PDF Traité de droit congolais de la fonction publique (Etudes africaines) (French Edition)

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The first chapter lists civil and political rights. It opens by declaring that all human beings are equal in dignity and rights, but that political rights are confined to Congolese citizens exclusively article It promotes equality and prohibits discrimination in other areas articles 12, 13, 14 and Article 16 proclaims that the human person is sacred and that the state must respect and protect it. Of particular interest in view of the endemic sexual violence in eastern Congo, article 15 states that public authorities must ensure the elimination of sexual violence used as weapon for the destabilization or the dislocation of the family.

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Article 15 is reinforced by article 14, which is an innovation in the DRC as it formalizes the right to equality between women and men. The Constitution protects fundamental freedoms, including opinion, conscience and religion article 22 ; expression article 23 ; information, press and communication article 24 ; privacy articles 29 and 31 ; movement article 30 ; assembly, demonstration and petition articles 25, 26 and 27, respectively ; asylum article 33 and the protection of foreign nationals and their property The second chapter lists economic, social and cultural rights.

It opens by proclaiming that private property is sacred article It continues by laying down the right to work article 36 and freedom of association article 37 , the right to form trade unions article 38 and the right to strike article The second chapter also protects rights relating to the family. It recognizes that the family, the basic cell of the human community, is organized so as to ensure its unity, stability and protection. It declares that everybody has the right to marry, to choose a person of the opposite sex as spouse and to raise a family article It protects the rights of the child articles 41 and 42 , the elderly and the disabled article Other important socio-economic rights in the Constitution include the right to health and to food security article 47 ; the right to housing, water and electricity article 48 ; and the right to culture and to intellectual, artistic, scientific and technological creation article The bill of rights provides for the right to free education articles 43, 44 and In August , the government announced that it would give free access to primary education gradually.

It protects the rights and legitimate interests of Congolese citizens and confers on foreign nationals legally on Congolese soil the same rights and freedoms as Congolese citizens, except for political rights article The state ensures the harmonious and peaceful coexistence of ethnic groups in the DRC article It protects the rights of Congolese citizens to peace and security article 52 , to a clean environment articles 53 and 54 , to the enjoyment of their national resources articles 58, 56 and 57 and to the common patrimony of humankind article The fourth chapter of Title II imposes individual duties on citizens.

It imposes the duty on citizens to know and respect the Constitution and legislation article 62 , to defend the country and its territorial integrity, and to defeat any individual or group of individuals who takes power by force or who exercises it in violation of the Constitution article Administrative law is the branch of public law that defines and regulates public administration.

It is the corpus of norms governing the organization, functioning, interrelations and control of public authorities excluding political and judicial authorities. It is also the set of norms regulating the relationships between the administrative authorities and private individuals. Article of the Constitution defines the administration as comprising the civil service as well as all affiliated organs and services.

Administrative law thus applies to, among other areas, the management and delivery of public services, government contracts law on government contracts and the status and conduct of civil servants law on the conduct of civil servants. The Constitution also provides that the Congolese public administration is apolitical, neutral, and impartial.

The Parliament obliged in organic law on the organization, function of national, provincial and decentralized entities. However, it is not always easy to distinguish between constitutional law and administrative law. The principal beneficiary of public service and the provisions of administrative law is the Congolese citizen. The Constitution lays down that Congolese citizenship is either by origin or by acquisition individuelle naturalization article It mandates the Parliament to pass an organic law on the conditions of recognition, loss and revival of Congolese citizenship.

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The DRC has about languages and dialects. French is the official language of the DRC: It is used in official correspondence by administrative bodies and officials. The Court of Appeals and the Supreme Court have formulated these principles despite the absence of legislation elaborating on them. The Constitution elevates political neutrality and impartiality into fundamental principles of administrative law. The Preamble of the Constitution considers that injustice with all its corollaries — impunity, nepotism, regionalism, tribalism, clan-based politics and patronage — are the causes of the general loss of values and the ruin of the country.

The DRC still grapples with high levels of corruption, though Transparency International has noted a modest improvement in the area of government accountability. In , Transparency International pointed to the extractive industries and he infrastructure construction in the DRC as severely affected by corrupt practices.

An important principle is administrative legality, which requires the administration to observe the rules particular to the type of administrative acts that a given administrative body performs. Another general principle of law prevents administrative bodies from performing retroactive administrative acts. However, there are exceptions to this legal principle. An administrative decision may be retroactive if the law explicitly or implicitly envisages it. The nature of certain decisions and certain situations may also require retroactivity.


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In addition, administrative law has conferred on the administration two special privileges. This power enjoys a rebuttable presumption of legality. The onus is on citizens or anyone aggrieved by the exercise of that power to prove that the administration acted unlawfully. Congolese administrative law can be organized in more than one way.

For present purposes, administrative law can be divided in three sub-branches: the organization, the functioning and the control of the administration. In terms of the Constitution, the DRC is, short of a federal state, a highly decentralized unitary state. The Constitution establishes a government and a legislature at both national and provincial levels, but the establishment of local governments and assemblies is yet to be completed. In order to consolidate national unity and create local centers of development, the Constitution has structured the Congolese state in 25 provinces and the capital city Kinshasa, which has the status of a province.

Coming under the provinces are t he decentralized territorial entities, which comprise the city ville , the town commune , the secteur , the chefferie and other administrative constituencies circonscriptions administratives , in descending order of importance. For the administration to function, it needs people to perform certain acts and the means to do it. There are two different types of administrative acts in Congolese law: Unilateral and bilateral administrative acts. Regarding unilateral administrative acts, the administration imposes its will on the people, for which reason the administrative act is said to be unilateral in nature.

Developed by doctrinal writings, these acts, which can be written or unwritten, are grouped in two categories. The first category encompasses unilateral administrative acts defined in terms of the procedure for adopting, and the administrative bodies or officials performing, these acts classification formelle. Bilateral administrative acts are the contracts that administrative bodies may conclude.

These contracts may be private or public. In private contracts, the administrative body is acting in a commercial capacity. Ordinary courts mediate disputes arising from such contracts. By contrast, the administrative body or official acts with state authority when entering into public contracts contrats administratifs. For instance, the state enters into several public contracts in the area of government procurement. Pending the creation of administrative courts, administrative judges in the Court of Appeals or the Supreme Court mediate disputes arising from public contracts.

There are two sorts of means at the disposal of administrative officials: legal and material means. In addition, officials may proceed in two ways: administrative policing and public service. On the one hand, with administrative policing police administrative , officials regulate the behavior of private individuals within the limits dictated by the need to keep public order and prevent any behavior that may compromise peace, sanitary conditions and security. In short, administrative policing is the complete set of legal and material means: regulations, authorizations, defenses, injunctions and other forms of coercion.

On the other hand, with public service, officials take upon themselves to satisfy needs of the population through services that private initiatives cannot adequately fulfill. Public service is one of the fundamental concepts of Congolese administrative law. A valid administrative act requires that the author of the administrative act have competence in terms of the subject matter ratione materiae , in terms of geographical restrictions ratione loci , and time requirements ratione temporis.

In order for an administrative act to be legally binding, the administration must first enact it. Second, the administration must publish the act after it has enacted it.

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Different additional publication requirements apply depending on the nature of the administrative act. Administrative controls and judicial review of administrative acts are established to ensure compliance with the principle of legality of administrative acts. Administrative controls are internal in that they operate inside the administrative structure whereas judicial review of administrative acts is external in that it starts off on the initiative of the citizens or other persons aggrieved by an administrative act.

One must exhaust administrative controls before one can resort to the judicial review of an administrative act. Although the Constitution ushers in a new administrative law regime with specialized administrative courts, the DRC has not yet set up a system of administrative courts. There are many key administrative institutions in the DRC, but the national police and the army occupy a central position because they protect democratic institutions, the security of persons and their property, and the territorial integrity of the country.

Nevertheless, after years of kleptocratic management and organizational decay under Mobutu Sese Seko, both the police and the army have encountered considerable difficulties in fulfilling their constitutional mandates, especially during the two Congo wars from to Since the end of the transition in the Congolese government has initiated a reform of its security sector with the assistance of bilateral and multilateral partners. Despite the latest positive developments, the national police and the army confront continuing and great institutional challenges.

The Constitution provides that both the Congolese police and army must select and appoint their members and commanding officers with due regard for the equitable representation of provinces and objective criteria based on physical aptitude, sufficient training, and moral probity. A typical meeting of the Defense Council is attended by the President of the Republic, the Prime Minister, the minister responsible for national defense, the minister responsible for home affairs, the Chief of Staff of the Congolese Army, the national police chief, the chief of the army land forces, the chief of the army air forces, the chief of the army naval forces, and the Chief of the Military Staff of the President of the Republic.

The President of the Republic heads the Defense Council and presides over its meetings. The national police, the Police Nationale Congolaise PNC , are in terms of the Congolese Constitution in charge of public safety, the security of persons and their property, law and order, and the tight security of senior government officers. The Constitution stipulates that the police are apolitical. With jurisdiction over the entire national territory, the police are in the service of the Congolese nation; and no person can use the police for his or her own purposes.

The police are subject to the local civilian authority and under the responsibility of the minister responsible for home affairs. The army is comprised of the land force, air force, naval force and auxiliary services. Within parameters set out by legislation, the Congolese army participates, in peace as in war, in the economic, social and cultural development of the nation and in the protection of persons and their property.

Like the national police, the Congolese army is republican, apolitical, in the service of the nation, and subject to civilian authority.

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Nobody can use the Congolese army for his or her own purposes; and it is high treason to form military or para-military organizations, private militias or armed youths. The government enacted a law in that restructured the army.

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Capitalizing on the recent and past history of the Congolese army and factoring in the geopolitical and geostrategic importance of the Congo, the organic law on the Congolese army has overhauled the FARDC. The change of structure is a reaction to the new constitutional dispensation brought about by the Constitution and the vision to put in place an army that is national, apolitical and republican.


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Nonetheless, certain sections of the old organic law on the Congolese army remain in force. These include provisions on the organization, the manifold mission and the guiding principles of the army.

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The new army law draws a categorical distinction between the political institutions and the military structure of the national defense apparatus. The President of the Republic, the government, the National Assembly, the Senate, and the Defense Council, constitute the political institutions. On the other hand, the High Command Haut commandement militaire constitutes the military structure.

It should be noted, nevertheless, that the Defense Council is both a political institution and a military structure. The political institutions are primarily involved in the appointment of military officers the President of the Republic makes the appointments on recommendation by the defense minister during Cabinet deliberations , the management of national defense the Prime Minister in collaboration with the President designs policies on matters relating to security and public order , the declaration of war the National Assembly and the Senate authorize the declaration , and the implementation of the government policies on national defense the defense minister is responsible for the application of those policies.

The High Command Haut commandement militaire is the military structure of the national defense apparatus. The mission of the High Command is threefold: to evaluate the operational capacities of military units, to assess security threats, and to determine budgetary constraints. The members of the High Command are the Chief of Staff of the Congolese Army, the Deputy Chiefs of Staff of the Congolese Army and their assistants, the chief of the land forces, the chief of the air forces, the chief of the naval forces, commanders of defense zones, the Commander of Military Academies, the commander of the medical corps, the commander of the corps of military engineers, the logistics commander, the commander of the media and information department, one commander responsible for civic education and another responsible for transmission troops.

In April , an armed group backed by Rwanda and Uganda, the M23, rose in rebellion in eastern Congo against the Congolese government. The Congolese army suffered a spate of humiliating defeats inflicted by the M The M23 took control of a large zone within the North Kivu province. It controlled the provincial capital city, Goma, for a brief spell in November-December before they withdrew under pressure from the international community. In response, the Congolese government worked out a three-pronged strategy: It addressed the insurrection politically, diplomatically and militarily.

More specifically, South Africa, Tanzania and Malawi agreed to send three battalions to eastern Congo.