Governance & legal system
- African Union (joined in 1963). The African Union has various decision-making institutions, among which: the Assembly of Heads of State and Government, the Executive Council, the Permanent Representatives Committee, the Peace and Security Council, the African Union Commission and the Pan-African Parliament. The African Union aims to further the development of the member states through collaboration and solidarity. This entails promotion of peace, economic development, human rights and democracy. The Specialised Technical Committee on Migration, Refugees and Internally Displaced Persons is a crucial instrument of the African Union to ensure protection and assistance to these key populations.
- Common Market for Eastern and Southern African (joined in 1981, formerly the Preferential Trade Area). The leadership of COMESA is shared between the COMESA Authority (composed of the 21 Heads of State and Government of Member States) and the Council of Ministers. Its executive organ is the Secretariat. It aims to form an economic and trade unit to develop resources of the Member States.
- The Economic Community of Central African States (ECCAS) (joined in 1983). Its main institutions are the Conference of Heads of State and Government and the Council of Ministers. Its executive body since the institutional reform of 2019 is the Commission. ECCAS has defined several missions, including guaranteeing peace and security within the region through political cooperation; economic and financial integration through the establishment of a common market and the free movement of goods, capital and services within the regiona ; physical integration through the development of infrastructure and land-use planning, such as road, rail, air and sea links, to create a common space and promote the free movement of people, goods and services; and social and human development integration to eliminate poverty in all its forms.
- Southern African Development Community (joined in 1998). The SADC leadership is shared between the SADC Chairperson (currently H.E. Félix Antoine Tshisekedi Tshilombo) and the SADC Secretariat. The SADC objective is to achieve sustainable development in Southern Africa by alleviating poverty, defending peace and security and strengthening relations between its member states.
- International Conference on the Great Lakes Region (joined in 2003). The Supreme organ of the Conference is the Summit of the Heads of State and Government of the Member States. The Inter-Ministerial Committee is the executive organ of the Conference. The Conference Secretariat, supervised by an Executive Secretary, is the technical and coordinating organ of the Conference. The ICGLR was founded to establish peace and stability in the region of the Great Lake.
- The African and Malagasy Council for Higher Education (CAMES) (joined in 2011). Its supreme body is the Council of Ministers, which meets once a year in ordinary session. Its executive body is the General Secretariat, whose Secretary General is appointed by the Council of Ministers. CAMES aims to promote cooperation in research and higher education between member states, notably through a system of diploma equivalence.
- East African Community (joined in 2022). The Council of Ministers is the central organ of the EAC decision-making process, while the Summit of Heads of Government of Partner States gives strategic directions. The Secretariat is the executive organ of the EAC. Its purpose is to form a united economic and political bloc in the region.
The monist system is the adopted system for application of international law. In Article 215 of the Constitution, it is stated that international treaties and agreements are superior to domestic law as soon as their publication in the government gazette Journal Officiel.
However, certain treaties (peace treaties, trade treaties, treaties and agreements relating to international organizations and the settlement of international disputes, those involving public finances, those amending legislative provisions, those relating to the status of persons, those involving the exchange and addition of territory) can only be ratified or approved by virtue of a domestic law (Article 214). Domestication of international law is therefore necessary in certain cases.
Furthermore, in the event that the Constitutional Court deems that there is a contradiction between an international text and the Constitution, the Constitution must first be revised before the international text can be ratified or approved (Article 216). International treaties and agreements are negotiated and ratified by the President of the Republic. However, if an international agreement or treaty does not require ratification, it may be concluded by the government after deliberation by the Council of Ministers (Article 213 of the Constitution).
Revision of the Constitution (Article 218) may be initiated by the President of the Republic; by the Government after deliberation by the Council of Ministers; by each of the Houses of Parliament (with the agreement of half its members); or by a petition from 100,000 members of the Congolese people. The revision is adopted either by referendum convened by the President of the Republic; or by a three-fifths majority of the National Assembly and Senate meeting in Congress.
The Democratic Republic of Congo has a unitary and decentralized system.
The executive power is embodied by the President and the Government. The President is elected by direct universal suffrage for a five-year term, renewable once only (article 70 of the Constitution). He is responsible for ensuring compliance with the Constitution, and is the guarantor of national independence, territorial integrity, national sovereignty and compliance with international treaties and agreements (article 69 of the Constitution). He is also supreme commander of the armed forces (article 83 of the Constitution). The President must collaborate with the Prime Minister in the fields of defense, security and foreign affairs (article 91 of the Constitution). The Prime Minister is appointed by the President of the Republic from within the parliamentary majority. The Prime Minister's term of office can be terminated by submitting his resignation to the President of the Republic (article 78 of the Constitution). The ministers making up the government are also appointed by the President of the Republic, who may terminate their functions on the proposal of the Prime Minister. The Prime Minister is the head of government. Together with the President of the Republic, the government defines the nation's policy, and ensures that this policy is implemented (Article 90 of the Constitution).
The legislative branch is made up of the National Assembly and the Senate, which together form Parliament. Parliament passes laws, supervises the Government, public companies and public establishments and services (Article 100 of the Constitution). The right to initiate legislation is shared between the Government, the deputies of the National Assembly and the Senators (Article 130 of the Constitution). Bills are first adopted by the Government in the Council of Ministers, before being placed on the table of one of the Chambers (Article 130 of the Constitution). They must then be examined by the second chamber. In the event of disagreement between the two chambers on a bill, a joint committee is set up by the two chambers to propose a text on the provisions giving rise to the disagreement. This text must then be voted on by both chambers (Article 135 of the Constitution). Members of the National Assembly are elected by direct universal suffrage for a 5-year term. They are eligible for re-election (Articles 101 and 103 of the Constitution). Senators are elected by the provincial assemblies for a 5-year term. They may be re-elected (Articles 104 and 105 of the Constitution).
The judiciary power is held by the Courts. The judiciary is independent of the executive and legislative branches. These Courts are the Constitutional Court, the Court of Cassation, the Council of State, the Military High Court and the civil and military courts and tribunals. The organization of the judiciary is detailed in point 6.
However, the Democratic Republic of Congo is also a decentralized state and each of the 26 provinces, including Kinshasa, has its own Provincial Assembly and Provincial Government (Article 195 of the Constitution). The division of competencies between the central power and the provinces is written in articles 202, 203 and 204 of the Constitution. There are competencies exclusive to the central power (eg: foreign affairs, including diplomatic relations and international international treaties and agreements), competencies exclusive to the provinces (eg: provincial and local civil service) and competencies shared between the central power and the provinces (eg: enforcement of foreigners' police measures).
The Democratic Republic of Congo follows a civil legal system, mainly inherited from the Belgian colonial period. Article 207 of the Constitution recognizes customary laws but subordinates them to the Constitution and state laws.
The Conseil Supérieur de la Magistrature (Superior Judicial Council) is, according to Article 152 of the Constitution, in charge of managing the administration of justice. Its missions include making proposals for the appointment, promotion and dismissal of magistrates, and exercising disciplinary authority over magistrates.
It is composed of :
- President of the Constitutional Court ;
- Attorney General to the Constitutional Court;
- First President of the Court of Cassation;
- Attorney General to the Court of Cassation;
- First President of the Conseil d'Etat ;
- Attorney General to the Council of State;
- First President of the Military High Court;
- Auditor General to the Military High Court;
- First Presidents of the Courts of Appeal;
- Procureurs Généraux près les Cours d'Appel;
- First Presidents of the Administrative Courts of Appeal;
- Procureurs Généraux près les Cours administratives d'Appel ;
- First Presidents of Military Courts ;
- Senior military auditors ;
- two judges per Court of Appeal, elected by all judges in the area for a three-year term;
- two prosecuting magistrates per Court of Appeal jurisdiction, elected by all magistrates in the jurisdiction for a three-year term;
- one judge for each military court;
- one magistrate per military court.
The Cour de Cassation (Court of Cassation) is the highest court in the ordinary court system, and as such has under its control the civil and military courts. Among the courts of the ordinary judicial system are the magistrates’ courts (tribunaux de paix), military courts, the Tribunal de Grande Instance, commercial courts, Courts of Appeals, and the Military High Court. In the ordinary court system, the Court of Cassation is the court of last resort. It hears appeals in cassation from the ordinary courts, but does not rule on the case itself, but on questions of law specifically referred to it. In addition, the Cour de Cassation is the court of first resort for criminal cases involving politicians and senior civil servants, such as members of the National Assembly and Senate, members of the Government (with the exception of the Prime Minister), and members of the Cour des Comptes. The ordinary court system is organized by the Loi organique n° 13/011-B du 11 avril 2013 portant organisation, fonctionnement et compétences des juridictions de l'ordre judiciaire.
The Conseil d’Etat (Council of State) is the highest court in public and administrative matters (article 154 and 155). The Conseil d'Etat hears appeals against decisions of the administrative courts of appeal. In the absence of competent institutions, it hears claims for compensation for exceptional material or moral damage resulting from a measure taken or ordered by the authorities of the Republic.
The Constitutional Court has nine members. Three are appointed by the President of the Republic, three by Parliament, and three by the Conseil Supérieur de la Magistrature. One-third of the Court's members are replaced every three years. The main task of the Constitutional Court is to review the constitutionality of all legislation, including international treaties and agreements. It is also responsible for interpreting the Constitution. The Constitutional Court is also responsible for resolving conflicts of jurisdiction between the executive and legislative branches, the central state and the provinces, and the various levels of court. It also rules on election disputes. Its organization and functioning are set out in the Loi organique n° 13/026 du 15 octobre 2013 portant organisation et fonctionnement de la Cour Constitutionnelle.
Customary justice is not recognized as part of the country's legal system, but the Constitution does recognize customary authority in the country, provided it is not contrary to the Constitution, the law, public order or morality (article 207). There is virtually no interaction between traditional justice and the judicial system. Traditional justice in fact fills the gaps in the judicial system, in that many provinces have no ordinary courts. Because of the remoteness of the courts, a large proportion of the population, the majority in fact, turns to traditional justice mechanisms. Cases brought before traditional justice mechanisms mainly concern personal status (e.g. marriage and divorce) and property rights, notably inheritance and land ownership. It is important to note that the customary law resulting from this traditional justice varies from one community to another, and therefore has no general application across the territory.
Article 202 of the Constitution places the legislation on refugees, expellees and displaced persons within the exclusive competence of the central power. Such a provision means that provincial authorities do not have any competence on the matter.
The law N°021/2002 created the CNR (Commission Nationale des Réfugiés) under the jurisdiction of the Ministry of Home Affairs. The missions of the CNR include the grant of asylum, the cessation of the refugee status, the access to basic services for refugees (education, housing, food aid and healthcare), the orientation of policies impacting refugees and asylum seekers and the implementation of said policies, and collaboration with relevant international and national partners (article 9).
The composition of the CNR (Commission Nationale des Réfugiés) reflects the fundamentally multifunctional nature of this institution. Thus, the 12 members of the CNR include representatives of the Ministry of the Interior; a representative of the Ministry of Foreign Affairs and International Cooperation; a representative of the Ministry of National Defense; a representative of the Ministry of Human Rights; a representative of the Ministry of Social Affairs and the Family; a representative of the Ministry of Public Health; a representative of the Ministry of Labor and Social Security; a representative of the National Intelligence Agency; a representative of the National Police; a representative of the General Directorate of Migration.
The law mentions that the CNR is headquartered at the Ministry of the Interior in Kinshasa, but plans to create provincial branches, suggesting an attempt to decentralize refugee management. However, applications for refugee status are processed centrally by the CNR. The last organ created by law N°021/2002 is the Commission de Recours before which asylum seekers can appeal the decision made by the CNR.
The CNR's missions are limited by structural constraints. The conflict situation in many parts of the country prevents access to the target public in several provinces. In addition, there are severe budgetary constraints, and the CNR is largely dependent on funding from the UNHCR. In general, the CNR is not fulfilling many of its functions, with the exception of refugee eligibility sessions.