By Dunia P. Zongwe, François Butedi and Phebe Mavungu Clément
Dunia P. Zongwe 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 an Associate Professor at Walter Sisulu University.
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 previously worked at the Lawyers’ Association of the Southern African Development Community and at the African Union. He is currently a Political and Analyst Officer at the United Nations Development Programme (UNDP) in Madagascar. He co-wrote this update in his personal capacity.
Phebe Mavungu Clément is a former lecturer at the University of Kinshasa where he obtained his first law degree. He has an LL.M. in Human Rights and Democratization in Africa from the Centre for Human Rights at the University of Pretoria. He now works as Legal Counsel at the Pan-African Parliament. He co-wrote this update in his personal capacity.
Published July/August 2020
Table of Contents
- 1. Historical Background
- 2. Overview of the Congolese Legal System
- 3. Constitutional Law
- 4. Administrative law
- 4.1. Introduction
- 4.2. The Administrative Organization of the State
- 4.3. The Functioning of the Administration
- 4.4. Control of the Administration
- 4.5. Key Administrative Institutions
- 4.6. The National Police
- 4.7. The Army
- 4.8. Decentralization
- 4.9. The École Nationale d’Administration
- 5. Criminal Law
- 6. The Civil Code
- 7. Economic Law
- 7.1. Economic Outlook
- 7.2. Economic Institutions
- 7.3. The Neoliberal Turn of the Economy
- 7.4. Business Organizations
- 7.5. Initiatives to Improve Business Climate
- 8. The Court System
- 8.1. The Phasing-Out Court System
- 8.2. The Judiciary as Set Out in the Constitution
- 8.3. The Judicial Service Council
- 8.4. The Constitutional Court
- 8.5. The Court of Cassation
- 8.6. The Council of State
- 8.7. Special Courts
- 9. Legal Education
- 10. The Bar
- 11. Legal Resources
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).
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 around 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 at 85 million as of July 2018. 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.
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.
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 fueled by security considerations, the competition for the control of strategic minerals, the fragility of the Congolese state, ethnic rivalries, and territorial ambitions. 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” (Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo), in order to end the fighting. A transitional government was formed in July 2003.
The transitional government successfully organized a constitutional referendum for the adoption of a new Constitution (on 18 and 19 December 2005) and elections for the presidency, national assembly, and provincial legislatures in 2006. Joseph Kabila promulgated the new Constitution on 18th 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, intense rebel activities continued, mostly in eastern DRC, until 2013, when the Congolese army put a stop to the decade-long presence of foreign-backed rebels in the Congo. The Congolese army is 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, worsened by a severe Ebola outbreak since 1 August 2018.
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 56% 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. ‘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. 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 (i.e., doctrinal) legal research methodologies, are necessary to ascertain the content of a given customary rule. Another distinctive characteristic of customary laws is, they do not have general application as they only apply to the traditional communities from which they originate.
Congolese law draws its substance from at least seven 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, whose drafting also drew on constitutional experiences in Benin, Mauritius, Senegal, South Africa and Togo.
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 cases.
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.
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.
The past few years have witnessed ongoing efforts by the government to modernize public administration and administrative law, and 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. 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. Although it has signed the African Continental Free Trade Area (AfCFTA) Agreement on 21 March 2018, the DRC has not yet ratified that continent-wide free trade agreement.
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 has 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). The government installed the Constitutional Court in 2013, the Court of Cassation in 2018, and the Council of State in 2018 .
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.
The 18th February 2006 Congolese Constitution is the fundamental organic law of the DRC. It heralds the Third Republic. In the decades before the promulgation of the 2006 Constitution, the DRC had passed a 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).
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 entered into a peace agreement sponsored by the international community, the Accord Global et Inclusif (Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo), signed 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 18th 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.
The Constitution’s Exposé des Motifs 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, who, as of 2020, is Félix Antoine Tshilombo Tshisekedi. The President, elected by universal suffrage, serves a term of five years, renewable only once. 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. On 20 May 2019, President Félix Tshisekedi appointed Sylvestre Ilunga Ilunkamba as Prime Minister. 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 (2020 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. Alexis Thambwe Mwamba is the President of the Senate and Jeanine Mudiayi Lioko Mabunda is 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 before the Constitutional Court against the President and the Prime Minister for high treason (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.
Over and above those constitutional bodies, the Constitution has created three institutions to support democracy in the DRC. The first of these institutions 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).
The Independent Electoral Commission (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. The 2011 amendment to the 2010 CENI law reduces the rounds of presidential elections from two to one. An organic law sets up the organization of the CENI. The current President of the Electoral Commission is Corneille Nangaa.
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.
Three coalitions of political parties figure prominently in the National Assembly. These coalitions comprise FCC (Front commun pour le Congo), Lamuka, and Cach (Cap pour le changement). FCC won 341 out of the 500 seats in the National Asssembly, Lamuka won 112 seats, and Cach won 47 seats. During the presidential elections, FCC supported the candidate put forth by outgoing President Joseph Kabila, Lamuka supported opposition candidate Martin Fayulu, and Cach supported opposition candidate Félix Tshisekedi.
The results of the presidential and legislative elections held in December 2018 have three produced outcomes. For the first time in the history of the Congo, an opposition candidate won presidential elections. Those elections also represent the first time the DRC has witness a peaceful transfer of power. Thirdly, although the former political opposition won the presidential elections, the present political opposition, the FCC, controls the government and Parliament.
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. 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).
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).
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.
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.
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.
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.
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 the 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).
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.
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.
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. The concept comes from the combination of two elements, that is, the state structures and public interest.
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 (contrȏle juridictionnel).
The 2006 Constitution ushered in a new administrative law regime with specialized administrative courts. The Administrative Court of Appeals (Cour administrative d’appel) and the Council of State (Conseil d’État) have replaced the administrative sections of the Court of Appeals and the Supreme Court in adjudicating administrative law disputes .
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 (see the MONUSCO mandate).
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.
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.
In 2011, the Parliament passed a law that reformed the national police (see the law on PNC). In passing that law, Parliament was aware that, in its organization and operations, the national police faced numerous challenges, prompting frequent complaints by the local population. Given this situation, the Congolese legislature reformed the police in response to the pressing need to provide the country with a civilian, efficient, unified, apolitical and professional police, capable of carrying out its mission regardless of the political context. The law entrusts senior officers within a single department with the responsibility of the administrative police (police administrative) and the judicial police (police judiciaire), which have been unified. The law allows those two police units to draw their members from revamped police schools. One innovation of the new law is the express inclusion of gender considerations into the activities of the police.
 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).
 Le Sort des Tribunaux Coutumiers se Discute à l’Assemblée Nationale,Radio Okapi (Dem. Rep. Congo), June 9th, 2010.
 Kampetenga Lusengu, B.M., Droit Coutumier Congolais 4 (University of Lubumbashi, Lecturer Kampetenga’s Class Notes, 2006).
 Grégoire Bakandeja wa Mpungu, The New Constitution of the Democratic Republic of Congo: Sources and Innovations, in Fostering Constitutionalism in Africa 153 (Charles Fombad and Christina Murray eds. 2010).
 Jean-Louis Esambo Kangashe, La Constitution Congolaise du 18 Février 2006 à l’Épreuve du Constitutionnalisme: Contraintes Pratiques et Perspectives 64 (Academia-Bruylant 2012).
 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.
 An exposé des motifs is an introductory part of legislation. It is functionally similar to yet separate and distinct from a preamble.
 For more information on decentralization in the DRC, see Dunia P. Zongwe, Democratic Republic of the Congo (Autonomy Arrangements in the World2019) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291949.
 Etienne Ilunga Kabululu, Notions de Droit Administratif 18 (2012).
 Id. at 19.
 Zongwe, supra note 11, at 13.
 International Crisis Group, Katanga: Tensions in DRC’s Mineral Heartland (International Crisis Group 2016).
 Evariste Boshab, Entre la Révision de la Constitution et l’Inanition de la Nation 401 (Larcier 2013).
 Zongwe, supra note 11, at 25-26.
 United Nations. Office of the High Commissioner for Human Rights (OHCHR), Reparations for Sexual Violence Survivors in DRC (OHCHR 2011).
 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).
 See Dunia P. Zongwe, The New Sexual Violence Legislation in the Congo, supra note 2.
 African Development Bank et al., African Economic Outlook 2014: Global Value Chains and Africa’s Industrialisation 211 (African Development Bank et al., 2014).
 Central Intelligence Agency, World Factbook: Congo, Democratic Republic of the (Dec. 2019 update).
 See Deloitte, The Rise and Rise of the African Middle Class 3 (Deloitte 2013).
 Gaston Mutamba Lukusa, L’Économie Congolaise de 2003 à 2011: Défis et opportunités 169 (L’Harmattan 2012).
 World Bank (Oct. 21, 2014 update).
 United Nations Conference on Trade and Development, World Investment Report 2013: Global Value Chains: Investment and Trade for Development 39 (United Nations 2013).
 United Nations Conference on Trade and Development, World Investment Report 2014: Investing in the SDGs: An Action Plan 37 (United Nations 2014).
 Gaston Mutamba Lukusa, supra note 30, at 166.
 Id. at 169.
 United Nations Environmental Programme, The Democratic Republic of the Congo: Post-Conflict Environmental Assessment Synthesis for Policy Makers 22 (United Nations 2011).
 Décret No 091/12 du 24/04/2009 Établissant la liste des entreprises publiques transformées en sociétés commerciales, établissements publics et services publics.