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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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