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Zaire THE LEGAL AND PENAL SYSTEMS
Criminal Law and the Penal Code
Contemporary Zairian law still embodies most of the
principles
established during the Congo Free State and the Belgian
Congo eras.
These elements do not reflect a simple adoption of
existing Belgian
law but, rather, a unique combination of royal decrees,
administrative and legislative ordinances, native customs,
and a
body of judicial decisions based on the above as well as
"general
principles of law equity." The various constitutions
before and
after independence for the most part recognized the
continued
legitimacy of earlier laws, except where they conflicted
with more
recently developed ones. Two important trends have,
however,
characterized Zairian law during the Mobutu era. First,
the
official role of non-Western "customary" law dwindled
significantly
in the process of centralizing and personalizing
authority,
although local custom and belief can still be considered
in
establishing punishment. Second, an often confusing and
ill-defined
body of codes emerged as a result of a 1972 ordinance
giving all
the public statements of President Mobutu the force of
law. For the
most part, however, these codes concerned only crimes
against the
state or the president.
The penal code adopted by the Congo Free State in 1888
remained
in force until it was finally abrogated and replaced by
the penal
code of 1940. This later code was not abandoned at
independence but
has since undergone a variety of amendments, the most
important of
which was the creation in 1963 of a set of crimes
concerning public
order and state security. Unlike the penal codes of other
Frenchspeaking states, the nomenclature of the Zairian code does
not
distinguish among different classifications of criminal
offenses
and refers to all of them as "infractions."
It has been on the basis of political infractions that
the
state has most often invoked the death sentence and other
severe
penalties. By contrast, it has tended to be somewhat
lenient in its
punishment of common criminals, preferring, at least in
theory, to
attempt their rehabilitation. Special consideration is
typically
given to juvenile offenders, who are often remanded to the
custody
of the family in lieu of imprisonment.
The 1974 constitution imbued Zairian criminal law with
certain
fundamental principles, but in practice these principles
are often
violated, especially when other elements of the state
apparatus are
involved or interested. For example, although habeas
corpus and
bail do not exist, people arrested are supposed to be
brought
before a magistrate within forty-eight hours of arrest.
This
principle is rarely adhered to, however. Often, those
arrested
(frequently arbitrarily to begin with) are held for months
without
a hearing. People who can afford bribes buy their way out
of
detention without ever having been formally charged.
Data as of December 1993
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