite of the country’s
reunification and the holding of democratic elections, the pro-Rwandan rebel
group, Congrès National pour la Défense
du Peuple (CNDP), led by renegade Tutsi General Laurent Nkunda, still
controlled large areas of the northeastern province North Kivu. The continued
fighting between government soldiers and CNDP rebels enabled widespread sexual
violence against hundreds of thousands of girls and women in eastern Congo by
rebels (mainly) and government soldiers.
In
a sharp reversal of situation, the Congolese government invited in the opening
weeks of 2009 the Ugandan and South Sudanese armies, and later the Rwandan
army, to help quash the Ugandan and Rwandan rebels on Congolese soil. These
dramatic geopolitical developments, especially the restoration of Congo-Rwanda
diplomatic relations, palpably improved the security situation in eastern
Congo, although pockets of insecurity and the concomitant violence persist.
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
law or tribal law is another basis of the legal system of the DRC, where 60% of
the population lives in rural areas. The various local customary laws regulate
both personal status laws (like marriage and divorce laws) and property rights,
particularly the inheritance and land tenure systems, in the various
traditional communities of the country. Even though the Constitution
subordinates customary laws to state laws, customary laws settle 75% of
disputes in the Congo. [[2]] ‘Customary law’ does not refer to a body of rules
based merely on usages and practices that have acquired over time the character
of law. Rather, it refers to a general normative system enacted by legitimate
law-making organs (i.e. patriarchs, family councils, clan councils, and
traditional or tribal chiefs). That normative system is
‘customary’ not because it results from customs but because it finds expression
in or through them. [[3]] In
other words, customary laws derive their authority from a legitimate law-making
organ and exist independently of the individuals whose behavior they regulate.
This characteristic of customary laws implies that, unlike state laws,
ethnographic studies, as opposed to the traditional legal research
methodologies, are necessary to ascertain the content of a given customary law.
Another distinctive characteristic of customary laws is they do not have
general application as they only apply to the traditional communities from
which they originate.
Congolese
law draws its substance from at least seven sources, namely the Constitution,
international treaties, legislation, administrative regulations, custom, case
law, and doctrinal writings. At the apex of the legal system, the 2006
Congolese Constitution is the first source of law. It is the fundamental and
organic law of the Congo, with three components. It sets up the institutions
and the apparatus of government, defines the contents and limits of government
powers, and protects fundamental human rights and freedoms.
International
treaties and agreements are the second source of law. By virtue of article 215
of the Constitution, international law is a third basis of the Congolese legal
system. Treaties and international agreements that the DRC duly concluded must,
upon publication in the government gazette Journal
Officiel, prevail over Congolese legislation. Article 215 confirms the
status of the Congolese legal system as monist. Article 214 and 216 limit the
operation of article 215 of the Constitution by subjecting the application of
international law in the DRC to the Constitution and requiring domesticating
legislation for specified types of international treaties. Notwithstanding
that, application of international law is rare, military courts have relied on
article 215 to apply international law in a handful of recent cases. [[4]]
Legislation
is a third source of law. The Constitution distinguishes between organic laws
and ordinary laws. Unlike ordinary laws (Lois
ordinaires), organic laws (Lois organiques)
are a particular kind of legislation that organizes important areas of national
life and requires absolute majorities to be passed and amended. The fourth
source of law is administrative regulations. The Constitution confers on the
President and the Prime Minister the power to issue administrative regulations,
which power they exercise by means of ordinances. Ministers and other
administrative officials also have the power to issue ministerial and other
regulations. Often viewed as the oldest source of law, custom (la coutume) consists of usages that have
acquired the character of law after they have been widely observed over a long
period of time by individuals who subjectively see them as binding.
Case
law or judicial precedents (la
jurisprudence) do not constitute a binding source of law, even if they
carry persuasive authority. The
same holds true for doctrinal writings (la
doctrine). The writings of individuals whose job is to study the law (e.g.
professors, judges, legal practitioners, etc.) are not a binding source of law;
they only enjoy persuasive authority.
The Congolese legal
system may be divided in three branches: Public law, private law and economic
law. Public law regulates legal relationships involving the state; private law
regulates relationships between private persons; and economic law regulates
interactions in such areas as labor, trade, finance, mining and investment.
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.
Overall,
notwithstanding significant government policies and legal reforms, factors such
as the lack of infrastructure, weak institutional capacity, and corruption
undermine the effectiveness, stability and predictability of the legal
system.
The
18th February 2006 Congolese Constitution is the
fundamental organic law of the DRC. It heralds the Third Republic. In the
decades before the promulgation of the 2006 Constitution, the DRC had passed a
number of constitutions and constitutional laws. Some of these fundamental laws
were tailor-made to suit the government of the day, some had not been applied,
and others had altogether been ignored by persons whose primary obligation was
to apply them. For the Third Republic, the Senate proposed, the National
Assembly adopted, the Congolese people approved during the constitutional
referendum organized in December 2005, and the President promulgated, the
Constitution in 2006. And in order to guard the democratic principles contained
in the 2006 Constitution against political vicissitudes and untimely
amendments, the Constitution entrenches some of its provisions. The republican
form of the state and representative form of the government, the principle of
universal suffrage, the number and duration of presidential terms, the independence
of the judiciary, political pluralism, and freedom of association, may not be
subject to any amendment (article 220). The Constitution entrenches these
provisions by setting up an amendment procedure that requires either a national
referendum or a super-majority (three fifths) of both houses of parliament,
voting collectively as a congress (article 218). In March 2010, a bill has
introduced in the National Assembly for the amendment of certain constitutional
provisions on decentralization and elections.
The 2006 Constitution is
the latest installment in a long, painful and turbulent series of attempts to
define and redefine the Congolese state. The first act took place from 20
January to 20 February 1960 in Brussels, Belgium, where various stakeholders
participated in a historic conference, the Conférence
de la Table Ronde. Representatives of Congolese political parties and
traditional communities as well as representatives of the Belgian government
and parliament attended the Conference. The representatives decided on the date
of Congo’s Independence and adopted a series of resolutions on the organization
of the future state of the Congo and on the transitional legal regime that
would obtain before Independence on 30 June 1960.
The second act in Congo’s
constitutional history took place after the country’s Independence and in the
midst of major political upheavals. After the secession attempts of the Katanga
and South Kasai provinces in 1960, the assassination of Independence Prime
Minister Patrice Lumumba in 1961 and a rebellion in 1964, the Congolese people
adopted a constitution, commonly known as the Lualabourg Constitution, on 1
August 1964. The Lualabourg Constitution, the First Republic constitution, was the
first constitution written by Congolese and submitted to a constitutional
referendum in 1964.
On 24 November 1965, Mobutu
staged a coup d’État. That date marked the
introduction of a long dictatorship, the radical curtailing of fundamental
constitutional rights, and the creation of a one-party state in the Congo.
Mobutu promulgated on 27 June 1967 a new constitution for the Second Republic,
also known as the Constitution
Révolutionnaire (revolutionary constitution). Even though the 1967
Constitution was also submitted to a referendum, it had been amended several
times. For instance, it provided for at least two political parties but in
practice, there was only one political party, Mobutu’s Mouvement Populaire de la Révolution (M.P.R.). On 27 October 1971,
Mobutu renamed the country ‘Zaϊre’ and the country retained that name
until 17 May 1997, when Laurent Kabila reverted the name of the country to the
‘Democratic Republic of Congo.’
After the Fall of the Berlin Wall in 1989, Congo’s external partners
exerted pressure on Mobutu – a key player in Africa during the Cold War
– to open up political space in Congo. In February 1991, a national
conference (Conférence Nationale
Souveraine) began work and initiated a project for a new constitution for
the future Third Republic. The start of the national conference is a watershed
as it is also the start of the transitional period in Congo’s constitutional
history. On 9 April 1994, the then Congolese government adopted a Constitutional
Act. The national conference also produced a constitution, but it
would never be implemented such that the 1994 Constitutional Act applied until
17 May 1997.
From 1996 to 2003, the
DRC was in the throes of two civil wars. In May 1997 upon deposing Mobutu,
Laurent Désiré Kabila issued a decree-law that performed the function of a
constitution (decree-law
003/97). On 17 December 2002, a year after Laurent Kabila’s
assassination by one of his bodyguards, Congolese political parties and
belligerents signed a peace agreement sponsored by the international community,
the Accord Global et Inclusif , in Pretoria, South Africa. The 2002
Pretoria peace agreement established a constitution of national unity, the
Transition Constitution. The Transition Constitution laid down a few
fundamental principles that have been carried over in the current Congolese
Constitution, such as the unity of the country and several fundamental human
rights and freedoms.
Joseph Kabila promulgated
the Constitution of the Third Republic on 18 February 2006; and his
inauguration as President, after his victory in the presidential elections, in
December 2006 formally ended the decade-long period of transition that started
in 1991. The 2006 Congolese Constitution provides for institutional law, and
human rights law.
The
Constitution’s Exposé des Motifs [[5]]
explains that one of the fundamental causes of
the recurrent political crises that the DRC has been confronted with since
Independence on 30 June 1960 were the challenges relating to the legitimacy of
the country’s political institutions and actors. The wars that lasted from 1996
to 2003 put those challenges in sharp relief. It is that chronic legitimacy
crisis suffered by political institutions that the framers of the Congolese
Constitution intended to end when they negotiated, drafted and adopted the
Constitution.
The
2006 Constitution defines the DRC as an independent state, united and
indivisible, social, democratic and secular, where the rule of law prevails;
and whose territorial borders are those that obtained upon the country’s
Independence on 30 June 1960 (article 1). National sovereignty belongs to the
people (article 5). All power emanates from the people who exercise it directly
by referendum or elections and indirectly through elected representatives. The
Constitution recognizes political pluralism (article 6) and political
opposition (article 8), and criminalizes the institution of a one-party system
(article 7).
The
Congolese Constitution provides for a clear separation of powers into three
national institutions (the government or the executive, the legislature, and
the judiciary) and for checks and balances. The new institutions of the DRC are
the President of the Republic, the government, the Parliament, and the
judiciary.
The four institutions of the Republic
The
first institution of the Republic is the national President (Congolese presidency),
whose incumbent is Joseph Kabila. The President, elected by universal suffrage,
serves a term of five years, renewable only once. The next presidential
elections are scheduled for 2011. The President 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 defense. These areas
were previously the exclusive preserve of the President.
The
second institution of the Republic is the national government, led by the Prime Minister.
President Joseph Kabila appointed Adolphe Muzito as Prime Minister in October
2008. The Prime Minister leads the government and national policy, which he
formulates in consultation with the President. Policies and the program of the
national government are set out in 5 key strategic plans, the President’s 5
Great Works (water and electricity; infrastructures; employment; health and
education; and housing (Five
Great Works), and the national budget (2010 budget). 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
Parliament is the third institution of the Republic. The Parliament in the DRC is
bicameral, consisting of a lower- house, the National Assembly (the National Assembly),
and an upper house, the Senate (the
Senate). Léon Kengo wa Dondo is the President
of the Senate and Evariste Boshab the Speaker of the National Assembly. 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 judiciary is the fourth institution of the Republic. 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
jurisdictions.
Over
and above these constitutional bodies, the Constitution has created three
institutions to support democracy in the DRC. The first of these institution is
the Economic and Social Council (Conseil
Économique et Social) whose role is to provide advice on economic and
social issues submitted to it by the President, the National Assembly or the
Senate, and the government (article 208). The second institution is the
Independent Electoral Commission (the
Independent Electoral Commission); and it is tasked with the
organization of the electoral process, especially the enrolment of voters, the
keeping of the electoral registry, voting, vote counting, and all referenda
(article 211). The third and last institution is a media and communication
council, the Conseil Supérieur de
l’Audiovisuel et de la Communication (CSAC), which is assigned the mission of ensuring and protecting press
freedom, as well as all means of mass communication within the parameters of
the law (article 212). The Haute Autorité
des Médias (HAM) plays the role of the CSAC pending the creation of the
latter.
The
Congolese Constitution protects and promotes human rights, fundamental
freedoms, and the duties of citizens. The precarious human rights situation in
the DRC bears witness to the necessity of constitutionalizing and enforcing
human rights (2003-2007
DRC reports to the African Commission on Human and Peoples’ Rights).
The preamble of the Constitution reaffirms Congo’s adherence to human rights
and the equal representation of women and men in state institutions. It
reaffirms adherence to the Universal Declaration of Human Rights, the African
Charter on Human and Peoples’ Rights (African Charter), and the UN conventions
on the rights of children and women. The DRC has ratified all the main
international human rights and humanitarian legal instruments, including the UN
Convention on Civil and Political Rights and the UN Convention on Social,
Economic and Cultural Rights.
The
bill of rights in the 2006 Constitution applies to all public authorities and
every person (article 60); and some human rights (like life and the prohibition
on cruel, inhuman and degrading treatment) are non-derogable. 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.
Title II of the 2006
Constitution embodies a bill of rights enshrining 56 human rights provisions.
Title II sub-divides in four chapters on (1) civil and political rights; (2)
economic, social and cultural rights; (3) group rights; and (4) duties of
citizens. The first chapter lists civil and political rights. It opens by
declaring that all human beings are equal in dignity and rights, but that
political rights are confined to Congolese citizens exclusively (article 11).
It promotes equality and prohibits discrimination in other areas (articles 12,
13, 14 and 15). Article 16 proclaims that the human person is sacred and that
the state must respect and protect it. Of particular interest in view of the
persistent sexual violence in eastern Congo, article 15 states that public
authorities must ensure the elimination of sexual violence used as weapon for
the destabilization or the dislocation of the family. Article 15 is reinforced
by article 14, which is an innovation as it formalizes the right to equality
between women and men.
The Constitution also
protects fundamental freedoms, including opinion, conscience and religion
(article 22); expression (article 23); information, press and communication
(article 24); privacy (articles 29 and 31); movement (article 30); assembly,
demonstration and petition (articles 25, 26 and 27, respectively); asylum
(article 33) and protection of foreign nationals and their property (32).
The second chapter lists
economic, social and cultural rights. It opens by proclaiming that private
property is sacred (article 34). It continues by laying down the right to work
(article 36) and freedom of association (article 37), the right to form trade
unions (article 38) and the right to strike (article 39). The second chapter also
protects rights relating to the family. It recognizes that the family, the
basic cell of the human community, is organized so as to ensure its unity,
stability and protection. It declares that everybody has the right to marry, to
choose a person of the opposite sex as spouse and to raise a family (article
40). It protects the rights of the child (articles 41 and 42); the elderly and
the disabled (article 49). Other important socio-economic rights in the 2006
Constitution include the right to health and to food security (article 47); the
right to housing, water and electricity (article 48); the right to free
education (articles 43, 44 and 45); and the right to culture and to
intellectual, artistic, scientific and technological creation (article 46).
The third chapter of
Title II of the 2006 Constitution contains a protection regime for group or
peoples’ rights. It protects the rights and legitimate interests of Congolese
citizens and confers on foreign nationals legally on Congolese soil the same
rights and freedoms as Congolese citizens, except for political rights (article
50). The state ensures the harmonious and peaceful coexistence of ethnic groups
in the DRC (article 51), it protects the rights of Congolese citizens to peace
and security (article 52), to a clean environment (articles 53 and 54), to the
enjoyment of their national resources (articles 58, 56 and 57) and to the
common patrimony of humankind (article 59).
Finally, the fourth
chapter of Title II imposes individual duties on citizens. It imposes the duty
on citizens to know and respect the Constitution and legislation (article 62),
to defend the country and its territorial integrity, and to defeat any
individual or group of individuals who takes power by force or that exercises
it in violation of the Constitution (article 64). It further imposes on
citizens the duty to fulfill their obligations vis-à-vis the state, including
the payment of taxes (article 65); to work (article 36); to treat fellow
citizens without discrimination in order to preserve national solidarity
(article 66); and to protect public property and respect private property
(article 67).
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, government contracts (2010
law on government contracts) and the status and conduct of civil
servants (law
on the conduct 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 an organic
law 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 taxing
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 principal beneficiary
of public service and the provisions of administrative law is the Congolese
citizen. The Constitution lays down that Congolese
citizenship is either by origin or by individual acquisition (article 10). It
mandates the Parliament to pass an organic law on the conditions of
recognition, loss and revival of Congolese citizenship.
The DRC has about 250
languages and dialects. French is the official language of the DRC: It is used
in official correspondence by administrative bodies and officials. The DRC has
also four national languages, namely Kikongo, Lingala, Swahili and Tshiluba.
The other languages of the DRC are part of the country’s cultural patrimony
whose protection the state ensures.
The major sources of
administrative power are the Constitution; duly ratified and published
international treaties; primary legislation (organic and ordinary laws);
subordinate legislation like ministerial regulations, decree-laws (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 administrative law disputes.
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. The
Constitution elevates political neutrality and impartiality into fundamental
principles of administrative law. These principles express the intention of the
drafters of the Constitution, as set out in the latter’s Preamble, to fight
certain ills plaguing public administration in the DRC. The Preamble of the
Constitution considers that injustice with all its corollaries –
impunity, nepotism, regionalism, tribalism, clan-based politics and patronage
– are the causes of the general loss of values and the ruin of the
country. The DRC still grapples with high levels of corruption, though
Transparency International has noted a modest improvement in the area of
government accountability.
An important principle is
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
administrative bodies 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 fulfill its missions. This power enjoys a rebuttable presumption of
legality. The onus is on citizens or anyone 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.
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.
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.
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).
There are many key administrative institutions in the
DRC but the national police and the army occupy a central position because they
protect democratic institutions, the security of persons and their property,
and the territorial integrity of the country. Nevertheless, after years of
kleptocratic management and organizational decay under Mobutu Sese Seko, both
the police and the army have encountered major difficulties in fulfilling their
constitutional mandates, especially during the two Congo wars from 1996 to
2003. Since the end of the transition in 2006 the Congolese government has
started a reform of its security sector with the help of bilateral and
multilateral partners. The United Nations mission in the DRC, MONUSCO (formerly
MONUC), has received a clear mandate to assist the country in reforming its
security sector and protecting civilians (MONUSCO mandate).
On a bilateral level, Angola, Belgium, China, South Africa and the United States
of America are the countries most involved in Congo’s security sector reform.
The national police, the Police Nationale Congolaise (PNC), are in terms of the Congolese
Constitution in charge of public security, the security of persons and their
property, law and order, and the tight security of higher authorities (law on PNC). The
Constitution stipulates that the police are apolitical. With jurisdiction over
the entire national territory, the police are in the service of the Congolese
nation; and no person can use the police for his or her own purposes. The
police are subject to the civilian local authority and under the responsibility
of the minister in charge for home affairs. As of May 2010, the head of the
national police is John Numbi.
The Congolese army, the Forces Armées de la République Démocratique du Congo (FARDC ), has the
constitutional mission to defend the integrity of the national territory and
borders (The army is comprised of the land force, air force, naval force and
auxiliary services. Within parameters set out by legislation, the Congolese
army participates, in peace as in war, in the economic, social and cultural
development of the nation and to the protection of persons and their property.
Like the national police, the Congolese army is republican, apolitical, in the
service of the nation, and subject to civilian authority. Nobody can use the Congolese army for
his or her own purposes; and it is high treason to form military or
para-military organizations, private militias or armed youths. The current
chief of the Congolese army is General Didier Etumba.
The Constitution provides that both the Congolese
police and army must select and appoint its members and commanding officers
with due regard for the equitable representation of provinces and objective
criteria based on physical aptitude, sufficient training, and moral probity.
The police and the army fall under the jurisdiction of military courts and the
ultimate responsibility of a national defense council (Conseil Supérieur de la Défense), headed by the Congolese
President.
In terms of the 2006
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, but the establishment of local governments
and assemblies is yet to be completed. Decentralization is one of the most
ambitious projects of the 2006 Congolese Constitution and one of the most
challenging areas of administrative law in the DRC. The Constitution divides
the existing 11 provinces into 26 new provinces. Though the Constitution
provides for the creation of the new provinces within 36 months of the
installation of the political institutions in 2007, the government had not yet
passed legislation installing the new provinces on 15 May 2010, the
constitutional deadline for decentralization. The government argued that it
would cost a few billion US dollars to install the new provinces and promised
to install the new provinces later.
A second challenge
relates to fiscal decentralization. Article 175 of the Constitution allocates
to the provinces 40 percent of national taxes, which is ‘retained at its
source.’ The central and provincial governments divide on the meaning of
article 175. The central government maintains that article 175 means that
provincial governments must collect national taxes and send them to the central
government, which will then allocate 40 percent of those taxes back to the
provinces. Provincial governments claim that such an interpretation of article
175 is a violation of the text of the Constitution, which clearly provides that
provincial governments should ‘retain’ 40 percent of national taxes in the
provinces and send the balance to the central government. Other challenges
include the uncertain economic viability of most provinces and the political
controversies that led to the removal or resignation of provincial governors in
Equateur, Maniema and South Kivu.
In order to consolidate
national unity and to create local centers of development, the Constitution has
structured the Congolese state in 25 provinces and the capital city Kinshasa,
which has the status of a province. The 25 provinces and the city-province
envisaged by the 2006 Constitution are Bas-Uele, Equateur, Haut-Lomami,
Haut-Katanga, Haut-Uele, Ituri, Kasaϊ, Kasaϊ Oriental, Kinshasa,
Kongo Central, Kwango, Kwilu, Lomami, Lualaba, Lulua, Mai-Ndombe, Maniema,
Mongala, North Kivu, North Ubangi, Sankuru, South Kivu, South Ubangi,
Tanganyika, Tshopo and Tshuapa.
Pending the installation
of the new 26 provinces, the existing provinces with their respective capital
cities and governors are as follows:
1. Bandundu, with Bandundu as capital and Richard Ndambu
Wolang as Governor;
2. Bas-Congo
, with Matadi as capital and Simon Mbatshi Batshia as
Governor;
3. Equateur, with Mbandaka as capital and Jean-Claude
Baende as Governor;
4. Kasaϊ
Occidental, with Kananga as capital and Trésor Kapuku Ngoy as
Governor;
5. Kasaϊ
Oriental with Mbuji-Mayi as capital and Dominique Nkangu Kabengela
as Governor;
6. Katanga,
with Lubumbashi as capital and Moϊse Katumbi Chapwe as Governor;
7. Kinshasa
, the country’s capital with the status of province and with André Kimbuta
Yango as Governor;
8. Maniema,
with Kindu as capital and Pascal Tutu Salumu as Governor;
9. North
Kivu with Goma as capital and Julien Paluku Kahongya as Governor;
10. Province Orientale, with Kisangani as capital and
Médard Autsai as Governor; and
11. South Kivu, with Bukavu as capital and Marcellin
Cishambo as Governor.
Every province consists
of a provincial assembly and a provincial government. Provincial governments
are composed of a governor, a vice-governor and a number of provincial
ministers, not exceeding 10. Governors and vice-governors are elected for a
term of 5 years renewable once. Every province is endowed with legal
personality and performs powers, functions, and duties enumerated in the
Constitution while provincial assemblies legislate on matters that fall under
provincial jurisdictions. Powers are either exclusive to provinces or shared by
provinces with the central government. Exclusive powers include provincial
planning, inter-provincial cooperation, provincial and local public
administration, provincial public finance, primary and secondary education,
provincial and local taxes, and the application of customary laws. Conflicts
concerning the distribution of powers between the central government and
provinces are resolved by the Supreme Court pending the installation of the Constitutional
Court.
Congolese criminal law,
which is mainly set out in the 1940 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, regulate the implementation of the ordinary and the military
penal codes. In April 2010, the Penal Codes had been updated so as to
incorporate the latest amendments and complementary provisions. Over and above
the Penal Codes, specific legislation covers additional acts in branches of
Congolese law other than criminal law. Criminal law 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. On 20 July 2006, the Congolese parliament
adopted new legislation that modifies the Penal Code and the Code of Civil
Procedure by providing for more progressive definitions of sexual offenses (sexual
offenses amendments). Those amendments represent the government’s
reaction to the scourge of sexual violence, which has reached epidemic
proportions in the troubled east of the country.
Unlike Belgian and French
law, Congolese law does not differentiate between felonies (crimes),
misdemeanors (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 (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. ‘Civil Code’ in this
overview refers to the areas of law originally covered by the 1804 Civil Code
rather than to a ‘code’ in the technical sense of the term.
Three parts make up the
Congolese Civil Code: The first part is the law of persons (droit civil des
personnes), the second part is property law (droit civil des biens)
and the third part is the law of obligations (droit civil des obligations).
The Code divides into books, which subdivides 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.
The first part of the
Civil Code is the Family Code, also called droit
civil des personnes (the
civil law of persons ). The Family Code (Code de la Famille) covers the law of persons. The Family Code
consists of five books on nationality, persons, family, succession and
ancillary matters. It addresses issues relating to status, legal capacity,
domicile, marriage, inheritance, succession, and certain aspects of private
international law.
According to the Family
Code’s Exposé
des Motifs, the purpose of
the Family Code is to unify and adapt the rules regulating persons and families
to the Congolese mentality. The Congolese Constitution institutionalizes the family
as the ‘basic cell of the human community.’ Through the Family Code, the
legislator intended to establish rules regulating families in accordance with
the Congolese authenticity (authenticité),
as initiated by Mobutu, and the requirements of a modern society. The Code is a
complete legal document that provides for all matters relating to the rights of
persons and their relation to the family.
The Family Code innovates
by integrating the law of persons and family law into the same code. It
integrated the two areas of law for two reasons. First, in the Congolese
conception of life, human beings live in solidarity in the community and their
family. Unlike the Western conception, which prioritizes the individual, in the
Congolese conception the individual can only actualize himself or herself
through the social group in which he or she lives. It was to emphasize this
communal sense of life that the legislator deemed necessary to codify this
fundamental part of the law in a ‘Family Code’ instead of a ‘Persons Code’ (Code des Personnes). Second, of all the
areas of law pertaining to natural persons, family is the one in which the
legislator introduced most innovations dictated by the idea of authenticité.
The
first book of the Family Code is on nationality. The 2006 Constitution
supersedes the provisions of the nationality book. Article 10 of the
Constitution stipulates that Congolese citizenship is exclusive, thus ruling
out dual citizenship. Citizenship is acquired by descent or naturalization. A
Congolese by descent is anyone who belongs to any ethnic groups whose members
and territory constituted what would become the Congo at the country’s
Independence in 1960. The nationality book removes the provision that allowed
only fathers to pass on their citizenship to their children and replaces it
with a provision that also enables Congolese mothers to pass on their
citizenship to their children.
The second book of the
Family Code is on the law of persons. This book emphasizes the fact that,
according to the Congolese authentic conception, names sum up the personality
of each individual. It is for that reason that the legislator has adopted a
flexible surname system that affords mothers and fathers complete freedom to
give any names to their children so as to allow the expression of different
traditional convictions. The book also provides for matters relating to the
status of persons like birth, death and disappearance; and determines the
residence of individuals. It fixes the age of majority at 18 and the youngest
age of emancipation at 15, and organizes the custody and guardianship of
minors.
Through the book on the
law of persons, the legislator wanted to consecrate one of the fundamental
values of the African civilization, namely the respect and honor owed to
parents, regardless of the age of their children. From that fundamental value
originate the important concept of ‘parental authority’ (autorité parentale). The fundamental principle is that parents must
take care of their children, failing which the family of minors must concern
itself with the fate of minors by virtue of the duty of family solidarity. The
state will only assume guardianship if minors are abandoned or their parents
have lost guardianship of those minors. The second book of the Family Code
addresses the legal capacity of persons. It requires, following traditional
mentality, that married women obtain permission from their husband before
performing a valid legal act. This provision is on the face of it a
contravention of article 14 of the Constitution, which prohibits all forms of
discrimination against women.
The third book of the
Family Code is on family; and deals with marriages, filiation, adoption and
affinity. This section glances over provisions on marriage only. Article 40 of
the Constitution gives to anyone the right to marry any person of the opposite
sex and to found a family. The
third book of the Family Code recognizes and regulates engagement and
marriages, civil and customary, which it requires to be registered. It
establishes bride wealth as a condition for marriage but subjects it to price
ceilings. It prohibits bigamy, polygamy, adultery and child marriages. It
institutes three matrimonial property regimes, namely out of community of
property, in community of property and universal community. It provides for the
common management of household property but, although married women are
entitled to hold separate property, they are under the control of their
husbands. The book provides for separation, irremediable breakdown of marriage
and divorce. The fourth and final book of the Family Code codifies norms
relating to succession and inheritance.
The second part of the
Civil Code, the civil law of property, 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 law of property is
codified in the General
Law on the Property Regime in the Congo . The General Property Law grants individuals some property
rights. It compiles in one document scattered old legal texts on property and
unifies land laws by turning lands known in the colonial days as indigenous
lands (‘terres indigènes’) into state
lands.
The Property Law gives
the right to the state to delegate its power to administer state lands to
public and private persons. It also clarifies legal texts by separating the
provisions on land rights and immovable property rights. It further draws a cut
between land immovable property rights and non-land immovable property rights.
To facilitate the transfer and circulation of property and prevent the risk of
wrongful evictions, which can also endanger access to credit, the Property Law
maintains the principle of the unassailability of the property registration
certificate (‘certificat
d’enregistrement’). The Law provides for secured transactions. It contains
rules and principles governing security interests, loans, publication of security
interests, priority of security interests as determined by the date of filing,
and the security interest of the state treasury. It settles the question as to
whether property, acquired by the state and previously encumbered with a
security interest, is taken free of that interest when it passes to the state.
The third part of the
Civil Code is the law of obligations, contracts and delicts (referred to as
‘torts’ in most common law countries). The law of obligations is contained in a
general
law contracts and other obligations. This contract law is composed
of 12 titles. The first two titles consist of general provisions on contracts:
(1) Contracts and obligations in general and (2) obligations created without
contracts. The 10 remaining titles provide for specific contracts, namely (3)
sales, (4) exchange contracts, (5) leases, (5 bis) partnerships, (6) loans, (7) escrows, (8) agencies, (9)
sureties, (10) transactions, (12) pledges and (13) prescription.
Contract law sets four
general requirements for a valid contract. It requires consent and capacity as
well as some conditions relating to the subject matter of contracts and others
relating to its lawfulness. It distinguishes between obligations to give and
obligations to do or refrain from doing. It contains provisions on the
interpretation of contracts, damages in the case of contract breaches, and
effects on third parties. It also categorizes obligations into conditional,
suspensive, and alternative obligations; obligations giving rise to joint and
several liabilities; divisible and indivisible obligations; and obligations
with penal clauses. Contract law also determines the extinction of contractual
liability. A contracting party may be discharged from contractual liability by
payment/performance, novation, release by the creditor, set off, merger, loss
of the thing sold, and court order as a result of a successful action for the
cancellation of a contract.
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 the law of business organizations, employment law, mining
law, insurance law, and investment law – is mixed in the sense that it
exhibits features of both private law (predominantly) and public law.
According to the World
Bank, Congo is one of Africa’s richest countries in terms of mineral,
agricultural and other resources as well as one of the continent’s key engines
for growth. [[6]] The economy of the DRC – devastated by years of
conflict, mismanagement and institutional attrition – has since 2001
started to recover, with annual growth averaging 5%. The country’s gross
domestic product (GDP) PPP (purchasing power parity) is 21.33 billion US
dollars in 2009, up from 19.56 billion US dollars in 2007. Inflation was 16% in
2009, a relatively high rate but a major achievement, when viewed in light of
the hyper-inflationary rates that reigned for several years before 2001. The
Congo joined the Southern African Development Community (SADC) on 8 September
1997 and plans to join the SADC Free Trade Area in the near future. In early
July 2010 shortly after Congo’s 50th Independence anniversary
celebrations, the World Bank and the International Monetary Fund approved debt
relief for the Congo, which will wipe out 90% of the country’s 12.3 billion US
dollars debt.
However, the Congo is
still a weak post-conflict economy in dire need of backbone infrastructure,
sustained growth, improved fiscal management and capacity building. Congo ranks
among the worst performers in terms of competitiveness although the World Bank
has noted an improvement after the government kicked off a program of
large-scale economic reforms at the turn of the 21st century. Even though it is steadily increasing,
the national budget for 2010, partly funded by the international community, is
4.9 billion US dollars, which is low, if compared to the budget of some
neighboring countries. At 300 US dollars, Congo’s GDP per capita is one of the
world’s lowest, with a major humanitarian crisis in the northeastern provinces
and some disquieting human development indicators. Finally, Congo’s bank to
client ratio is equally very low.
Even if formulation and
implementation of economic reforms are slow, the law has played a central role
in reforming the Congolese economy. First, the 2006 Constitution embraces
economic liberalization by guaranteeing property rights and private and foreign
investments. It also provides for a number of economic institutions, namely an
economic and social council (Conseil
Économique et Social), the Central
Bank of Congo and the Audit Court (Cour des Comptes)(i.e. the equivalent of the Government
Accountability Office in the US), and a national equalization account (caisse de péréquation). The economic and
social council advises the government on socio-economic matters, the Central
Bank is responsible for monetary stability and financial institutions, the
Audit Court controls the management of state finances and assets, and the
national account is endowed with 10% of annual national tax revenues in order
to even out development disparities between and within provinces. These
constitutionally mandated economic institutions work with ministries
responsible for the budget,
finances, the economy, international cooperation, planning and mining , to steer the
economy into the right direction.
DRC commenced the legal
reform of its economy in 2002 when it enacted four new codes on labor, mining,
foreign investment and forestry. These codes were instrumental in preparing the
country for the positive growth rates that it has enjoyed thenceforth.
A series
of decrees and ordinances compiled in the Civil Code and the Commercial Code
defines a ‘corporation.’ Corporate law is therefore made of various legal
provisions regulating the activities of incorporated business organizations. In
Congolese law, like in French law, every business organization form is a
‘company’, defined as a contract on the basis of which two or more persons
agree to do something together with a view to making and sharing a profit.
Congolese
law traditionally distinguishes between four types of business organizations,
of which the most significant are the société
privée à responsabilité limitée (SPRL) and the société par actions à responsabilité limitée (SARL), a limited
liability company. While SPRLs are
private limited liability companies owned by members, SARLs are comparable to
holding companies, which require presidential authorization before they can be
registered, and in whose shares are from time to time open to public
subscription. Most joint ventures between international mining companies and
state-owned enterprise, called societés
mixtes, are treated as SARLs.
The
Congolese parliament has recently so extended the traditional contractual or
institutional definition of a company as to include limited liability companies
owned by one shareholder (sociétés
unipersonnelles). The parliament took this revolutionary step in order to
prepare the DRC to join the Organisation pour l'Harmonisation du Droit des
Affaires en Afrique (Organization for the Harmonization of Business Law in
Africa), which is an institutional framework designed to serve the purpose of
regional integration and economic growth on the continent.
The
fundamental norms of the law of business organizations are enshrined in the Décret Royal of 27 February 1887, which
provides that companies enjoy separate legal
personality, with assets and liabilities distinct from those of their
shareholders. Companies have perpetual succession, existing
beyond the natural lives of their members. The liability of members is, as a
general rule, limited to the extent of their investment in the company. In
cases of abuse of the juristic personality of the company as a separate entity,
it is possible for victims to request a competent court to pierce the corporate
veil and hold the shareholders directly liable for the abuse.
Company
directors are empowered to manage the corporation business and are personally
liable for breach of their fiduciary duties vis-à-vis the corporation and for
any torts committed under their management. That liability may give rise to a
criminal prosecution if a director’s failure to act with reasonable care and
skill in the best interests of the company amounts to crime. However, Congolese company law also makes provision for any
violation suffered even where company directors act in conformity with their
fiduciary duty.
In April
2009, the government transformed some of the Congo’s main parastatal companies
into commercial entities, in which the state hold shares like any other
shareholder. [[7]] The
peculiarity of this type of commercial entities is that the state retains its
veto power, even if its shares do not nominally give it such power. This
important aspect of corporate governance in those companies could affect the
nature and the extent of liability in cases of corporate human rights
violations by parastatal companies.
The Investment Code (investment code)
codifies rules and principles regulating foreign direct investments (FDI) in
the DRC. The Code recognizes that FDI is the main determinant of economic
growth and development in the sense that FDI is indispensable to economic
growth. The Investment Code is a response to gaps identified in previous investment
legislation. Gaps existed in the philosophy and the organization of the old
investment laws. The Congolese legislator realized that, evolving in a context
of economic recession and high inflation rates, the performance of the private
sector was generally inadequate while the output of Congolese industries was
particularly mediocre. Industries were generally costly, hardly competitive,
under-capitalized and suffering from a long process of disinvestment. It is
against that economic background that the legislator decided to re-adjust the
largely outdated investment laws with a new investment code.
The philosophy of the new
Investment Code reflects the Congolese legislator’s adoption of a moderate
liberal social market economy. Under that philosophy, economic development and
growth rest on the following triptych. First, the state provides an enabling
framework and a set of incentives. Second, the private sector creates
employment and national wealth by producing goods and services. Third, civil
society promotes humanity in its various dimensions. It is this philosophy that
the legislator has incorporated into the Investment Code to attract foreign
capital and to encourage foreign investors to invest in priority sectors in
accordance with Congo’s development plan (Congo investment guide).
The Code is selective and
gives priority to investments in certain strategic sectors in line with Congo’s
development plan. It is thus organized around four key objectives. First, the
state must prioritize investments in transportation and infrastructure
investors charged with the construction and maintenance of roads. Second, the
state should prioritize investments that will develop agriculture and the
agro-industry in order to ensure food security, reduce food imports, increase
income in rural areas, and expand local basic foodstuffs markets. Third, the
state should give priority to large investments that will entrench a solid
industrial base on which sustainable economic growth will stand. Finally, it
should prioritize investments that add value to national natural resources
locally in order to increase export volumes.
The Investment Code does
not apply to investments in mining. The parliament has passed a code that
applies specifically to investments in mining, the Mining Code (mining
code). Mining is one of the greatest, if not the greatest,
contributors to state coffers, albeit the mining sector still
faces numerous formidable challenges. Congo’s
vast reserves of mineral resources have boosted government revenues in
2006-2010, creating opportunities for the government to improve socio-economic
conditions in the country. Government revenues should further increase after an extensive review (2008-2009) of 60 onerous contracts –
concluded during the transition (2003-2006) – that resulted in contract
renegotiations and the increase of the government’s share of mining profits.
In enacting the Mining Code, the Congolese
legislator intended to create a ‘new attractive legislation with objective,
quick and transparent procedures for the granting of mining and quarry titles,
which organize tax, customs, and foreign exchange regimes for the mines.’ In so
doing, the parliament was mindful of the fact that the two mining laws passed
after Independence – especially their tax, customs, and foreign exchange
regimes – failed to attract foreign investment and had a negative impact
on mining production and public finances. To reduce transaction costs, the Code
has set up a single window center for foreign and local investors, the Agence National pour la Promotion des
Investissements (ANAPI).
In 2009, the Congo entered with China, its largest
trading partner, into Congo’s largest mining deal since its Independence in
1960. The 6 billion US dollars deal entitles China to export a certain amount
of copper and cobalt, in return for which China agreed to implement a
nationwide plan of infrastructure construction in the Congo. The
infrastructures that Chinese state-owned construction firms are building are
expected to remove important bottlenecks preventing the Congo from reaching its
full economic potential.
The new Labor Code (labor code) updated
labor norms by introducing a few innovations. It extended the scope of
application of the labor law to small and medium enterprises and small and medium
industries operating in the informal sector as well as social, cultural,
community and charitable organizations employing salaried workers. It prohibits
the worst forms of child labor and pushes the age of employability at 16, up
from 14 in the old labor laws, except for children aged 15 who received
permission from a labor inspector and their parents or guardians. The Labor
Code establishes the National Employment Office (Office National de l’Emploi) and reinforces mandatory measures and
measures against employment discrimination against women and disabled persons.
It also reinforces institutional capacity in the area of training and
professional development through the participation of employers’ organizations
and workers’ organizations. It puts in place appropriate structures to ensure
health and safety at work in order to optimize the protection of workers
against occupational hazards.
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 (the
1982 judicial organization code) 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’État) 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. The law allows customary courts to operate
in various parts of the country while waiting for the establishment of
magistrates’ courts. In fact, customary courts mediate and settle two thirds of
all disputes in the Congo.
The
2002 Military Judiciary Code organizes military
courts . 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. Military courts decide
criminal cases brought against members of the national police and army.
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. Since July 2009, the Chief Justice (premier président de la
Cour suprȇme de justice) is
Bemwenzi Kenga and the Prosecutor-General (procureur général de la
République) is Floribert Kabange Numbi. In the meantime, the Chief Justice
is the chief judge of the Supreme Court; but when the government will launch
the Constitutional Court, the Chief Justice will be the chief judge of the
Constitutional Court.
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’État); and
the highest court in constitutional matters is the Constitutional Court. Some
of these courts, like the Constitutional Court and the State Council, do not
yet exist but the ongoing reforms in the judiciary aim at aligning the existing
court system with 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 général près la Cour Constitutionnelle,
the procureur général près la Cour de Cassation and the procureur
général près le Conseil d’État, respectively.
The constitutional structure of the judiciary
The judicial service council (Counseil Supérieur de la Magistrature) is responsible for the
administration of justice. The parliament enacted an organic law on the judicial service
council in August 2008.
The judicial service council (JSC) law declares that the JSC ensures the
implementation of constitutional mechanisms that serve as a counterweight to
all three powers (i.e. executive, legislative and judicial). The JSC law
empowers the JSC to make recommendations regarding the nomination, promotion,
retirement, resignation, removal and rehabilitation of judicial officers; and
to conduct disciplinary hearings against judicial officers. Nevertheless, the
Congolese President remains the person solely authorized to appoint, promote,
retire, remove and rehabilitate all judicial officers.
The JSC law organizes the JSC around a General
Assembly, a Bureau, disciplinary chambers and a permanent Secretariat. The JSC
law places these structures under the direction and coordination of the Chief
Justice (premier Président de la Cour
Constitutionnelle), who is by law the president of the JSC. The JSC is
broadly composed of public prosecutors and judicial officers, representing all
the court levels and types of the DRC. The JSC prepares and manages the
remunerations and running costs budgets of the judiciary. However, the
financial management of the JSC is subject to control by the Ministry of
Finance Office of the Inspector General (Inspection
Générale des Finances), the Audit Court and the parliament.
National and provincial
disciplinary chambers carry out disciplinary hearings. Individuals may bring
complaints against particular judges before the disciplinary chambers. This
complaint procedure is a reflection of the principle that the independence of
the judiciary is more a fundamental right of individuals than an entitlement of
judges.
Article 157 of the 2006 Congolese
Constitution institutes the Constitutional Court. However, the government has
not yet passed an organic law on the Constitutional Court. The Constitutional
Court is the highest court in constitutional matters. It is not the highest
court in the DRC, but given that, the Constitution is the supreme law of the
land the Constitutional Court is practically the court defining and settling
the most fundamental issues in the country. Moreover, the Court may hear
appeals from the State Council and the Court of Cassation on jurisdictional
questions.
The Constitutional Court is made
up of 9 judges appointed by the Congolese President. The President chooses 3
judges for appointment as Constitutional Court judges while the congress (i.e.
Senate and National Assembly, voting collectively) and the JSC each recommend 3
Constitutional judges. Two thirds of the judges must be lawyers from the bench,
the bar or academia, with at least 15 years of experience in law or politics.
Constitutional Court judges serve for a non-renewable term of 9 years. One
third of the Court is renewed every three years. Judges choose who among them
will be the Chief Justice. Once elected by his peers, the Chief Justice is
formally elevated to the position of Chief Justice by the Congolese President
by means of an ordinance. The Chief Justice serves for a once renewable term of
3 years.
The Constitutional Court has a
mandate as broad and significant as the Constitution itself. The core function
of the Constitutional Court is to check the constitutionality of laws and
conduct with legal consequences. Anyone may seize the Court to call into
question the constitutionality of an act of parliament or regulation. The Court
checks the constitutionality of organic laws and the rules of order of the
parliament, and the Independent Electoral Commission, the CSAC, before their
promulgation. Any act the Court finds inconsistent with the Constitution is
null and void. The decisions of the Constitutional Court are final and executory,
and bind all courts and persons.
The Court interprets the
Constitution upon request by the Congolese President, the government, the
President of the Senate or the National Assembly, one tenth of the members of
either of the two parliamentary houses, governors, and presidents of provincial
assemblies. It resolves disputes on referenda and presidential and legislative
elections, conflicts over the distribution of powers between the government and
parliament and between the central and provincial governments. The Court also
hears criminal cases against the Congolese President and the Prime Minister,
after two thirds of the congress vote in favor of prosecution. Upon conviction,
the Court removes the President or Prime Minister from his or her office.
Article 153 of the Constitution
creates the Court of Cassation (Cour de
Cassation) and puts civil and military courts under its control. The Court
of Cassation is the court of last resort. It hears appeals from decisions and
judgments made by civil and military courts and tribunals. It has original and
appellate jurisdictions in criminal cases against senior government officers.
It asserts jurisdiction criminal cases against members of parliament, government
members other than the Prime Minister, members of the Constitutional Court,
judges of the Court of Cassation and prosecutors connected to that Court,
members of the State Council and prosecutors connected to that Council, members
of the Audit Court and prosecutors connected to that Court, the chief judges of
courts of appeal and the prosecutors connected to those courts, the chief
judges of administrative courts of appeal and the prosecutors connected to
those courts, governors and vice governors, provincial ministers, and the
presidents of provincial assemblies.
Article 154 of the Constitution
unfolds a system of administrative courts, formed by the State Council (Conseil d’État), administrative courts
and tribunals. The State Council hears and determines cases brought against the
acts, regulations and decisions of national administrative bodies and
officials. It hears appeals against decisions of administrative courts of
appeal. In the absence of competent courts, the Council adjudicates claims for damages
resulting from measures taken or ordered by the state. It bases its decisions
on equity taking into account all circumstances relevant to the parties.
Commercial courts
A new law establishes
commercial courts in the Congo. Situated within a tribunal de grande instance, a commercial court (tribunal de commerce) bench is composed
of three persons, one permanent judge appointed by the Minister of Justice and
two business people acting as lay judges, although the judge presides over the
court. Commercial courts sit in judgment of cases involving bankruptcy,
partnership, unfair competition and commercial papers.
Labor courts
Another law creates
labor courts. Situated within each tribunal
de grande instance, a labor court (tribunal
de travail) bench is composed of three judges, one permanent judge and two
lay persons (assessors), one representing employers and the other representing
employees. The Minister of Justice chooses among judges of the tribunaux de grande instance those who
will preside over labor courts. Labor courts sit in judgment of disputes
between employees and employers arising from an employment contract, a
collective agreement, labor laws or regulations, and social security.
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. Generally speaking,
law students generally have a common curriculum the first two years of their
legal education and have in later years more freedom to choose the courses for
which they would like to enroll. 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 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 practice
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 research in the DRC. Effectively, with
the exception of legal practitioners, very few people are able to access legal
information readily or ascertain which laws have come into force and which ones
have been repealed.
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 infrequent.
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 main 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.
Although
there are not many Internet resources for Congolese law, three sources are
commonly used. The first source is Leganet.
The aim of Leganet is to publish information on Congolese law online. Leganet
is the most comprehensive online resource for electronic versions of applicable
Congolese codes and other pieces of legislation. The second source is Congolegal. Congolegal is
another useful online resource for Congolese legislation. A third source is Juricongo. Juricongo
is an important online resource but it is not free and not as resourced as Leganet
and Congolegal. In
addition, a few Congolese codes and statutes can also be found on the Droit
Congolais and Afrique-Droit
websites.
Some
government institutions have a website containing legal or legally relevant
information, such as the Ministry
of Justice, the Ministry
of Health , and the committee for the reform of public enterprises.
There
exist a few non-governmental institutions (NGOs) with legal instruments posted
on their website, namely Mission des Nations Unies au Congo (MONUC ), and the
United Nations Development Programme (UNDP)
in Congo. The following NGOs are useful for legal research although they do not
provide much information on Congolese law: The Haute Autorité des Medias
(i.e. the media regulatory agency),
the online newspapers Le Potentiel (independent
media) and DigitalCongo
, the MONUC-backed radio station Okapi,
the Electoral Institute of Southern
Africa , the country profile on the website of the Institute
for Security Studies and the International Center for
Transitional Justice , the Center for Social Action Studies (Centre d’Études pour l’Action Sociale
de Kinshasa), the Congolese Social Forum (Forum Social Congolais),
the Center for Strategic Studies of the Congo Basin (Centre d’Études Stratégiques du
Bassin du Congo), the Jesuits’ review (Revue des Jésuites en RDC),
and the Open Society for Southern Africa.
There
is a myriad of websites with information on or devoted to human rights in the
DRC, for instance, the campaign
against sexual violence against Congolese women, the association of youth organizations supporting the DRC (Collective des Organisations des
Jeunes Solidaires du Congo Kinshasa), human
rights in the Great Lakes region), the Congolese league for free and fair elections (Ligue Nationale pour les Élections
Libres et Transparentes), the rights of journalists in danger in
Central Africa (Journaliste en Danger),
human rights and Christian-based civic education (Réseau d’organisations de défense des
droits humains et d’éducation civique d’inspiration chrétienne en RDC),
human rights in the mining sector of the DRC -Global Witness and the country profile on the website of the Office
of the High Commissioner for Human Rights .
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[[2]]
‘Le Sort des Tribunaux Coutumiers se Discute à l’Assemblée Nationale’ Radio Okapi (Dem. Rep. Congo) June 9th,
2010.
[[3]] Kampetenga
Lusengu, B.M., Droit
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[[4]]
See Mavungu
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Ives, First instance decision, RMP No 227/PEN/2006; Oxford Law Report, ILDC 524
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084/2005 RMP n°
154/PEN/SHOF05.
[[5]]
I.e.
an introductory part of legislation that is functionally similar to yet
separate and distinct from a preamble.
[[6]] ‘DR of Congo: Country Brief’
World Bank, (last
visited July 3, 2010).