by Kya Musoke, Congo RDC, November 1997
THEME = JUSTICE
In the Democratic Republic of Congo (Congo RDC), the people are complaining all the time about what's going on. They say: "There's no more justice in our country". Everyone's frustrated and asks where can they turn for justice. The local Press is conducting a non-stop campaign against the on-going arbitrary arrests, illegal detention and summary executions.
"Lawyers Without Frontiers" and "The Black Gowns" are two lawyers' associations involved in human rights work. They continue to condemn the various injustices and the confiscation of goods belonging to the late President Mobutu's supporters. Father Pierre de Quirini S.J. has frequently written about human rights issues. He challenges Christians and all those of good will, to do their utmost in bringing about true justice in the milieu in which they live. He is convinced that working to bring about justice, will result in a peaceful solution to Congo's many problems.
During Mobutu's dictatorship, injustice in an extreme form, was the order of the day. Mobutu considered himself to be above the law (some people said he was indeed "outside the law"). He held the power of life and death over all citizens. Members of his own family and immediate entourage, knew they could get away with stealing other people's goods and women. And if anyone challenged them on this issue, they had a reply at hand: "And just where do you think you'll be able to lay accusations against me?"
In theory, the law provides all the elements so that justice might reign in our country, but the law is never respected. In a recent statement, the "Groupe Amos" was quite clear on this point: "Nothing has changed".
Before explaining how justice works in Congo RDC, it might be as well to give some information about the sort of cases which the judiciary has to deal with; likewise, information concerning those connected with the administration of justice and a brief description of the country's present judicial structures.
Both civil and criminal cases are dealt with by the courts.
Civil cases: These concern a citizen who feels that he/she has been wronged and looks to the courts for justice. The type of court dealing with such cases is a "Civil Court" and due note has to be taken in this context, of both written and customary law.
Criminal cases: Representatives of the country's judiciary take the initiative in initiating these cases. They bring the accused before a court of law so that "peace and order" might be restored. The Penal Code determines the type of crime and the appropriate penalty if the defendant is found guilty.
Before judgement is given, the case has to pass through various stages. First of all, there's the Examining Magistrate who conducts face-to-face interviews with the accused and decides if the matter is to be taken any further. But such an official obviously can't do everything alone, so he's helped by other officials such as the police attached to the Attorney- General's (or District Attorney's) Department, lawyers and legal experts. There's other officials who directly or indirectly help the Examining Magistrate, people like the clerks of court, sheriff's officers and the administrative staff attached to the Attorney-General's (or District Attorney's) Office. All have their role to play, ensuring that justice is done and seen to be done.
You can only become a judge in Congo RDC, under certain conditions. You have to be Congolese; have the necessary Diploma and Law Degree; be appointed by the President. There are two kinds of judges - judges who: "sit on the Bench" and the "Public Prosecutors". The first, who literally "remain seated" during the trials, judge both civil and criminal cases. Public Prosecutors are "standing up" when they address the court. They also serve as Examining Magistrates and are attached to the Attorney-General's (or District Attorney's) Office. They conduct the inquiries and prepare the cases to be presented before the court. The Judiciary's independence is guaranteed by the Constitution.
Police officers attached to the Attorney- General's (or District Attorney's) Office. These act at the direction of the judicial authorities or the prosecutor, and engage in the prosecution of known or suspected offenses. They are known as "the eyes and ears of the Attorney-General's (or District Attorney's) office.
Attorneys and Defence Counsel work with the judges to arrive at the truth. Their main work is to defend their client's interests.
Attorneys belong to a Bar Association under a president. To belong to the Association, the following conditions must be fulfilled: An attorney must have a Law Degree and be officially registered as a Member of the Bar Association. This can only take place after a long time in practice and having taken the appropriate Oath. Before an attorney can plead before the Supreme Court, he must have had at least ten years in practice. An attorney's profession is a liberal and independent profession and as such, is recognised by Article 16.5 of the country's Constitution. There are 250 attorneys, most of them in Kinshasa.
Defense Counsels' duties are allied to those of the attorneys. They must have a Law Degree. They defend their clients both in a Magistrate's Court and in a High Court. Defence Counsels are organised in Syndicates.
Clerks of Court must be present at all court sessions. They keep the official copies of the judgements which they must countersign and file. They also prepare summaries of the court proceedings.
Once the police attached to the Attorney-General's (or District Attorney's) Office have completed their investigations, they inform the Examining Magistrate that he can begin his own inquiries. The Examining Magistrate checks that everything has been done correctly, that the necessary documents are in order, interviews the accused, and informs the appropriate court under which article of the Penal Code, the accused is charged, and if a guilty verdict is returned, what should be the penalty. The law is clear on every point.
The Supreme Court, the Appeals Court, the High Courts, each have their own prosecution service. The High Courts are served by a District Attorney together with his staff; the Appeals Court by the Attorney-General and his staff. The Attorney- General's authority covers the whole country.
There are varies kinds of courts, depending on the type and importance of the case. Magistrate's Courts (normally presided over by a Justice of the Peace), exist in each region of the country. (Congo RDC has about 139 regions). The Justice of the Peace has a number of responsibilities. He is prosecutor, judge and jury all at the same time. He is able to judge any matter when the penalty foreseen by the law does not exceed five years' penal servitude. He also judges juvenile delinquents.
Every district and town has a High Court - 29 altogether. The High Courts are competent for cases when the penalty foreseen by the law is more than five years' penal servitude, and when the death penalty is to be imposed. Each of Congo RDC's eleven provinces has an Appeals Court. These Courts hear appeals from the High Courts.
Finally, there's the Supreme Court in Kinshasa. The Supreme Court can review cases, and even rule that there is no case to be answered. This Court also judges offenses committed by the governing authorities. It's authority extends over the whole country. The Supreme Court is presided over by a president, assisted by other presidents and judges.
Congo RDC's legal system also has appropriate courts for judging members of the armed forces. Civilians do not come under this jurisdiction.
The State Security Services have their own court - a way in which the present dictatorial power can continue to oppress the people.
We've seen that before an accused person is found guilty, there's a whole legal process to be followed. Even after sentence, the accused has a number of rights such as the right of appeal and the right to be treated in a decent, humane way.
Regarding the due legal process: the Attorney-General's (or District Attorney's) Department has the job of preparing the case and bringing it before the courts. The actual investigations are carried out by the police force attached to this Department. There are clear rules and regulations governing the procedures to be followed by the police during the course of their investigations. (Cf: Presidential Decree number 78/289 of 3 July 1978.
The police are informed that there may be a case to be answered. How is this done? Either by the victim, or by some other person or by the authorities. When a suspect is eventually arrested, because of the many abuses committed at the time of arrest, there are strict rules governing the actual process. A suspect cannot be held for more than 48 hours. He must then either be brought before the Examining Magistrate or released. Whatever happens, the suspect has the right to receive humane treatment - medical care if needed and sufficient food.
When someone is caught red-handed, the law gives the police extensive powers to pursue their investigations. The suspect's house can be searched day and night. An arrest warrant can be served on a suspect by the police. But in no way can they force someone to pay a fine, except for very minor offenses. This is done so as not to overload the courts on matters which can be dealt with immediately.
Prisons must be humane places of detention. Attention must be paid to cleanliness and the upkeep of the buildings. Prisoners must be adequately clothed and fed. Ministers of Religion have the right to provide spiritual assistance and comfort to the prisoners.
During the preparatory examination, the suspect is deemed innocent. He must defend himself against the charges and he must receive the means to defend himself. The Examining Magistrate must respect the prisoner's personal dignity. A suspect can only be detained for a maximum of five days, after which, he must be brought before a judge.
The judge reaches his own decision and judges a case according to his conscience, having listened to the legal arguments of both Prosecution and Defence. He must remain free from all outside interference when he is on the Bench. The judiciary's independence is guaranteed by Article 99 of the Constitution. The judge is obliged to explain why he has reached his decision. This forces him to be completely impartial and to reflect on his ruling before giving it. If the Defence considers a judgement to be wrong, the case can be referred to the Appeals Court.
However, can we say the judiciary is really independent in Congo RDC? No! The Justice Minister is continually interfering in the day-to-day administration of justice. Also, we musn't forget that in the past, Parliament had the power to control judicial activities and even appoint people with no legal training or experience, to very senior posts in the judiciary. Likewise, judges could suddenly find themselves appointed to posts which had nothing to do with their chosen vocation.
Marcel Lihau was Congo's first president of the Supreme Court. He was asked to preside over what amounted to a political trial and this he refused to do, saying that the judiciary must remain independent from any outside interference. Then there's the example of General Masiala, who was murdered for refusing to condemn innocent people who were appearing before the War Council in a political trial.
Another major obstacle to the judiciary's independence, is the fact of corruption among those who work in the judicial system. A rich person, even if guilty, always seems to have "justice" on his side.
The State has organised a judicial system in our country, but it doesn't yet work as it ought. There's only mistrust and fear. Justice is frequently paralysed. The very people who ought to be administering justice, abuse it, and the population are their victims. The average citizen is unaware that the Constitution guarantees them their fundamental rights. The average citizen is unaware that there are courts of law which should grant them justice when they have been wronged.
Important decisions were taken at the Sovereign National Conference, so that the judiciary could once again be free and independent in carrying out its work of protecting the individual's rights and freedoms. When the judiciary has succeeded in freeing itself from all external pressures, preventing it from carrying out its work, then justice will again reign supreme.
The challenge, today, is to ensure that the fundamental truth: "all are equal in the eyes of the law", becomes a reality. Only then will those people who seem to think they are above the law (and there are as many today as during Mobutu's dictatorship), find there is no place for them in society. Justice brings peace, and peace brings national reconstruction, a return to work and development.
END