Legislation & RegulationsIncompatibilities to the mandates of deputies

May 6, 20210

Incompatibilities to the mandates of national and provincial deputies: a cross-sectional look at Avis rite 001 of the Council of State of 01 March 2019

By Batonnier Jacques Zakayi Mbumba and Maitre Robert Beya Keshi

Abstract

Congolese positive law operates, without any elasticity, two orders of jurisdictions and a constitutional court. The judicial order is governed by the Court of Cassation and the administrative order by the Council of State. From the combined reading of the Constitution of the Democratic Republic of Congo of February 18, 2006 as amended by Law No. 11/002 of January 20, 2011 revising certain articles of the Constitution of the Democratic Republic of Congo of February 18, 2006, “Constitution of the DRC”, and the organic law No. 16/027 of October 15, 2016 on the organization, competence and functioning of the jurisdictions of the administrative order, “Organic Law of October 15, 2016”, the Council of State exercises, on the one hand, the litigation competences and, on the other hand, the advisory competences. From the angle of the exercise of its advisory powers, this high administrative institution made its first appearance on the interpretation of Articles 77 and 78 of Law No. 06/006 of March 09, 2006 on the organization of presidential, legislative, provincial, urban, municipal and local elections as amended by Law No. 11/003 of June 25, 2011, Law No. 15/001 of February 12, 2015 and Law No. 17/013 of December 24, 2017, “Electoral Law”.

In essence, what is the normative framework of the competences of the Council of State? What is the historical evolution of the regime of incompatibility of offices and mandates in the Democratic Republic of Congo? Finally, what is the scope of the advisory opinion issued by the Council of State on March 1, 2019? This study examines all these questions.

INTRODUCTION

The Constitution of the DRC establishes a bicameral Parliament composed of the National Assembly and the Senate[1]. 1] The members of these two institutions are elected for a renewable five-year term by direct universal suffrage and secret ballot for the national deputies,[2] and by the provincial deputies for the senators.

The mandate of these parliamentarians begins with the validation of their powers by their respective institutions and expires with the installation of the new National Assembly and the New Senate[4].

Once elected and their powers validated, National Deputies and Senators are subject to the regime of incompatibilities; their mandate is incompatible with other mandates and functions enumerated in the Constitution of the DRC; this leads to the prohibition of cumulating functions and mandates.

The present study is based on the opinion given by the Council of State concerning the divergence of opinions that arose within the central government after the validation by the National Assembly and the Provincial Assemblies of the respective powers of their members.

In fact, within the central government, some ministers elected as national and/or provincial deputies considered, in view of the provisional nature of the results proclaimed by the Independent National Electoral Commission, “CENI”, that once they had been validated by their respective deliberative assemblies, they could nonetheless continue to carry out the day-to-day business of their ministries until the handover and resumption of work with the new leaders in application of the principle of the continuity of the State and public services.

Others, on the other hand, argued that as soon as they were validated as national and/or provincial deputies, the ministers concerned should immediately cease their participation in government activities.

It is in this context that, in order to decide, the Prime Minister, acting through the Deputy Prime Minister, Minister of Transport and Communications, referred the matter to the Council of State, which set the opinion on the issue through its opinion RITE 001 of March 01, 2019. This opinion is the first work of the Council of State.

To address the issues related to the incompatibilities to the mandate of national and provincial deputies discussed in this opinion, this study focuses mainly on:

  • the competences of the Council of State ;
  • the regime of incompatibilities to the mandate of national deputies, senators and provincial deputies
  • and the scope of the opinion of the Council of State on the consultation of the Government
  1. Brief overview of the powers of the Council of State

Botakile Batanga teaches that the competences of the Congolese administrative judge are carried by the Constitution and the laws of the Republic. They relate essentially to the exact meaning to be given to an act to which the initiative taken by the administrative authority must conform[5].

Clearly, the Council of State exercises contentious competence (I.1), on the one hand, and consultative competence (II.2), on the other hand.

I.1 Contentious competence of the Council of State

The intrinsic nature of the Congolese administrative judge is realized through his contentious competences. Currently, its competences concern the annulment of illegal acts, decisions or regulations, annulment and reparation for fault and reparation for exceptional prejudice[6].

The Council of State is the supreme jurisdiction of the administrative order, i.e. it oversees the following lower jurisdictions: the Administrative Courts of Appeal and the Administrative Tribunals[7].

Article 85 of the Organic Law of October 15, 2016 provides that: “the Litigation Division of the Council of State is the judge of all cases that fall within the litigation jurisdiction of the Council of State. Without prejudice to the other competences recognized to it by the Constitution or this organic law, the Litigation Division of the Council of State hears, in the first and last instance, appeals for annulment on the grounds of violation of the law, edict or regulation, lodged against legislative acts, regulations or decisions of the central administrative authorities or against those of the public bodies placed under their supervision, as well as those of the national bodies of the professional orders.”[8]

As for the examination of the merits, “the contentious section rules sovereignly, taking into account the circumstances of fact and law, on the appeals for suspension lodged against the said acts”[9]. Article 86 of the same law adds that “the Administrative Jurisdiction Division hears appeals of judgments and decisions rendered at first instance by the Administrative Courts of Appeal”.

The Administrative Jurisdiction Division also hears appeals in cassation for violation of the Constitution, duly ratified international treaties, laws, edicts, customs, general principles of law and regulations, against judgments of administrative courts of general jurisdiction or against decisions of the specialized administrative courts referred to in article 2, paragraph 3 of this organic law.

This section also hears applications for review, appeals against decisions of administrative judges, settlements of judges, applications for referral from an administrative court of appeal to another administrative court of appeal or from a court within the jurisdiction of an administrative court to another court within the jurisdiction of another administrative court of appeal, and liability actions against the State for excessive length of proceedings before a court of the administrative order[11].

11] Furthermore, if there is no other competent court, the Administrative Jurisdiction Division also hears claims for compensation for exceptional material or moral damage, appeals that raise questions of principle, appeals involving complex arguments that fall within the competence of several chambers of a division and that are likely to be resolved (…) and cases deemed complex by the First President or by the Presidents of the divisions of the Council of State.

12] In sum, these are the competences vested in the Council of State by Congolese administrative law. In response to any request that falls within its contentious competence, the Council of State acts by way of a judgment. What about its advisory competence?

I.2 Advisory competence of the Council of State

Diachronously, the advisory competence of the Conseil d’Etat was implemented by the Legislation Section of the Supreme Court of Justice on draft laws or regulatory acts that were submitted to it, as well as on difficulties of interpretation of texts.

But the third adherent of the explanatory statement of the Organic Law of October 15, 2016, institutes advisory sections at all levels of the administrative order courts in order to bring the advisory function of these courts closer to the authorities of the active administrations. In this case, the focus is on the advisory jurisdiction of the Council of State with respect to acts of the central government.

Professor Yuma Biaba teaches that the Council of State is the highest court of the administrative jurisdictions. It exercises both advisory and contentious competences[14]. The legal basis of the advisory powers is the organic law of October 15, 2016, particularly in its articles 82, 83 and 84 .

The content of these articles 82, 83 and 84 can be read as follows: “the advisory section of the Council of State is competent to give reasoned opinions on the legal regularity of any draft or proposed legislative act, regulation or decision referred to it by the authorities of the central power as well as those of the bodies placed under their supervision. It rules on difficulties of interpretation of legal texts”. In so doing, the Conseil d’Etat is considered not only as an advisor to the Government, but also to Parliament.

The flexibility with which the Congolese legislator has posed in this passage is to be commended. It speaks of legal texts without precision.  It may be a law, a constitution or any text of national scope. The difficulty of interpretation of a legal text can arise before a court or an administrative authority. As far as the administrative authority is concerned, it is indeed the central administrative authority in the case of the advisory competence of the Council of State.

It is in accordance with Articles 82 paragraph 2 and 84 paragraph 1 of the Organic Law of October 15, 2016 that the Prime Minister, central administrative authority, referred to the Council of State which declared itself, rightly, competent to hear the request submitted to it given that it was indeed about the difficulties of interpretation of the provisions of legal texts, in this case Articles 77 and 78 of the Electoral Law.

From the synthesis of this literature, it can be deduced that the advisory competence of the Council of State is established only on national legislative acts or administrative acts of the central administrative authorities, because the acts of the administrative authorities, provincial or local, are subject to the advisory censorship of the administrative courts of appeal or administrative tribunals, as the case may be[16].

Having reviewed the contentious and advisory competences of the Council of State, it is now important to discover the incompatibilities to which the mandates of national and provincial deputies and senators are subject.

  1. From the regime of incompatibilities to the mandates of national and provincial deputies

This section deals respectively with the historical evolution of the rule of incompatibility of mandates and functions in Congolese law (II.1), the current state of this rule (II.2) and the opinion of the Council of State on the incompatibilities of the mandates of parliamentarians (II.3).

II.1 Historical development of the rule of incompatibility of offices and mandates

The Fundamental Law of 19 May 1960 on the structures of the Congo and the Constitution of 1 August 1964 were silent on the incompatibility of the mandates of members of the House of Representatives and the Senate.

Despite the multiple revisions it has undergone, the constitution of 24 June 1967 also shows a semblance of titanic consistency with regard to the rule of incompatibility of mandates and functions.

The wind of democratization in Africa, which blew in the 1990s, favored the insertion of this rule in the Congolese political sphere. Indeed, the Act on constitutional provisions relating to the transition period of 4 August 1992 clearly provided for the incompatibility of “the functions of members of the Government with those of members of the High Council of the Republic and any paid public or private employment[17]”. It goes without saying that, vice versa, the mandate of the members of the High Council of the Republic was also incompatible with the functions of the members of the Government and any paid public or private employment.

The Harmonized Constitutional Act of the Transition of April 2, 1993 also clearly sets out the rule of incompatibility of mandates and functions in the following terms: “Without prejudice to the other cases of incompatibility provided for by law, the mandate of deputy is incompatible with the status of member of the High Council of the Republic.

While this rule was already taking root in the Congolese political arena, Constitutional Decree-Law No. 003 of May 27, 1997 on the organization and exercise of power in the Democratic Republic of Congo put the wheel back in the background in that none of its provisions refer to this rule. This situation is certainly justified by the fact that this Decree did not provide for the institution of Parliament.

Although it established the Constituent and Legislative Assembly, Constitutional Decree-Law No. 074 of May 25, 1998, revising the provisions of Chapter II of Constitutional Decree-Law No. 003 of May 27, 1997, on the organization and exercise of power in the Democratic Republic of the Congo, was also conspicuous by its silence on the rule of incompatibility of mandates and functions.

We had to wait for a new revision of the Constitutional Decree-Law n° 003 of May 27, 1997, dated July 1, 2000, to see this rule reappear. Indeed, Article 32 of this Decree, as amended, completed and updated, reads as follows “Without prejudice to the other provisions provided for in this Constitutional Decree-Law and in specific texts, the mandate of member of the Constituent and Legislative Assembly is incompatible with any other public mandate, the capacity of member of the Government, the capacity of member of the cabinet of the President of the Republic and of the ministerial cabinets, the functions of authorities in charge of the administration of the territorial entities, the capacity of ambassador, the capacity of member of the forces of order ; of the national defense and security services, of active representative in a public enterprise, in a public establishment or in a mixed economy company, the functions of career agent of the public services of the State, of magistrate, of member of the Court of Auditors and with the remunerated functions conferred by a foreign State or an international Organization”.

The Transitional Constitution of April 5, 2003 implicitly reaffirmed the rule of incompatibility for members of the National Assembly and the Senate in its articles 100 paragraph 3 and 106[19], although the mandates and functions related to this incompatibility are not specified. In fact, by providing that the mandate of deputy and senator can end, among other things, by incompatibility, these articles admit that these parliamentarians cannot exercise their mandate concurrently with another mandate or function.

This is, historically, the evolution of the rule of incompatibility of mandates and functions of parliamentarians in the different constitutions that have succeeded one another in the DRC. But how is this rule set out in the current Constitution?

II.2 The rule of incompatibility of mandates and functions in the DRC Constitution

The DRC Constitution clearly sets out this rule in Article 108, which reads: “The mandate of a national deputy or senator is incompatible with the following functions or mandates

  • member of the Government ;
  • member of an institution supporting democracy
  • member of the armed forces, the national police and the security services
  • magistrate;
  • political-administrative executive of the territorial administration, with the exception of the heads of local authorities and groups;
  • career agent of the public services of the State (…) and
  • any other elective mandate.

In fine, this provision further specifies that the mandate of national deputy or senator is incompatible with the exercise of remunerated functions conferred by a foreign State or an international organization.

Article 77 of the Electoral Law establishes this rule for provincial deputies, urban and communal councillors and community councillors whose mandate is incompatible with the mandates or functions of :

  • member of the government
  • magistrate
  • member of the Economic and Social Council, member of an institution supporting democracy
  • member of the cabinet of the President of the Republic, the President of the National Assembly, the President of the Senate, the Prime Minister, members of the Government and any other political or administrative authority of the State;
  • members of the Armed Forces, the national police force,
  • career agents of the public services of the State,
  • political-administrative executives of the territorial authorities, with the exception of chiefs of chieftaincies and heads of groups;
  • active public officer: Chairman of the Board of Directors, Director-Delegate General, Deputy Director-Delegate General, Director-Delegate and
  • any other elective mandate.

From the above, we can affirm that the Constitution of the DRC and the Electoral Law clearly establish the rule and the cases of incompatibility for the mandates of parliamentarians, provincial deputies, urban and communal councillors and communities. This is also what emerges from the opinion of the Council of State under review, the scope of which we now propose to examine.

III. Scope of the opinion of the Council of State on consultation with the government

The reading of the opinion of the Council of State has enabled us to discover two principles that it drew from the constitutional and legal provisions mentioned above. These are the principle of the strict prohibition of the accumulation of mandates and functions (III.1) and that of the immediate cessation of incompatible mandates or functions (III.2).

III.1 Principle of the strict prohibition on holding multiple offices and positions

From the reading of the opinion, this principle simply means that no authority listed in articles 96 [20] and 108 [21] of the Constitution of the DRC and 77 of the Electoral Law [22] may hold concurrently his or her current function or mandate with functions or mandates obtained within the framework of national, provincial, urban, communal and local institutions.

In this case, the Council of State has rightly ruled that no member of the central government[23] may, while holding this office, at the same time hold the office of national deputy, senator or provincial deputy.

The Council of State reached this conclusion by interpreting the above-mentioned texts according to their letter (a) and spirit (b).

  1. Interpretation according to the letter of the texts on incompatibilities of mandates and functions

The provisions of the Constitution of the DRC and the Electoral Law on the incompatibility of offices and mandates clearly determine this question.

The provisions in question are Articles 96 and 108 of the DRC Constitution and Article 77 of the Electoral Law. To put it simply, articles 96 and 108 concern the incompatibilities of the functions or mandates of central authorities, in this case members of the Government, national deputies and senators; and article 77 deals with the incompatibilities of the functions or mandates of provincial deputies, urban councillors, and other local authorities.

In this light, the Council of State, without any elasticity, concluded that this rule is applicable according to the terms of the above-mentioned articles. In the opinion rendered, the Council of State notes that it is a strict prohibition of accumulation of the said functions or mandates with the functions or mandates referred to in article 77.

In addition, the Council of State specifies that, with the exception of the Chiefs of chieftaincies and groups, in their capacity as holders of customary authority, no authority listed in the points above may hold concurrently his or her current function or mandate with functions or mandates obtained within the framework of provincial, urban, communal and local institutions. The functions or mandates concerned are those of the provincial deputy, the provincial governor and vice-governor, the municipal councillor, the mayor and deputy mayor, the municipal councillor, the mayor and deputy mayor, the sector chief and deputy sector chief.

What is the spirit of this principle as understood by the Council of State?

  1. Interpretation according to the spirit of the texts on the incompatibility of mandates and functions

In order to reinforce its argument on the prohibition of the accumulation of offices and mandates, the Conseil d’Etat has highlighted the raison d’être of the texts that enshrine this prohibition, in particular by highlighting the clear will of the constituent and the legislator to avoid the confusion of roles and the duplication of payments to the public treasury, to prevent possible conflicts of interest, to ensure respect for the balance of powers contained in the Constitution and in the various other laws of the Republic and, particularly for national deputies and senators, to protect the exercise by the legislative power of its mission of control of the executive power, by virtue of articles 100, 138, 146 and 147 of the Constitution.

In the opinion of the Council of State, the confusion of roles is inevitable when one exercises the function of member of the government at the same time as the mandate of the deputies or senators. The latter have received from the Constitution and the laws of the country the missions of voting on laws and controlling the Government, public enterprises and public establishments[24], while the Government conducts the policy of the nation[25].

Moreover, the risk of conflicts of interest is great for a member of the Government who also holds the elective mandate of a national deputy or senator when, for example, there is a question of parliamentary control by interpellation, a current affairs question, a committee of inquiry, a hearing by the committees, an oral or written question with or without debate not followed by a vote, a motion of no confidence or of censure[26]. In such a case, he will not be able to be controlled and this could lead to the paralysis of the parliamentary mission, thus calling into question the principle of separation of powers, which is dear to the rule of law.

Finally, being paid by the public treasury just like the national deputy, senator or provincial deputy, a member of the Government who also holds this mandate will necessarily be paid twice by this same treasury; which is inconceivable. Clearly, according to the Council, this is the raison d’être of the rule of incompatibility of functions or mandates.

Beyond the principle of prohibition of the accumulation of mandates or functions discovered in this opinion, the Council of State has examined another principle which is analyzed in the following lines.

III.2 Principle of immediate cessation of incompatible offices or mandates

As a reminder, in his petition, the Prime Minister referred to the position of certain members of the Government that, despite the choice made for the mandate obtained, they could continue to hold their functions as ministers until the handover and resumption with the new Government by virtue of the principle of the continuity of the State and the provisional nature of the election results.

In response, the Council of State scrutinized the principle of immediate termination of functions or mandates.

According to the Council’s reasoning, this principle, which is derived from article 78 of the Electoral Law[27], means that the choice made by an elected official who is in the cases of incompatibility referred to in points 1, 3, 4, 6, 7 and 9 of article 77 [28] of the Electoral Law mentioned above, in favor of the mandate obtained, automatically and definitively entails the abandonment of the incompatible mandate or function.

The Council of State justifies this principle (a) and considers, consequently, irrelevant the reasons invoked of the continuity of the State (b) and the provisional character of the results of the elections to justify the perpetuation of the accumulation of mandates (c).

  1. Justification of the principle

Referring to article 78 of the Electoral Law, the Council of State justifies this principle, on the one hand, by the obligation, and not the option, given to the officials mentioned in points 1, 3, 4, 6, 7 and 9 of article 77 of the Electoral Law to operate within 8 days from the date of validation of their mandate, to choose between the said mandate and the incompatible functions that they are currently exercising and, on the other hand, by the presumption of renunciation of the mandate obtained in the event that this choice is not made within this period.

We agree with the Conseil d’Etat that, by these provisions, the legislator intended to give immediate effect to the system of prohibition on holding multiple offices or positions, particularly for these officials.

This is all the more true since article 77 also mentions other officials on whom this obligation to make a choice within the 8-day period from the date of validation of their mandate is not imposed. These are magistrates, members of the Armed Forces, the National Police and active public officials, including the Chairman of the Board of Directors, the Chief Executive Officer, the Deputy Chief Executive Officer and the Managing Director.

This distinction between the two categories of officials reflects the legislator’s desire to subject some to the regime of immediate termination of their current incompatible mandate or function once the choice has been made, and the others to another regime that does not require the choice and does not entail the immediate termination of the incompatible mandate or function.

  1. Relevance of the principle of the continuity of the State

To justify the continuity of their current functions despite the validation of their mandate as national or provincial deputies, these members of the Government invoked the principle of the continuity of the State which, according to them, should allow them to remain in office until the handover and resumption with the members of the new Government.

To this concern, the Council of State opined that “the existence of this legal deadline, together with such a sanction of loss of mandate, entails the impossibility of invoking the principle of the continuity of the State in an attempt to justify the perpetuation, even in a temporary and provisional way, of the accumulation of mandates, the President of the Republic being the only constitutional institution in charge of assuring the continuity of the State, by virtue of article 69 paragraph 2 of the Constitution currently in force.

We note that, in order to reject the principle of the continuity of the State in the case submitted to it, the Council of State limited itself to stressing that only the President of the Republic ensures this continuity by virtue of article 69 paragraph 2[29] of the Constitution of the DRC.

In our opinion, beyond the arguments of the Council of State, we find the very invocation of this principle inappropriate in this case.

Indeed, the continuity of the State supposes that this one functions without clashes, without jolts, without stop. In short, that there is no dysfunction of the institutions of the State. If this is the understanding, is it conceivable that the state ceases to function because of the departure of certain ministers from the government, even though they have deputies? In any case, their departure cannot create any dysfunction of the State, because other animators can always replace them; they are therefore not the only ones to operationalize this principle, which, in this case, is therefore impertinent, just like, moreover, the provisional nature of the results of the elections of December 30, 2018.

  1. Irrelevance of the provisional nature of the election results

Another justification for the perpetuation of their current functions was put forward in the petition submitted to the Council of State, namely the provisional nature of the election results.

The provisions of article 71 paragraph 3[30] of the Electoral Law, read in conjunction with those of article 72[31] second part, of the same law, confirm that the results of the elections of the national and provincial deputies of December 30 last year are still provisional, given the appeals lodged against them before the competent courts[32], which are the only ones authorized to proclaim the final results, but which will be able to do so only after examining the appeals.

However, one may ask whether the provisional nature of the results can justify the exercise of current mandates or functions concurrently with the elective mandate obtained. In other words, can we admit that only the final results confer the status of national or provincial deputy and that therefore only their proclamation, by the competent jurisdictions, can definitively put an end to the current mandates or functions?

The argument, drawn from article 103 paragraph 2[33] of the Constitution of the DRC, used by the Council of State to answer this question is attractive in that it first specifies the dies a quo and the dies ad quem of the mandate of national deputy, which begins to run at the validation of the powers by the National Assembly and expires at the installation of the New Assembly. It should be noted that these provisions are applicable to provincial deputies by virtue of Article 197 paragraph 6 [34] of the same Constitution. The Council of State then infers that “the validation of their mandates by the deliberating Assemblies gives rise to all the rights and obligations attached to their new elective office”.

Let us observe that, by these arguments, the Council of State thus implicitly affirms that if the results of the legislative and provincial elections of last December 30 are provisional, the deputies, who are issued from them, are not provisional; they are full-fledged deputies as soon as their powers are validated, since this validation confers on them all the constitutional and legal prerogatives attached to their mandate. Indeed, following the validation of their credentials, the national or provincial deputies receive their emoluments, benefit from immunities from prosecution…can exercise parliamentary control….

This is why, as soon as these national or provincial deputies opt for their mandate obtained by notifying in writing the offices of their respective deliberative assemblies, they must immediately and definitively renounce their current incompatible functions or mandates, the provisional character of the election results being irrelevant.

CONCLUSION

The present study focused on the review of the opinion of the Council of State issued on March 01, 2019. The purpose of the request was to obtain the interpretation of Articles 77 and 78 of the Electoral Law which establish the rule of incompatibility of offices and mandates. This clear rule, which had never had a problem of application until then, almost created unnecessary confusion in the minds of some members of the Government.

Fortunately, the Council of State has given an opinion of principle on the real scope of this rule, the purpose of which is to avoid possible conflicts of interest, duplication of payments to the treasury, but also to maintain the balance of power between institutions.

This opinion has the merit of fixing, once and for all, all the political operators on the incompatibilities to the mandates, not only of the national and provincial deputies, who were concerned in this case, but also of all the other elected officials, namely the senators, the governors and vice-governors of the provinces, the urban councillors, the mayors and deputy mayors, the communal councillors, and other political or administrative authorities, if they fall under the rule of the incompatibility

Intervening at a time when the Democratic Republic of Congo wants to be a state governed by the rule of law, this opinion already lays a solid foundation to avoid duplication of payments to the treasury.

In substance, this study perfectly shares the authoritative position taken by the Council of State in this opinion. This young jurisdiction brings hope for the consolidation of administrative justice. It only takes a reasonable time for it to assert itself like any other administrative jurisdiction in other States. Clearly, this opinion is a significant push allowing this high administrative court to build its jurisprudence step by step.

Indicative bibliography

  1. National legal texts and judicial decisions

 Constitution of February 18, 2006 as amended by Law No. 11/002 of January 20, 2011 revising certain articles of the Constitution of the Democratic Republic of Congo of February 18, 2006.

Constitution of August 1, 1964.

Constitution of June 24, 1967, MC, n°14 of July 15, 1967.

Act on constitutional provisions relating to the transition period of August 4, 1992

Law n° 93-001 of 02 April 1993 on the harmonized Constitutional Act relating to the transition period

Constitutional Act of the transition of April 9, 1994

Constitutional Decree-Law n°003 of May 27, 1997 on the organization and exercise of power in the Democratic Republic of Congo

Constitutional Decree-Law n° 074 of May 27, 1997 on the organization and exercise of power in the Democratic Republic of Congo, as amended, completed and updated on July 1, 2000

Constitution of the Transition of April 5, 2003

Organic law n° 16/027 of October 15, 2016 on the organization, competence and functioning of the administrative courts.

Electoral law n°06/006 of March 09, 2006 on the organization of presidential, legislative, provincial, urban, municipal and local elections as amended by law n°11/003 of June 25, 2011, law n°15/001 of February 12, 2015 and law n°17/013 of December 24, 2017.

Advisory opinion of the Council of State of March 01, 2019.

  1. Doctrine

BOTAKILE BOTANGA N, Précis du Contentieux administratif Congolais Tome 1, Edition Academia, 2014.

MBOKO D’JANDIMA J-M, Droit congolais des services publics, Louvain-la-Neuve, ed. Academia, 2015.

MELIN SOUCRAMANIEN F and PACTET P, Droit administratif, 35ème éd, Paris, Dalloz, 2017

YUMA BIABA L, Manuel de droit administratif général, Kinshasa, edition CEDI, 2012.


 

1] Read article 100 paragraph 1 of the Constitution of the DRC.

2] Article 101 paragraph 1 of the Constitution of the DRC.

3] Article 104 paragraph 5 of the Constitution of the DRC.

4] Article 103 paragraph 2 and article 105 paragraph 2 of the Constitution of the DRC.

5] BOTAKILE BATANGA N, Précis du Contentieux administratif Congolais, Tome 1, Academia, l’Harmattan, 2014, pp.51-52.

6] BOTAKILE BATANGA N, Précis du Contentieux administratif Congolais, pp.56 to 61, op.cit.

7] Read the spirit and the letter of articles 154 and 155 of the Constitution of 18 February 2006.

[8] Article 85 of the Law of 15 October 2016.

9] Paragraph 4 of Article 85 of the Organic Law of October 15, 2016.

[10] Article 87 paragraph 1 of the Organic Law of October 15, 2016.

[11] Article 88 of the Organic Law of October 15, 2016.

[12] Articles 89 and 90 of the Organic Law of October 15, 2016.

[13] Read as a historical reference Article 159 of Ordinance-Law No. 82 of March 31, 1982 on the code of organization and judicial competence.

14] Yuma Biaba L, Manuel de droit administratif général, Kinshasa, CEDI edition, 2012, p.243.

15] MELIN SOUCRAMANIEN F and PACTET P, Droit administratif, 35ème éd, Paris, Dalloz, 2017, p.495.

[16] It is we who underline in reading articles 94, 95 , 102 and 103 of the Law of 15 October 2016.

17] Article 76

[18] Article 77 See also in this sense articles 64, 83 of the Act of transition of March 09, 1994.

19] See articles 100 and 106 of the Transitional Constitution of 5 April 2003. Paragraph 3 of Article 100 provides that: “Notwithstanding the provisions of paragraph 2 of this article, the mandate of a Member of Parliament may be terminated by death, resignation, definitive impediment, incompatibility or criminal conviction. His replacement is then provided for under the conditions defined in paragraph 1 of article 99 of the present Constitution”. This situation is identical with the senators according to the device of article 106 of the same Constitution.

20] Article 96 concerns the President of the Republic.

21] Article 108 concerns national deputies and senators.

22] Article 77 of the Electoral Law refers to provincial, urban, communal and local elective offices. Thus, these functions are: provincial deputies, provincial governors and vice-governors, municipal councilors, mayors and deputy mayors, communal councilors, burgomasters and deputy burgomasters, sector heads and deputy sector heads.

23] The members of the central government are among the authorities mentioned in Article 108 of the DRC Constitution and 77 of the Electoral Law.

24] Article 100 of the DRC Constitution.

25] Article 91 of the DRC Constitution.

26] Articles 138, 146 and 147 of the DRC Constitution.

27] Article 78 of the Electoral Law.

28] These incompatibilities are linked to the following functions or mandates: member of the Government; member of the Economic and Social Council, member of an institution supporting democracy; member of the cabinet of the President of the Republic, the President of the National Assembly, the President of the Senate, the Prime Minister, members of the Government and any other political or administrative authority of the State; career agent of the public services of the State; political-administrative cadre of the territory, with the exception of chiefs of chieftaincies and chieftains of groupings and any other elective mandate

29] Article 69 paragraph 3 of the Constitution states that: “He (the President) ensures, through his arbitration, the regular functioning of public powers and institutions as well as the continuity of the State…”.

30] This article reads: “The president of the independent national electoral commission or his substitute shall make public the provisional results of the vote.

31] Article 72, part 2, of the Electoral Law provides that: “The Constitutional Court, the Administrative Court of Appeal, the Administrative Tribunal and the Peace Tribunal, as the case may be, shall proclaim the final results of the legislative, provincial, urban, communal and local elections within eight days following the expiration of the time limit for appeal if no appeal has been lodged with the competent court.

32] These competent courts are those mentioned in Article 72 above.

33] Article 103 paragraph 3 of the Constitution of the DRC reads as follows: “The term of office of a national deputy begins with the validation of powers by the National Assembly and expires with the installation of the new Assembly”.

34] This article reads as follows: “Without prejudice to the other provisions of this Constitution, the provisions of Articles 100, 101, 102, 103, 107, 108, 109 and 110 shall apply, mutatis mutandis, to the Provincial Assemblies and their members.

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