UPDATE: The Legal System of the Republic of the Congo (Congo-Brazzaville): Overview and Research

By Dunia P. Zongwe

Dunia P. Zongwe is an author, an academic, and a consultant. He currently serves as an Associate Professor at Alliance University, India, and as an Adjunct Associate Professor at Walter Sisulu University (WSU), South Africa. specializes and publishes in the areas of finance and development, and human rights, focusing on Africa and the Global South. He was educated at the University of Namibia (law), Université de Montréal (humanities), and Cornell University (law), where he earned a master’s degree and a Ph.D. (foreign investments in mining and infrastructure in Africa).

Published May/June 2023

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1. Introduction

The Republic of the Congo, or Congo-Brazzaville, is a civil-law jurisdiction located in Central Africa. Congo-Brazzaville should not be confused with its much larger neighbor, the Democratic Republic of the Congo, or Congo-Kinshasa. A former French colony, Congo-Brazzaville has a legal system substantively based on French civil law and Congolese customary laws.

The formal sources of law in the Congo are the Constitution, legislation, international law, customary laws, judicial precedents, and publications by academic scholars. The Constitution is the supreme law of the land. Adopted by referendum on October 25th, 2015, the Constitution provides for a bill of rights, creates state institutions, and defines the fundamental principles, powers, functions, and obligations of the state. Legislation is how the government regulates multiple facets of national life. Congolese law distinguishes between two types of legislation: Ordinary and organic laws. Unlike ordinary laws, organic laws regulate central issues as specifically designated by the Constitution and require a special procedure for their adoption and amendment (see article 151 of the 2015 Constitution). Similar to most civil law countries, juristic writings (la doctrine) and judicial decisions (la jurisprudence) do not have binding force, but only enjoy persuasive authority.

2. History

The colonial history of Congo-Brazzaville intertwines with the period during which Pierre-Paul-François-Camille Savorgnan de Brazza, also known as Pierre de Brazza, explored the region. When Pierre de Brazza reached M’Bé, the capital of King Makoko – the political and religious leader of the Batéké ethnic group, he signed two friendship treaties with the King on September 10th, 1880. This marked the point in time when the colonial era truly began on the territory that eventually became, on August 15th, 1960, the Republic of the Congo or Congo-Brazzaville.

2.1. The Pre-Colonial History (until 1880)

Before the France colonized it, the area associated today with Congo-Brazzaville abided by the authority of two savannah kingdoms to the north: The Téké and Loango kingdoms. The Téké kingdom (‘tyo’ or ‘anzique’), often named after its king, Makoko, dates to the 15th century. In the following century, the Portuguese regarded it as more powerful than the Kingdom of Kongo. The Téké kingdom quickly secured a monopoly on the trade upstream of the Pool (a department in the southeastern part of the Congo), which led to a shared culture with neighboring peoples such as the Boubanguis, Kongos, and others. A significant slave trade developed on the Loango coast, from Cape Lopez to the mouth of the river. In the 19th century, the slave trade gave way to the ivory trade.

The king, a religious leader and master of the rain, was recognized by all the villages as well as by all the chiefs, including the chiefs of the land, but he did not interfere in their existence. For that reason, experts consider the Téké society as having a segmentary structure.

The Kingdom of Loango displayed a structure similar to that of Kongo. Specifically, the Loango kingdom exhibited a highly hierarchical monarchy based on divine right. The rest of the country, occupied by the vast forest, is home to the Pygmies (Bingas). The upheavals of the populations of the Central African savannahs did not affect that region.

2.2. The Colonial Era (1880-1960)

The colonization of the Congo-Brazzaville started in 1882. Colonialism lasted until Independence on August 15th, 1960. Crucially, a law promulgated on December 17th, 1882, established the French Congo colony, where Brazza got appointed as the government commissioner (at that time, that French colonial territory included Gabon and Congo). Four years later, on February 27th, 1886, Gabon and Congo were separated but remained under the sole authority of Brazza and one of his companions, Noël Ballay, the future Governor-General of French West Africa (or, in French, ‘l'Afrique-Occidentale française’, also known by its acronym ‘AOF’). Ballay became the Lieutenant-Governor of Congo whereas Brazza remained the government Commissioner-General until 1897.

After he entrusted Sergeant Malamine Camara with the station of N'Kouma that he had just created, Brazza headed towards the ocean via the Niari basin. But it was another sailor, Paul Cordier, who would recognize the Kouilou-Niari region in 1883 and negotiate a treaty establishing France’s sovereignty over the kingdom of Loango, with the Ma-Loango, the principal chief of the Vili.

In this part of Africa, France came up against both Portugal, whose navigators recognized the mouth of the Congo four centuries earlier, and Belgium, more precisely King Leopold II, the driving force behind the International African Association established on the southern bank of the Pool. Until World War I, military penetration took place very slowly, both along the Loango-Brazzaville track and, to the north, along the Congo River and its tributaries. Some tribes, including the Bakota, put up serious resistance to the advance of French columns. And, as late as 1913, the colonial administration had to suppress a major uprising in the upper Likouala region.

On December 29th, 1903, the colony was renamed the Middle Congo Territory (territoire du Moyen-Congo). In 1910, the territory became one of the four federated colonies within French Equatorial Africa (Afrique-Équatoriale française, or AEF), composed of present-day Congo-Brazzaville, Chad, Central African Republic, and Gabon.

The treaties of 1918 restored Congo's borders to those before 1911. In fact, by the treaty of November 4th, 1911, the French government had ceded a vast portion of territory to Germany, militarily recaptured from Cameroon as early as 1915. It was not until 1923 that the last soldiers handed over administrative posts to civilians.

The administration of Brazza experienced daunting difficulties arising from the establishment in this region of large concessionary companies, direct heirs of charter companies from the Old Regime. Holding up to 95% of the colony’s surface area at one point, these concessionary companies engaged in a veritable plunder of natural resources, with no regard for the future, frequently committing atrocities against Africans.

2.3. The Post-Independence Period

What was until then known as the French region of Middle Congo (Moyen-Congo) acceded to Independence on August 15th, 1960. A Constitution was adopted in 1963. Five years later, a military coup was staged, and a socialist government led by Marien Ngouabi came to power. President Ngouabi was assassinated in March 1977. Joachim Yhombi-Opango replaced him as Congo’s President. Yhombi-Opango served in that capacity up till his forced resignation in 1979. Dénis Sassou Nguesso, who had participated in the coup that brought Ngouabi to power, ruled the Congo as President for more than a decade from 1979 to 1992. Sassou N’Guesso’s leadership was marked by both socialism and a dose of pragmatism.

In March 1992, a new Constitution was adopted by referendum that paved the way for multi-party elections that Pascal Lissouba won in August that same year. Shortly afterwards, the democratically elected Lissouba installed his government. Subsequently, a brief civil war broke out in 1997. Assisted by the Angolan military, Dénis Sassou Nguesso toppled President Lissouba and succeeded him as Head of State. President Sassou Nguesso established its power with the Fundamental Act on 24 October 1997. The Fundamental Act suspended the 1992 Constitution. That turning point in Congo’s constitutional history heralded a period of ethnic and political unrest. The Congo Civil War took place from 1997 to 1999. Eventually, Southern-based rebel groups agreed to sign a final peace agreement in March 2003.

The Congolese people adopted a new Constitution by referendum on 20 January 2002. The 2002 Constitution repealed the 1997 Fundamental Act. Two months later, Dénis Sassou Nguesso won the presidential elections by a landslide and got re-elected in 2009 for another seven-year term under the 2002 Constitution amid accusations of electoral fraud and irregularities.

3. Constitutional Law

The President of Congo-Brazzaville, Denis Sassou Nguesso, promulgated the country’s new Constitution in November 2015. The 2015 Constitution is the fruit of a controversial referendum held on October 25th, 2015. Opposition parties denounced the “haste” with which the government proceeded to enact the Congo with a new Constitution.[1]

The new Constitution replaces the 2002 Constitution of the Republic of the Congo. Arranged in 21 ‘titles’ (‘titres’), the 2015 Constitution (1) lays down the fundamental principles of the Republic and its operating rules, (2) enshrines a bill of rights, (3) sets up institutions, and (4) organizes the three branches of government (i.e., the executive, the legislature, and the judiciary). Admittedly, the Constitution applies to all persons in the Congo.

The Constitution provides for its own amendment and mandates the Congolese parliament to enact specific organic legislation on the procedure for amending the Constitution (articles 240-242). Only the President and members of Parliament can initiate the process of amending the Constitution (article 240). When the President initiates the process, the Supreme Court must render an opinion authorizing it (article 240, read together with article 5). Then, the constitutional amendment bill is directly submitted to a referendum (article 241), or to the two houses sitting together (i.e., holding a joint session as ‘congress’), which decides by a vote of three-quarters of its members (article 240, read with article 127). When, on the other hand, the initiative comes from a member of Parliament, three quarters of the Congress must approve it before the amendment bill could become law (see article 240).

Nonetheless, certain constitutional provisions are entrenched. The President and members of Parliament may not amend the republican form and the secular character of the state (article 240). Furthermore, no amendment can take place during an interim period or when the country’s territorial integrity has been infringed (article 240).

3.1. Principles of the Republic

As this section shows, several principles undergird the 2015 Congolese Constitution, for instance, popular sovereignty, the separation of powers, and secularism. Additionally, the Constitution upholds civic duties and respect for human rights as core values of the Congolese society. Those principles reflect the society and the democracy that the Congolese people envision and aspire to.

Fundamental Principles: In its preamble, the Constitution spells out the fundamental principles that underpin the state. First, the Constitution declares that it embodies the fundamental principles proclaimed and guaranteed by the 1945 United Nations Charter, the 1948 Universal Declaration of Human Rights, and the 1981 African Charter on Human and Peoples’ Rights. The Congolese Constitution then signifies its adherence to the Congolese national unity charter (La Charte de l’unité nationale) and the rights and freedoms charter (La Charte des droits et des libertés) adopted by the National Conference (la Conférence nationale souveraine) on May 29, 1991. It finally condemns coups, the tyrannical exercise of power and the use of violence as a means to gain or retain power.

Popular Sovereignty: The Constitution defines the Congo as a sovereign, unitary and indivisible, decentralized, secular, and democratic state where the rule of law prevails (article 1). Like its forerunner, the 2015 Constitution embraces the principle of popular sovereignty. Repeating the famous formulation in the Gettysburg address by US President Abraham Lincoln, the Congolese Constitution states that “government of the people, by the people and for the people” is a principle of the state (article 2). It goes on to say that national sovereignty belongs to the people, which they exercise through universal suffrage by electing representatives or through a referendum (article 5). No cession, exchange or addition of territory is valid if the Congolese people, when called upon to pronounce on this issue through a referendum, do not consent to it (article 219).

3.2. Rights and Duties of Citizens

Title II of the Constitution catalogues both the rights and duties of citizens. Nonetheless, it enables foreigners, beside the right to seek asylum (article 21), to enjoy the same duties (article 52) and the same rights and freedoms as Congolese citizens in accordance with international law and subject to reciprocity (article 49). Like most civil-law constitutions in Africa, the Congolese Constitution has no general limitation clause. Derogation provisions and limitations imposed on constitutional rights are embedded in the text spelling out those rights. Last but not least, the Constitution empowers any person to file requests to the appropriate organs of state (article 46) and to commence legal action if the actions or decisions of administrative bodies or officials have trampled on that person’s rights (article 47).

In the referendum held on 25 October 2015, an overwhelming majority of Congolese voters (i.e., 92,96%, according to figures published by the Interior Minister) adopted the text of the new Constitution.[2] The Congolese people affirmed their commitment to the virtues of dialogue as a means of settling disputes peacefully within the framework of a pacifist Republic, and reaffirmed solemnly their permanent right of inalienable sovereignty over all national wealth and natural resources as fundamental elements of their development (preamble). They condemned coups, the tyrannical exercise of power, and political violence, in all its forms, as means of acceding to power or of conserving it (ibid.).

3.2.1. Civil and Political Rights

Title II(I) of the Congolese Constitution protects civil and political rights, including notably life, liberty, dignity, equality, and privacy. It considers the human person as sacred, and article 18 affirms his or her legal personality. Article 8 imposes on the state the absolute obligation to respect and protect the right to life while granting every citizen the right to the full development of his person subject to the rights of others, public order, morality, and decency. Likewise, this provision abolishes the death penalty.

Article 9 of the Constitution proclaims the inviolability of the liberty of the person. Hence it prohibits the state from arbitrarily accusing, arresting (see also article 11), or detaining a person. It also consecrates the presumption of innocence, due process, and the right to legal representation (article 9). The Constitution provides for the dignity and security of the human person. It does so by upholding the rights of the accused during arrest, detention and trial; and by punishing torture, cruel, inhuman and degrading treatment (articles 9, 11, and 14). Notably, the Constitution recognizes the rights of victims (article 9).

Article 15 of the Constitution protects equality and prohibits discrimination. All citizens are equal in the eyes of the law, and the Constitution forbids anyone from favoring or disfavoring others based on their family, ethnic origins (see also articles 13 and 51, punishing racism, tribalism, xenophobia, and incitement to ethnic hatred); their social condition; and their political, religious, philosophical, or other beliefs. Given the multiple and severe forms of discrimination that these two groups have historically suffered, the Congolese Constitution guarantees and promotes the rights of women (articles 17 and 37), the indigenous peoples (les peuples autochtones) (article 16), elderly persons (article 31) as well as persons with a disability (ibid.), the youth (article 29), and children (article 39, read with articles 37 and 38). Women have the same rights as men (article 17). The law assures gender parity and promotes the representation of women in all political, elective, and administrative positions (ibid.). Finally, Title II(I) of the Constitution defends the rights of children against economic and social exploitation (article 40).

The Constitution protects privacy and freedom of movement, too (articles 20 and 22). It restricts searches to those ordered under strict conditions laid down by law (article 20) and enjoins the state and individuals from breaching the confidentiality of a person’s correspondence or communication (article 26). Every citizen enjoys the right to move freely within Congo’s territory or to move without it, except where judicial or administrative decisions limit that right (article 22). Furthermore, subject to conditions imposed by law, the state may grant asylum to foreign nationals (article 21).

Fundamental freedoms are another ingredient of the Congolese Constitution. Everybody is free to practice any religion and hold any beliefs (article 24), but it forbids using religion for political purposes, the manipulation of beliefs, and indoctrination imposed by religious, philosophical, political, or sectarian fanatism (article 24). Article 25 of the Constitution grants freedom of expression prohibits censorship and provides free access to information subject to limits and conditions set out in relevant laws. It recognizes and guarantees freedom of association, assembly and the right to petition and stage demonstrations (article 27).

3.2.2. Socio-Economic Rights

The 2015 Constitution contains a bundle of socio-economic rights. Property, private enterprise, and labor stand out. First, the right to property and rights relating to succession (article 23). The Congo’s supreme law stops any person from depriving another of his or her private property, except where such taking of property serves a public purpose and provided that the expropriating party pays compensation to the owner, according to conditions set out in the law (ibid.). Article 35 safeguards intellectual property rights.

The Constitution confers on everyone the right to undertake business in the areas of their choice (article 48). Article 33 states that no one may be enslaved or perform forced labor, except in the case of a court-ordered custodial sentence. Save children under the aged of 16 (article 40), the state extends to all citizens the right to work (article 30) and the right to rest and leisure, which entails within specified limits reasonable working hours as well as public and periodic holidays with pay (article 34). Except for judicial and police officers, Congolese citizens enjoy the freedom of association and the right to strike under conditions set by law (article 32).

The Constitution establishes the right to education, especially targeting the youth (article 29). It makes education compulsory until the age of 16 (ibid.). The state is, by virtue of article 36 of the Constitution, the guarantor of public health in the Congo, though the Constitution makes space for the private sector to render social and medical services. In similar vein, the state has the obligation to assist families as custodians of good morals and values compatible with the republican order in the Congo (article 37).

The right to marry and found a family are reinforced (article 38), so are the rights of mothers and children (article 37), including children born out of wedlock (article 38). Lastly, the Constitution secures the right to culture and the respect for the cultural identity of each citizen so long as the exercise of such rights do not prejudice the rights of others, public order, or national unity (article 28).

3.2.3. Collective Rights

Collective rights or group rights figure in the Constitution. Apart from vulnerable groups such as children (article 39, read with articles 37 and 38), the Constitution protects the people’s right to a healthy, satisfactory, and sustainable environment (articles 41, 42, and 43), though it frames this collective right as an individual entitlement (see article 41). It outlaws and punishes any agreement or arrangement having the direct consequence of depriving the nation of the fruits of its resources, natural or otherwise (articles 44 and 45).

3.2.4. Duties

Unlike Title II(I), Title II(II) of the Constitution boasts a list of duties for citizens as well. Incidentally, the presence of this duties in the Congolese Constitution appears to align with the African conception of human rights – a conception that necessarily entails duties.[3]. Obviously, citizens have the duty to comply with the provisions of the Constitution, the laws and regulations of the state (article 50). More specifically, citizens have the duty to respect public property (articles 53 and 54) and, therefore, to refrain from damage to public property, vandalism, corruption, and embezzlement of public monies (article 54). Citizens who perform senior government roles must declare their assets (article 55); and all civil servants must accomplish their missions without discrimination (articles 56).

Citizens must respect their compatriots without discrimination, promote and strengthen tolerance and dialogue with others (articles 51 and 56). They owe a duty to preserve the national interest, social order, peace, and national cohesion (article 51).

3.3. Institutions

Following Montesquieu’s seminal ideas on the separation of powers, the Constitution divided the power of the state into three branches, namely the executive, legislative and judicial branches. Like those of its 2002 predecessor, the terms of the 2015 Constitution indicate the Congo’s is a presidential system of government (see articles 64, 67, 83, 84, 88, 90, and 91). The executive power vests and concentrates in the President of the Republic (ibid.), even though the 2015 Constitution appears to give the President slightly less powers than the 2002 Constitution did, as explained in this section. As for bodies created by the Constitution to support democracy, Parliament has passed specific laws to organize them and govern how they work in practice. These laws regulate, among others, the Constitutional Court; the High Court; the Ombudsman (Médiateur de la République); the Economic, Social, and Environmental Council; and the National Human Rights Commission.

3.3.1. The Executive

The President of the Republic heads the executive branch. Nonetheless, whereas the former Constitution made the President both the Head of State and the Head of Government (article 56 of the 2002 Constitution), the new Constitution distributes top executive powers between the President as Head of State (article 64 of the 2015 Constitution) and the Prime Minister as Head of Government (article 98).

Aged 80, the current President is Dénis Sassou Nguesso, one of Africa’s longest-serving presidents. A former military leader, Sassou Nguesso first became President of the Congo in 1979 until 1992; and, after a hiatus during the presidency of Pascal Lissouba from 1992 to 1997, when Sassou Nguesso ousted Lissouba. Sassou Nguesso has been serving as President since then.

The President embodies the Congo’s independence, national unity, territorial integrity, and the respect for the Constitution and international treaties (article 64). He also ensures the proper functioning of state institutions and the continuity of the state and determines the foreign policy of the Congo (ibid.). Moreover, the President enjoys the power to sign ordinances and decrees adopted by the Cabinet (the Council of Ministers or, in French, “le Conseil des ministres”) (article 88). The Presidential Electoral Process

The 2015 Constitution and a 2001 special electoral law (as the special electoral law was amended in 2016), contain provisions regarding the process of presidential elections in the Congo. The Constitution empowers parliament to enact an electoral law that will provide for the eligibility of presidential candidates and for the conditions for free, fair, transparent, and regular elections; and it delineates the distinct steps of the electoral process (articles 68-70 and 72-75).

Congolese citizens elect the President by direct universal suffrage by a single-round voting system, with an absolute majority of the votes cast, for a term of five years, renewable twice (articles 65 and 67). The term of the President’s tenure in the 2015 Constitution stirred a great deal of controversy. Among other criticisms, civil society organizations denounced the fact that the provisions of the new Constitution would enable Sassou Nguesso to seek a term by removing the limits placed on both the age of candidates and the number of terms set down in the former Constitution.[4]

Indeed, the old Constitution permitted neither candidates of more than 70 years of age to run for the office of President (article 58 of the 2002 Constitution) nor the incumbent to renew his or her term more than once (article 57). This meant that, under the old Constitution, the elections that took place in 2009 constituted the last ones that Sassou Nguesso could take part in because they renewed the term that he started serving in 2002 and, by 2016, he would have reached the age of 73. Now the new Constitution makes it possible for Sassou Nguesso to hold the highest office in the land until 2031, by the time he will turn 90.

The latest elections took place in 2021 and the next ones are scheduled for 2026.The Council of Ministers calls for presidential elections by decree (article 68). The Constitution sets eligibility conditions for a person to get elected and serve as President, such as Congolese origin, good character, a minimum of 8 years of professional experience, a minimum age of 30, and good health (article 66).

As mentioned earlier, citizens elect the President by absolute majority of the votes cast, failing which there shall be 21 days later a second round in which the candidates who received the most votes in the first round will compete (article 67).

The first round takes place at least 30 days, and more than 40 days before the expiry of the outgoing President’s term in office (article 69). If, before the first round, a candidate dies or is permanently incapacitated, the Constitutional Court must postpone the elections (article 70). In case of withdrawal of one of the two candidates who garnered the most votes in the first round, the elections will restart all over again; and the Constitutional Court may postpone the deadline for those elections if necessary (ibid.).

After the Constitutional Court declares provisional election results, interested parties have five days to contest those results (see article 72). If nobody contests the results and if the Court finds that no irregularities likely to vitiate the results did not taint the elections, it will proclaim the winning candidate President of the Republic within 15 days of the referral (article 72). On the other hand, if a party contests the provisional results, the Court shall rule within 15 days from the date of referral and announce the results (ibid.). Lastly, if the Court cancels the provisional results or if the newly elected President dies or is permanently incapacitated, new elections must be held within a period ranging from 45 to 90 days thereafter, in which case the outgoing President will stay in office until an elected incoming President gets sworn in (article 73). Presidential terms start on the day of the swearing-in ceremony, which takes place 20 days after election results are announced by the Constitutional Court (article 76). Duties, Functions and Powers of the President

After taking the oath and assuming office (articles 76-77), the President appoints and removes from office the Prime Minister and other ministers, and he or she presides over the Council of Ministers (or the Cabinet), known in French as “Conseil des ministres” (articles 83-84). He or she defines by decree the roles and responsibilities of the members of government (article 83). During meetings of the Council of Ministers, the President appoints senior civilian and military officers, ambassadors as well as special envoys to foreign countries and international organizations (articles 88-89). Foreign states and organizations accredit their ambassadors and envoys to the Congolese President (article 89). The President negotiates, signs, and ratifies international treaties agreements, provided that the Parliament authorizes beforehand his or her ratification of treaties and that those treaties do not violate the provisions of the Constitution (articles 217 and 222).

The President is the supreme commander of the armed forces and chairs the National Defense Committee and major organs tasked with guiding, monitoring, deciding strategically on matters relating to defense and security (article 90). He or she also presides over the Judicial Service Council (le Conseil supérieur de la magistrature) (article 91). He or she has the power to pardon convicted persons (article 92) and, during meetings of the Council of Ministers, to declare martial law or a state of emergency (article 157).

Once a year, the President addresses a message on the state of the nation in a joint session of Parliament (i.e., Congress) (article 94, read with article 127). And, at any time, he or she may send a message to the National Assembly or the Senate, a message that may not be open to debate (ibid.). Where state institutions, the independence or the integrity of the Congo, or the fulfillment of international commitments face a serious and imminent threat, the President, after consulting the Prime Minister and the Presidents of the two Houses of Parliament, must take such measures as dictated by those exceptional circumstances (article 93). Amenities, Liabilities, Incompatibilities, Vacancy and Death

The President and Ministers enjoy several amenities and immunities. The President receives a salary, the amount of which is fixed by regulation (article 82). The President lives in an official residence (ibid.).

At the same time, the President and Cabinet Ministers are subject to a number of liabilities and incompatibilities. The President is personally liable for gross misconduct or for acts incompatible with his or her office. The Parliament deliberating in joint session and by secret ballot by a majority of two thirds of its members (article 95) may indict and impeach the President for that gross misconduct or those acts (ibid.). The High Court (la Haute cour de justice) has jurisdiction in criminal matters involving the President and Ministers (article 95).

While in office, the President and Ministers may not assume any other elected office, accept any employment, in the private sector or in the military, or engage in any professional activities or in activities within a political party (articles 80-81 and 105). They may not, directly or through an agent, buy or lease state property, take part in public procurement or in a bidding process involving institutions in which the state has an interest (articles 81 and 106). Nevertheless, Ministers may engage in agricultural, cultural activities, local advisory, teaching, and research activities (article 105).

If – on request by the Speaker of the National Assembly – the Constitutional Court declares a vacancy following death, resignation, or any other form of permanent incapacity of the President, the President of the Senate will serve as President of the Congo (article 78). In such cases, the President of the Senate can perform all the functions of the President of the Republic, except the powers to appoint ministers, to pardon designated convicted persons, to take exceptional measures when state institutions are threatened, to initiate or submit bills to a referendum, and to initiate constitutional amendment bills (article 78).

In the event of such vacancy, if the President of the Senate is not available, the functions of the President of the Republic are assumed by the Speaker of the National Assembly; and if both are unavailable, by the Prime Minister (article 78). The Senate President may not serve in that interim capacity for more than 90 days and stand as a candidate in the presidential elections (article 79). Presidential elections must take place at least 45 days after the declaration of the vacancy, in any event not later than 90 days after that declaration (ibid.).

3.3.2. The Legislature

The Parliament or the legislature is another branch of government. The legislative branch is bicameral: the National Assembly (Assemblée nationale) and the Senate (Sénat) (article 107). The National Assembly and the Senate are each headed by a bureau, composed of a President, two Vice-Presidents, two secretaries, and two questors (article 120). The Parliament exercises legislative power and controls the actions of the executive (articles 107 and 142). It controls governmental actions by means of subpoenas, questions (oral and written), committee hearings, parliamentary inquiries, and motions of censure (article 107.).

Candidates for the Senate and the National Assembly are presented by political parties or groups, or they stand as independent candidates (article 111). The Constitutional Court adjudicates disputes over the validity of parliamentary elections (article 113). Once elected, members of the Senate and the National Assembly begin their term on the second Tuesday following their election (article 115). Those terms end when an incoming Senate assumes duties, but they may – on request by the President of the Republic – be extended by the Constitutional Court when extraordinary circumstances prevent the normal conduct of legislative elections (articles 109 and 115).

Members of the National Assembly (députés) serve renewable terms of five years and members of the Senate (sénateurs), renewable terms of six years (articles 129 and 134). While in office, members of the Senate and the National Assembly may not hold another office of a public character or engage in any other activities that the applicable laws prohibit them from engaging in, or else they will be replaced by their deputies (in the case of députés) or lose their seat (in the case of sénateurs) (articles 131 and 136). They lose their status as members of Parliament if they contravene eligibility or incompatibility provisions, if they resign or get sentenced to a prison term for an offense or a misdemeanor (articles 112, 131, and 136).

In such cases, partial elections are run to replace the member of parliament in question (article 112). Should there be a vacancy at the Presidency of either house, following death, resignation or other forms of permanent incapacity, the house will elect a new President within 15 days after the vacancy is left Parliament is in session (article 123).

The Constitution invests Parliament with the power to pass a law that provides for the status of parliamentarians, constituencies, the number, and distribution of seats per constituency, voting, eligibility criteria and the conditions for new elections to fill vacancies (article 110). Moreover, the Constitution entitles members of Parliament to the reimbursement of their travel expenses and the payment of compensation at a rate and conditions determined by law (article 108).

Members of Parliament have a personal right to vote, which they may delegate circumstances (article 114). No parliamentarian may be prosecuted, detained, or tried for opinions expressed or votes cast during sessions of Parliament without the authorization of the house or the bureau to which he belongs, save in cases of flagrante delicto, authorized prosecutions, and final judgments (articles 130 and 135). The Workings of Parliament

Each house of Parliament adopts legally binding standing orders (Règlement intérieur) that determine its operation and detail the legislative process and how to control government action (article 121). The standing orders of each chamber of Parliament, declared consistent with the Constitution by the Constitutional Court, have the force of an organic law (ibid.). Each chamber of Parliament meets automatically in three regular sessions per year upon convocation by its President, as under:

If October 15th, February 1st, or June 2nd falls on a public holiday, the session opens on the first working day following it (article 117).The conference of Presidents (la conférence des Présidents) sets the agenda of each session (article 118). The President of either house of Parliament may convene an extraordinary session on a specific agenda item at the initiative of the President of the Republic or an absolute majority of the house (article 119). The sittings of both houses are public, and parliamentary proceedings are fully published in the Hansard, although the President of the Republic, the President of either house or a third of its members may request that they hold proceedings behind closed doors (article 122).

Bills are sent to a standing committee of either house or, at the request of the house or the President of the Republic, to an ad hoc committee (article 148). The National Assembly and the Senate examine bills in sequence with a view to harmonizing their inputs into single text (article 150). In case of persistent disagreements between the two houses over the text of a bill, the President of the Republic may mediate their differences by calling a joint committee, with members from both houses, or by asking the National Assembly to decide the issue definitively (ibid.).

While it shares with the government (i.e., the Prime Minister and other Ministers) the power to initiate, amend, or withdraw bills, Parliament alone holds the power to vote on bills (articles 124, 143 and 149, read with article 98). It votes on taxes as well as the execution and control of the national budget whose draft it receives during the October session (article 124). What is more, with the assistance of the so-called Cour des comptes et de discipline budgétaire (i.e., the audit court), Parliament audits state accounts and controls government revenues and expenditures (article 154). The Cour des comptes et de discipline budgétaire is a court and consequently part of the judicial branch of government.

Article 110 of the Constitution lists several matters that could be the object of legislation, including citizenship; the determination of what acts constitute crimes; electoral constituencies; the administrative divisions of the national territory; labor, trade unions and social security laws; social and economic development plans; environment; property and property rights; and national defense (article 125). The Constitution further lays down that Parliament, through legislation, formulates the fundamental principles guiding the following aspects of national life: Education; health; science and technology; industry; culture, arts and sports; and agriculture, livestock, fisheries, waters and forests (ibid.). The National Assembly and the Senate

The National Assembly is the lower house of Parliament. Isidore Mvouba has been the Speaker of the National Assembly since 2017. That year, Mvouba succeeded Justin Koumba, the former Speaker (2007-2017). Members of the National Assembly are called “députés” (article 128). They must be Congolese and at least 25 years old at the time of their election (article 132). Elected by direct universal suffrage for a renewable five-year term, they each represent the entire Congolese nation and they each have a deputy, a suppléant (article 128). They hold regular sessions and, should those sessions take place outside regular periods, they will automatically convene a special session lasting 15 days (articles 117 and 119).

The Senate is the upper house of Parliament. Pierre Ngolo has been its President since 2017, when he replaced André Obami Itou, who had presided the Senate from 2007 to 2017. Members of the Senate are called sénateurs (article 133). Sénateurs must be Congolese and at least 45 years old at the time of their election (article 137). Indirectly elected by departmental and municipal councilors for a renewable six-year term, they represent the local communities (les collectivités locales) of the Congo; and, in addition to their legislative duties, they act as the moderators and advisors of the nation (articles 133-134). The Relationship Between the Executive and the Legislature

The executive has nevertheless a major role to play in the legislative process. Title VI of the Constitution shapes the relationship between the executive and the legislature. The Council of Ministers deliberates on bills (article 144) and the government (i.e., the Prime Minister and other Ministers) has the power, concurrently with members of Parliament, to initiate bills to be tabled in Parliament (article 143, read with article 98). The President promulgates enacted bills within 15 days after receiving them from the National Assembly (article 85). He or she may – before the lapse of that time period – ask Parliament to undertake a second reading of an enacted bill or some of its provisions, though he or she may not refuse to promulgate a law after the second reading if the Constitutional Court finds the law is in tune with the Constitution (ibid.).

The Constitution puts limits on the legislature by instructing it to collaborate with the executive in some specified circumstances. More specifically, the Speaker of the National Assembly and the Senate President must notify the government (i.e., the Prime Minister and the other Ministers) of the agenda of both houses of Parliament (article 140, read with article 98). In addition, Parliament may not legislate any matter not listed in article 125 as legislative fields; such matters are dealt with by the executive by means of administrative regulations, not by the legislature by means of legislation or Acts of Parliament (articles 125-126 and 146).

The executive and the legislature have in certain cases similar functions and can thus check and balance each other’s powers. The government and members of Parliament share the power to initiate and amend bills (articles 143 and 149). The President may dissolve the National Assembly (articles 138 and 165), the National Assembly cannot remove the President from office. Even if Ministers have access to sessions of Parliament, members of the National Assembly and the Senate may oblige a Minister to appear before them or before a parliamentary commission to answer questions from députés or sénateurs (article 141).

Finally, Congress has the power to authorize a declaration of war, but the President may make such a declaration in the Council of Ministers if Parliament is not in session (articles 156 and 157). The President may declare martial law or a state of emergency during a Council of Ministers meeting, but he or she needs Congress for any extension of its duration (article 157). He or she has the power to ratify treaties and international agreements, but Parliament must approve the ratification before the President can proceed to ratify them (article 217). Further, the government needs Parliament if, in order to execute the government’s program, it wants Parliament to vote a law mandating the government, for a limited period of time, to take measures by dint of ordinances regarding matters that constitutionally fall within the legislative competence of Parliament (article 158).

3.3.3. Other Institutions

Political Parties: As recalled in the preamble, the Congolese people have chosen “the universal values of democracy”, ‘reconciled with “national political, social, and cultural realities”, as one of the foundations that guide the development of the country. Multiparty democracy stimulates the country’s moral, cultural, and material growth while meeting the demands of collective welfare. The Congo has several political parties, with the Parti congolais du travail (the Congolese Labor Party) as the ruling party.

The Constitution endows political parties with legal personality and obliges the state to fund political parties (articles 57 and 59). It enumerates the conditions that political parties must satisfy before they can be recognized: they must, among other obligations, respect, preserve and consolidate national unity, fundamental rights, the rule of law and national sovereignty (articles 60 and 61). However, the Constitution bans parties that lack a national character and identify themselves with an ethnic group, a region of the country, a religion or a cult (article 58, read with articles 13, 15, and 51).

The Economic, Social, and Environmental Council: Title XI of the Constitution institutes and organizes an Economic, Social, and Environmental Council, ‘le Conseil économique, social et environmental' (CESE) (articles 196-199), and mandates Parliament to pass an organic law providing for the organization, composition, operating rules and membership of the Council (article 199). The Council is a consultative assembly that may – on its own motion or on request by the President of the Republic, the President of either house of Parliament – tackle any economic, social or environmental issue in the Congo (article 197).

The Council’s mandate evolved from socio-economic problems, as provided for in the old Constitution (article 158 of the 2002 Constitution) to a broader mandate extending to environmental questions, as expressly stipulated in the new Constitution (article 197 of the 2015 Constitution). Émilienne Geneviève Raoul became President of the Council on July 10th, 2019, replacing Jean-Marie Tassoua who had occupied this position since 2009.

The Council can examine draft treaties or international agreements, draft decrees, bills, or any government document, except the national budget, if they bring up social or economic questions (article 197). Members of the Council may not be at the same time parliamentarians, Cabinet Ministers, members of the Constitutional Court, prefects, mayors, or municipal councilors (article 198).

The National Human Rights Commission: Title XVI sets up a National Human Rights Commission, ‘le Commission nationale des droits de l’homme’ (articles 214-216). The Constitution tasks the National Human Rights Commission with monitoring the promotion and protection of human rights (article 215). In office since 2019, Gabriel Valère Eteka Yemet is the President of the Commission. Valère Eteka Yemet replaced Jean-Martin Mbemba, who had been presiding the Commission since he got elected in that position in 2009.

The Freedom of Communication Council: Another constitutional body is the Freedom of Information Council, ‘le Conseil supérieur de la liberté de la communication’ (articles 212-213). The Council is responsible for ensuring the effective exercise of the freedom of information and gives technical advice and makes recommendations on issues related to the field of information and communication (article 212). An organic law covers the responsibilities, organization, composition and functioning of the Council (article 213). Philippe Mvouo is the President of the Board.

4. International Law

International law is one of the sources of Congolese law. International law covers the field of Congolese law and the body of rules that deal with legal relationships between the Congo and other states, individuals, international organizations, and other members of the international community. In words reminiscent of article 55 of the French Constitution, article 184 of the Congolese Constitution lays down that treaties or agreements duly ratified shall, upon publication, prevail over Acts of Parliament, subject, about each agreement or treaty, to its application by the other party.

The Congo has formally recognized the jurisdiction of the International Court of Justice (ICJ), the African Court of Justice, and the African Court on Human and People’s Rights. It does not, however, accept the jurisdiction of the International Criminal Court (ICC). Nonetheless, article 11 of the Constitution empowers Parliament to pass a law criminalizing and penalizing war crimes, crimes against humanity and genocide, which it describes as ‘imprescriptible’ crimes.

5. Criminal Law and Procedure

Criminal law is the complex of legal rules proscribing and punishing conduct that society or the state condemns. Criminal conduct undermines peace, order, safety, health or public morality in the community; in short, the proscribed conduct refers to behavior so offending the fundamental values of the society that an infamous character attach to it. When the law considers the offence as serious, it defines it as a ‘crime’ and may punish it with a prison sentence. Murder, assault, theft, and fraud are obvious examples of serious crimes or felonies. Unlike felonies, misdemeanors do not attract a prison term but a fine.

In criminal law, it is the state, not the victims, who presses charges against the perpetrator of a crime. Considering this, the prosecution in particular and criminal law in general primarily aim to punish behavior deemed to wrong society as a whole and not to compensate the damage suffered by the victims, the overriding objective of civil law. Thus, the state can file a charge without the consent of the victims, even though in practice the prosecutors would seldom manage to prosecute charges successfully if victims do not cooperate with the state. Without victims’ cooperation, the state is very unlikely to prove that the accused committed the alleged crime beyond a reasonable doubt.

Articles 9 and 11 of the Constitution and criminal laws provide the accused with safeguards throughout the criminal justice process. Among other safeguards, nobody may be arbitrarily accused, arrested, or detained. When charged, every criminal defendant is presumed innocent until proven guilty following a procedure guaranteeing the rights of the defendant. Furthermore, the principle of legality prevents judges from convicting accused persons of an offense under a law that was not in force at the time the offense was committed. The 1963 Criminal Procedure Code (Code de procédure pénale) lays down the rules of criminal procedure.

In criminal cases, the state is represented by the Attorney-General (Procureur général) or one of his or her deputies (substituts du procureur). The Attorney-General’s office appears in courts with jurisdiction in criminal matters and follows the rules of procedure and evidence specific to criminal law. The state must prove beyond a reasonable doubt that the accused committed the offense with which he is charged, which constitutes burden of proof heavier than the one in civil cases, to wit proof by a preponderance of probabilities.

When the law grants a judge discretion in assessing the appropriate sentence, he or she must consider three sometimes conflicting criteria: retribution, deterrence and rehabilitation. The desire to punish offenders as an end in itself needs no further explanation. With deterrence, the judge seeks to discourage the offender, or others who might be tempted to imitate the offender, from repeating the offense. That penal philosophy suggests that the more severe the punishment, the more it deters crimes, but it must not be so severe as to preclude any possibility of rehabilitating the offender. With rehabilitation, the judge punishes the offender in such a way as to allow him to eventually reintegrate society as a responsible law-abiding citizen.

6. Administrative Law

Administrative law governs state administrative bodies and officials as they interact with citizens and residents. The right to administrative justice is enshrined in article 47 of the Constitution, which stipulates that every citizen who has suffered harm caused by administrative bodies or officials has the right to take legal action in the manner prescribed by law. Put another way, administrative law regulates the conduct of the state towards its subjects.

Congolese citizenship is guaranteed by law, and all Congolese citizens enjoy the right to change their nationality or acquire a second one (article 19 of the Constitution; see also the 1993 Citizenship Code). To put it differently, unlike the Constitution of its larger neighbor Congo-Kinshasa, the Constitution of Congo-Brazzaville allows dual citizenship.

As for the state, Brazzaville is the capital of the Congo as well as the seat of government and state institutions. During the colonial days, Brazzaville acted as the capital of French Equatorial Africa, ‘l’Afrique équatoriale française’ (AEF). The Congo, a country of 5.7 million inhabitants, comprises 2 communes and 10 départements. The 10 départements are Bouenza, Cuvette, Cuvette-Ouest, Kouilou, Lekoumou, Likouala, Niari, Plateaux, Pool, and Sangha; Brazzaville and Pointe-Noire make up the two communes. The national anthem is ‘La Congolaise’, and the motto of the Congo is “unity, work, progress”. The Constitution makes French the official language, and Lingala and Kituba, the national languages (article 4).

Whereas article 47 of the Constitution gives citizens the right to sue administrative bodies and officials, article 46 grants them the right to petition appropriate organs of state. One such organ is the Ombudsman, the Médiateur de la République. The Constitution establishes the Ombudsman as an independent authority to simplify and humanize relations between the government and citizens (articles 200-201). Indeed, any person, natural or juristic, who believes that a state official or institution has not acted according to its official mission or obligations may take the matter to the Ombudsman (article 202).

Government has two levels: The central and decentralized governments. The central government consists of the government and its various ministries. A number of other state institutions directly fall under the central government’s authority, like the Tender Board (law on government procurement). Decentralized governments encompass cities, communes, school boards, professional bodies, state corporations, commissions, and other similar corporations that do not fall under the direct authority of the central government.

Local government is a sub-field of administrative law. Départements and communes constitute local governments in the Congo. Local governments are created by statutes and administered by elected councils. An organic law lays down the conditions for placing local governments and decentralized entities under the trusteeship or supervision of the central government.

Unlike local governments, security forces, the force publique, do not belong to decentralized entities. They fall under the direct authority of the central government. They span the national police, the gendarmerie, and the armed forces. Laws and regulations pertaining to security forces form another area of administrative law. The Constitution says that security forces must be apolitical and under civilian authority, observe the laws and regulations of the country, and act in the latter’s general interest. This provision means that nobody may use security forces for his or her own personal purposes and that creating militias amounts to a criminal offense.

7. Private Law

Private law refers to the laws regulating the relationships between natural or juristic persons among themselves. It encompasses civil law (droit civil), business organizations (droit de l’entreprise) and private international law.

Some fields of law such as labor law (‘droit du travail’, see also the Labor Code) or judiciary law (droit judiciaire) defy classifications. Because of their peculiar characteristics, they do not fully fall under public law, nor do they completely belong to private law. While primarily regulating interpersonal relationships, labor law and judiciary law both contain an active state and public law element, making it difficult to classify these fields of law as components of public law or private law. Effectively, labor law and judiciary law govern the rights and obligations of persons, regardless of whether they are private person or state institutions.

7.1. Civil Law

Civil law encompasses persons, families, estates, property, bonds, and securities. The part of civil law that deals with the law of persons focuses on the rights attached to the status of natural persons, for instance domicile, death, and legal capacity. The area of civil law on families is mostly codified in the Family Code (Loi no 073/84 portant Code de la famille) and, to a lesser extent, in the Social Security Code (Code de sécurité sociale). The Family Code provides for marriage and divorce, matrimonial property regimes, parental authority, filiation, maintenance obligations, women’s rights, succession, and inheritance. Succession law is concerned with the transfer of property belonging to a deceased person to his or her heirs, with or without a will.

Property law covers the different types of property and the modes of acquiring and disposing of, and the administration of another person’s property. The law of obligations is the field of civil law concerned with obligations in general, their sources, performance, and extinction, and especially with civil liability and the obligations arising from the diverse types of contracts. The law of secured transactions concentrates on collateral and on ways relevant parties may ensure that they repay their debts. Pledges, security deposits and mortgages are classic examples of collateral.

7.2. Business Organizations and Commercial Law

7.2.1. Business Organizations

Business organizations play a central role in the Congolese economy, which heavily depends on oil. Subsistence agriculture and government spending constitute other important sources of government revenues. Once one of Africa’s largest oil exporters, the Congo is, as of 2022, the continent’s sixth biggest oil producer, after Angola (i.e., the top producer), Nigeria, Algeria, Libya, and Egypt (i.e., the fifth largest).

In this macroeconomic context, business organizations perform a key role because spending by businesses, including oil exporters, account for the bulk of the country’s gross domestic product. The state bolsters the contribution of business organizations as it has embarked on a privatization drive by among other things setting up a steering committee for the promotion and development of the private sector in the Congo (Comité de pilotage pour la promotion et le développement du secteur privé national).

The law of business organizations regulates the status of traders, commercial acts and corporations (see also the OHADA law on commercial corporations and the OHADA law on the general accounting principles for business organizations). A trader regularly engages in economic exchanges, purchases, and sales of large quantities of goods or services for a profit. The trader may carry out its activities alone or in partnership with another or other people. Alternatively, he or she may form a worker cooperative (société coopérative) or a corporation, which has a legal personality distinct from that of the trader and its other owners, thus decreasing or eliminating their risks, particularly their contractual liability for the debts of the corporation.

7.2.2. Commercial Law

The 2010 Commercial Act (Acte uniforme portant sur le droit commercial general) codifies commercial law. The Congolese Commercial Act adds a clever twist to its law of business organizations by harmonizing it with the business laws of 17 West and Central African nations. It does so by integrating in the Act the business rules of the Organisation pour l’harmonisation en Afrique du droit des affaires (OHADA), an organization aimed at harmonizing business laws in Africa. Congolese commercial law comprises several other sectors of the economy, for example, the Merchant Marine Code.

The state encourages foreign firms to invest in the Congo. It crafted an Investment Charter (Charte des investissements) in 2003 and founded an Investment Promotion Agency in 2012 (Agence pour la promotion des investissements). Last but not least, it has signed into law an Investment Code (Code des investissements) in 1992, an Oil and Gas Code in 1994, a Forestry Code (Code forestier) in 2000, and a Mining Code (Code minier) in 2005.

The Congo has not yet passed any laws on electronic transactions.[5] It does have, nonetheless, a draft legislation on cybercrimes.

8. The Judiciary

Article 166 of the Congolese Constitution vests judicial power in the Supreme Court, the Cour des comptes et de discipline budgétaire, appellate courts (Cour d’appel) and other courts in the country. It further enables Parliament to pass an organic law on the structure, composition and operation of those courts and the Judicial Service Council. The primary function of the judiciary is to adjudicate disputes arising from the application of the law and regulations, and to administer justice on behalf of the Congolese people. The Constitution reaffirms the independence of the judiciary, subjects judges to the rule of law, and insulates the judiciary against interference from the executive and the legislative branches of government (article 168).

The Judicial Service Council (Conseil supérieur de la magistrature) is responsible for the administration of justice in the Congo. Chaired by the President of the Republic, who guarantees the independence of the judiciary (article 171 of the Constitution), the Council acts as a disciplinary committee and a management board for judges in the country. The President of the Republic appoints judges by decree through the Council. Regrettably, experts and residents in the Congo have observed that the judiciary in the Congo, including the Constitutional Court, lacks independence and often decides cases so as to please prominent politicians and senior government officers.[6]

8.1. The Court System

The court system is composed of the Constitutional Court, the Supreme Court, the High Court and other national courts, including the Cour des comptes et de discipline budgétaire. The 1992 Judiciary Code organizes the judiciary.

8.1.1. The Constitutional Court

The 2015 Constitution establishes a Constitutional Court (Cour constitutionnelle), the highest court in constitutional matters (article 175). Its membership, organization and functioning are provided for in the Constitution and detailed in an organic law and rules of court. Decisions of the Constitutional Court are final (i.e., parties cannot appeal against them to a higher court), and they bind the state, all government bodies and officials, and all persons in the Congo.

The Court consists of nine members, appointed for a twice-renewable term of four years (article 186 of the 2015 Constitution). These terms differ from those spelt out in the former Constitution, which gave members of the Court a renewable term of nine years (article 144 of the 2002 Constitution). The President of the Republic appoints three members of the Court, the President of the Senate and the Speaker of the National Assembly appoint two members each, and the Supreme Court appoints two members chosen from that Court’s judges.

The President of the Republic appoints the President of the Constitutional Court by choosing from the members of that Court. Since September 2012, Auguste Iloki has served as President of the Constitutional Court. He took over from Gérard Bitsindou, who became President of the Constitution Court in 2003. The President of the Court has a casting vote in case of a tied vote.

Membership of the Court is incompatible with employment or a position inside government, Parliament or the Supreme Court. People convicted of a serious crime may not become members of the Court, and the law provides for further incompatibilities. The Constitutional Court is the regulator of public institutions and authorities (article 175 of the 2015 Constitution). It monitors the constitutionality of laws, treaties and international agreements. It ensures the regularity and proper conduct of referenda; presidential, legislative, and senatorial elections, except for local elections and pre-electoral procedures, which are provided for by law. It hears and decides claims and challenges related to the referenda and elections, and it announces referenda and election results. A separate 2001 electoral law, as amended in 2016, provides for jurisdiction to hear disputes on local elections and pre-electoral procedures.

Matters may be referred to the Constitutional Court by the President of the Republic, the Speaker of the National Assembly, the Senate President or a third of the members of each house of Parliament. They can refer matters to the Court for an advisory opinion on the conformity of organic laws and standing rules of either house of Parliament to constitutional law. In such event, referrals to the Court suspend the promulgation of organic laws and the implementation of parliamentary standing rules.

Any individual may refer a matter regarding the constitutionality of laws and treaties to the Constitutional Court directly or by a special procedure through a preliminary exception (procédure de l’exception d’inconstitutionnalité) raised in another court in which he or she has commenced legal action. If the Court finds a law to be inconsistent with the Constitution, the impugned law can be neither promulgated nor implemented.

8.1.2. The Supreme Court and the High Court

The Supreme Court (la Cour suprême) is the country’s highest court (article 5 of the 1992 Judiciary Code). Henri Bouka is the Chief Justice (Premier président de la Cour suprême) of the Congo. In 2018, Bouka took over from Placide Lenga, who had presided over the apex court for 20 years (since 1998) and whom Bouka deputized throughout his entire tenure at that court. With its seat in the capital Brazzaville, the Supreme Court asserts its jurisdiction over criminal and civil matters throughout the Congo’s territory. The Court hears appeals from lower courts and only litigation that poses questions of law. It issues advisory opinions on all referrals from the President of the Republic, government officials, and the bureau of the Parliament.

Beside the Chief Justice, one Vice-President, five Chamber Presidents, and judges sit on that Court. The Court divides into five types of chambers: One Criminal Chamber, two Civil Chambers, one Administrative and Financial Chamber, one Commercial Chamber, and one Social Chamber. Députés, senators, and judges of the Supreme Court, all elected in equal numbers by their peers, sit on the High Court (Haute cour de justice). (article 191 of the Constitution). The Chief Justice of the Supreme Court presides over the High Court. The President of the Supreme Court serves ex officio (by virtue of his or her office) as the President of the High Court.

The High Court has competent to decide high treason cases against the President of the Republic. It equally asserts jurisdiction over cases against members of Parliament, Cabinet ministers, and members of the Supreme Court and the Constitutional Court for criminal offenses committed while in office. These senior officers can only be impeached by the Congress, voting by secret ballot by a majority of two thirds of its members. A 1999 organic law determines the organization, composition and functioning of the High Court.

Most legal professionals in the Congo get educated and trained at the faculty of law at the country’s main university, Université Marien-Ngouabi, formerly Université de Brazzaville.

Judges: The President appoints judges by decree during meetings of the Judicial Service Council (see article 172 of the Constitution). The judge’s role is to hand down judgments considering the facts and the evidence adduced by the parties. He or she sees to it that hearings proceed properly and makes his or her decision based on the facts and the law. Sometimes the judge may – without stepping into the shoes of the parties’ lawyers – intervenes in the conduct of a trial if he or she wants to obtain clarification on certain elements; if he or she finds that the evidence does not suffice; or if he or she needs further details in order for him or her to better appreciate the parties’ oral evidence or testimony.

Once a trial end, the judges may render their judgment immediately or may reserve their judgment. Writing judgments calls for an intimate knowledge of legal issues, good research skills and sound analytical and synthetic skills. The judge must perform his or her functions independently and impartially, as required by the Constitution. His or her behavior must be beyond reproach to preserve justice and the appearance of justice. A judicial code of ethics exists that governs the conduct and duties of judges towards the parties to the dispute, their lawyers, and the public. In addition, the Judicial Service Council has the power to discipline and sanction judges who breach duties.

Lawyers: The Congolese Bar encompasses all the people licensed to practice law in the Congo. Given the sheer complexity of the law and the procedure in civil and criminal matters alike, litigants often seek the services of a lawyer (avocat). Though, in popular imagination, the role of lawyers is to represent people in courts, in reality, only a small percentage of lawyers represent their clients in courts in civil or criminal cases. Further, the proportion of lawyers practicing criminal law or civil law remains quite small relative to all the other areas of the law.

Indeed, many lawyers do not attend court proceedings. They work outside courts where they write legal opinions, draft contracts or commercial agreements, negotiate business transactions, incorporate businesses, or act as counsel. By virtue of the law on the legal profession, the national bar association, ‘l’Ordre national des avocats du Congo,’ is the body that regulates the profession.

Notaries: Born in Europe to clear the judicial backlog, the institution of the notary (notaire) also obtains in the Congo. A law formalizing the status of notaries passed in 1989. Appointed by the minister responsible for justice, the notary deals with paperwork in non-contentious matters. He or she is a legal advisor, a public officer, and assists in the administration of justice. Like lawyers, the code of ethics of notaries impose on them fiduciary duties and duties of good faith towards their clients and other parties involved.

Notaries try to prevent conflicts rather than litigate cases after a dispute erupts. They act as legal counsel advising clients on, and informing them of, their legal rights and duties, and on how the latter can best protect their rights. Notarial practice covers diverse fields of law, such as marriage and family, wills and estates, corporate and commercial law, real estate, financial planning.

Clerks and Bailiffs: Legal education and training also equip students and learners with the proper knowledge, understanding, skills, and attitude to become clerks. A clerk (greffier) administers a court. As such, he or she mainly performs administrative tasks, ranging from preparing hearings, setting the court agenda, to transcribing testimonies.

For their part, bailiffs (huissiers) hand-deliver a variety of court documents issued by a court, for instance divorce petitions, subpoenas, and summons. The law officially creating the bailiff position officially passed in 1992. The bailiff ensures injunctions and judgments handed down by the court are enforced, especially by effecting foreclosures and executing warrants or eviction orders.

9. Research

9.1. Online Resources

Researchers will find very few research resources on the legal system of Congo-Brazzaville on the Internet, and even fewer written in English or languages other than French. That said, the following resources deserve mentioning. The best place to find primary legal sources is the Official Gazette (Journal officiel). The Official Gazette publishes laws, administrative regulations, and some government decisions. Researchers can access the different issues of the Official Gazette on the Official Gazette’s website.

Second, researchers can retrieve useful information on Congolese law, notably commercial law, on Droit-Afrique.com. The Natlex website of the International Labor Organization has a section on Congolese law that contains 41 pieces of legislation and a greater number of labor-related laws. Fourth, some legal information appears on the General Secretaria of the Government – Official Journal (under Congolese Law – Constitution, Codes, and Thematic Publications) and on the website of the Centre d’études stratégiques du bassin du Congo (CESBC).

France’s largest publisher, L’Harmattan, publishes many books, monographs, periodicals, and articles on Congolese law. One notable legal periodical is Revue congolaise de droit et des affaires, which gives in-depth analyses of applicable laws in the Congo. However, very few of those printed resources are written in English. A good sample of the leading treatises (in French) on Congolese law could include the following texts:

Yenga, Roger. Le droit de la nationalité (Le Manuscrit 2008).

[1] Trésor Kibangula, Congo-Brazzaville: Denis Sassou Nguesso A Promulgue la Nouvelle Constitution, Jeune Afrique, Nov. 6, 2015, available at https://www.jeuneafrique.com/277704/politique/congo-brazzaville-denis-sassou-nguesso-a-promulgue-nouvelle-constitution/.

[2] See Référendum Constitutionnel au Congo-Brazzaville: Le Oui l’Emporte à 92,96%, Jeune Afrique, Oct. 27, 2015, available at https://www.jeuneafrique.com/274753/politique/referendum-constitutionnel-congo-brazzaville-oui-lemporte-a-9296/. (reporting that the Interior Minister publicly declared that 92,96% of the voters adopted the new Constitution during the referendum, but that a leader of major opposition party disputed the 92,96% figure, affirming that turnout did not actually exceed 10%).

[3] See Makau w. Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 Virginia Journal of International Law 339 (1995).

[4] Congo: Les Motifs d’un Changement de Constitution ne Convainquent pas, RFI, Sept. 26, 2015, available at https://www.rfi.fr/fr/afrique/20150926-congo-motifs-changement-constitution-convainquent-pas.

[5] See https://unctad.org/page/data-protection-and-privacy-legislation-worldwide.

[6] See for example, José Lenor Mfoutou Kokolo, La Cour Constitutionnelle de la République du Congo : Institution Politique ou Juridictionnelle ? (Éditions Universitaires Européennes 2021).