Like other government institutions that were neglected during years of civil war in the Democratic Republic of Congo (DRC), the justice system is in dire need of reform. Since 2002, the country’s judicial officials have produced reports on ways to reform the justice system.
However, these reforms have not been implemented because the government has been focused on efforts to move beyond the turmoil of civil conflict. This transitional period is due to end with general elections later this year. According to Pierre Akele Adua, a professor of law at the University of Kinshasa who has worked on various United Nations-supported judicial-reform proposals, the country’s transition to democracy can only work once the justice system is functioning in a fair and transparent way. Akele is also a judge and was appointed president of the DRC’s highest military court in 2002. He spoke with Irin this week while in Nairobi attending a seminar. Here are excerpts:
QUESTION: What is the general picture of the justice system in the DRC?
ANSWER: I can describe it in one word: ineffective. It is ineffective because there is widespread impunity. It is ineffective because there are not enough courts and magistrates (judges, prosecutors and support staff) and because they do not have legal documents and the support they need and because they are not paid properly. Sometimes they go on strike, but they don’t have widespread support because many are corrupt. For a plaintiff to get his case heard, he must give money to the prosecutor, to the judge, to the registrar and many other judicial actors. There is a law being discussed by Parliament that will create a new pay scale for magistrates, but it can only be passed after the elections and a new elected government has been inaugurated.
Q: How does the current situation affect the average Congolese?
A: Most people have no access to a state justice system. In the villages, there is no access. People have to sort out their problems themselves. Local authorities also commit many abuses, including human-rights violations. The result is that the justice system does not serve the people of Congo and the people have little respect for it.
Q: You are the president of the military high court. Do military courts work better?
A: Not really. The military court system was reformed in 2002. Rights were not respected at all with the previous system under President Laurent Kabila. He set up a military court to try the former army of (the late President) Mobutu (Sese Seko), but the court went much further and tried civilians — often for minor violations. Sometimes illegal moneychangers were tried in the court and given the death sentence. It did not respect the necessary rules and procedures for the death penalty. It even allowed extrajudicial killings. The UN complained repeatedly.
There has been a new system since 2002, with four levels of military courts, each to try offences committed by various army ranks. But the magistrates are used to working under a dictatorship, and they are not adapting well to the new system. They also have the same problems as the civil courts, with poor pay and discipline, etc.
Q: What about the prisons?
A: They are rundown, overcrowded and prison regulations are not respected. For example, detainees who have not been tried are put together with convicted criminals; military and civilian prisoners are put together; men and women are together; and children and adults are together. They are crowded together in unsanitary conditions. What food they get comes from charities. The government gives nothing.
Q: Are you saying the justice system is all bad, or do parts of it work?
A: There are aspects that work. In the east of the country, Monuc (the UN Mission in the DRC) has supported some local civil and military courts, and that has helped. Even without Monuc, occasionally good judgements are made in the criminal courts, as well as sometimes in civil litigation, contract law, land disputes and family law. In commercial law, however, the system almost never works. If companies are brought to court they are almost always found culpable and given heavy fines. The reason is that judges know the companies have money so they can pay fines and bribes, and so they can be brought to trial on (fabricated) issues.
There is currently no court for commercial law in the Congo, so the other courts compete for the cases. A commercial court was set up, magistrates have been selected and the French and Italian governments have trained them, but still the court doesn’t yet function.
Q: You have produced reports on how to reform the justice system. Have these reforms taken effect or were they the wrong ones?
A: The studies have been made, but the recommendations have not been implemented. The problem is also that we have been in a transition period and the reforms that were made were made under the old Constitution. Now we have a new Constitution, so we have to adapt the reforms accordingly.
Q: How will the legal system work under the new Constitution?
A: Well, first of all there is the constitutional court, which will only try disputes against the president or the prime minister. However, as two-thirds of the Parliament must vote for the constitutional court to hear a case, it is unlikely to be very active. The next highest court will be the court de cassation (court of last resort); then the conseil d’etat (federal administrative court), which will try various administrative cases, such as between national and local authorities. Then the existing lower courts will have to realign to fit the new system. Customary (or traditional) courts will supposedly be abolished and replaced by local courts, but in many areas there is no courthouse, no personnel. I don’t think it will happen soon.
Q: What will it take for the new justice system to start functioning?
A: Firstly, we need a plan. There is a proposed plan, but the government hasn’t even looked at it yet. Our leaders are busy doing other things. The government has only allocated 3% of the budget for the justice system. The standard percentage is double that. Still, we must be optimistic. Now, with democracy, there is a desire to create a new, more just society. To do that we have to invest in creating the material elements for justice, creating good laws and training officials on technical and ethical issues. When the elected government comes to power, one of the most important criteria by which it will be judged is how seriously it implements judicial reforms. — Irin