Legal System in Democratic Republic

¶ … Legal System in Democratic Republic of Congo

Administrative Law

administrative law in the democratic republic of the congo

The Democratic Republic of Congo (DRC) was known previously as Zaire. This area is situated right on the equator in Central Africa. The Pygmies were the first inhabitants of this area of the world and were individuals that resided on the outer edge of the forest located on the Equator as well as other part of the Democratic Republic of Congo. The Democratic Republic of the Congo is a "nominally centralized republic with a population of approximately 60 million." (U.S. Department of State, 2009) Following two wars, the first from 1996-1997 and the second from 1998 to 2003, the Democratic Republic of Congo (DRC) organized its first elections which is "labeled as 'free, democratic and transparent' after more than 40 years." (Media Sustainability Index, 2006-2007) president was elected "...by universal franchise for a five-year term and a national assembly of 500 representatives, a Senate, provincial assemblies, and provincial governors were installed, thus inaugurating the era of the Third Republic." (Media Sustainability Index, 2006-2007) It is reported that there were some complications during the elections and a scandal occurred relating to the "seating of provincial governors. In some provinces, local electros who voted for provincial electros noticed discrepancies in the final results. Serious suspicious of massive corruption and faulty conscience hung over the presidential majority." (Media Sustainability Index, 2006-2007) It is reported that a panel was formed and indicators scored by the panelists. Arising from the panel was an agreement on the part of all participants that the 'greatest weakness in the DRC is generally the application of the laws and the impunity of the lawbreakers." (Media Sustainability Index, 2006-2007)

I. ADMINISTRATIVE LAW IN THE DRC

Administrative law in the DRC is the branch of law which provides the definition and regulation of public administrative law. The DRC Constitution, in Article 193 provides a definition for the administration as being comprised by the civil service and other organizations and services. Therefore, the administrative law is applicable to "among other areas, the management and delivery of public services, tenders, and the status of civil servants." (Zongwe, Butedi and Phebe, 2007) Additionally provided for in the DRC Constitution is that "the Congolese public administration is apolitical, neutral, and impartial." (Zongwe, Butedi and Phebe, 2007)

The mandate of the state to "enact important legislation (loi organique) derives from the Constitution "...on the organization, function of national, provincial and decentralized administrative entities." (Zongwe, Butedi and Phebe, 2007) Presently public administration is being modernized by the government of the DRC and stated as the "most important and challenging reform" upon which the government has embarked is the decentralization of government in the DRC. Constitutional law and administrative law are stated to be very closely linked since the concern of administrative law is efficiency of the administration of law as well as "the respect by the Congolese administration of the citizens' fundamental rights, as provided for in title II of the Constitution.

II. PRIMARY SOURCE OF ADMINSTRATIVE LAW IN THE DRC

The primary source of administrative law in the DRC is stated to be the Constitution:

1) Primary legislation (loi organique or loi ordinaire);

2) Subordinate legislation such as ministerial regulations, decrees (decrets-loi) or municipal by-laws; and 3) General principles of administrative law. (Zongwe, Butedi and Phebe, 2007)

The principles of law (principes de bonne administration) have been developed by interpretation by the Court of Appeals (Cour d'Appel) and the Supreme Court. (Zongwe, Butedi and Phebe, 2007; paraphrased) These principles are of a nature that must be respected by and within the process of the administration.

III. TWO TYPES OF ADMINSTRATIVE LAW

According to Zongwe, Butedi and Phebe (2007) there are "at least two different types of administrative law" in the DRC including the following two types:

Unilateral administrative acts; and Bilateral administrative acts. (2007)

Unilateral administrative acts are the imposition of the will of the administration upon the people of administrative law that has been "developed by doctrinal writings" (Zongwe, Butedi and Phebe, 2007) and which fall into two primary categories:

1) The first is related to unilateral administrative acts "defined in the terms of the procedure for adopting, and the administrative bodies or officials performing these acts (classification formelle);

2) The second involves unilateral administrative acts defined by their contents (classification materielle). (Zongwe, Butedi and Phebe, 2007)

Bilateral administrative acts are "contracts which the administrative bodies may conclude" and are contracts both private and public in nature. (Zongwe, Butedi and Phebe, 2007) The administrative body in private contracts is stated to be "but a private person in a commercial transaction." (Zongwe, Butedi and Phebe, 2007) Disputes of these contracts are mediated by ordinary courts however disputes involving public contracts results in the administrative body acting with state authority.

IV. FUNDAMENTAL PRINCIPLES OF DRC ADMINSITRATIVE LAW

Zongwe, Butedi and Phebe (2007) state that the fundamental principles of DRC law are:

The principle of citizens' equal access to public services;

The principle of legality of administrative acts; and The principle of continuity of public services. (Zongwe, Butedi and Phebe, 2007)

The principle of "administrative legality" is another important principle in DRC administrative law which makes it a requirement of the administration 'to abide by the rules particular to the type of administrative acts that a certain administrative body performs." (Zongwe, Butedi and Phebe, 2007)

V. RETROACTIVE ADMINSTRATIVE LAW

The administration is also precluded from application of retroactive acts of administration with exceptions and for example the decision of the administration may be retroactive "if the law explicitly or implicitly envisages it" and as well "the nature of certain decisions and certain situations may also require retroactivity." (Zongwe, Butedi and Phebe, 2007) Administrative law is stated by Zongwe, Butedi and Phebe to have "conferred on the administration two special privileges" as follows: