Chapter 3: The jurisdiction of the Congolese judiciary to try war crimes
3.1 Origin and organization of the Congolese judicial system
3.1.1 The judicial apparatus
Article 68 of the Constitution relating to the organization of powers in the DRC cites the courts and tribunals as part of the institutions of the Republic.198
193 Loi Fondamentale of May 19,1960 on the Structures and the Institutions in the Congo.
194 See E Boshab Pouvoir et droit coutumiers à l`épreuve du temps (2007) passim.
195 This does not mean that the customary law system which is different from customs is less important or condemned to perish, for the system is immutable but is adaptable to new trends in society and its decisions might be reported in written form to allow for its conservation and greater accessibility. See J H Crabb (note 186 above; 20-21); E Boshab (note 194 above).
196 J H Crabb divides Africa into two categories, the former British area under Anglo-American Law (British variant) and the rest of the African countries under a civil law system. The written law applied in Congo was inspired by Belgian and Napoleonic French law J H Crabb( note 186 above; 30).
197 J H Crabb (note 186 above; 29).
198 See also part 3 of the Exposé des motifs of the Constitution
Indeed, the Congolese justice system, as provided in article 149 of the Constitution, is a complex judicial machinery whose critical mission is to render justice throughout the national territory on behalf of the Congolese people.199
The judiciary is the guarantor of individual freedom and fundamental rights. When they exercise their function, judges are submitted under law as the only authority.200 The political authorities are not allowed to interfere in the jurisdiction of a judicial magistrate to settle disputes or to oppose the execution of a justice decision. This applies equally to interference from members of Parliament. Hence any law, which aims to intervene in the course of judicial proceedings, is null and void.201
The Statute of Magistrates is fixed by law202 and is managed by the Superior Judicial Council.203
In accordance with article 149 (1) of the Constitution, the judicial power is independent of the legislative and executive powers. It devolves upon the following courts: the Constitutional Court, the Cassation Court, the State Counsel, the High Military Court, and the civil and military Courts and Tribunals. Since the revision of the Constitution of 20 January 2011, prosecutors appointed to all these jurisdictions are no longer permitted to exercise judicial power.204 This is the novel shape of the judiciary in the Congo ushered in by the current constitution, on 18 February 2006.
199 But the Decisions, Judgments and Ordinances of the Courts and Tribunals are executed in the name of the President of the Republic (article 149 of the Constitution).
200 Article 150 of the Constitution.
201 Article 151 of the Constitution.
202 According to article 150 para 3 of the Constitution, the organic law regulates the magistrates‟
statute, see, Loi organique numéro 06/020 of 10 October 2006 relating to the magistrates‟ statute.
203Article 152 para 1 and 6 of the Constitution . The Superior Judicial Council is regulated by a statute. See, Loi organique numéro 08/013 of 05 August 2008 relating to the organization and
functioning of the Superior Judicial Council. Article 152 of the Constitution provides that the Superior Judicial Council is composed of: 1. President of Constitutional Court; 2. Attorney General before the Constitutional Court; 3. First President of the Cassation Court; 4. Attorney General before the Cassation Court; 5. First President of State Council; 6. Attorney General before the State Council; 7.
First President of High military court; 8. Judge advocate General before the High Military Court; 9.
First President of Court of Appeal; 10. Attorneys General before the Court of Appeal; 11. First Presidents of Administrative Courts of Review; 12. Attorneys General before the Administrative Courts of Review; 13. First Presidents Military Court; 14. Superior Military prosecutors; 15. Two magistrates sitting in respect of each Court of Appeal , elected for a mandate of three years by other magistrates; 16. Two magistrates standing or prosecutor before the Appeal Court , elected for a mandate of three years by other magistrates; 17. One magistrate sitting for each military Court; and 18.
One magistrate standing for each military Court.
204 See the revision of article 149 of the Constitution of 20 January 2011.
Contrary to the former constitutional provision there is no longer a system of courts, including one Supreme Court of Justice, a Court of Review, and Military Courts and Tribunals.205
Currently there are, on the one hand, the jurisdictions of the „judicial‟ order and, on the other hand, the jurisdictions relating to the administrative order.
The latter consists of a hierarchy as follows: A State Council located in the capital city (Kinshasa), an Administrative Court for each province206 and the administrative tribunals. Those jurisdictions are competent to settle administrative disputes.207
In conformity with article 153 of the Constitution, the first order of jurisdiction is under the control of the Cassation Court and consists of civil and military jurisdictions. They apply duly ratified international treaties, laws, acts of administrative authority and customs, insofar as the latter conform to the laws and to the public policy of the State. The organization, functioning and the competences of jurisdictions of the judiciary order are determined by an organic law.208
The Congolese judiciary is organized by the Code on Organization and Jurisdiction of the Judiciary of 31 March 1982.209 This provides for different levels of jurisdiction in the judicial system in the DRC. Thus, according to their degree of competence these are civil jurisdiction, the tribunal of peace, the tribunal of first instance, the court of review (appeal) and at the top, the Cassation Court.210
205See article 148 (1) of the Transitional Constitution in DRC of 4 April 2003.
206 Apart from Kinshasa, currently only 10 provinces are operational in the DRC, although there is a constitutional proposal to divided Congo territory in 25 provinces. See article 2 of the Constitution.
207 See articles 154 and 155 of the Constitution. Most of these judiciary reforms introduced by the current constitution remain literal and are not yet applicable. Thus, the old judicial jurisdiction still exists. For instance, the jurisdiction of the State Council is actually exercised by the Supreme Court of Justice in its Administrative Division.
208 Article 153 (6) of the Constitution.
209 The Code on organization and jurisdiction of the judiciary in Congo as created on 31 March 1982 by Ordonnance-Loi 82-020 of 31 March 1982 in Codes Larcier T I (2003) 262-273. This code is however outdated and needs to be adjusted to reflect the current judiciary reform in DRC. A new code has been proposed. For doctrinal commentary see Bayona-Ba-Meya „Initiation judiciaire‟1998 in Revue Interdisciplinaire Lukuni Lwa Yuma 9-18; P Akele Adau Le citoyen justicier, la justice privée dans l’Etat de droit (2002) passim; G Ngbanda Te Boyiko Précis d`organization et de competence
judiciaries (2005) passim; D Zongwe, F Butedi & P M Clement „The legal system and research of the Democratic Republic of Congo (DRC): an overview‟ available at
http://www.nyulawglobal.org/globalex/Democratic_Republic_Congo1.htm, accessed on 10 June 2011.
210 Articles 21, 31, 36 and 51 of the Congolese Code on Organization and Jurisdiction of Judiciary.
Relating to the concern of the present thesis, which is war crimes, this study focuses on the tribunals‟ statutory competence to exercise their jurisdictions to prosecute these crimes.
A close examination of national criminal law211 reveals that in the DRC military jurisdictions remain the only competent jurisdiction to try war crimes.212 Hence, this research project specifically considers the military Courts and Tribunals as provided for in the Congolese judicial system.
However it is important to note prima facie that, military jurisdictions are normally designed to try crimes committed by members of the Army and members of the National Police.213 In the criminal military code, another category made up of members of the national services namely the bâtisseurs de la nation is mentioned.214 This jurisdiction of military justice is, however, problematic, because war crimes can be perpetrated not only by soldiers, but also by many others civilians involved in war at several levels and whose responsibility may be obvious in the occurrence of atrocities.
The prosecution of these civilians for war crimes by a military court could be unconstitutional according to article 156 (1) and 19 (1) of the Constitution; for military justice will run the risk of violating the principle of natural justice for civilians.
The prosecution of certain categories of war criminal (civilian) before a military tribunal might lead to irregularities. They should instead be brought before the civil justice authorities, except during a war or when the President of the Republic
211 See Ordinary Criminal Code created by Décret of 30 January 1940. In Codes Larcier T II (2003), 1- 23; Military Criminal Code created by Loi 024-2002 of 18 November 2002 in Codes Larcier T II (2003) 42- 60.
212 Article 173 of the Military Criminal Code.
213 Article 156 (1) of the Constitution.
214 Article 106 of Judiciary Military Code created by Loi 023-2002 of 18 November 2002 in Codes Lacier T I (2003) 393-421.
proclaims a state of siege or emergency.215 But even this situation can be perilous in terms of human rights. Hence, there is a need to reform the Congolese judicial system.
According to the national legislation in the DRC, the jurisdictions competent to try international crimes in general and war crimes in particular remain the military Courts.216
In conformity with articles 6, 12, 18, 21 and 23 of the judicial military code in the DRC, military justice is rendered by the High Military Court; the Military Courts and Operational Military Courts; the Military Tribunals of Garrison; and the Police Military Tribunals.