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Zaire The Judiciary and the Courts
The judicial system is organized hierarchically, in
accordance
with the country's administrative and political structure.
At the
apex is the Supreme Court of Justice in Kinshasa. Under
it, in
descending order, are three courts of appeal in Kinshasa,
Lubumbashi, and Kisangani, whose jurisdiction includes
several
regions each; a regional tribunal in each of the ten
regions and
Kinshasa; and numerous urban and rural subregional
tribunals
(courts of the peace) with original jurisdiction over most
offenses. In a formal sense, the judicial system seems to
resemble
its European model, but in fact non-Western customary law
and other
forms of local practice have been added to the colonial
heritage.
Mobutu inherited the Belgian colonial judicial system,
with
only a few modifications dating from the First Republic.
The
findings at each judicial level were subject to review at
the next
higher level. But because the administration recognized
the
authority of African customary law at the lowest level, a
dual
legal system developed, one applying customary law for
almost all
Congolese, the other applying written law for Europeans.
In 1958,
two years before independence, a decree attempted to
reform the
legal system, removing the distinctions in the treatment
of
Europeans and Africans.
After independence the mass departure of Belgian
magistrates
meant that the judicial system almost ceased to function
above the
level of the territory (zone, in present-day
nomenclature). The
United Nations sponsored a program of recruitment under
which
magistrates were engaged from Greece, Haiti, Egypt, Syria,
and
Lebanon. These foreign judges slowly were replaced by
locals. A
1973 decree specified that all magistrates were obligated
to hold
a licence (undergraduate degree) or doctorate in
law. All
magistrates typically began their careers in government
administration and served provisionally for a year, after
which
they might be appointed to a court by the president.
Under the Fundamental Law as well as under the 1964 and
1967
constitutions, judicial power was theoretically
independent of the
executive and legislative powers, although judges were
appointed by
the president. Magistrates were supposed to remain totally
aloof
from all political activity.
However, the independent judiciary became an anomaly
once the
MPR had been declared the supreme institution of the
nation. The
constitution of 1974 eliminated the inconsistency. The
Council of
the Judiciary, comprising all courts and tribunals, was
made one of
five organs of government. Mobutu was its president.
Although in
theory magistrates were to remain independent and free in
the
execution of their judicial powers, they were obligated to
be
active party members and to interpret the law in the
spirit of the
party. As with other government officials, the degree of
their
devotion to the party was continually monitored. Thus, the
MPR
became the source of all legality. The president of the
republic
could not interpret the law, but justice was carried out
in his
name and under his authority.
The Mobutu regime claimed that the 1974 reforms were
consistent
with the principle of administrative justice as it had
been
practiced under the Colonial Charter, where the law was
stated and
executed in the name of the king, and also with the
African
traditional concept of a chief who is also a judge. The
latter
assertion is an example of a tendency, very common in
Mobutu's
Zaire, to justify current practice by sweeping statements
regarding
African tradition. In fact, in many precolonial societies
of Zaire,
elders who were not political chiefs heard disputes and
decided the
outcome.
The result of this reform was the politicization of the
judiciary. Nevertheless, despite this limitation to their
authority, and their theoretical integration into the MPR,
many
magistrates continued to defend the concept of their
autonomy. As
Michael Schatzberg has put it, they inhabited "a pocket of
resistance internal to the state."
The 1990 reforms were intended to reinstate the
judiciary's
constitutional independence. Moreover, the Transitional
Act of
August 1992 made the courts of law one of the four
independent
institutions of government. The Supreme Court gave
evidence of this
independence when in January 1993, in its capacity as the
nation's
Constitutional Court, it declared the Transitional Act to
be
Zaire's only binding constitution. Nevertheless, the
judicial
system as a whole has not been revamped because of
Mobutu's
continued ability to obstruct the implementation of the
Transitional Act and the functioning of the transitional
government. In addition, there were reports in 1992 and
1993 that
Mobutu had used loyal military forces to intimidate the
judiciary,
along with opposition leaders and the media.
Legal dualism persisted at the local level. Early in
the Mobutu
years, the Ordinance of July 10, 1968, had supposedly
erased the
last traces of racial discrimination, had incorporated
"custom"
into the national law, and put an end to the dichotomy of
judicial
institutions. Moreover, under the 1968 ordinance,
customary courts
were to be replaced by courts of the peace, meaning that
professional magistrates would replace local notables as
judges.
Legislation in 1978 provided that there should be one
or more
courts of the peace in each zone, urban or rural. But even
in the
early 1990s, many areas of Zaire did not have a local
court,
apparently because of the inability of the government to
recruit
people with legal training who were willing to work in the
countryside, far from urban amenities. Much of the
population
remained at the mercy of customary justice, as
administered by the
chiefs and their courts.
Data as of December 1993
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