The competences of the Constitutional Court with regard to the Constitution of 18 February 2006 and the organic law n° 13/026 of 15 October 2013 on the organization and operation of the Constitutional Court.
Provided for successively by the Fundamental Law of 19 May 1960 on the structures of the Congo and by the Luluabourg Constitution of 1964, the Constitutional Court, established by the Constitution of 18 February 2006, does not appear to be an innovation in itself. It is a well-known institution in the history of the Democratic Republic of Congo (“DRC”).
This court is endowed with its own competences and has a mode of organization and operation specified in the Constitution of 18 February 2006 as amended and completed to date, as well as by Organic Law No. 13/026 of 15 October 2013 on the organization and operation of the Constitutional Court.
As regards competence, it should be emphasized that it is the set of powers and duties attributed to and imposed on an agent to enable him to fulfil his function[1]. As competences are inherently assigned, the Constitution assigns its competences to the Constitutional Court, which are derived from the provisions of articles 74, 76, 99, 128, 139, 145, 160, 161, 162, 163, 164, 167 paragraph 1 and 216 of the Constitution[2].
In the light of the above provisions, the Constitutional Court is competent to rule on constitutionality (I), on the interpretation of the Constitution (II), on conflicts of competence (III), on offences committed by the President of the Republic and the Prime Minister (IV), on electoral disputes (V), on the oath of office of the President of the Republic and the declaration of his or his family assets (VI), on the declaration of vacancy of the Presidency of the Republic and on the extension of the deadline for the elections (VII), as well as on the regulation of the political life.
- Constitutional Court: Competent to Rule on Constitutionality[3]
The supremacy of the constitutional norm over other legal norms naturally calls for a review of the latter by the former[4]. The constitutionality review of laws and other acts makes it possible to verify their conformity with the hierarchically superior constitutional norms.
Indeed, the hierarchy of norms is a synthetic vision of law developed by Hans Kelsen. This concept is at the heart of the definition of the rule of law. It is a hierarchical view of legal norms. This hierarchy only makes sense if its respect is controlled by a judge. According to this author, the constitution is at the top of the pyramid. There are thus two types of control of these legal standards: control by way of action and control by way of exception.
The control by way of action or a priori control applies obligatorily to the Laws to which the Constitution confers the character of organic Law, to the Internal Regulations of the Parliamentary Chambers, of the Congress and those of the Institutions of Support to Democracy, to the Ordinances taken after deliberation in the Council of Ministers by the President of the Republic, in case of a state of emergency or of siege[5]. This type of control, which involves the Constitutional Court upstream, prevents the entry into force of a text deemed unconstitutional.
In addition, a priori control may also be initiated by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate or one tenth of the Deputies or Senators to have an ordinary law to be promulgated declared not in conformity with the Constitution.
The Public Prosecutor at the Constitutional Court may also refer to the Court for an a priori review of the above-mentioned acts, except for international treaties and agreements, when they infringe on fundamental human rights or public freedoms.
The control by way of exception or a posteriori is carried out by any person in a case which involves him before a jurisdiction. In its Ruling RConst1272 of 04 December 2020, the Court noted that the exception of unconstitutionality is only possible and carried out upon production of an interlocutory ruling or judgment rendered by the court seized of the case during the examination of which this priority preliminary question is invoked, not in limine litis, as suggested by the Circular No. 001 of 7 March 2017 of the First President of the Court of Cassation, but rather at any height of the procedure.
This is a public order remedy whereby, after pronouncing a stay of proceedings, the court seized refers the matter to the Constitutional Court, specifying the legislative or regulatory provision referred to as unconstitutional, as well as the constitutional provision whose violation is claimed. Thus, in the absence of the indication before this jurisdiction of the legislative or regulatory acts to be referred to the Court, or when the acts referred to are judicial or jurisdictional procedural acts, in particular summonses, orders for the setting of a hearing date or for the abbreviation of the time limits for appearance,, judicial decisions, warrants, requisitions, the exception is lacking in law because it is without object and does not require suspension or referral, in accordance with the provisions of articles 162, paragraphs 1, 2 and 4 of the Constitution, 43, 52 and 53 of the Organic Law and 54 and 63 of the Rules of Procedure of the Constitutional Court[6].
Indeed, in the hierarchy of norms, the Constitution is the superior norm and the fundamental source from which all legal and regulatory norms derive and to which all other inferior sources must conform, for their regularity.
Therefore, when a law, or any other source of law, contains a provision that is not in conformity with the Constitution, any party to the proceedings, who has an interest, may raise an objection of unconstitutionality. In such cases, the court of first instance must, in principle, stay its decision until the Constitutional Court has given its opinion, as the only body competent to rule on the conformity of the law with the Constitution.
- Constitutional Court: Adjudicator of the interpretation of the Constitution
The Constitutional Court hears appeals for interpretation of the Constitution. Why interpret the Constitution? The Constitution contains not only rigid and formal procedural rules but also principles by virtue of which individuals have certain rights. Unlike the rules, these principles cannot be applied literally, but must be interpreted because they have the same hierarchical rank, are contemporary with each other and have the same legal scope. They must therefore be weighed or balanced[7].
The constitutional judge is in a sense halfway between the legislator and the ordinary court: He is as free as the legislator can be, but this freedom is framed by prudential requirements with which the ordinary court is not familiar, because the latter is obliged to conform to the model of subsumption applicable to all rules.
Thus, the constitutional judge is the only body of constitutional jurisdiction with the authority to interpret the Constitution[8].
III. Constitutional Court: Judge of the Conflict of Competences
The Constitutional Court is competent to hear conflicts of jurisdiction and attribution[9].
Thus, regarding conflicts of jurisdiction, the Court intervenes and rules on conflicts between the executive and the legislature[10], as well as between the state and the provinces[11]. In the latter case, the State is not meant in a technical sense, but rather the central power, i.e. the national executive and the national parliament, as opposed to the provinces.
Conflicts of attribution are related to the courts of the judicial order and those of the administrative order.
Indeed, there are three jurisdictional orders in the DRC: the constitutional order, the judicial order, and the administrative order. The competences of the constitutional court are analyzed in this article. When a dispute involves private persons, as is the case for crimes and misdemeanors, the judicial order has jurisdiction, headed by the Court of Cassation. When the dispute involves one or more public persons, it is the administrative judge who must be approached. This order is headed by the Council of State. In cases where the distinction is not clear, the Constitutional Court is responsible for determining which court has jurisdiction[12].
In such cases, the Constitutional Court plays a role comparable to that of the Tribunal des Conflits in France[13].
In addition, the Court hears appeals against judgments of the Court of Cassation and the Council of State insofar as they rule on the allocation of the dispute to the courts of the judicial or administrative order.
- Constitutional Court: Criminal Judge of the President of the Republic and the Prime Minister
The Constitutional Court is a criminal judge. The Constitution confers on the Constitutional Court the status of criminal judge of the President of the Republic and the Prime Minister as well as of their co-perpetrators and accomplices.
It has jurisdiction over political offences and offences under ordinary law committed by the President of the Republic and the Prime Minister in the exercise of their duties or in connection with the exercise of their duties.
Political offences include high treason[14], contempt of Parliament[15], breach of honor[16] or probity[17] and insider trading[18]. Common law offences are those mentioned in the Penal Code.
In its decision RP 0001 of 15 November 2021, the Court noted that Article 164 of the Constitution confers this jurisdictional privilege on the President of the Republic and the Prime Minister simply because the issue is too political to be examined by a court of law. Moreover, it is necessary that the President of the Republic or the Prime Minister be protected from prosecution, like any citizen, which would prevent the exercise of the powers conferred on them by the Constitution.
Moreover, as regards the Prime Minister, the Court observed that this privilege of jurisdiction ends with his term of office, thus making him once again subject to the jurisdiction of the ordinary courts. The Court therefore considers that during his term of office, the Prime Minister can only be held criminally liable before it; for all his acts, including those performed outside his office, he enjoys a privilege of jurisdiction that largely protects him.
Read Model of the regime of prosecution and removal of the President of the Republic – A comparative study of French-American and Congolese law
No gentlemen, a former Prime Minister is not a Prime Minister
Offence committed by a former Prime Minister: what about the competent court?
- Constitutional Court: Judge of Electoral Disputes
The choice of the 2006 constitution was clear. It entrusted the litigation of presidential and national legislative elections and the referendum to a jurisdictional authority: the Constitutional Court.
This court hears appeals challenging the regularity of candidacies, the results of presidential and national legislative elections as well as the referendum.
It proclaims the final results of these consultations.
- Constitutional Court: Judge of the President’s Oath of Office and Declaration of Family Assets
Under Article 74 of the Constitution, the Constitutional Court is competent to receive the oath of the President of the Republic. In addition, it is competent to receive the oath of office of the members of the CENI, as provided for in Article 20 of Law No. 10/013 of 28 July 2010, as amended and supplemented to date, on the organization and operation of the Independent National Electoral Commission (CENI).
The Court is also competent to receive the written declaration of the family assets of the President of the Republic, members of the Government[19] and members of the CENI Bureau[20], and transmission to the Tax Administration.
VII. Constitutional Court: Judge of the Vacancy Declaration of the Presidency of the Republic and of the Extension of the Election Deadline
As a constitutional authority, the Constitutional Court is competent to declare a vacancy in the Presidency of the Republic[21]following the death, resignation, or any other cause of definitive impediment of the[22] President of the Republic.
It may, under the same conditions, extend the electoral deadline for reasons of force majeure as was the case for the 2018 elections.
VIII. Constitutional Court: Regulatory Judge of Political Life
Order R. Const. 1438 of 15 December 2021 contains the principle that the Constitutional Court has regulatory power over political life. This, in addition to the prerogatives explicitly conferred on it by the Constitution and its organic law.
It emerges from this decision that this regulatory power is intended to settle questions which, if left unanswered, may paralyze the regular functioning of public institutions and services.
This jurisprudential solution has already been tried by the Court to settle the fundamental questions submitted to it under R. Const 38/TSR of 15 September 2006 relating to the extension of the deadline for the organization of the second round of the 2006 presidential elections (Bulletin des arrêts de la Cour suprême de justice, numéro spécial, contentieux électoraux 2006-2007, Kinshasa, edition of the Service de documentation et d’études du Ministère de la Justice, pp. 390-396); R. Const 055/TSR of 27 August 2007 in relation to the extension of the mandate of the Independent Electoral Commission; R. Const. 059/TSR of January 30, 2008 on the extension of the mandate of the High Authority for the Media (Bulletin des arrêts de la Cour suprême de justice, years 2004 to 2009, Kinshasa, edition of the Service de documentation et d’études du Ministère de la Justice et droits humains, 2010, pp. 65-72).
[1] G. Cornu, Vocabulaire juridique, 9 eEd. updated, Paris, PUF, 2011, p. 210
[2] See Article 42 Organic law n°13/026 of 15 October 2013 on the organisation and functioning of the Constitutional Court
[3] The Constitutional Court hears the constitutionality of international treaties and agreements, laws, acts having the force of law, edicts, internal regulations of the parliamentary chambers, the Congress and the Institutions for the Support of Democracy, as well as the regulatory acts of the administrative authorities.
[4] Jean-Louis ESAMBO, Cours de droit constitutionnel général, course note, 2019-2020, p. 55
[5] Because of the requirements of the hierarchy of norms, the conformity of regulations with the Constitution must be assessed with regard to both the Constitution (hence the “bloc de constitutionnalité”) and the organic laws provided for therein, as well as the legislative measures taken for its application.
[6] See R. Const 1272 of 4 December 2020. JudgmentRConst1272 of 04 December 2020 – Request by Mr. Wanyanga Muzumbi Jean-Israel, Brigadier General, for unconstitutionality of the procedure and judgment of the Military High Court of 02 July 2020 under RP 015/2020
[7] Read R.Const.1.200
[8] See also JudgmentRConst1453 of 15 January 2021 – Request for interpretation of article 101 paragraph 5 of the Constitution; JudgmentRConst262 of 11 May 2016 – Request for interpretation of article 70 of the Constitution in relation to articles 75, 76, 103, 105 and 197 of the same Constitution
[9] There is a conflict of jurisdiction when the Court of Cassation and the Council of State both declare a court of the judicial order and a court of the administrative order competent or incompetent to hear the same claim brought between the same parties.
[10] There is a conflict of competence between the executive and legislative powers when one of the acts enumerated in Article 43 (international treaties and agreements, laws, acts having the force of law, edicts, internal regulations of the Parliamentary Chambers, Congress and Democracy Support Institutions, as well as regulatory acts of the administrative authorities) of this organic law is taken by one of the powers in violation of the material competence of the other. The Court shall rule on the legislative or regulatory nature of the matters in question.
[11] There is a conflict of competence between the State and the provinces when one of the acts listed in Article 43 of this Organic Law is taken in violation of Articles 202 to 205 of the Constitution. The Court shall decide on the level of the competent authority.
[12] See RCA 0001 of 15 January 2021. Judgment RCA 0001 of 15 January 2021 – Application for the settlement of a conflict of attribution of litigation to the courts of the judicial or administrative order
[13] Balingene Kahombo, ‘The originality of the constitutional court: its organisation and competences‘, on https://hamann-legal.de.
[14] High treason occurs when the President of the Republic has intentionally violated the Constitution or when he or the Prime Minister is found to be the author, co-author or accomplice of serious and flagrant violations of human rights or the cession of part of the national territory. The President of the Republic or the Prime Minister is also guilty of the offence of high treason when either of them: 1. institutes or attempts to institute a single party in any form whatsoever; 2. fails in his duty to safeguard the unity of the Republic and the integrity of its territory; 3. diverts the armed forces of the Republic to his own ends; 4. organises military, paramilitary or private militia formations or maintains an armed youth. High treason is punishable by penal servitude for life.
[15] Contempt of Parliament occurs when the Prime Minister fails to respond to questions from either House of Parliament on government activity within thirty days of receiving the question. Contempt of Parliament is punishable by five to ten years’ rigorous imprisonment.
[16] An offence against honour occurs when the personal behaviour of the President of the Republic or the Prime Minister is contrary to good morals. An offence against honour is constituted by the facts defined in sections III and IV of Title VI of the Criminal Code, Book II, and is punishable by the penalties of deprivation of liberty provided for therein, as well as a fine of between ten and fifty million Congolese francs.
[17] A breach of probity occurs when the President of the Republic or the Prime Minister is found to be the author, co-author or accomplice of misappropriation of public funds, corruption or illicit enrichment. An offence against probity is constituted by the facts provided for in section VII of title IV of the Penal Code, Book II, and is punishable by the same penalties.
[18] Insider trading occurs when either the President of the Republic or the Prime Minister carries out transactions in real estate or commodities in respect of which he or she possesses, by virtue of his or her office, privileged information and from which he or she takes advantage before the information becomes public knowledge. It includes buying or selling shares based on information that would never be disclosed to shareholders. Insider trading is punishable by a principal penal servitude of ten to twenty years and a fine of ten to fifty million Congolese francs.
[19] Article 99 of the Constitution, see. Ruling RDFF 94 to 161 of 18 February 2017 – Declaration of the family assets of the members of the Samy BADIBANGA NTITA Government appointed by Order No. 16/099 of 26 November 2016 and that No. 16/100 of 19 December 2016 appointing deputy prime ministers, ministers of State, ministers, minister delegate and vice-ministers
[20] Article 20 Organic law n° 10/013 of 28 July 2010 on the organization and operation of the Congolese National Electoral Commission
[21] It should be noted that the legislator uses the expression “Presidency of the Republic” instead of “President of the Republic” because the Institution is President of the Republic and not Presidency of the Republic. The name of the institution is confused with the person of the Head of State.
[22] A definitive impediment occurs when the President of the Republic is absolutely unable to exercise personally the functions devolved upon him by the Constitution and the Laws of the Republic.
