The Democratic Process in the DRC.

B. New Constitution's Provisions

The president Joseph Kabila promulgated a new Congolese post-war constitution on 18 February 2006 which makes provisions of a new flag and emblem, but never brought an end to decades of war and chaos in country. Here, I am analyzing the mains points that this new constitution provides for building `democracy' in the country.

1. The General Provisions

Everywhere, the constitution is a supreme law, its provisions shall have binding full force on the authorities and persons (^27(*)). It means that the DRC must only be governed on accordance with the provisions of this constitution, which is trying theorically to provide a democratic state in the country. The country is one, indivisible and indissoluble sovereign state to be known by the name of the Democratic Republic of the Congo, according to the preamble of this new constitution. There shall be 25 provinces (Bas-Uele, Equateur, Haut-Lomami, Haut-Katanga, Haut-Uele, Ituri, Kasai, Kasai-Oriental, Kongo Central, Kwango, Kwilu, Lomami, Lualaba, Kasai Central, Mai-Ndombe, Maniema, Mongala, Nord-Kivu, Nord-Ubangi, Sankuru, Sud-Kivu, Sud-Ubangi, Tanganyika, Tshopo and Tshuapa). Kinshasa is a capital (^28(*)). Each province must have a provincial parliament and local government.

This constitution is promoting a new political order, a unitary state as form of state and the semi-presidential as political regime. It preserves the sacred character of the human person, assure to individual and family the best conditions for their harmonious development. It giving guarantee to everyone to participate in the life of the Nation, preserve Congolese unity within cultural diversity. It is right and obligation for every Congolese to resist by civil disobedience upon the default of other resources, no matter what enterprise to overthrow the constitutional regime, to take power by pronunciamiento or exercise it in a tyrannical manner.

The national anthem is `Debout Congolais', the motto of the Republic is `Justice-Peace-Work'. But in fact, there is no justice, no peace and no work in the country since 1960, sometimes theory and practice are very different.

Political groups and parties are recognized to concur in the expression of suffrage. They shall freely form and exercise their activities, integrity of territory, national unity and pluralist democracy. The new constitution provides that the state shall assume the equality of all citizens before the law, without discrimination of origin, social or material situation, racial, ethnic and regional or sex, instruction, language, attitude vis-à-vis religion or philosophy, or place of residence. From the Congo Free State, there is no state religious in the country.

Any person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence. He must be given adequate time and facilities for the preparation of his defense; he can defend himself in person or by legal practitioners, the witnesses called by the prosecution before any court.

It is not the first time for Congolese's constitution to provide many democratic values in the supreme law, but in practice, never the government has applied these constitutional principles. People must learn their rights and must reclaim it at anytime if there is no respect about it.

2. The State Form

According to Djelo (^29(*)), generally there is two forms of state around the world. Firstly the `Etat simple' with two components, unitary state centralized and unitary state decentralized. Secondly, `Etat composé' with also two types, federal state and confederation of state.

According to Mampuya (^30(*)), this new Congolese constitution didn't adopt any above form of state but make one most innovation that some scientists called it `régionalisme constitutionnel' or `regionalization constitutionnelle', which has been defined by professor Kabange as a form of state never provide properly a specific form of state and it is situated between the federal state and a decentralized unitary state. It giving more autonomous to provinces but it preserves the state unity (^31(*)). The article 202 of new constitution provides mains competences for central government only, the article 203 provides some competences that must be sharing between the central and provincial's government and the article 204 provides exclusives competences for provinces.

3. The Political Regime

According to Ntumba Luaba (^32(*)), political regime refers to the set of any political country's institutions by which a state supposed to be organized in order to exert its attributions over a political community.

The new Congolese constitution provides a semi-presidential regime which has received more comments and has been defined by Maurice Duverger (^33(*)). In his 1980 article and which, subsequently, has become the standard English definition of semi-presidentialism, he says: `a political regime is considered as semi-presidential if the constitution which established it combines three main elements: the president of the republic is elected by universal suffrage, he possesses quite considerable powers, he has opposite him, however, a prime minister and ministers who possess executive and governmental power and can stay in office only if the parliament does not show its political refusal to them'.

Analyzing the Congolese constitution which meet those main conditions, firstly, according to article 70, the president of republic must been elected by universal suffrage. Secondly, opposite him, there is prime minister and ministers who can only govern with the confidence of parliament according to article 90 and thirdly, the president can dissolve parliament, which the article 148 is giving permission to the head of state to dissolve not parliament but only the National Assembly without the Senate.

This is a political regime which has been maintained by Congolese people by approving constitutional referendum organized last year in the country. But, for my concern, I can said that is very complicated political regime for many African states, specifically for DRC, because, we don't have the same political background and culture as French people, however, I don't think that can bring peace in the country. To make a good and strong state in the country, democracy must become a tradition or a culture for all people if we want it succeed in Congo.

4. The Power of Judging

Everywhere, the respective roles of the judiciary, legislature and executive are set out in the constitution. Like the political regime, the new Congolese constitution provides even a new judicial system (^34(*)) which is adopting the French judicial system, by creating from the current Supreme Court, three other different Supreme Courts, according to article 149 of new constitution. If actually France is it considered as one of the best democratic state around the world, it is because its constitution and judiciary system provides the large guarantee of human rights.

The independency and a good organization of judiciary power is an important factor in democratic state. The main goal according to Sovereign National Conference constitutional commission report (^35(*)) to divided Congolese Supreme Court in three other Courts was to reinforce the principle of separation of powers, which is an model for the governance of democratic states.

Judicial power must always be completely independent from the executive and the legislative branches. Under this model, the state is divided into three branches, and each branch of the state has separate and independent powers and areas of responsibility, however, each the branch is also able to place limited restraints on the power exerted by other branches (^36(*)). The three Supremes Courts are, according to article 149, `the Constitutional Court, the Council of State and the Court of Cassation'. Each Court is specialized to solve specific conflict from political institutions that the constitution gives to it.

According to some Congolese scientists, the role of the constitutional court is to establish and maintain legitimacy in emerging democracy, protecting fundamental and minority rights instituted by the constitution, and to control the law to constitution.

But in federal state, constitutional court plays an important role in conflicts between the federation or union and its components states or provinces.

The second high Court instituted by the constitution for supporting democratic process in Congo is the Council of State (^37(*)), which is playing the role of supreme administrative tribunal. In judging concrete cases, the council of state sees to it, of course, that existing laws and regulations are obeyed, but it also giving direction to the development of administrative law by its creative and interpretation function.

In democratic state, the council of state is the supreme court of administrative justice. It judging directly the legality of decrees (^38(*)) issued by the Prime Minister or the President of the Republic and giving also legal advices to the government.

The third high court provides by the constitution is the court of cassation (^39(*)) which is the highest court in Congolese judiciary. There is only one court of cassation for the whole republic, the same as constitutional court and council of state. The reason is to achieve uniformity of interpretation, and hence to develop case-law that must be authoritative, uniqueness and uniformity being interdependent. The court of cassation is not a court of third instance after the appeal courts and other courts. Its purpose is essentially not to rule on the merits, but to state whether the law has been correctly applied on the basis of the facts already definitively assessed in the decisions referred to it (^40(*)). If there is jurisdictional order for the court of cassation and the council of state, the constitutional court is alone, it doesn't have any inferior tribunal.

* ²⁷ DJELO E.O.: Droit Constitutionnel et Institutions Politiques. Théorie Générale de l' Etat. Cours

polycopié, premier graduat en droit, Unikin, 1995-1996, p.8.

* ²⁸ See the second article of the constitution.

* ²⁹ DJELO E.O.: op.cit. p.98

* ³⁰ Mampuya K.T.: `Enjeu et défi de la constitution de demain pour la RDC'. In Rapport final du séminaire

sur les questions de la nationalité et de la future constitution de la RDC. Aout 2004, p.17.

* ³¹ KABANGE Ntabala: La problématique de la forme de l' Etat en RDC. In revue de la faculté de droit,

2ème Année, Numéro 1, 1999, Université Protestante au Congo, p. 238.

* ³² NTUMBA Luaba: Introduction a la science politique. Cours polycopiés, premier graduat en droit,

Unikin, 1995-1996, p.9.

* ³³ Duverger, M. (1980). `A New Political System Model: Semi-Presidential Government. European Journal

of Political Research 8 (2): 165-187

* ³⁴ BONG- e- BONE Bobo: `Des implications perspectives de l' éclatement de la Cour Supreme de Justice'.

Mémoire le licence en droit, Université de Kinshasa, 2001-2002, p.p. 10-11.

* ³⁵ Voir a ce sujet les rapports des commissions constitutionnelle et juridique de la Conference Nationale

Souveraine, Kinshasa, Palais du Peuple, 1992.

* ³⁶ http://en.wikipedia.org/wiki/Separation_of_powers

* ³⁷ Article 154 of new Congolese constitution.

* ³⁸ See article 155 of new constitution and 146-147 of Ordinance-Law no 82/020 du 31 Mars 1982.

* ³⁹ See article 153 of new constitution.

* ⁴⁰ www.courdecassation.fr/court_of-9256.html (03 November 2006).