Is the Constitutional Court of the Democratic Republic of the Congo competent or incompetent?

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Contents

introduce 1. Legal Discussion 2. Conclusion

introduce

RT Ipala Playboy Art

On Friday, May 31, 2024, the Constitutional Court declared invalid the decision of the Council of State on the election of the Governor and Deputy Governor of the Congolese Centre Province, in a matter of interpretation and control of constitutionality.

Seizing on this issue, the media hyped it up to the point that this numerous judicial errors offended the consensus of the scientific community after the elections of governors and deputy governors of the provinces of Mongala, Maniema and Chopo attacked the decisions of the Council of State on May 27 and June 2, 20022, respectively.

From this perspective, Professor Auguste Mampuya Kanunk’a Tshiabo lost no time in combing through this case law that the court forged to serve as an indictment for the needs of the case. It concerns the control of the constitutionality of the annulment of judgments and decisions of courts and tribunals. He concluded that the court lacked jurisdiction because neither the 2006 Constitution nor Organic Law No. 13-026 of October 15, 2013, on the organization and functioning of the Constitutional Court, provides for it. The law does not have it. (A. Mampuya Kanunk’a Tshiabo, “Under the Constitutional Court, case law was developed that failed to set precedents”R. Descartes editions, Kinshasa, 2023, pp. 144. 119 et seq.).

But the earthquakes continue and become more severe, reaching the Richter scale. A crisis of unprecedented depth: the High Court is plunged into judicial heresy under the skeptical eyes of legal practitioners and litigants. Yet there is a general belief that justice and goodness can elevate the nation. In the note to our legal opinion issued in accordance with the Constitutional Court’s judgment on the assessment of constitutionality of November 18, 2022, we provide the most detailed information yet on the jurisdiction transferred to the Constitutional Court in exceptional cases. Its exercise of control over the suspension of the course of the Democratic Republic of the Congo.

These are conflicts of attribution between the Judicial Court and the Administrative Court of the Council of State reported to the Supreme Court, pursuant to article 161, paragraphs 4 and 5, of the Constitution, article 65 of the Organic Act of 15 October 2013 on the organization and functioning of the Constitutional Court. The grounds for this must be as follows, namely: the two High Courts must see that the overall jurisdiction of the judicial order and the jurisdiction of the administrative order are declared competent or incompetent to hear the same request between the same parties and, moreover, considering that the request belongs in whole or in part to another order, an exceptional case of incompetence is presented to the Supreme Court or the Council of State (Emmanuel-Janvier Luzolo Bambi Lesa,Judicial LawPUC, Kinshasa, 2018, No. 589, pp. 17. 380; RT Ipala Ndue Nka, “Observations in Judgment, C. Const, RConst, 1830, Equity Banque Commerciale du Congo, SA”, 18 November 2022, Rev, Dr. Afric, pp. 105-2023. 118 et seq.

Furthermore, the Constitutional Court does not have the power to extend its substantive jurisdiction over judicial decisions rendered by the courts and tribunals of the Republic, even if it turns out that the acts in question do not fall within the substantive jurisdiction of any other court. The judge held that the applicant invoked a violation of fundamental rights to which the Constitution accords special protection. This is a residual or additional jurisdiction of the Court that seeks to provide an appropriate solution under the pretext that constitutional rules prevail over other legal rules, in particular duly ratified international treaties and conventions, laws, customs and regulations. In accordance with Articles 153, paragraph 4, and 160 of the Constitution. It is understood that the Court considers judicial decisions rendered by courts and tribunals as a legal norm, just like administrative acts, above which in the hierarchy of norms are the Regulations and Laws, and therefore censures thereof can be invoked to continue to control constitutionality (C.Const, RConst, 1800, July 22, 2022, Rev, Dr. Afric, No. 103-2022, pp. 293, 209 and 306; C. Const, 1830, November 18, 2022, Rev, Dr. Afric, pp. 105-2023, pp. 100 et seq.).

1. Legal Discussion

Regardless of how this claim of constitutional supremacy justifies the competence of the Constitutional Court in this matter, we say that the Constitution contains only primary norms, which simply state the general principles of law that should be followed or all the rules that define social behavior, what to do or not to do. On the other hand, legislative or regulatory rules are called secondary rules, which impose sanctions in case of violation of primary norms (Matadi Nenga Gamanda, The Elements of Legal Philosophyed., Law and New Thought, Kinshasa, 2013, p. 17. 63).

As for considering judicial decisions as legal norms, just as the statutes they review can be considered as legal norms, controlling constitutionality and having abrogative effects, our opinion is that norm is a scientific term that, in a general sense sometimes identified with the rule of law, evokes not ideas of normality, nor ideas of rationality or agreed types, but rather mandatory values specific to rules of conduct, and it offers the advantage of covering, in general, that all rules present this characteristic, regardless of their legal source (G. Cornu, Lexicon des juris, PUF, Paris, 2000, p. 578).

Even the moral principles related to the ideal of the rule of law, which the Court invoked on 18 November 2022 in the Banco Comercial documetent, are not tenable. Its borrowing of these values, whether philosophical, religious or moral, is biased. Because, around the formal rules of written law, defining the sphere of rights and obligations of every citizen who is subject to sanctions in the event of a violation of the law, there is certainly a whole set of principles, directives, standards as a kind of supra-legality. , the most important of which is the concept of the ideal of the State. This is more about moral rules. The different legislations that recognize this concept still differ greatly in terms of its meaning and scope. (JC Kosakis, ‘Abuse of rights’RCA, ENA, Kinshasa, 1969, p. 15).

By comparison, it can be seen that even in Belgian judicial law, if control is verification, it is necessary to point out that, unlike in Germany and Spain, the judgments and decisions rendered by the courts and tribunals of the jurisdiction are not administrative orders and cannot be appealed to the Constitutional Court for annulment on the grounds of unconstitutionality. As evidence, it must be pointed out that in judgment No. 06-89 of 15 March 1989, the Belgian Constitutional Court requested the annulment of the judgment rendered by the 45th Correctional Chamber of Belgium on 5 October 1987. The Brussels Court of First Instance did not fall within its jurisdiction. It is therefore difficult to justify the extension of the scope of action of the Constitutional Court to judicial decisions without also covering other acts to which the law applies, namely: administrative decisions (M. Verdussen, cited in A. Mampuya Kanunk’a Tshiabo, supra, p. 138).

In light of the above, and for confirmation, we emphasize that the above arguments stem from the decline of the jurisdiction of the Constitutional Court, which, moreover, can certainly control the constitutionality of decisions of the Constitutional Court, judicial orders or executive orders with vacant effect. However, in addition to the relevance of this opinion, it should be noted that article 115 of the Organic Law of October 15, 2013, on the organization and functioning of the Constitutional Court, provides for the following alternative:

“Any court of judicial or administrative order, at the request of the prosecutor or the most conscientious party, must revoke any decision rendered in the application of any legislative or regulatory act declared unconstitutional, even if such decision has the force of res judicata” or in the application of any statute enacted to implement such acts. The decision rendered in this case is not subject to appeal..

According to Chapter VI of the Law of 15 October 2013 on the organization and functioning of the Constitutional Court (on the validity of the Constitutional Court’s decisions), in this case, the High Court’s mission consists only in declaring the decision unconstitutional or not unconstitutional, but without the effect of annulment. In the case of a positive declaration, the most diligent party may request the Court to withdraw the decision made. According to Article 115 of the above-mentioned Law, the decision made is not subject to appeal.

2. Conclusion

The Constitutional Court thus misinterpreted the law by assessing the unconstitutionality of a court decision, which in this case was a decision of the Council of State with annulling effect.

It seems legitimate to us to completely overturn its precedent on this issue in all cases and to join it only in cases where a judicial decision is declared unconstitutional and to withdraw its decision to the judge who made it.

RT Ipala Playboy Art
Honorary Legal Director of GECAMINES/Brussels
Member of the Scientific Committee of the African Law Journal
Honorary Advisor, Matadi Court of Appeal