UPDATE: The Legal System of the Democratic Republic of the Congo (DRC): Overview and Research

 

by Dunia P. Zongwe, François Butedi and Phebe Mavungu Clément

 

Dunia P. Zongwe [1] specializes in finance and development and in international human rights, usually focusing on Africa. Mr. Zongwe was educated at the University of Namibia (law), Université de Montréal (humanities) and Cornell University (law), where he earned a master’s degree and a doctorate (foreign investments in mining and infrastructure in Africa). He is a lecturer at the University of Namibia.

 

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 as a Program Officer at the Lawyers’ Association of the Southern African Development Community (SADC).

 

Phebe Mavungu Clément is a former lecturer at the University of Kinshasa where he obtained his first law degree. He is also a former Legal Officer at the Africa Regional Program of the International Commission of Jurists. 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 a Senior Advocacy Officer at the Centre for the Study of Violence and Reconciliation as well as a Ph.D. candidate at the Oliver Schreiner School of Law at the University of The Witwatersrand.

 

Published January/February 2015
(
Previous update on August/September 2010 )
See the Archive Version

 

 

1.      Historical background

The Democratic Republic of the Congo (DRC), formerly known as Zaїre, straddles the Equator in Central Africa. With the Congo River in the west, a low-lying plateau in the center and mountains in the east, the DRC is a vast country endowed with fabulous natural wealth ( country profile ). Roughly one-fourth the size of the United States, the DRC is Africa’s second largest country after Algeria. It is the only country on the continent that is surrounded by as many as nine neighbors (Angola, Burundi, the Central African Republic, Congo-Brazzaville, Rwanda, South Sudan, Tanzania, Uganda and Zambia).

 

1.1. Pre-colonial and colonial times

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. They created and followed their own customary laws. Today, the descendants of these Bantu tribes still make up the majority of the Congolese people, estimated to be 77 million as of June 2014. The DRC comprises no less than 450 ethnic groups.

 

The history of the Congo as a state has three milestones. First, the 1884-85 Berlin Conference consecrated the creation of the 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. Here is an annotated collection of the laws of the Congo Free State . Notwithstanding its creation as ‘Congo Free State’ ( État indépendant ), 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. Here is an annotated collection of the laws of the Congo Free State .

 

In 1908, in accordance with the wishes of Leopold II, as expressed in his will, Belgium annexed the Congo. The country became ‘Belgian Congo’, a colonial territory. Another colonial charter replaced the older charter as the fundamental law of the Congo. In the 1950s, mass movements for independence gathered momentum. The leader of one of those movements, Patrice Emery Lumumba, argued for a ‘calm and dignified’ march towards independence and against the balkanization of the Congo. On 30 June 1960, the Congo won its independence from Belgium, with Joseph Kasavubu as President and Patrice Lumumba as Prime Minister.

 

1.2. After Independence

Shortly after Independence, conflict and civil strife marred the Congo. Belgium partly instigated the mayhem. Lumumba was assassinated on 17 January 1961. Later, on 24 November 1965, Mobutu Sese Seko staged a coup d’État by ousting Kasavubu. In its heydays, Mobutu’s reign brought relative stability and economic growth, but, starting in the 1970s, it got punctuated by popular demands and actions for political change. Under Mobutu’s rule, the country experienced a brutal dictatorship, the upsurge of corruption and the downfall of public service. In 1989-1991, under domestic and international pressure, Mobutu conceded political pluralism and convened a national conference ( Conférence nationale souveraine ), with the declared aim of establishing a new political and constitutional order. The convention of the National Conference spelt the beginning of a difficult transition.

 

By the mid-1990s, it was clear that the political process had run into a dead end, an impasse that would only be broken by a protracted conflict fuelled by security considerations, the competition for the control of strategic minerals, the fragility of the Congolese state, ethnic rivalries, and territorial ambitions. [2] On 17 May 1997, a rebellion – backed by Burundi, Rwanda, and Uganda, and which Laurent Désiré Kabila had set off in October 1996 – toppled Mobutu. After Kabila decided in August 1998 that his Rwandan and Ugandan allies had to leave the country, another armed conflict erupted. Though a ceasefire agreement was signed in Lusaka in 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 . In particular, all through the second Congo war, often referred to as ‘Africa’s World War,’ Uganda and Rwanda each backed a major rebel group in the Congo. On the other side, 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 gunned down by one of his bodyguards on 16 January 2001. In the wake of Laurent Kabila’s death, his son Joseph Kabila was named head of state. In December 2002, all warring parties signed in Pretoria (South Africa) a peace accord, known by its French title as ‘ Accord global et inclusif ’, in order to end the fighting. A transitional government was formed in July 2003.

 

1.3. The Third Republic

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 th February 2006. In December 2006, Joseph Kabila was inaugurated President after winning the second round of the presidential elections. He formed his government on 7 February 2007.

 

In spite of the country’s reunification and the holding of democratic elections, pro-Rwandan rebel groups, Congrès National pour la Défense du Peuple (CNDP) and its successor the M23, controlled up till 2013 wide swathes of the northeastern province North Kivu. Continued fighting during that period between government soldiers and rebels enabled widespread sexual violence against hundreds of thousands of girls and women in eastern Congo by rebels (mainly) and government soldiers.

 

In the closing months of 2011, presidential and legislative elections were run. Joseph Kabila was re-elected for a second term amid accusations of massive electoral fraud. A short while afterwards, the M23 – a rebel group created by Rwanda, according to the United Nations (UN) – launched an armed insurrection in 2012 in North Kivu. This new armed rebellion prompted the country’s political leadership to carry out a nationwide soul-searching exercise, the National Consultations ( Concertations nationales ). (The exercise led up to the formation of a ‘national cohesion’ government in December 2014) Backed by Rwanda and – to a lesser extent – Uganda, the M23 was eventually defeated in November 2013 by the Congolese army with the help of a special brigade from the UN.

 

The red-letter victory against the M23 in 2013 put a stop to the decade-long presence of foreign-backed rebels in the Congo. The Congolese army is extending its streak by going after the remaining armed groups roaming in eastern provinces. These dramatic developments have noticeably improved the security situation in eastern Congo, although pockets of insecurity and the concomitant violence persist.

 

2.      Overview of the Congolese legal system

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. 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. [3] ‘Customary law’ does not refer to a body of rules merely stemming from 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 traditional customs, but because it finds expression in or through them. [4] 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 usual 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.

 

2.1. Sources of law

Congolese law draws its substance from at least seven formal 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 basic 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. The contents of the 2006 Constitution have been informed by Congolese constitutional law and history, comparative law and international law. French and Belgian laws are the primary substantive sources of the Congolese Constitution, [5] whose drafting also drew on constitutional experiences in Benin, Mauritius, Senegal, South Africa and Togo. [6]

 

International treaties and agreements are the second source of law. By virtue of article 215 of the Constitution, 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. The application of international law is rare; still, military courts have relied on article 215 to apply international law in a handful of recent cases. [7]

 

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 special kind of legislation that organizes key areas of national life and requires absolute majorities to be passed and amended. As an additional requirement, the Constitutional Court must declare that the organic bill is consistent with the Constitution before the organic bill can be signed into law by the President of the Republic. 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. Custom is not to be confused with customary laws.

 

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.

 

2.2. Divisions of law

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 Congolese law as in all civil law systems. 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 therefore regulates relationships between public bodies and private persons; and between public bodies inter se .

 

Private law ( droit privé ) applies to relations among citizens or private groups. It comprises civil law, which in turn comprises the law of obligations, the law of persons, family law, property law and succession law. Private law also encompasses the law of business organizations, private international law and certain areas of commercial law.

 

2.3. Latest developments

A number of important developments on the legal front took place in the Congo since the publication in 2010 of the previous edition of The Legal System of the Democratic Republic of the Congo . After the constitutional amendments in the run-up to the contested presidential elections in 2011, the possible amendment of the Constitution to remove the limit on the number of terms so as to allow the incumbent President to seek a third term in 2016 is undoubtedly the most significant development. This is a controversial and polarizing issue that has ignited intense debates in the country. The enactment of the law on the Constitutional Court in October 2013 and the appointment in July 2014 of the nine judges who will sit on that Court are equally remarkable highlights. In September 2014, the President of the Republic inaugurated another constitutionally mandated institution, the Economic and Social Council.

 

The past few years have witnessed ongoing efforts by the government to modernize public administration and administrative law. The launch of the École Nationale d’Administration is a case in point. The restructuring and new appointments made in the security forces (the national police and the army) are further examples of those efforts.

 

The past few years have also seen the strengthening of macroeconomic stability. The DRC’s gross domestic product grew at a rapid clip. Growth was accelerated by activities in mining, infrastructure construction, and agriculture. After investment, mining, labor and forestry in 2002, the Congolese government pressed on with the liberalization of the energy and insurance sectors in 2013-2014. In addition, the Parliament enacted in 2011 legislation spelling out the fundamental principles of agriculture in the DRC. To complete the economic picture, the government has undertaken a series of initiatives in order to enhance the DRC’s competitiveness. In its 2015 Doing Business report, the World Bank stated the DRC is among the top 10 improvers worldwide, as it improved the most in business regulations in 2013 among the 189 countries covered by the report. Particularly, the government adopted a value added tax, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the OHADA Treaty, a one-stop shop for the creation of businesses and another for external trade.

 

The judiciary is pursuing its reorganization to satisfy new constitutional requirements. The Constitution divides the existing judiciary in three separate hierarchies of specialized courts: the constitutional, ordinary and administrative court systems. Each court system will have its own supreme court, to wit the Constitutional Court ( Cour constitutionnelle ), the Court of Cassation ( Cour de cassation ), and the Council of State ( Conseil d’État ). Of those, only the Constitutional Court has been installed, though it is not expected to become operational until later in 2015. In the meantime, the Parliament has adopted two important laws, one organizing the ordinary court system and the other providing for the procedure before the Court of Cassation.

 

Overall, notwithstanding significant government policies and legal reforms, factors such as the lack of infrastructure, weak institutional capacity, serious resource limitations and corruption undermine the effectiveness, stability and predictability of the legal system.

 

 

Part I: Public Law

 

3.      Constitutional law

The 18 th 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 recital 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 people whose primary obligation was to enforce 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 in 2006, the Constitution. And in order to guard the democratic principles engraved in the 2006 Constitution against political vicissitudes and untimely amendments, the Constitution entrenches some of its provisions. The republican form of the state and the 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).

 

3.1. Constitutional history

The 2006 Constitution is the latest installment in a long, painful series of concerted efforts 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 the independence of the Congo and adopted a number 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. Most importantly, on May 19, 1960, the Belgian Parliament passed and the Belgian King Baudouin promulgated a constitution for the Belgian Congo, called the Fundamental Law on the Structures of the Congo ( Loi fondamentale relative aux structures du Congo ). The 1960 Fundamental Law remained in force till its repeal in 1964.

 

The second act in the Congo’s constitutional history took place after the country’s Independence and in the midst of great 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. With the entry into force of the Lualabourg Constitution, the 1960 Fundamental Law was repealed.

 

On 24 November 1965, Mobutu staged a coup d’État. That date is remembered as the introduction of a dictatorship spanning 32 years, the radical curtailing of fundamental constitutional rights, and the erection 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.). In 1978, a constitutional law went further and removed presidential term limits. On 27 October 1971, Mobutu renamed the country ‘Zaϊre’. The country retained that name until 17 May 1997, when Laurent Kabila reverted the name of the country to the ‘Democratic Republic of the Congo.’

 

After the Fall of the Berlin Wall in 1989, erstwhile Western allies exerted pressure on Mobutu – a key player in Africa during the Cold War – to open up political space in the 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 the 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 cardinal principles that have been carried over in the 2006 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 th February 2006; and his swearing-in as President in December 2006, after his victory in the presidential elections, formally ended the decade-long period of transition that started in 1991. The 2006 Congolese Constitution provides for institutional law, and human rights law.

 

3.2. Institutional law

 

3.2.1.      Institutions of the Third Republic

The Constitution’s Exposé des Motifs [8] calls to mind that one of the root 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 existed 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 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.

 

Caption: The four institutions of the Republic

 

The first institution of the Republic is the national President ( Office of the President ), whose incumbent is Joseph Kabange Kabila. The President, elected by universal suffrage, serves a term of five years, renewable only once. The incumbent President is therefore not allowed to seek a third term. The next presidential elections are scheduled for 2016. 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 Augustin Ponyo Mapon Matata as Prime Minister in May 2012. The Prime Minister leads the government and defines national policy, which he formulates in consultation with the President. Policies and the program of the government can be found in monetary form in the national budget ( 2014 budget ). The Prime Minister is accountable to the Parliament, which has the power to sanction him by a motion of censure.

 

The Parliament is the third institution of the Republic. The Parliament in the DRC, the Palais du peuple, has its seat in the capital, Kinshasa. It is bicameral, consisting of a lower-house, the National Assembly, and an upper-house, the Senate . Léon Kengo wa Dondo is the President of the Senate and Aubin Minaku, 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. (In theory, the International Criminal Court (ICC) has complementary jurisdiction to try the President, the Prime Minister and senior government officers for genocide, war crimes and crimes against humanity.)

 

The Parliament can also sanction individual ministers by means of a no confidence vote. 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 the event of persistent conflict between the National Assembly and the executive.

 

Last but not least, the judiciary is the fourth institution of the Republic. The Constitution ensures the independence of the judiciary. The judiciary is presently undergoing several reforms to comply with new constitutional requirements. The Constitution streamlines the judiciary and molds it into three separate hierarchies of specialized courts, the so-called ordre de juridiction (which can be translated as ‘court system’): the constitutional, the ordinary (civil and criminal), and the administrative court systems. Each court system has its own supreme court, namely the Constitutional Court ( Cour constitutionnelle ), the Court of Cassation ( Cour de cassation ), and the Council of State ( Conseil d’État ), respectively.

 

3.2.2.      Democracy-supporting institutions

Over and above those 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 give advice on economic and social issues submitted to it by the President, the National Assembly or the Senate, or the government (article 208). The second institution is the Independent Electoral Commission, the Commission Électorale Nationale Indépendante (CENI). The third institution is the 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 and all means of mass communication within the parameters of the law (article 212).

 

3.2.3.      Elections and political parties

The Independent Electoral Commission , the Commission Électorale Nationale Indépendante (CENI), oversees the electoral process, especially the enrolment of voters, the keeping of the electoral registry, voting, vote counting, and the holding of referenda (article 211). It ensures the regularity of the electoral process. An organic law sets up the organization of the CENI. The President of the Electoral Commission is Apollinaire Malumalu.

 

The Constitution recognizes political pluralism (article 6) and political opposition (article 8), and criminalizes the institution of a one-party system (article 7). The Constitution holds ‘sacred’ the rights related to the existence and activities of the political opposition, as well as the opposition’s fight to access power by democratic means (article 8). A 2008 law obliges the government to give through budgetary allocations some funding to political parties in order to supplement their own financial resources.

 

The Constitution further holds that the opposition may only be subject such restrictions as are imposed by the Constitution and the law on all political parties and activities. Finally, the Constitution mandates the Parliament to pass an organic law to determine the status of the political opposition. The 2007 organic law on the status of the political opposition is an innovation in the Congolese political system. The law creates the position of the Spokesperson of the Political Opposition ( Porte-parole de l’Opposition ), who represents the political opposition within and outside Parliament. Since its creation in 2007, the position has been left vacant. The leader of the opposition after the 2006 presidential elections, Jean-Pierre Bemba, was arrested in 2008 and is now facing trial at the International Criminal Court in The Hague for war crimes that soldiers supposedly under his command allegedly committed in the Central African Republic. After the 2011 presidential elections, the leader of the opposition, Étienne Tshisekedi, does no longer recognize the legitimacy of the institutions that emerged from those elections. He thus refuses to fill the position of Spokesperson of the Political Opposition. Mr. Tshisekedi maintains that the ruling government stole the elections and that he is the legitimate President of the Congo.

 

Major political parties represented in the National Assembly are:

 

a) In the ruling coalition of political parties:

 

  1. The ruling party, the PPRD ( Parti du peuple pour la reconstruction et la démocratie ), founded by Joseph Kabila and led by Evariste Boshab;
  2. the PPPD ( Parti du peuple pour la paix et la démocratie ), led by Ngoma Binda;
  3. the MSR ( Mouvement social pour le renouveau ), led by Pierre Lumbi; and
  4. the PALU ( Parti lumumbiste unifié ), led by Antoine Gizenga;

 

b) In the opposition:

 

  1. The main opposition party, the UDPS ( Union pour la démocratie et le progrès social ), led by Étienne Tshisekedi;
  2. the MLC ( Mouvement pour la libération du Congo ), founded by Jean-Pierre Bemba and led by François Muamba; and
  3. the UNC ( Union pour la nation congolaise ), led by Vital Kamerhe.

 

Provincial elections were due in 2011, but they did not take place, meaning that the renewal of provincial assemblies and the national Senate is long overdue. To explain the lengthy delay, the government cited financial and logistical constraints. [9]

 

The next presidential elections are slated for 2016. The 2011 amendment to the 2010 CENI law reduces the rounds of presidential elections from two to one. Most importantly, the idea is being floated around by the ruling party and its allies to amend by referendum article 220 of the Constitution (which entrenches the number of presidential terms) to remove presidential term limits such that it would become possible for the incumbent President to run for a third term in 2016. The issue is controversial and deeply divisive. Proponents of the idea say that the text of article 220 explicitly permits its own amendment by referendum or a positive vote by at least two thirds of the congress. Opponents insist that amending article 220 would go against the spirit of the Constitution.

 

3.3. Human rights

The Congolese Constitution protects and promotes human rights, fundamental freedoms, and the duties of citizens. The grave human rights situation and the fragile social context in the DRC bears witness to the necessity of constitutionalizing and enforcing human rights. The preamble of the Constitution reaffirms the Congo’s adherence to human rights and the equal representation of women and men in state institutions. It reaffirms the country’s 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 rights; social, economic and cultural rights; 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 endemic 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 in the DRC as it formalizes the right to equality between women and men.

 

The Constitution 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 the 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); and the right to culture and to intellectual, artistic, scientific and technological creation (article 46). The bill of rights provides for the right to free education (articles 43, 44 and 45). In August 2010, the government announced that it would give free access to primary education gradually.

 

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).   

 

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 who 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).

 

4.      Administrative law

 

4.1. Introduction

Administrative law is the branch of public law that defines and regulates public administration. It is the corpus of norms governing the organization, functioning, interrelations and control of public authorities (excluding political and judicial authorities). It is also the set of norms regulating the relationships between the administrative authorities and private individuals. 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  national, provincial and decentralized administrative entities. The Parliament obliged in 2008 ( organic law on the organization, function of national, provincial and decentralized entities ).

 

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 law 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 acquisition individuelle (naturalization) (article 10). It mandates the Parliament to pass an organic law on the conditions of recognition, loss and revival of Congolese citizenship. A 2004 law  attaches those conditions to citizenship and its granting.

 

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 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.

 

4.1.1.      Sources

The primary 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 formulated these principles despite the absence of legislation elaborating on them.

 

4.1.2.      Fundamental principles and privileges

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. In 2014, Transparency International pointed to the extractive industries and he infrastructure construction in the DRC as severely affected by corrupt practices. [10]

 

An important principle is administrative legality, which requires the administration to observe the rules particular to the type of administrative acts that a given administrative body performs. Another general principle of law prevents administrative bodies from performing retroactive administrative acts. However, there are 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 to fulfill its mission. 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.

 

Congolese administrative law can be organized in more than one way. For present purposes, administrative law can be divided in three sub-branches: the organization, the functioning and the control of the administration.

 

4.2. The administrative organization of the state

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. In order to consolidate national unity and 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. Coming under the provinces are t he decentralized territorial entities, which comprise the city ( ville ), the town ( commune ), the secteur , the chefferie and other administrative constituencies ( circonscriptions administratives ), in descending order of importance.

 

The organic structures of an administrative body or public institution ( établissement public ) are the board of directors, management and the college of auditors ( collège des commissaires aux comptes ).

 

4.3. The functioning of the administration

 

4.3.1.      Administrative acts

For the administration to function, it needs people to perform certain acts and the means to do it. There are two different types of administrative acts in Congolese law: Unilateral and bilateral administrative acts. Regarding unilateral administrative acts, the administration imposes its will on the people, for which reason the administrative act 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 ).

 

Bilateral administrative acts are the contracts that administrative bodies may conclude. These contracts may be private or public. In private contracts, the administrative body is acting in a commercial capacity. Ordinary courts mediate disputes arising from such contracts. By contrast, the administrative body or official acts with state authority when entering into public contracts ( contrats administratifs ). For instance, the state enters into several public contracts in the area of government procurement. Pending the creation of administrative courts, administrative judges in the Court of Appeals or the Supreme Court mediate disputes arising from public contracts.

 

4.3.2.        Administrative means

There are two sorts of means at the disposal of administrative officials: legal and material means. In addition, officials may proceed in two ways: administrative policing and public service. On the one hand, with administrative policing ( police administrative ), officials regulate the behavior of private individuals within the limits dictated by the need to keep public order and prevent any behavior that may compromise peace, sanitary conditions and security. In short, administrative policing is the complete set of legal and material means: regulations, authorizations, defenses, injunctions and other forms of coercion. [11]

 

On the other hand, with public service, officials take upon themselves to satisfy needs of the population through services that private initiatives cannot adequately fulfill. Public service is one of the fundamental concepts of Congolese administrative law. [12] The concept comes from the combination of two elements, that is, the state structures and public interest. [13]

 

4.4. Control of the administration

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 review 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 review of administrative acts is external in that it starts off 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 ( contr ȏ le juridictionnel ).

 

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 sections of the Court of Appeals and the Supreme Court continue to adjudicate administrative law disputes and will be replaced by the Administrative Court of Appeals ( Cour administrative d’appel ) and the Council of State ( Conseil d’État ), respectively.

 

4.5. Key administrative institutions

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 considerable 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 initiated a reform of its security sector with the assistance 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, the United Kingdom, South Africa, Tanzania and the United States of America are countries most involved in the Congo’s security sector reform. Despite the latest positive developments, the national police and the army confront continuing and great institutional challenges.

 

The Constitution provides that both the Congolese police and army must select and appoint their 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 ). A typical meeting of the Defense Council is attended by the President of the Republic, the Prime Minister, the minister responsible for national defense, the minister responsible for home affairs, the Chief of Staff of the Congolese Army, the national police chief, the chief of the army land forces, the chief of the army air forces, the chief of the army naval forces, and the Chief of the Military Staff of the President of the Republic. Occasionally, the President’s advisor on national security and the head of the intelligence services get invited to the meetings. The President of the Republic heads the Defense Council and presides over its meetings.

 

4.6. The national police

The national police, the Police Nationale Congolaise (PNC), are in terms of the Congolese Constitution in charge of public safety, the security of persons and their property, law and order, and the tight security of senior government officers. 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 local civilian authority and under the responsibility of the minister responsible for home affairs.

 

The Police Council ( Conseil supérieur de la police ) is at the top of the structures devised by the new law. The Police Council is composed by the minister responsible for home affairs, the minister responsible for the administration of justice, the head of the General Office ( Commissaire général ) and his three deputies, the head of the General Audit Office ( Inspecteur général ), provincial police chiefs, the Director of Training and Police Schools, and a Permanent Secretary. Structures below the Police Council are the General Office ( Commissariat général ), the General Audit Office ( Inspéction générale ), provincial offices, and local and territorial units. Under the new law, the head of the General Office ( Commissairiat général ) is the person who heads the national police. Charles Bisengimana, who holds the position of Commissaire général, is the chief of the national police.

 

4.7. The army

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 in 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.

 

4.7.1.      The new law

The government enacted a law in 2013 that restructured the army. Capitalizing on the recent and past history of the Congolese army and factoring in the geopolitical and geostrategic importance of the Congo, the 2013 organic law on the Congolese army has overhauled the FARDC. The change of structure is a reaction to the new constitutional dispensation brought about by the 2006 Constitution and the vision to put in place an army that is national, apolitical and republican. Nonetheless, certain sections of the old 2004 organic law on the Congolese army remain in force. These include provisions on the organization, the manifold mission and the guiding principles of the army.

 

The new army law draws a categorical distinction between the political institutions and the military structure of the national defense apparatus. The President of the Republic, the government, the National Assembly, the Senate, and the Defense Council, constitute the political institutions. On the other hand, the High Command ( Haut commandement militaire ) constitutes the military structure. It should be noted, nevertheless, that the Defense Council is both a political institution and a military structure. The political institutions are primarily involved in the appointment of military officers (the President of the Republic makes the appointments on recommendation by the defense minister during Cabinet deliberations), the management of national defense (the Prime Minister in collaboration with the President designs policies on matters relating to security and public order), the declaration of war (the National Assembly and the Senate authorize the declaration), and the implementation of the government policies on national defense (the defense minister is responsible for the application of those policies).

 

4.7.2.      The military structure

The High Command ( Haut commandement militaire ) is the military structure of the national defense apparatus. The mission of the High Command is threefold: to evaluate the operational capacities of military units, to assess security threats, and to determine budgetary constraints. The members of the High Command are the Chief of Staff of the Congolese Army, the Deputy Chiefs of Staff of the Congolese Army and their assistants, the chief of the land forces, the chief of the air forces, the chief of the naval forces, commanders of defense zones, the Commander of Military Academies, the commander of the medical corps, the commander of the corps of military engineers, the logistics commander, the commander of the media and information department, one commander responsible for civic education and another responsible for transmission troops. The head of the High Command and the army is the Chief of Staff of the Congolese Army ( Chef d’état-major general des Forces armées de la République démocratique du Congo ). Gen. Didier Longila Etumba is the Chief of Staff of the Congolese Army.

 

4.7.3.      The victory against the M23

In April 2012, an armed group backed by Rwanda and Uganda, the M23, rose in rebellion in eastern Congo against the Congolese government. The Congolese army suffered a spate of humiliating defeats inflicted by the M23. The M23 took control of a large zone within the North Kivu province. It controlled the provincial capital city, Goma, for a brief spell in November-December 2012 before they withdrew under pressure from the international community.

 

In response, the Congolese government worked out a three-pronged strategy: It addressed the insurrection politically, diplomatically and militarily. Regarding the military response, the government replaced a number of senior military officers and many frontline soldiers, improved logistics and the payment of soldiers’ salaries, streamlined the chain of command, rejuvenated the army with new recruits, and engaged in the battle a portion of the soldiers trained by the country’s external partners as part of the Congo’s security sector reform.

 

In parallel, members of the Southern African Development Community (SADC) – and to which the Congo belongs – accepted to intervene in the conflict. More specifically, South Africa, Tanzania and Malawi agreed to send three battalions to eastern Congo. Seeing that the situation was escalating into an all-out regional war, the United Nations mission in the Congo (MONUSCO), which had been accused of military posturing in the face of the rebel advance, proposed to integrate the SADC battalions in the UN force in the Congo as a special brigade. The UN Security Council equipped the special brigade with an offensive mandate and with weaponry that included drones to monitor the border between the Congo and two of its eastern neighbors, Rwanda and Uganda. In addition to deploying its largest and most expensive peacekeeping operation in the Congo, the Security Council marked with its resolution the first time the UN gave an offensive mandate to one of its peacekeeping missions and the first time it used drones in a conflict situation.

 

On the diplomatic front, the DRC was engaged in a UN-brokered regional peace plan. The plan, the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region , was signed in Addis Ababa (Ethiopia) by the DRC and nine other countries (Angola, Burundi, Central African Republic, Congo-Brazzaville, Rwanda, South Africa, South Sudan, Uganda and Tanzania). Supported by the UN Special Envoy for the Great Lakes Region, the Framework embodies sustained commitments at the national, regional and international levels to bring peace to eastern Congo and the region. The political prong of the Congolese government strategy entailed direct negotiations with the M23 in Kampala, Uganda, while holding an internal political dialogue, the National Consultations ( Concertations nationales ), in Kinshasa, DRC.

 

With the help of the UN and its special brigade, the government strategy led to the decisive military defeat of the M23 in November 2013 in what turned out to be the most glorious victory of the Congolese army and the first time since 1996 that there is no rebel group actively backed by a foreign state on Congolese soil. After defeating the M23, the army is fighting the remaining and smaller armed groups, local and foreign, like the Rwandan FDLR and the Ugandan ADF. The Congolese government has also begun the long process of disarming and demobilizing former M23 rebels and reintegrating them into society. In the meantime, the government is pursuing its reform of the military and, in September 2014, made new appointments following the new structures laid out in the 2013 organic law on the Congolese army.

 

4.8. Decentralization

 

4.8.1.     The provinces

Decentralization is a most important and taxing reform that the government has embarked upon. The Congolese legislator passed a law that outlines the fundamental principles underpinning the complex decentralization process. Te law lays down principles for the provinces regarding the management of human, economic, financial and technical resources.

 

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 (the city-province), 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 Jean Kamisendu as Governor;
  2. Bas-Congo , with Matadi as capital and Jacques Nsitu Mbadu as Governor;
  3. Equateur, with Mbandaka as capital and Louis Alphonse Koyagialo as Governor (Koyagialo passed away in December 2014.);
  4. Kasaϊ Occidental , with Kananga as capital and Alex Mupompa Kande as Governor;
  5. Kasaϊ Oriental , with Mbuji-Mayi as capital and Alphonse Kasanji Ngoy as Governor;
  6. Katanga , with Lubumbashi as capital and Moϊse Chapwe Katumbi as Governor;
  7. Kinshasa , the country’s capital with the status of province and with André Yango Kimbuta as Governor;
  8.  Maniema , with Kindu as capital and Pascal Salumu Tutu as Governor;
  9. North Kivu , with Goma as capital and Julien Kahongya Paluku as Governor;
  10. Province Orientale , with Kisangani as capital and Jean Saïdi Bamanisa 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 until the Constitutional Court begins its operations.

 

The Constitution has instituted a conference of provincial governors, Conférence des gouverneurs. It mandates the Congolese Parliament to enact an organic law on the Conference of Governors. The organic law was passed in 2008. The Conference of Governors meets twice a year in each province on a rotation basis. The Conference of Governors is composed of the provincial governors, the President of the Republic, and the minister responsible for home affairs. Any other member of the government can be invited to the Conference. The Conference was created because of the complexity of the rules and mechanisms governing (1) the relationships between the central and provincial governments, and (2) the relationships among the provinces. The Conference provides advice and put forward concrete suggestions on relevant policies and legislation.

 

4.8.2.     The challenges

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 provided 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. The government argued that the exercise would cost a few billion US dollars and promised to install the new provinces later. In the end, the Constitution was amended in 2011 to cancel the May 2010 deadline and mandate the Parliament to enact a law that will plan and set a timetable for the installation of the 26 provinces envisaged by the Constitution.

 

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 counter 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. Since the entry into force of the 2006 Constitution, the central government has favored its interpretation of article 175. For the fiscal year 2014, the central government sent to the provinces 17% percent of its 8 billion US dollars budget (approximately, 1,188,477,264 US dollars).Plus, question marks hand over the economic viability of most provinces.

 

Aside from the uncertain economic viability of most provinces, another decentralization challenge is the repeated internal wrangling that has already culminated in the removal or resignation of provincial governors in Bandundu, Equateur, Kasai-Occidental, Maniema and South Kivu. From the promulgation of the 2006 Constitution till 2011, all provincial assemblies in the Congo had been dogged by such controversies. These tense and sometimes chaotic situations were due to political inexperience and the absence of institutional safeguards. [14] Therefore, to quell those recurrent tensions, the Parliament amended the Constitution on 20 January 2011 to empower the President of the Republic to remove a provincial governor from office or dissolve a provincial assembly w hen a serious political and persistent crisis weakens provincial institutions. The President may take the decision to remove the governor from office or dissolve the provincial parliament by ordinance after deliberating the question in Cabinet and consulting the National Assembly and the Senate. If the provincial assembly is dissolved , the national electoral commission, the CENI, will organize provincial elections within a specified number of days from the removal or the dissolution. Speaking of the dissolution of a provincial assembly, the CENI may in extraordinary circumstances apply to the Constitutional Court to extend the deadline to 120 days.

 

4.9. The École Nationale d’Administration

In order to handle the sheer complexity and the enormous challenges posed by decentralization in particular and governance in general, the Congo has decided to create the École Nationale d’Administration ( ENA ). Following the lead of several French-speaking countries in Africa (e.g. Algeria, Senegal, Niger), the Congo created in April 2013 the ENA, an elite school for senior civil servants, modeled after the prestigious school of the same name in France ( ENA in France ). The government’s intention in creating the Congolese ENA was to rebuild the state, enhance its effectiveness and strengthen the decentralization process. The primary mission of the ENA is to recruit and train senior civil servants on the design, the implementation and the monitoring of public policies. Lectures will be given by high-ranking members of the Congolese civil service and the executive branches of foreign governments. The ENA was inaugurated in June 2014.

 

5.      Criminal law

 

5.1. Overview

The concept used in Congolese law to refer to a crime is ‘infraction’ ( infraction ). Congolese criminal law, which is mainly written in the 1940 Penal Codes, can be split in two parts: the ordinary Penal Code for civilians and the Penal Code for the military . The corresponding Code of Penal Procedure  and the Military Courts Code , respectively, regulate the implementation of the ordinary and the military Penal Codes. In April 2010, the Penal Codes were updated so as to incorporate the latest amendments and complementary provisions. Over and above the Penal Codes, specific laws criminalize 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 Parliament amended 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 had reached epidemic proportions in the troubled east of the country. To be sure, from 1999 to 2011, about 200,000 women and girls got raped in the DRC. [15]

 

5.2. The Penal Code

The Penal Code has two books. The first book is on infractions in general and the second book is on specific infractions. In the opening section of the first book, the Penal Code expresses a central element of the principle of legality, the nulla poena sine lege, which states that no punishment can be meted out for an act without a pre-existing law criminalizing that act. Moreover, the Code defines an ‘attempt’ punishable by law where a person’s intention to commit an infraction becomes manifest through observable conduct that begins the execution of the infraction and that has been cut short or that failed to produce the intended outcome because of circumstances beyond that person’s control.

 

By virtue of article 215 of the Constitution, which puts duly ratified international treaties above Congolese legislation, the provisions of the Rome Statute of the International Criminal Court complement the Penal Code and override conflicting provisions in the Code. Military tribunals in the DRC have lately been applying the provisions of the Rome Statute directly in cases of war crimes and crimes against humanity. [16]

 

5.2.1.      The infractions

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 ). However, the gravity of infractions varies from case to case.

 

The second book (on specific infractions) groups infractions into eight titles, namely:

 

  1. Infractions against individuals
  2. Infractions against property
  3. Infractions against the faith and credit of the state
  4. Infractions against public order
  5. Infractions against public safety
  6. Infractions or family order
  7. Violations of individual rights
  8. Endangering the security of the state

 

Under the first title (infractions against individuals),  the Penal Code criminalizes or provides for intentional homicide and bodily injury, unintentional homicide and bodily injury, superstitious and barbaric practices, duels, the duty of care towards third parties ( non-assistance à personne en danger ), the security of the person ( attentat à la liberté individuelle ), the privacy of the home ( inviolabilité du domicile ) and privacy with respect to mail ( attentats à l’inviolabilité du secret des lettres ), the revelation of professional secrets, defamation and insults made in public. A 2011 amendment to the Penal Code adds the prohibition against torture to the list of infractions punishable under the Code.

 

The second title deals with infractions against property: theft, extortion, fraud, and damage to property. Fraud and damage to property comprise sub-infractions. The broad heading of fraud includes bankruptcy and similar situations, breaches of trust ( abus de confiance ), ‘poaching’ employees from another firm ( détournement de main-d’oeuvre ), scams and deception ( l’escroquerie et la tromperie ), concealment of property obtained as a result of an infraction ( recèlement des objets obtenus à l’aide d’une infraction ), fraudulent concealment or delivery of property obtained by chance to third parties ( cel frauduleux ), and making off without payment ( grivèlerie ). Falling under the damage-to-property heading, are arson ( incendie ); the destruction of buildings, machines, tombs and monuments; the destruction and degradation of trees and crops ( récoltes ); the ‘destruction’ of animals ( destruction d’animaux ); and the removal or displacement of boundaries ( enlèvement ou déplacement des bornes ).

 

The third title criminalizes the counterfeiting, forgery and/or imitation of banknotes, seals, stamps, punches ( poincons ) and marks; the usurpation of public functions, and the illegal wearing of decorations ( port illégal de décorations ). It also criminalizes the falsification of written documents ( faux commis en écriture ), perjury ( faux témoignage ) and false swearing ( faux serment ). The next title is about infractions against public order, especially rebellion, the breaking of seals ( bris de scéllés ), the obstruction of public works ( entraves apportées à l’exécution des travaux publics ), violations of the freedom of trade and navigation ( atteintes à la liberté du commerce et de la navigation ), embezzlement ( détournements et concussions ), and infractions relating to marital status. The fourth title also forbids provocation and incitement to disobedience towards public authority ( manquements envers l’autorité publique ), offending or assaulting members of the National Assembly, the Government, or the security forces. The fourth title has a section dedicated to the criminalization of corrupt practices. It prohibits and punishes corruption, illegal earnings ( rémunérations illicites ) afforded to employees of private firms, influence peddling and the unlawful withholding of public funds by civil servants ( abstention coupable des fonctionnaires ).

 

The fifth title (infractions on public safety) prohibits and punishes criminal gangs, threats of assault and the escape of prisoners ( évasion de détenus ). The next title (infractions against family order) criminalizes abortion, rape and indecent assault ( atteinte à la pudeur ), sexual offenses ( attentats aux moeurs ) and offenses against public morality ( outrages publics aux bonnes moeurs ). The provisions on sexual offenses were amended in 2006 to incorporate into the Code progressive and gender-neutral definitions of sexual offenses in line with international law. [17] The seventh title (violations of individual rights and freedoms) protects the freedom of religion ( la liberté du culte ) and freedom of conscience; and the right of individuals to administrative justice ( atteintes portées par des fonctionnaires publics aux droits garantis aux particuliers ). The last title (infractions against the security of the state) penalizes treason, infractions against the authority and territorial integrity of the state, participation in armed groups and insurrections, infractions against homeland security and other infractions against the security of the state.

 

5.2.2.      Sentences and extenuating circumstances

In its first book, the Code lists the possible sentences a judge may hand down. Depending on the facts of the case and the severity of the infractions, judges may impose the death penalty, hard labor, imprisonment ( servitude pénale ), fines, forfeiture ( confiscation spéciale ), the obligation to stay away from certain places ( l’obligation de s’éloigner de certains lieux ou d’une certaine région ), forced residence in a given place ( résidence imposée dans un lieu déterminé ) and monitoring by the state ( mise à la disposition de la surveillance du gouvernement ). A judge may suspend a sentence he imposes. When one positive conduct constitutes several infractions, the court must, in punishing that conduct, pass the sentence of the infraction that carries the most severe sentence.

 

These sentences do not preclude plaintiffs in civil proceedings from claiming damages the accused may be owing them. In such cases, the court in the criminal proceedings determines the amount of damages. If extenuating circumstances exist, courts may commute a death penalty to a life sentence and a prison term to a fine. Judges must expressly state in their judgments the extenuating circumstances, if any, they took into account when passing a sentence.

 

The President of the Republic determines by which means the state is to execute the death penalty. Hard labor must last one year at least and 20 years, at most, and may not be exacted on a convicted person concurrently with a prison term. Prison terms must last one day (24 hours) at a minimum. Any time spent in detention before conviction is deduced from the prison term pronounced by the judge after conviction. If a convict fails to pay a fine imposed by a court in a criminal case, the court may replace the fine with a prison term, not exceeding six months. Where an infraction is amenable to a minimum prison sentence of six months or where the circumstances warrant a maximum prison sentence of six months, the court may replace the prison sentence with an obligation to stay away from certain places or to reside in a given place for one year at most.

 

Where a person has committed, for a period of 10 years, three infractions, each carrying a minimum prison term of six months, he may be sentenced to monitoring by the state ( mise à la disposition de la surveillance du gouvernement ). The repeat offender may be interned at a place chosen by the President of the Republic. If a person is sentenced to two consecutive terms of monitoring by the state, the two sentences will run one after the other. If a convicted person is released on parole, the surveillance du gouvernement sentence starts to run from the date of the release. Lastly, if during the surveillance du gouvernement the convict is arrested, the surveillance du gouvernement will be suspended for the entire duration of the arrest.

 

5.3. Criminal procedure

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. The rules of criminal procedure are detailed in the Penal Procedure Code .

 

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 a civil action before the Office of the Public Prosecutor ( le Parquet ) and, at the same time, commence criminal proceedings. Alternatively, the victim can file a separate action before civil courts and tribunals ( cours et tribunaux ) independently from the criminal proceedings. However, in order to avoid mutually inconsistent outcomes in the court proceedings, a separate action for damages before a civil court will cause a stay of the civil proceedings until the criminal court issues a final judgment in the criminal proceedings. The choice of forum has decisive 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 does not have the power to carry out 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 infractions, the victim may also directly assign the perpetrator before the court by way of a writ of summons. However, the use of a 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, which is a material or moral benefit deriving from the civil claim for damages and capable of redressing the plaintiff.

 

Part II: Private Law

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.

 

6.     The Civil Code

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 court procedure in civil law litigation is provided for in the 1960 Civil Procedure Code .

 

6.1. Persons and families

The first part of the Civil Code is the Family Code, also called droit civil des personnes ( the 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 ‘philosophy’ of ‘authenticité (authenticity), 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 civil 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 authenticité 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 the children must concern itself with their fate by virtue of the duty of family solidarity. The state will only assume guardianship if the children are abandoned or their parents have lost guardianship. The second book of the Family Code addresses the legal capacity of persons. It requires, in tune with traditional mentality, that married women obtain permission from their husband before performing a valid legal act. This provision is on its face 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. A customary marriage needs to be officially registered; a civil marriage is recorded at the local city hall and a marriage certificate ( acte de mariage ) is issued to the newly wed.

 

The Code sets the minimum age of marriage at 18 for boys and at 15 for girls. 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 separate property (separation des biens) , community property ( communauté universelle ) and partial community property ( communauté réduite aux acquêts ). Partial community property is a regime composed of both property held in community and property held separately by the spouses. The Code 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 ( destruction irrémédiable de l’union conjugale ) and divorce. The fourth and final book of the Family Code codifies norms relating to succession and inheritance.

 

6.2. Property

The second part of the Civil Code, the 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.

  

6.3. Obligations

The third part of the Civil Code is the law of obligations. It comprises contracts and delicts (referred to as ‘torts’ in most common law countries). The law of obligations is contained in a general law of 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 ( échange ), (5) leases, (5 bis ) partnerships ( contract de société ), (6) loans, (7) escrows ( dépôt et séquestre ), (8) agency ( mandat ), (9) surety ( cautionnement ), (10) transactions, and (12) pledges ( gage ).

 

Contract law sets out four general requirements for a valid contract. It requires consent and capacity, and the satisfaction of 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 something. It contains provisions on the interpretation of contracts, damages for contract breaches, and effects on third parties. It also categorizes obligations into conditional, suspensive, and alternative obligations; obligations giving rise to joint and several liability; 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 by court order (as a result of a successful action for the cancellation of the contract).

 

 

7.      Economic law

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.

 

7.1. Economic outlook

According to the World Bank, the 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. [18] The economy of the DRC – devastated by years of conflict, mismanagement and institutional attrition – has since 2002 started to recover, with annual growth averaging 5%. In the past few years, the Congo consolidated macroeconomic stability and its gross domestic product (GDP) grew at a higher rate. Thus, in 2013, World Bank data show that GDP grew by 8.48 percent. The Congolese economy was the 20 th largest (out of 54 countries) in Africa in 2010; it became 15 th in 2014. The African Development Bank projects that this upward trend will continue, reinforced by three factors: mining investments, infrastructure reconstruction and improved agricultural productivity. [19] The year 2012 marked a decade of positive economic growth in the DRC.

 

The country’s GDP was 30.6 billion US dollars in 2013, up from 27.4 billion US dollars in 2012. [20] It should reach 49 billion US dollars by 2019. [21] The value of exports increased to 9.9 billion US dollars in 2013 from 8.8 billion US dollars in 2012. [22] Inflation was 1.63% in 2013, [23] well below the hyperinflation that reigned for several years before 2001. In 2014, the World Bank stated that the DRC is one of the 10 countries that improved the most in the facilitating business. [24]

 

The Congo joined the Southern African Development Community (SADC) on 8 September 1997 and the World Trade Organization (WTO) in January 1997. It plans to join the SADC Free Trade Area in the near future. The major industries in the DRC are mining, mineral processing, consumer products, metal products, processed foods and beverages, timber, cement and commercial ship repair. [25] The DRC is a leading exporter of copper and cobalt in Africa. Accounting for more than half of all Congolese exports, China is by far the Congo’s largest trading partner, followed by Zambia, South Africa and Belgium, in that order.

 

Following the country’s 50 th anniversary celebrations in July 2010, the World Bank and the International Monetary Fund approved debt relief for the Congo after the latter successfully met conditions set by those donor agencies. The debt relief was aimed at wiping out 90% of the country’s then 12.3 billion US dollars debt. At present, the country’s debt stands at 6 billion US dollars. [26]

 

However, the Congo is still a weak post-conflict economy in dire need of backbone infrastructure, sustained growth, improved fiscal management and capacity building. Despite its 2014 ranking by the World Bank as one the top ten improvers, the Congo has nonetheless a comparatively low overall competitiveness. In the same vein, the national budget, though steadily increasing, is nonetheless relatively low. For the fiscal year 2015, the budget is 9 billion US dollars, 21% of which is to be funded from external sources. Growth, wealth and development are not yet evenly distributed within and across provinces, with a big pool of poverty and underdevelopment throughout the country, and with two notable islands of relative prosperity in the city-province Kinshasa and Lubumbashi (Katanga province).

 

At 412 US dollars, [27] the DRC’s GDP per capita is one of the world’s lowest, despite the fact that most economic activities take place in the informal sector (which is the reason why it is not reflected in GDP data). 71% of the population lives under the poverty line [28] while the bulk of the country’s workforce is employed in the informal sector. Widespread poverty points to the need for deeper reforms if the DRC’s sustained growth is to broadly trickle down to the poorest. The DRC is one of the countries in Africa with the lowest concentration of middle class (less than 20%) among their population. [29] What is more, there is a humanitarian crisis in the northeastern provinces and some disquieting human development indicators. Finally, the Congo’s bank to client ratio is equally very low. Nearly 85% of the money supply circulates outside the official banking system. [30]

 

7.2. Drivers of future growth

Going forward, economic growth will be stimulated by four massive projects: the 6 billion US dollars resource-for-infrastructure investment deal between the DRC and China, the 5,76 billion US dollars plan to build agricultural industrial parks, the 12 billion US dollars development of the Grand Inga III hydroelectric complex and the exploitation of hydrocarbons. First, in 2008, the Congo entered with China, its largest trading partner, into its biggest 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.

 

Second, the government opened in July 2014 the Bukanga-Longo Park, the first agro-industrial park in the DRC. Two years earlier, the Congolese President promulgated a law enunciating the fundamental principles of agriculture . Located in the Bandundu province, the Park is aimed at boosting agricultural productivity and catering to the needs of the population in terms of food security. The Bukanga-Longo Park is part of a 5.73 billion US dollar plan to build about 20 agro-industrial parks. [31] Through these parks, which enjoy the status of special economic zones, the government intends to create one million jobs and to reduce from 54% to 20% the proportion of the population suffering from malnutrition. [32]

 

In May 2013, the DRC and South Africa signed a treaty on the construction of Inga III. In terms of the agreement, South Africa will be the principal purchaser of the power generated by Inga III, which is expected to produce 4,300 megawatts by 2019/2020. Inga III is one of the seven phases in the bigger 80 billion US dollars plan to develop Grand Inga, the world’s largest hydropower scheme, thanks to the lower Congo River in the DRC. [33] The Congolese government stated that construction work should begin in 2015. Lastly, the tabling of a bill on hydrocarbons and the recent discovery of a 3 billion barrels oil reserve in Province Orientale in 2014, in addition to existing and untapped oil reserves, is likely to usher in a golden era of oil and gas in the DRC.

 

7.3. Economic institutions

The Constitution creates a number of economic institutions, namely an Economic and Social Council ( Conseil économique et social ), the Central Bank of the Congo , the Cour des Comptes (Audit Court), 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 equalization 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, public finance , the economy, trade , international cooperation, planning and mining , to steer the economy into the right direction.

 

7.3.1.      The Economic and Social Council

Inaugurated in September 2014, the Economic and Social Council ( Conseil économique et social ) gives advisory opinions on economic and social questions submitted to it by the President of the Republic, the National Assembly, the Senate and the government. Put another way, the mission of the Council is to bring forward proposals to ameliorate the daily life of Congolese citizens. The Council may, on its own motion, draw the attention of the government and provinces on reforms it deems capable of spurring the economic and social development of the country. Matters could also be referred to the Council by petition.

 

The organic law on the Economic and Social Council was adopted in October 2013. In its Exposé des motifs, the law observes that the s soci oeconomic management of the DRC is often characterized by inefficiencies and setbacks due the lack of a structured framework for dialogue between the various socio economic actors. The role of the Council is therefore to encourage dialogue between stakeholders and the confrontation of views and experiences.

 

The Council has 68 members, representing a cross-section of the population. More specifically, its membership represents employers; workers; non-governmental organizations working in social, economic and environmental fields; churches; women’s associations; traditional leaders; the scientific community; financial institutions; and the Congolese Diaspora. The Council further includes independent members.

 

7.3.2.      The Central Bank of the Congo

The Central Bank of the Congo ( Banque centrale du Congo ) is provided for in the 2006 Constitution, but the organic law on the Central Bank of the Congo was enacted in 2002, in the early days of the government’s reform of the economy. In that regard, the Central Bank served a crucial role in setting monetary policy standards. From 2001 to 2002, inflation decreased from 360% to 31.52%; from 2002 to 2003, it decreased to 12.87%. [34] Since 2006, inflation never passed the 20% mark and in 2013 it stood at 1.63%. [35] The 2002 Central Bank law was indeed born of the realization that the Bank needed an evolutionary adaptation to the new economic situation in the Congo and the world.

 

The overall objective of the Central Bank law is the formulation of a global monetary policy with the search for prosperity as a backdrop. The 2006 Constitution outlines the functions of the Central Bank. The Central Bank keeps public funds, preserves monetary stability, defines and implements monetary policy, controls banking activities, and acts as economic adviser and banker to the government. Furthermore, the Constitution affirms the independence of the Central Bank vis-à-vis the government. Deogratias Mutombo Mwana Nyembo is the Governor of the Central Bank of the Congo.

 

7.3.3.      The Cour des Comptes

The Constitution institutes the Cour des Comptes ( Audit Court ). The Court is answerable to the Parliament. It controls the management of public finances, public property, and audits the accounts of provinces, decentralized territorial entities and public institutions. It submits every year a report to the President of the Republic, the Parliament and the government. The report is published in the government gazette Journal Officiel. The Court also submits annually the General Account of the Republic ( Compte général de la République ) to the Parliament. Moreover, the Court draws up thematic reports, some of which may be found on its official website .

 

The Attorney General at the Audit Court ( Procureur général près la Cour des comptes ) is legally entitled to intervene in the functioning of the Audit Court by way of conclusions, opinions and requisitions regarding persons who must submit reports to the Court. He or she ensures that those persons abide by their reporting obligations, failing which he or she may ask them to pay fines. The Attorney General and his or her assistants may attend the proceedings of the Audit Court.

 

Members of the Audit Court are trained judges and formally enjoy the same status as judges of the Supreme Court. They must be highly qualified in finance, law or public administration and have at least 10 years of experience in those disciplines. They are appointed and removed from office by the President of the Republic on advice from the National Assembly. Ernest Nsaa-Nsaa Izemengia is the President of the Audit Court. Non-judge administrative staff includes auditors and accountants.

 

7.3.4.      The Federation of Employers

The Fédération des Entreprises du Congo ( the federation of employers in the Congo ) or FEC is a non-profit association representing and defending the interests of employers in the DRC. The FEC wears two hats: It is an employers’ organization and a chamber of commerce, industry, agriculture and small trade. It has many national and international partners, including the International Monetary Fund, the African Development Bank and the Agence Française pour le Développement (French Agency for Development). Albert Mulimbi Yuma is the President of the FEC.

 

7.4. The neoliberal turn of the economy

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. The DRC kicked off 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.

 

Towards the mid-90s until 2003, relations between the DRC (then under the dictatorial regime of Mobutu) and foreign donors, as well as international financial institutions (IMF, World Bank and African Development Bank), had been broken. The DRC, whose national budget is partly dependent on financial assistance from international financial institutions and aid from industrialized nations, saw its economy plummet and suffer hyperinflation and other economic ills during that period. The situation did not really improve till the year 2001, at the turn of the 21 st century.

 

In 2001, the government laid the foundation for (1) the restoration of relationships with foreign donors and international financial institutions and (2) the economic recovery that continues to this day. Apart from turning a hyperinflationary and receding economy into a growing one, the government adopted four key pieces of legislation in 2002, to wit the Labor Code, the Mining Code, the Foreign Investment Code and the Forestry Code. Through those economy-structuring laws, the government liberalized the labor market, the mining industry and forestry.

 

The government set up a public institution that coordinates and orchestrates the implementation (across ministries) of programs and financial assistance provided and supported by international financial institutions, notably by the World Bank. That institution, created in August 2001 by presidential decree, is the Bureau Central de Coordination (BCECO) (Central Coordination Bureau) ( website ). The BCECO is one of the first institutions to be founded after the restoration of formal relationships with international financial institutions in 2001.

 

Faithful to its neoliberal drive, the government has moved on to liberalize the energy and insurance sectors. In June 2014, the Parliament enacted a law that opened up the energy sector to private ownership . That same month, it adopted an Insurance Code that liberalized insurance markets.

 

7.4.1.      Foreign investment

Lately, the DRC has managed to attract sizeable foreign investments. It attracted foreign direct investments of more than 3 billion US dollars in 2012 [36] and of more than 2 billion US dollars in 2013. [37] 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 reeling from a long process of disinvestment. It is against that economic background that the legislator decided to remodel 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. (So far, only 5% of the salaried workforce is employed by the private sector [38] while 90% of businesses in the Congo operate in the informal sector. [39] ) Third, civil society promotes humanity in its various dimensions. It is this philosophy that the legislator has incorporated into the Investment Code to bring in foreign capital and encourage foreign investors to invest in priority sectors in accordance with the Congo’s development plan ( Congo investment guide ).

 

The Code is selective and gives priority to investments in strategic sectors in line with the Congo’s development plan. It is thus organized around four key objectives. First, the state must prioritize transportation investments 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.

 

T o reduce transaction costs, the Code has set up a single window center for foreign and local investors, the Agence Nationale pour la Promotion des Investissements ( ANAPI ).

 

7.4.2.      Mining

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 is one of the greatest contributors to state coffers, albeit the mining sector still faces numerous formidable challenges. It is estimated that the Congo’s vast reserves of mineral resources are worth 24 trillion US dollars. [40] Mining activities have boosted government revenues in 2006-2014, creating opportunities for the government to improve socio-economic conditions in the country. Government revenues further increased a fter an extensive review (2008-2009) of 60 onerous contracts—concluded during the transition (2003-2006) – that ended up 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.

 

The DRC is revising its Mining Code. At this stage, the government is consulting various stakeholders. I t remains to be seen how is the regulation of mining activities going to be reinvented.

 

7.4.3.      Labor

The Labor Code updated labor norms by introducing a few innovations. It extended the scope of application of the labor law to (1) small and medium enterprises, (2) small and medium industries operating in the informal sector, and (3) 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.

 

7.4.4.      Forestry

In a 2011 report, the United Nations Environment Programme said that the DRC’s tropical rainforest extends over 1.55 million square kilometers and that the country accounts for more than half of Africa’s forest resources. [41] The President signed the Forestry Code into law in 2002. The Forestry Code defines the rules applicable to the conservation, exploitation and development of forest resources. This legal regime is designed to promote a rational and sustainable management of natural forest resources so as to augment their contribution to the economic , social and cultural development of present generations while preserving forest ecosystems and biodiversity for future generations.

 

7.5. Business organizations

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’ (‘ compagnie’ ), 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 whose shares are from time to time open to public subscription. Most joint ventures between international mining companies and state-owned companies, 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 en Afrique du Droit des Affaires (Organization for the Harmonization of Business Law in Africa). The DRC joined the OHADA in 2012.

 

The fundamental norms of the law of business organizations are enshrined in the Décret Royal of 27 February 1887 , as amended . The 1887 Royal Decree 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. If a company abuses its juristic personality, 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 a 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 is no longer the only owner-shareholder and in which it holds shares like any other shareholder. [42] The peculiarity of this type of commercial entities, known as société commerciale, 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 could affect the nature and the extent of liability of parastatal companies if they commit human rights violations.

 

7.6. Initiatives to improve business climate

The World Bank placed in 2014 the Congo among the top 10 improvers worldwide in terms of business regulation reforms introduced in 2013. [43] Indeed, t he government has latterly been leading a range of initiatives with the intention of improving the business climate in the DRC. [44] In 2009, it has involved private firms in the terminal handling process at the port of Matadi in the Bas-Congo province, an initiative that has reduced cargo handling time. It eased business start-ups by getting rid of procedures in 2010, by reducing the time required to register a business in 2011, by appointing additional public notaries in 2012, and by eliminating in 2013 the requirement to get a certificate indicating the location of a company’s headquarters. [45]

Of particular interest, the government adopted a value added tax, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the OHADA Treaty, a one-stop shop for the creation of businesses, and another for external trade. The government replaced the sales tax with a value added tax in 2011. In June 2013, the DRC completed its ratification of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Adhering to the New York Convention encourages foreign investments in the DRC by enabling the DRC to make credible commitments and by protecting the interests and property rights of foreign investors.

 

The DRC ratified in July 2012 the Treaty of the OHADA, the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (Organization for the Harmonization of Business Law in Africa). The OHADA is an institutional framework designed to serve the purpose of regional integration and economic growth on the continent. The initiative to ratify the OHADA Treaty has the effect of modernizing Congolese business laws in more than one area, especially secured transactions, corporate law, and insolvency.

 

Before it simplified corporate income tax returns and abolished minimum taxes in specified instances, the government had opened in May 2013 a one-stop shop for the creation of businesses . Setting up this one-stop shop eliminates procedures and intermediaries, and makes the whole process of business start-up more efficient. Last but not least, the government officially launched works on a one-stop shop for external trade in October 2014. This one-stop shop, which will be an electronic platform, would upon completion integrate all the operations of external trade.

 

Part III: Judiciary law

 

8.     The court system

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.

 

8.1. The phasing-out court system

The Supreme Court ( Cour suprême de justice ) is the highest court in the DRC. The Supreme Court has three sections: administration, legislation and judiciary. The prosecutors from the National Office of the Public Prosecutor ( Parquet général de la République ) have the right to appear before the Supreme Court. Prosecutors are responsible for instituting prosecutions in criminal cases and for representing the public interest in certain ordinary civil cases. The procedure in the Supreme Court is detailed in a 1982 law .

 

Second, the Court of Appeals ( Cour d’appel ) has two sections: Administration and judiciary. Prosecutors from the General Office of the Public Prosecutor ( Parquet général ) have the right to appear before the Court of Appeals . Third, the Tribunal de Grande Instance is a court with a wide subject-matter jurisdiction.

 

Fourth, magistrates’ courts ( tribunaux de paix ) are the only ones with the power to conduct investigations because prosecutors do not appear before them. Magistrates’ courts 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 the army. They equally decide cases of war crimes and crimes against humanity, even if the accused person is a civilian.

 

8.2. The judiciary as set out in the Constitution

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. When the Constitutional Court will choose a President among its numbers, the President of the Constitutional Court will be the country’s Chief Justice. In the meantime, the Chief Justice of the DRC is the chief judge of the Supreme Court. Thus, the Chief Justice ( Premier président de la Cour supr ȇ me de justice ) is Jérome Kimpele Kitoko; the Prosecutor-General ( Procureur général de la République ) is Floribert Kabange Numbi.

 

In order to improve effectiveness, specialization, and speedy justice, the Constitution divides the judicial system in three separate hierarchies of specialized courts, the ordre de juridiction (which can be translated as ‘court system’), to wit the ordinary (civil and criminal), the administrative and constitutional court systems. 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 Council of State ( Conseil d’État ); and the highest court in constitutional matters is the Constitutional Court ( Cour constitutionnelle ). In practice, the current Supreme Court will be split in those three ‘supreme courts’ (i.e. the Court of Cassation, the Council of State and the Constitutional Court). Some of these courts, like the Council of State, do not yet exist but the ongoing reforms in the judiciary aim at aligning the existing judiciary with the one envisioned by the 2006 Constitution.

 

The Constitution gives certain public prosecutors ( procureurs , magistrats de parquet and auditeurs militaires ) the right to appear before the courts. For instance, the Constitution empowers the Procureur Général près la Cour Constitutionnelle , the Procureur Général près la Cour de Cassation and the Procureur Général près le Conseil d’État to appear before the Constitutional Court, the Court of Cassation and the Council of State, respectively.

Caption: The constitutional structure of the judiciary

 

 

8.3. The Judicial Service Council

The Judicial Service Council ( Conseil 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 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. L ike in French law, prosecutors are judicial officers and, as a result, part of the judiciary in Congolese law. The JSC prepares and manages the remuneration and running costs budgets of the judiciary. However, the financial management of the JSC is subject to control by the Ministry of Finance’s Office of the Inspector General ( Inspection générale des finances ), the Cour des Comptes (the Audit Court) and the Parliament.

 

National and provincial disciplinary chambers hold 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.

 

8.4. The Constitutional Court

Article 157 of the 2006 Congolese Constitution institutes the Constitutional Court. The government has passed in October 2013 an organic law on the Constitutional Court . The Constitutional Court is expected to become operational in 2015. Before the Court can become operational, its members must first adopt the rules of court, elect the Court’s president, take the oath of office and set up the administration of the Court. Additionally, the President of the Republic will have to establish the General Office of the Public Prosecutor that will be staffed by the Attorney General and the attorneys with the right to appear before the Constitutional Court.

 

8.4.1.     Jurisdiction

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 Council of State and the Court of Cassation on jurisdictional questions. In that sense, the Constitutional Court performs in the Congo the function that the Tribunal of Conflicts fills in France: deciding within which ordre de jurisdiction or court system a case falls.

 

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 regulations before their promulgation. It checks the constitutionality of the rules of order of the Parliament, the Independent Electoral Commission, and the CSAC. 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 in the country.

 

The Court interprets the Constitution upon request by the President of the Republic, the government, the President of the Senate or the Speaker of 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 the Parliament and between the central and provincial governments. The Court also hears criminal cases against the President of the Republic 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. The International Criminal Court exercises complementary jurisdiction in cases of war crimes and crimes against humanity.

 

8.4.2.     Membership and tenure

The Constitutional Court is made up of nine judges appointed by the President of the Republic. The President chooses three judges for appointment as Constitutional Court judges; the congress (i.e. Senate and National Assembly, voting collectively) and the JSC each recommend three Constitutional Court judges. Appointed in July 2014, the nine judges of the Constitutional Court are Eugène Lwape Banyaku, Jean-Louis Kangashe Esambo, Yvon Kele Oma Kalonda, Noël Ngozi Mala Kilomba, Luamba Bindu, Emmanuel-Janvier Bambi Lessa Luzolo, Mpunga Sungu, Félix Vunduawe Te Pemako, and Corneille Nsongo Wasenda.

 

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. The current membership of the Constitutional Court features former Supreme Court judges (Kele Kalonda, Luamba Bindu), legal practitioners (Kangashe Esambo, Kalonda, Mala Kilomba, Mpunga Sungu, Nsongo Wasenda), former senior government members (Lwape Banyaku, Esambo, Bambi Luzolo, Vunduawe Te Pemako), law professors (Esambo, Luzolo, Vunduawe), and a political scientist (Banyaku). Constitutional Court judges serve for a non-renewable term of nine 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 three years.

 

8.5. The Court of Cassation

Article 153 of the Constitution creates the Court of Cassation ( Cour de cassation ) and puts civil and military courts under its control. Stated differently, the ordinary court system is headed by the Court of Cassation. In April 2013, the Congolese Parliament passed an organic law on the ordinary court system , which is the vast private and criminal law court system that encompasses the magistrates’ courts ( tribunaux de paix ), military courts, the Tribunal de Grande Instance, commercial courts, Courts of Appeals, the Military High Court and the Court of Cassation. Ordinary courts mediate the extensive range of civil and criminal litigation; they are the heart of the judicial system.

 

The Court of Cassation is composed of one chief justice ( Premier président ), associate justices ( présidents ), and advisors ( conseillers ). It is divided in four chambers: one chamber for civil matters, another for commercial matters, a third chamber for social matters and a fourth one for criminal matters. Each chamber has five members. The Parliament signed legislation on the procedure before the Court of Cassation in February 2013.

 

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. Yet when a case is appealed to the Court of Cassation, the Court does not decide the case itself; it decides only the legal questions referred to it. The Court either upholds the decision from a lower court or quashes it; in such event the Court will remand the case for reconsideration to the lower court in the light of the Court of Cassation’s decision on the legal questions.

 

One exception exists, though. The Court of Cassation has original and appellate jurisdictions in criminal cases against senior government officers. It decides both the facts and the legal question(s) in 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 appearing before that Court, members of the Council of State and prosecutors appearing before the Council, members of the Court des Comptes and prosecutors appearing before that Court, the chief judges of courts of appeals and the prosecutors appearing before those courts, the chief judges of administrative courts of appeals and the prosecutors appearing before those courts, the Governors and vice-governors, provincial ministers, and the presidents of provincial assemblies.

 

8.6. The Council of State

Article 154 of the Constitution unfolds a system of administrative courts, formed by the Council of State ( Conseil d’État ), the Administrative Court of Appeals, administrative courts and tribunals. Unlike the Council of State in France, the Council of State in the DRC is part of the judiciary, not part of the executive branch of government. The Congolese Council of State 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 appeals. In instances where there is no competent courts to hear claims for damages caused by measures taken or ordered by the state, the Council adjudicates. It bases its decisions on equity taking into account all circumstances relevant to the parties.

 

8.7. Special courts

 

8.7.1.     Commercial courts

A 2001 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 responsible for the administration 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, partnerships, unfair competition and commercial papers.

 

8.7.2.     Labor courts

Another law , enacted in 2002, 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 responsible for the administration 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.

 

 

Part IV: Education, the Bar and research

 

9.     Legal education

Legal education in the DRC takes five years to complete. Thus, most students enrolling in law faculties at Congolese universities are between 17 and 21 years of age. Generally speaking, law students 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 with lesser 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 ), earned after five years of formal training, entitles its holders to practice as judges or advocates, as they may wish. Universities offering law degrees include Université de Kinshasa , Université de Lubumbashi , Université de Bandundu , Université Libre de Kinshasa , Université Libre des Pays des Grands Lacs , Université Protestante au Congo , and Université William Booth .

 

Since April 28, 1989, the Congolese government has liberalized higher education. This liberalization means that private universities, like the Université Protestante du Congo (UPC), Université Libre de Kinshasa (ULK) and Université William Booth, can offer degrees in law. In theory, law graduates from any university in the DRC can legally work in the judiciary. In practice, however, for appointments as judges, the government seems to prefer law students from state universities, notably the Université de Kinshasa (UNIKIN) and the Université de Lubumbashi (UNILU).

 

10. The Bar

To represent clients in court, law graduates must be admitted to the Bar beforehand. Officially called the Ordre National des Avocats de la RD Congo, the national Bar posts a list of admitted legal practitioners . On that roll of attorneys, are listed in alphabetical order all legal practitioners admitted to practice in the DRC. The roll of attorneys is an electronic database, allowing users to search the database for licensed lawyers. Tharcisse Kamba Mutu Matadiwamba is the President of the national Bar ( bâtonnier national ).

 

11.   Legal resources

 

11.1. Printed resources

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. 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 at 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 Press) publishes books on Congolese law, but the dearth of resources means that publication of suchlike books is infrequent.

 

The DRC branch of France’s leading publisher L’Harmattan has many publications on the legal system of the Congo. L’Harmattan publishes the Congolese law review Revue Congolaise de Droit et des Affaires. What is more, 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 Éditions Larcier , a legal publisher in Belgium. The Éditions Larcier published Les Codes Larcier . These annotated Larcier codes , organized in seven tomes, cover all the major codes in the main areas of Congolese law.

 

11.2. Online resources

Although there are not many Internet resources on 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 source of electronic versions of applicable Congolese codes and other pieces of legislation. Another source is Droit Congolais . Droit Congolais contains information on Congolese legislation, case law and legal bibliographies. It boasts a rich and complete repertoire of Congolese constitutions and constitutional laws .

 

A third source is Juricongo . Juricongo is another useful resource for Congolese legislation. It is an important online resource, but it is not free and not as resourced as Leganet and Droit Congolais . In addition, a few Congolese codes and statutes can also be found on Afrique-Droit and Congolegal . The official website of the government gazette Journal Officiel , which was under construction as of October 2014, promises to be a first-rate online resource on Congolese law, considering that the government gazette is the official database of Congolese laws.

 

Some government institutions and international organizations 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 State-Owned Companies .

 

There exist a few non-governmental institutions (NGOs) with legal instruments posted on their website, for example the United Nations Development Programme (UNDP) in the Congo . The following NGOs are useful for legal research although they do not provide much information on Congolese law: the online news media outlets Le Potentiel Online (independent media) and DigitalCongo (pro-government media) , the MONUSCO-backed Radio Okapi , the Electoral Institute of Southern Africa   ( EISA ), the Centre d’Études pour l’Action Sociale de Kinshasa (Center for Social Action Studies), the Centre d’Études Stratégiques du Bassin du Congo ( Center for Strategic Studies of the Congo Basin ), 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 Congolese civil society , the Ligue des Droits de la Personne dans la Région des Grands Lacs ( the Human Rights League in the Great Lakes Region ), and the country profile on the website of Global Witness and the UN Office of the High Commissioner for Human Rights .

 

11.3. Published resources  

 

11.3.1.   Books and nonperiodic materials

 

·        Agency for Co-Operation and Research and Development (ACORD), Protection and Reparation under Congolese Law of Survivors of Sexual and Gender-Based Violence: Situational Analysis and Prospects for Reform (ACORD 2010).

·        Akele muila, Angélique Sita & Akele Adau, Pierre , Quelle Stratégie pour Combattre la Corruption en RDC [The strategy for combating corruption in the DRC] (CEPAS 2007).

·        Azama Lana, Droit Fiscal zaïrois [Zairian tax law] (CADICEC 1986).

·        Babi Mbayi, Industrialisation Autocentrée et Développement Économique de la République Démocratique du Congo [Self-centered industrialization and economic development of the Democratic Republic of the Congo] (CEPI 1999).

·        Bakandeja wa Mpungu, Droit des Finances Publiques [ Law of public finances ] (NORAF 1997).

·        Bakandeja wa Mpungu, Droit des Finances Publiques [ Law of public finances ] (NORAF 1997).

·        Bakandeja wa Mpungu, Manuel de Droit Financier [ Financial law manual ] (Éditions Universitaires Africaines 1997).

·        Bakandeja wa Mpungu, Grégoire, The New Constitution of the Democratic Republic of Congo: Source s and Innovations, in Fostering Constitutionalism in Africa 149 (Charles Fombad and Christina Murray eds. 2010).

·        Balagizi B., Crimes, Pillages et Guerres: Le Congo, Malade de ses Hommes: 30 Juin 1960-17 Mai 1997 [ Crimes, pillages and wars: The Congo, sick of its people: 30 June 1960-17 May 1997 ] (Kivu-Presse 2000).

  • Bakandeja wa Mpungu, Droit du Commerce International [ International trade law ] (Afrique édition, Kinshasa, 2001).

·        Baaz, Maria Eriksson & Stern, Maria, Sexual Violence as a Weapon of War? Perceptions, Prescriptions, Problems in the Congo and Beyond (Zed Books 2013).

·        Benoit Verhaegen, Rébellion au Congo [ Rebellion in the Congo ] ( Crisp-Ires 1966).

·        Bibombe Mwamba, B. & Bibombe Ilunga, A., Recueil des Principaux Arrêts de la Jurisprudence Administrative Congolaise et Étrangère [Compendium of key Congolese and foreign administrative judgments] (1998).

·        Bina, Esika Makombo Eso, Le Code Pénal Zaïrois, Annoté [annotated Zairian Penal Code] (Esika 1977).

·        Borello, Federico, Les Premiers Pas: La Longue Route Vers une Paix Juste en République Démocratique du Congo [The first steps: The long road to just peace in the Democratic Republic of the Congo] (Centre International pour la Justice Transitionnelle 2004).

·        Boshab, Évariste, Entre la révision de la Constitution et l’Inanition de la Nation [ Between the amendment of the Constitution and the starvation of the nation ] (Larcier 2013).

·        Boshab, E, La Contractualisation du Droit de la Fonction Publique [Contractualisation of the civil service law] (Academia-Bruylant 2001).

·        Boshab, Évariste, Pouvoir et Droit Coutumiers à l’Épreuve du Temps [Customary power and customary law through the test of time] (Academia-Bruylant 2007).

·        Buabua wa Kayembe, La Fiscalisation de l'Économie Informelle au Zaïre [Taxation of the informal economy in Zaire] (PUZ 1995).

·        Bushabu Woto, Lepage, De la Mise en Œuvre de la Régulation des Télécommunications en Droit Congolais (RDC) [The implementation of telecommunication regulations in Congolese law] (École Nationale Supérieure des Télécommunications 2005).

·        Butedi, François, Cartographie des Syndicats en RD Congo: Vers une Compréhension du Monde Syndical Congolais [Mapping of trade unions in the DR Congo] (Presses Universitaires d’Afrique 2013).

·        Butedi, François, Le Processus Électoral en RDC: Mythe ou Réalité Démocratique (The electoral process in the DRC: Myth or democratic reality) , paper presented at the African Institute of Southern Africa (2005) and in Le Vote 2006.

  • Bwabwa Kayembe, Traité de droit fiscal zaïrois [Treaty of Zairian tax law] (PUZ 1993).
  • Chaire UNESCO de l’Université de Kinshasa , Situation des ‘autochtones’ Pygméees (Batwa) en République Démocratique du Congo: Enjeux de Droits Humains [The situation of the ‘indigenous’ pygmees (Batwa) in the Democratic Republic of Congo] (2005).

·        Cihunda Hengelela, Joseph, Réforme des Forces Armées de la République Démocratique du Congo (FARDC). Réflexions sur le Rôle des Partenaires Internationaux [Reform of the armed forces of the DRC (FARDC): Reflections on the role of international partners], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 107 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Comlan Alain, Traité de Droit Commercial Congolais [Treatise of Congolese commercial law] (Nouvelles Éditions Africaines).

·        De Burlet, Jacques, Précis de Droit Administratif Congolais [Congolese administrative law] ( Maison Ferdinand Larcier 1969).

·        Delvaux, Roger, L’Organisation Administrative du Congo Belge [The administrative organisation of the Belgian Congo] (Anvers Ed. 1945).

·        De Villers, Gauthier & Omasomba Tshonda, J., Zaïre: Transition Manquée: 1990-1997 [Zaïre: Missed transition] (Harmattan 1997).

·        De Wolf, Patrick & Verougstraete, Ivan, Le Droit de l’OHADA: Son insertion en République Démocratique du Congo [ OHADA law: its insertion in the DRC ] ( Bruylant 2012 ).

·        Digneffe, Françoise & Kaumba Lufunda, Criminologie et Droits Humains en République Démocratique du Congo [ Criminology and human rights in the DRC ] ( Larcier 2008 ).

·        Dipunda Kabuinji Mpumbuambuji, Répertoire Général de la Jurisprudence de la Cour Suprême de Justice [General repertoire of the jurisprudence of the Supreme Court] ( C.P.D.Z. 1990).

·        Djelo Empenge Osako, L'impact de la coutume sur l'exercice du pouvoir en Afrique: Le Cas du Zaïre [The impact of custom on the exercise of power in Africa: The case of Zaire] (Le Bel Elan 1990).

·        Djoli Eseng’Ekeli, Jacques, Le Constitutionnalisme Africain: Entre la Gestion des Héritages et l’Invention du Future: Contribution à l’Émergence d’une Théorie Africaine de l’État [African constitutionalism: Between the heritage of the past and the invention of the future: Contribution to the emergence of an African theory of the state] (Connaissances et Savoirs, 2006).

·        Esambo Kangashe, Jean-Louis, La Constitution Congolaise du 18 Février 2006 à l’Épreuve du Temps: Contraintes pratiques et Perspectives [The 18 February 2006 Congolese Constitution through the test of time] (Academia-Bruylant 2010).

·        Horowitz, Sigall, DR Congo: Interaction Between International and National Judicial Responses to the Mass Atrocities (Domac 2012).

·        Idzumbuir A.J., La Justice pour Mineurs au Zaïre: Réalités et Perspectives [Justice for minors in Zaïre. Realities and perspectives] (Editions Universitaires Africaines 1994).

·        International Bar Association & International Legal Assistance Consortium, Rebuilding Courts and Trust: An Assessment of the Needs of the Justice System in the Democratic Republic of the Congo (2009).

·        International Commission of jurists, Access to Justice: Human Rights Abuses Involving Corporations: Democratic Republic of the Congo ( International Commission of Jurists 2012).

·        Kabange Ntabala, C., Droit Administratif [Administrative law] (PUK 1997).

·        Kabange Ntabala, C., Droit Administratif : Genèse et Évolution de l’Organisation Territoriale, Politique et Administrative en République Démocratique du Congo, de l’Etat Indépendant du Congo à nos Jours et Perspectives d’Avenir [Administrative Law: Genesis and evolution of the territorial, political and administrative organization in the Democratic Republic of the Congo] (Presse Universitaire de Kinshasa 2001).

·        Kabange Ntabala, C., Droit Administratif et Institutions Administratives [Administrative law and administrative institutions] (PUK 1997).

·        Kahombo, Balingene, La Cour Suprême de Justice Faisant Office de Cour Constitutionnelle. Esquisse du Bilan de Près de Cinq Ans Sous l’Empire de la Constitution Congolaise du 18 Février 2006 [The Supreme Court Acting as a Constitutional Court], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 27 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Kahombo, Balingene, L’Originalité de la Cour Constitutionnelle Congolaise: Son Organisation et ses Compétences [The originality of the Congolese Constitutional Court: its organization and its powers], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 1 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Kalindye Byanjira, Dieudonné, Traité d’Education aux Droits de l'Homme en République Démocratique du Congo [Treatise on human rights education in the Democratic Republic of the Congo] (Editions des Droits de l’Homme et de la Démocratie 2004).

·        Kalongo Mbikayi, Le Code Judiciaire Zaïrois: Dispositions Législatives et Réglementaires Mises à Jour au 31 Janvier 1986 [The Zairian judiciary code] (1986).

  • Kalongo Mbikayi, Responsabilité Civile et Sociale des Risques en Droit Zaïrois (P.U.Z 1974).

·        Kaluba Dibwa, Dieudonné, La Justice Constitutionnelle en République Démocratique du Congo. Fondements et Modalités d’Éxercice [Constitutional justice in the DRC] (Academia Editions 2013 ).

·        Katuala Kaba, K., Code Pénal Zaïrois Annoté [Zairian Penal Code annotated] (Asyst. 1995).

·        Kaumba L., Les Enfants de la Rue au Katanga: Rapport d’Enquête [Street children in Katanga: Fact-finding report] (Presses Universitaires de Lubumbashi 2005).

·        Lamy, E., Le Droit Privé: Introduction à l'Étude du Droit Écrit et du Droit Coutumier Zaïrois [Private law: introduction to t he study of Congolese written law and customary law], ( P.U.Z. 1975).

·        Likulia Bolongo, Droit Pénal Spécial Zaïrois (LGDJ 1985).

·        Likulia Bolongo, Méthodes d’Approche de la Qualification des Faits en Droit Péna l [Methods for approaching the characterization of facts in criminal law] (Presses Universitaires du Zaïre 1982).

  • Lukasa Tshalufu, Honoré-B., Les Causes des Accidents de la Route en Droit de la République Démocratique du Congo [The causes of road accidents in Congolese law] (L’Harmattan 2014).
  • Lukiana Mufwankolo, Marie Ange, Rôle de la Jeunesse Féminine dans le Développement de la Culture de Paix en République Démocratique du Congo [The role of young women in the development of a culture of peace in the Democratic Republic of the Congo] (UNAF 1998).

·        Lukombe Nghenda, Droit Congolais des Sociétés [Congolese company law] (P.U.K. 1999).

·        Lukusa Nsambayi, Droit Judiciaire Congolais: Définitions de Lege Ferenda des Décisions de Défaut-Congé et de Radiation Grâce à l’Analyse des Concepts et Expressions Biffure, Défaut-Congé et Radiation. Illustrations en Matières de Procédure Civile et Sociales Congolaises [Judiciary Law] (L’Harmattan 2010).

·        Lunda Bululu, La Conclusion des Traités en Droit Constitutionnel Zaïrois: Etude de Droit International et de Droit Interne [Conclusion of treaties in Zairian constitutional law: a study of international law and domestic law] (Bruylant 1984).

·        Mabanga Monga Mabanga, Le Contentieux Constitutionnel Congolais [Congolese constitutional litigation] ( Éditions Universitaires Africaines 1999).

·        Mabanza, Aubin & Vunda Munoko, Grégoire, Droit Congolais, Africain, et International du Travail [Congolese, African and international labor law] (L’Harmattan 2009).

·        Mabiala Nkangu, De Gaulle, La Poursuite Pénale des Crimes Commis par les Armées en Période de Conflit: Cas de Pillages des Biens et Viols [Prosecution of crimes commited by the army during conflict: Pillages and rapes], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 151 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Malewa, Jean-Pierre Fofé Djofia, La Cour Pénale Internationale: Institution Nécessaire aux Pays des Grands Lacs Africains: La Justice pour la Paix et la Stabilité en RD Congo : La Justice pour la Paix et la Stabilité en RD Congo, en Ouganda, au Rwanda et au Burundi [The International Criminal Court: Necessary institution for Africa’s Great Lakes Region] (L’Harmattan 2006).

·        Mambi Tunga Bau, Héritier, Pouvoir Traditionnel et Contrats de Cession des Terres en République Démocratique du Congo [The authority of traditional chiefs and land cession agreements in the Democratic Republic of the Congo] (L’Harmattan 2012).

·        Mampuya Kanunk’a-Tshiabo, Espoirs et Déception de la Quête Constitutionnelle Congolaise: Clés pour Comprendre le Processus Constitutionnel du Congo-Kinshasa [Hopes and disappointments of Congolese constitutional quest: understanding the constitutional process of the Congo-Kinshasa] (Ama.Ed-BNC 2005).

·        Mangu, André & Katumumoyi Tshishimbi, Evariste, Universités et libertés academiques en République Démocratique du Congo [Universities and academic freedoms in the Democratic Republic of the Congo] (CODESRIA 2006).

·        Mansfield, Joanna, Sexual Violence in Eastern DRC: Obstacles to Prosecution (Cornell Institute for African Development, Occasional Papers No. 13, 2010).

·        Mazanza Lumingu, Yves-Junior, Les Manifestations de l’Effet Matthieu dans le Régime Fiscal de la Rémunération en République Démocratique du Congo [The manifestations of the Matthieu effect in the fiscal regime of remuneration in the DRC], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 173 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Masamba Makela, Droit des Affaires, Cadre Juridique de la Vie des Affaires au Zaïre [Business law, legal framework for doing business in Zaire] (de Boeck 1996).

·        Masamba Makela, Droit Économique [Economic law] (CADICEC 1995).

·        Masamba Makela , Guide Pratique du Droit des Affaires en RDC (Practical guide to business law in the DRC), 2009.

·        Masamba Makela, Roger, Modalités d’Adhésion de la RDC au Traité de l’OHADA (The practical terms of the DRC’s ratification of the OHADA treaty) (2005) .

·        Masani Matshi, Hippolyte, Les Avis Consultatifs de la Cour Suprême de Justice (1968-2014) [The advisory opinions of the Supreme Court (1968-2014)] (Massain Droit 2014).

·        Matadi Nenga Gamanda, La Question du Pouvoir Judiciaire en République Démocratique du Congo: Contribution à Une Théorie de Réforme [The question of judicial power in the Democratic Republic of Congo: contribution to a reform theory] ( D.I.N. 2001).

·        Mondonga Moyama, Joe, Droits d’Auteur et Droits Voisins: Les Aspects Techniques, Juridiques et Économiques du Droit d’Auteur et ses Applications en RDC [Copyrights and Neighboring Rights] (Mon Petit Editeur 2013).

·        Mpinga Kasenda, L’Administration Publique du Zaïre, Impact du Milieu Socio-Politique sur sa Structure et son Fonctionnement [Zaire’s public administration, impact of socio-political arena on its structure and functioning] ( Pedone 1973).

·        Mpoy Kadima, Godé , Le Droit Douanier en République Démocratique du Congo [Law on customs and excise in the Democratic Republic of the Congo] (Presses Universitaires du Congo 2014).

·        Mota, Marie Mossi & Duarte, Mariana, Violence Against Women in the Democratic Republic of the Congo (World Organization Against Torture 2006).

·        Mpongo Bokako Bautolinga, Institutions Politiques et Droit Constitutionnel [Political institutions and constitutional law] ( E.U.A. 2002).

·        Mukadi Bonyi, Projet de Constitution de la République démocratique du Congo: Plaidoyer pour une Relecture [Draft constitution of the Democratic Republic of Congo: The case for a second reading] ( C.R.D.S. 2005).

·        Mulamba Belebele, Mark, L’Enquête Criminelle: Technique et Équité Procédurale en Droit Congolais (RD Congo) [Criminal investigations: Technique and procedural equity in Congolese law (DR Congo)] (L’Harmattan 2014).

·        Muluma Munanga G.T., Albert, Législation du Travail et Sécurité Sociale en République Démocratique du Congo [Labor and social security legislation in the Democratic Republic of the Congo] (L’Harmattan 2014).

·        Mushigo-A-Gazanga Gingombe, R., Le Contentieux Administratif dans le Système Juridique de la République Démocratique du Congo [Administrative litigation in the legal system of the Democratic Republic of the Congo] ( Academia-Bruylant 2004).

·        Mushigo-A-Gazanga Gingombe, R., Les Principes Généraux du Droit et leurs Applications Devant la Cour Suprême de Justice du Congo [General principles of law and their application before the Supreme Court of Justice of the Congo] ( Academia-Bruylant 2002).

·        Mutamba Lukusa, Gaston, L’Économie Congolaise de 2003 à 2011: Défis et opportunités [The Congolese economy from 2003 to 2011: challenges and opportunities] (L’Harmattan 2012).

·        Mwilanya Wilondja, Les Mécanismes Congolais de Protection et de Promotion des Droits de l’Homme [Congolese mechanisms of human rights protection and promotion] ( Agapao 2004).

·        Ndaywel è Nziem, Isidore, L’Histoire du Zaϊre [The history of Zaire] (Editions Duculot 1997).

·        Ngbanda, Honoré, Crimes Organisés en Afrique Centrale: Révélations sur les Réseaux Rwandais et Occidentaux [ Organized crimes in Central Africa: Revelations on the Rwandan and Western networks] ( Deboiris 2004).

·        Ngoma Khuabi, Camille, Analyse Comparative de l’Indépendence du Pouvoir Judiciaire en République Démocratique du Congo et en République du Congo [Comparative analysis of the independence of the judiciary in the Democratic Republic of the Congo and the Republic of the Congo], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 51 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Nguyen Cham Tham, Lexique de Droit des Affaires Zaïrois [Glossary of Zairian business law] (P.U.Z. 1972).

·        Nkoy-ea-Loongya, Le Droit Congolais des Droits de l’Homme [Congolese human rights law] (Academia-Bruylant 2004).

·        Nobirabo Musafiri, Prosper, Droit Foncier des Peuples Autochtones et le Droit International: Cas des Peuples de la Forêt ‘Pygmées’ de la RD Congo ( Stämpfli 2007 ).

·        Nolan, Chris, “War is Not Over”: Community Perceptions of Sexual Violence and its Underpinnings in Eastern Congo (International Alert 2010).

·        Nsaka-Kabunda, Anne-Marie, La Réforme de la Police Nationale Congolaise et la Contribution des Partenaires Internationaux [Reform of the DRC’s national police and the contribution of international partners], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 137 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Ntumba Luaba Lumu, Alphonse, Droit Constitutionnel Général [General constitutional law] ( E.U.A. 2005).

·        Ntungu, Rodrigue, Le Droit Congolais à l’Épreuve de la Mobilité du Capital: Protection de l’État Récepteur d’Investissements [Congolese law through the test of capital mobility: Protection of the host state (L’Harmattan 2013).

·        Nyabirungu Mwene Songa, Traité de Droit Pénal Congolais [Treatise on Congolese Penal Law] (Éditions Droit et Société 2001).

·        Nyabirungu Songa Mwene, Droit Pénal Général Zaïrois [General Zairian Criminal Law] (Éditions Droit et Société 1995).

·        Nyabirungu Songa Mwene, La Criminalisation de l’Économie Zaïroise [The criminalisation of the Zairian economy] (Éditions Droit et Société 1996).

·        Nzongola-Ntalaja, Georges, The Congo from Leopold to Kabila: A People’s History (Zed Books 2002).

·        Pindi Mbensa Kifu, Droit Zaïrois de la Consommation [Zairian consumer law] (Éditions CADICEC 1995).

·        Piron, P. & Devos J., Codes et Lois du Congo Belge : Matières Civiles, Commerciales et Pénales [Codes and laws of the Belgian Congo: Civil, commercial and criminal matters] (Larcier 1960).

·        Prunier, Gérard, Africa’s World War: Congo, Rwandan Genocide and the Making of a Continental Catastrophe (Oxford University Press 2008).

·        Punga Kumakinga, Paulin, Problématique de la Conformité à la Constitution de la Loi Organique sur les Entités Territoriales Décentralisées en République Démocratique du Congo. Regard sur la Commune de Mont-Ngafula dans la Ville de Kinshasa [Questions on whether the organic law on decentralized territorial entities in the DRC conform to the Constitution], in Konrad Adenaeur Stiftung: Libraire Africaine d’Études Juridiques 93 (Hartmut Hamann & Jean-Michel Kumbu eds., 2011).

·        Quirini, Pierre de, Petit Dictionnaire des Infractions [A short dictionary of crimes] (CEPAS 2001).

·        Ronen, Yael, Prosecutions and Sentencing in the Democratic Republic of Congo ( Domac 2012).

·        Rubbens, Antoine, Droit Judiciaire Zaïrois [Zairian judicial law] (P.U.Z. 1978).

·        Rubbens, Antoine, The Congo Democratic Republic , in African Penal Systems 13-32 (Alan Milner ed., 1969).

·        Sita Muila Akele, Angélique, Protection Pénale de la Famille et de ses Membres: Comment la Famille et ses Membres Sont-ils Protégés par la Loi Pénale? (Criminal-law protection of the family and its members: How does criminal law protect the family and its members?) (ODF 2002).

  • Sohier, A., Le Mariage en Droit Coutumier Congolais [Marriage in Congolese customary law] (Institut Royal Colonial Belge 1943).
  • Tambwe Mwamba, A, Droit Douanier Zaïrois [Zairian customs and excise law] (PUZ 1997).
  • Toengaho Lokundo, Faustin, Les Constitutions de la République Démocratique du Congo: De Joseph Kasa-Vubu à Joseph Kabila [The constitutions of the Democratic Republic of the Congo] (PUC 2008).
  • Trapani, Antonietta, Complementarity in the Congo: The Direct Application of the Rome Statute in the Military Courts of the DRC (Domac 2011).
  • United Nations, Office of the High Commissioner for Human Rights, Report of the Mapping Exercise Document the Most Serious Violations of Human Rights and International Humanitarian Law Committed Within the Territory of the Democratic Republic of the Congo Between March 1993 and June 2003 (United Nations 2010).
  • United Nations, Office of the High Commissioner for Human Rights, Reparations for Sexual Violence  Survivors in DRC (United Nations 2011).
  • United Nations, Report of the Panel on Remedies and Reparations for Victims of Sexual Violence in the Democratic Republic of the Congo (United Nations 2010).
  • Vinck, Patrick et al., Living with Fear: A Population-Based Survey on Attitudes About Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of Congo (Human Rights Center, University of California, Berkeley 2008).
  • Vunduawe Te Pemako, Félix & Mboko Dj’andima, Jean-Marie, Droit Constitutionnel du Congo: Textes et Documents Fondamentaux [Congolese constitutional Law: fundamental texts and documents] (Academia 2012) .
  • Vunduawe Te Pemako, Félix, Traité de Droit Administratif [Treatise on administrative law] (Larcier 2007).
  • Wekerle, Anton, Guide to the Text of the Criminal Law and Criminal Procedure Codes of Burundi, Rwanda, and Zaire (Library of Congress 1975).
  • Yav Katshung, Joseph, Les Successions en Droit Congolais (Cas des Enfants Héritiers) [Inheritance in Congolese law: The case of child heirs] (New Voices Publishing 2008).

·        Zamboko Atumba, La Transition au Zaïre: Le Long Tunnel [Transition in Zaïre: the long tunnel] (NORAF 1995).

 

11.3.2.   Articles and periodical materials

·        Akele Adau, Pierre, Les Défis et les Enjeux de la Nouvelle Constitution: Comment Éviter la Catastrophe d’un Nouveau Rendez-Vous Manqué [The challenges and the stakes of the new Constitution], 395 Congo-Afrique 274 (2005).

·        Akele Muila, Angélique Sita & Akele Adau, Pierre, Les États Africains ne Sont pas des États Modernes [African states are not modern states], 406 Congo–Afrique (2006).

·        Alen, André, Contr ȏ le de la Constitutionnalité des Lois et d’Autres Actes Après leur Adoption [Review of the constitutionality of legislation and other acts after their adoption] 7 Fédéralisme Régionalisme (2007).

·        Asselineau, Christophe & Baratte, Yves, Developing Mining Projects in the Democratic Republic of Congo under the New Mining Code, 5 I.E.L.T.R. 105 (2004).

·        Banneux, Nicolas, Le Règlement de l’Attribution des Litiges en Droit Congolais. Proposition pour la Loi (Organique) sur la Cour Constitutionnelle [Settling conflicts of jurisdiction in Congolese law: Proposal for the (organic) bill on the Constitutional Court], 7 Fédéralisme Régionalisme (2007) .

·        Bayona-ba-Meya, Considérations sur la Réforme Relative à la Protection de la Jeunesse [Observations on the reform relating to the protection of the youth] Annales de la Faculté de Droit (1982).

·        Boshab, Évariste, Les Dispositions Constitutionnelles Transitoires Relatives à la Cour Constitutionnelle de la République Démocratique du Congo [The transitional constitutional provisions regarding the Constitutional Court of the Democratic Republic of the Congo], 7 Fédéralisme Régionalisme (2007) .

·        Bossuyt, Marc, Exposé Introductif: Composition and Compétences de la Cour Constitutionnelle de la RDC [Introduction: composition and competence of the constitutional court of the DRC], 7 Fédéralisme Régionalisme (2007) .

·        Braillon, Charlotte, Nouvelles Perspectives sur le Droit Judiciaire du Congo Belge et les Acteurs de la Justice Coloniale: La Procédure d’Annulation des Jugements Indigènes [New perspectives on judiciary law in the Belgian Congo and the actors in the colonial administration of justice] , Droit et Justice en Afrique Coloniale 143 (2013).

·        Breton-Le Goff, Gaëlle, Ending Sexual Violence in the Democratic Republic of the Congo, 34 Fletcher Forum of World Aff. 13 (2010).

·        Burke-White, William W., Complementarity in Practice: The International Crimnal Court as Part of Multi-Level Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l L. 557 (2005).

·        Butedi, François, Les Inédits du Processus Électoral en RDC [The untold story of the electoral process in the DRC], Le Vote (2006).

·        Butler, Anne, Democratic Republic of the Congo v. FG Hemisphere Associates LLC – Hong Kong Conforms with China by Repudiating the Common Law Commercial Exception to Sovereign Immunity, 20 Tul. J. Int’l & Comp. L. 469 (2011-2012).

·        Carty, Tony, Why Are Hong Kong Judges Keeping a Distance from International Law, and With What Consequences? Reflections on the CFA Decision in DRC v. FG Hemisphere, 41 Hong Kong L.J. 85 (2011-2012).

·        Cassesse, Antonio, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case , 13 Eur. J. Int’l L. 853 (2002).

·        Coleman, Justin, Showing its Teeth: The International Criminal Court Takes on Child Conscription in the Congo, but is its Bark Worse than its Bite? 26 Penn. St. Int’l L. Rev. 765 (2008).

·        Day, Adam, Crimes Against Humanity as a Nexus of Individual and State Responsibility: Why the ICJ Got Belgium v. Congo Wrong , 22 Berkeley J. Int’l L. 489 (2004).

·        Edgar, Timothy H. & Nicoleau, Michael D., Constitutional Governance in the Democratic Republic of the Congo: An Analysis of the Constitution Proposed by Laurent Kabila , 35 Tex. Int’l L.J. 207 (2000).

·        Esambo Kangashe, J.-L., Regard sur l’Etat de Droit dans la Constitution du 4 Avril 2003 [A look at the rule of law in the 2003 Constitution], 1 Revue Juridique Justice, Science et Paix (2001).

·        Ezekiel, Aaron, The Application of International Criminal Law to Resource Exploitation: Ituri, Democratic Republic of the Congo , 47 Nat. Resources J. 225 (2007).

·        Gathii, James Thuo, Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda ) , 101 Am. J. Int’l L. 142 (2007).

·        Gathi, James Thuo, Popular Authorship and Constitution-Making: Comparing and Contrasting the DRC and Kenya , 49 Wm. & Mary L. Rev. 1109 (2008).

·        Goodman, Jake, The Grease in the Gear: Impunity in the Democratic Republic of Congo and the Opportunity for Peace, 32 Loy. L.A. Int’l & Comp. L. Rev. 209 (2010).

·        Gordon, Gregory S., An African Marshall plan: Changing U.S. Policy to Promote the Rule of Law and Prevent Mass Atrocity in the Democratic Republic of the Congo , 32 Fordham Int’l L. J. 1361 (2009).

·        Graff, Julia, Corporate War Criminals and the International Criminal Court: Blood and Profits in the Democratic Republic of Congo , Hum. Rts. Brief 23 (2004).

·        Hammer, Dan, Allowing Genocide?: An Analysis of Armed Activities in the Congo , Jurisdictional Reservations, and the Legitimacy of the International Court of Justice , 16 Minn. J. Int’l L. 495 (2007).

·        Harrington, Alexandra R., A Tale of Three Nations? The Role of the United Nations Peacekeepers and Missions on the Concept of Nation-State, Nationalism, and Ownership of the State in Lebanon, Democratic Republic of the Congo, and Kosovo , 21 Conn. J. Int’l L. 213 (2006).

·        Juma, Laurence, The War in the Congo: Transnational Conflict Networks and the Failure of Internationalism , 10 Gonz. J. Int’l L. 97 (2006-2007).

·        Kabala, T., L’Administration de la Peine de Mort en Justice Zaïroise [the death penalty in Zairian law], Revue juridique du Zaire: Droit Écrit et Droit Coutumier 79 (1987).

·        Kabamba, Bob, Avant-Propos. La Mise en Oeuvre d’une Constitution ‘Régionaliste’ [the setting up of ‘regionalist’ constitution], [Foreword: the implementation of a ‘regionalist’ constitution], 7 Fédéralisme Régionalisme (2007) .

·        Kabamba, Bob; Matagne, Geoffroy & Verjans, Pierre, Premiers Scrutins de la Troisième République. Analyse des Résultats [The first polls of the Third Republic: analysis of the results], 7 Fédéralisme Régionalisme (2007) .

·        Kabel, Stephen, Our Business is People (Even if it Kills Them): The Contribution of Multinational Enterprises to the Conflict in the Democratic Republic of the Congo , 12 Tul. J. Int’l & Comp. L. 461 (2004).

·        Kalongo Mbikayi, B. O. & Buka, W. A., Le Juge Zaïrois et l’Interprétation des Principes Généraux de Droit National [The Zairian judge and interpretation of  general principles of the national law], Revue Congolaise de Droit 31 (1971).

·        Kaluba Dibwa, De la Saisie Immobilière en Droit Congolais [The forfeiture of immovable property in Congolese law], Paroles de Justice, Revue Annuelle de Doctrine 69 (2005).

·        Kaluba Dibwa, Interprétation des Articles 76 et 94 de la Constitution [Interpretation of articles 76 and 94 of the Constitution], Le Potentiel (Dem. Rep. Congo), Feb. 4, 2004 .

·        Kaluba Dibwa, Le Contrôle de Constitutionnalité des Lois et des Actes Ayant Force de Loi [Control of the constitutionality of laws and juristic acts], Revue du Barreau de Kinshasa/Gombe 1 (2006) .

·        Kasaja, Phillip Apuuli, International Law and Uganda’s Involvement in the Democratic Republic of the Congo (DROC) , 10 U. Miami Int’l & Comp. L. Rev. 75 (2001-2002).

·        Katuala Kaba Kashala, Une Nouvelle Exception à la Saisine de la Cour Suprême de Justice Telle qu’Organisée à l’Article 2 du Code de sa Procédure [A new exception to admissibility of cases before the Supreme Court of Justice as organised in article 2 of the code of its procedure], Revue juridique Justice, Science et Paix 7 (2004).

·        Klinger, Janeen, Stabilization Operations and Nation-Building: Lessons from United Nations Peacekeeping in the Congo, 1960-1964, 29 SUM Fletcher F. World Aff. 83 (2005).

·        Kopel, David B. et al. , The Arms Trade Treaty: Zimbabwe, the Democratic Republic of the Congo, and the Prospects for Arms Embargoes on Human Rights Violators , 114 Penn. St. L. Rev. 891 (2010).

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[1] The authors thank Sylva Batshi Ntumba for comments on the 2010 update of this Overview.

[2] See Dunia P. Zongwe, The New Sexual Violence Legislation in the Congo: Dressing Indelible Scars on Human Dignity, 55 African Stud. Rev. 32, 38 (2012).

[3] Le Sort des Tribunaux Coutumiers se Discute à l’Assemblée Nationale , Radio Okapi (Dem. Rep. Congo), June 9 th , 2010, available at http://radiookapi.net/actualite/2010/06/09/le-sort-des-tribunaux-coutumiers-se-discute-a-l%E2%80%99assemblee-nationale/

[4] Kampetenga Lusengu, B.M., Droit Coutumier Congolais 4 (University of Lubumbashi, Lecturer Kampetenga’s Class Notes, 2006).

[5] Grégoire Bakandeja wa Mpungu, The New Constitution of the Democratic Republic of Congo: Source s and Innovations, in Fostering Constitutionalism in Africa 153 (Charles Fombad and Christina Murray eds. 2010).

[6] Jean-Louis Esambo Kangashe, La Constitution Congolaise du 18 Février 2006 à l’Épreuve du Constitutionnalisme: Contraintes Pratiques et Perspectives 64(Academia-Bruylant 2012).

[7] See Dunia P. Zongwe, Taking Leaves From the International Criminal Court Statute: The Direct Application of International Criminal Law by Military Courts in the Democratic Republic of Congo , 46 Israel L. Rev. 249 (2013); Mavungu Clément, Case note on Ituri District Military Prosecutor v Kahwa Panga Mandro Ives, First instance decision, RMP No 227/PEN/2006; Oxford Law Report, ILDC 524 (CD 2006); Dunia Zongwe, Case note on Ituri Military Prosecutor v Blaise Bongi Massaba, RP n° 018/2006 RMP n° 242/PEN/06; Oxford Law Report, ILDC 387 (CG 2006); and Dunia Zongwe, Case note on Mbandaka Military Prosecutor v Eliwo Ngoy, RP n° 084/2005 RMP n° 154/PEN/SHOF05.

[8] An exposé des motifs is an introductory part of legislation. It is functionally similar to yet separate and distinct from a preamble.

[9] Evariste Boshab, Entre la Révision de la Constitution et l’Inanition de la Nation 401 (Larcier 2013).

[10] Corruption: la RDC Classée 154 e sur 174 Pays par Transparency International, Radio Okapi (Dem. Rep. Congo), Dec. 4, 2014, available at

http://radiookapi.net/actualite/2014/12/04/corruption-la-rdc-classee-154e-sur-174-pays-par-transparency-international/ .

[11] Etienne Ilunga Kabululu, Notions de Droit Administratif 18 (2012).

[12] Id. at 19.

[13] Ibid. .

[14] Evariste Boshab, supra note 9, at 401.

[15] United Nations. Office of the High Commissioner for Human Rights (OHCHR), Reparations for Sexual Violence Survivors in DRC (OHCHR 2011).

[16] For an analysis, see Antonietta Trapani, Complementarity in the Congo: The Direct Application of the Rome Statute in the Military Courts of the DRC (Domac 2011); Dunia P. Zongwe, Taking Leaves From the International Criminal Court Statute, supra note 7; Antonietta Trapani, Bringing National Courts in Line with International Norms: A Comparative Look at the Court of Bosnia and Herzegovina and the Military Courts of the Democratic Republic of Congo , 46 Israel L. Rev. 233 (2013).

[17] See Dunia P. Zongwe, The New Sexual Violence Legislation in the Congo , supra note 2 .

[19] African Development Bank et al. , African Economic Outlook 2014: Global Value Chains and Africa’s Industrialisation 211 (African Development Bank et al., 2014).

[20] World Bank (Oct. 21, 2014 update).

[21] International Monetary Fund, World Economic Outlook (Dec. 1, 2014 udpate).

[22] Central Intelligence Agency, World Factbook: Congo, Democratic Republic of the (Jun. 2014 update).

[23] World Bank (Oct. 21, 2014 update).

[24] World Bank, Doing Business 2015: Going Beyond Efficiency 5 (World Bank 2014).

[25] Intelligence Agency, supra note.

[26] Id.

[27] International Monetary Fund, supra note 21.

[28] Central Intelligence Agency, supra note 22 .

[29] See Deloitte, The Rise and Rise of the African Middle Class 3 (Deloitte 2013).

[30] Gaston Mutamba Lukusa, L’Économie Congolaise de 2003 à 2011: Défis et opportunités 169 (L’Harmattan 2012).

[31] La RD Congo Inaugure son Premier Parc Agro-Industriel, Jeune Afrique , Jul. 16, 2014, available at http://economie.jeuneafrique.com/regions/afrique-subsaharienne/22608-la-rd-congo-inaugure-son-premier-parc-agro-industriel.html .

[32] Id.

[33] See International Rivers, Inga Dam, DR Congo,

http://www.internationalrivers.org/campaigns/grand-inga-dam-dr-congo (last visited Dec. 1, 2014).

[34] World Bank (Oct. 21, 2014 update).

[35] Id.

[36] United Nations Conference on Trade and Development, World Investment Report 2013: Global Value Chains: Investment and Trade for Development 39 (United Nations 2013).

[37] United Nations Conference on Trade and Development, World Investment Report 2014: Investing in the SDGs: An Action Plan 37 (United Nations 2014).

[38] Gaston Mutamba Lukusa, supra note 30, at 166.

[39] Id. at 169.

[40] United Nations Environmental Programme, The Democratic Republic of the Congo: Post-Conflict Environmental Assessment Synthesis for Policy Makers 22 (United Nations 2011).

[41] Ibid.

[42] D é cret No 091/12 du 24/04/2009 É tablissant la liste des entreprises publiques transformées en sociétés commerciales, établissements publics et services publics.

[43] World Bank , supra note 24, at 5.

[44] World Bank, Business Reforms in Dem. Rep. Congo,

http://www.doingbusiness.org/Reforms/Overview/Economy/congo-dem-rep (last visited Nov. 30, 2014).

[45] Id.