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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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Zaire Table of Contents