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Zaire The Judicial System
Nearly the entire corps of the Belgian Congo's 168
European
magistrates departed during the exodus that occurred in
1960.
Native court clerks filled many of their positions and
kept the
justice system running, but the impact was severe and
long-lasting.
A fully functioning magistrature was never fully restored
in Zaire.
Magistrates have suffered generally from a lack of basic
legal
texts and documents, poor facilities, and insufficient
transportation and staff support. These inadequacies led
to a
magistrates' strike in 1991, completely paralyzing the
country's
judicial system. Although the strike ended in December of
that
year, little was done to ameliorate the conditions giving
rise to
the work stoppage.
At independence, the new republic inherited a judicial
structure comprising a dual system of courts--those that
applied
so-called customary law and those that applied the
official codes
(influenced by Belgian law). This situation persisted
until the
enactment in 1968 of a new Code of Judicial Organization
and
Competence that provided for the unification of the
judiciary and
the abolition of all customary courts. The magistrature
itself was
divided into distinct branches for the prosecution and
judgement of
cases. However, many Zairian magistrates moved freely
between the
two areas of responsibility, sometimes serving as public
prosecutors and at other times as sitting judges.
The 1974 constitution established the national court
structure
that was, for the most part, still in existence in 1993
(see The
Judiciary and the Courts
, ch. 4). It consists, in
descending order
of importance, of the Supreme Court of Justice in
Kinshasa; three
courts of appeal in Kinshasa, Lubumbashi, and Kisangani,
each of
which has jurisdiction in several regions; a regional
court in each
of the ten regions and Kinshasa; and numerous urban and
rural
subregional tribunals with jurisdiction over trying most
offenses.
In 1987 President Mobutu also ordered the establishment of
a system
of juvenile courts, although the order did not appear to
have been
fully implemented. In addition, a Court of State Security
handles
crimes involving national security, armed robbery, and
smuggling,
while military courts try cases involving military
personnel. In
times of declared emergency or during military operations
(such as
in the first Moba crisis in 1984), the president can grant
military
courts jurisdiction over civilians as well.
In theory, defendants in Zaire are provided by the
constitution
with the right to a public trial and defense counsel;
indigent
defendants are to be provided with court-appointed defense
counsel
paid for by the state. In addition, the right of appeal is
provided
in capital cases, except for cases involving state
security, armed
robbery, and smuggling, all of which are to be adjudicated
by the
Court of State Security. There also is no appeal from
military
court decisions.
In practice, however, according to various human rights
reports, these constitutional provisions are not evenly
applied.
Most citizens, for example, are not aware of their right
to legal
counsel or to appeal. In any case, Zaire does not have
enough
lawyers to provide adequate counsel to defendants.
The Zairian judiciary also lacks independence from the
government and the presidency. Although it is a product of
a
colonial heritage of neutrality and independence, these
qualities
have diminished in a variety of ways since 1960. For
example, the
magistrature is by no means assured freedom from executive
interference because the constitution empowers the
president to
appoint and dismiss all judges and to promulgate law.
Furthermore,
prior to 1990, all magistrates were automatically MPR
party cadres
and, as such, were responsible for promoting national
party policy.
District administrators were actually charged with
submitting
annual reports on the party "militancy" and loyalty
exhibited by
the magistrates in their area. The result was that
although judges
and prosecutors might perform independently and without
political
interference in the great majority of cases, in those of a
political nature, or involving other members of
government,
property, or labor disputes, they were severely limited.
In addition, magistrates suffer from inadequate pay and
are
therefore susceptible to bribery and corruption. As a
result,
trials in Zaire are often far from fair by objective
standards.
People unable to pay bribes are disproportionately
subjected to the
full rigors of the judicial system.
Data as of December 1993
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