Congo, Democratic Republic of the
LEGAL TRAINING RESOURCE CENTER
Established as a Belgian colony in 1908, the Republic of the Congo gained its independence in 1960, but its early years were marred by political and social instability. Col. Joseph Mobutu seized power and declared himself president in a November 1965 and named the country Zaire. After 32 years, ethnic strife and civil war, touched off by a massive inflow of refugees in 1994 from fighting in Rwanda and Burundi, led in May 1997 to the toppling of the Mobutu regime by a rebellion fronted by Laurent Kabila. He renamed the country the Democratic Republic of the Congo (DRC), but in August 1998 his regime was itself challenged by a renewed civil war. Laurent Kabila was assassinated in January 2001 and his son, Joseph Kabila, was named head of state. After all the warring parties had signed the Pretoria Accord, a transitional government held a successful constitutional referendum in December 2005 and elections for the presidency, National Assembly, and provincial legislatures in 2006. Kabila was inaugurated president in December 2006.
Type of System
The DRC is a civil law country and as such the main provisions of its private law can be ultimately traced back to the 1804 Napoleonic Civil Code. More specifically, the Congolese legal system is primarily based on Belgian law. Customary or tribal law is another basis of the legal system of the DRC, where the majority of people live in rural areas. Tribal law regulates both personal status laws (like marriage and divorce laws) and property rights. Overall, notwithstanding significant policies and legal reforms the government has formulated and adopted, factors such as the lack of infrastructure, weak institutional capacity, and corruption undermine the effectiveness, stability and predictability of the legal system.
Congolese criminal law is mainly set out in the 1941 Penal Code. Unlike Belgian and French law, Congolese law does not differentiate between felonies (crimes), misdemeanours (délits), and contraventions (contraventions). Congolese law refers to violations of the criminal or penal law, whether ordinary or military, as infraction (infraction).
Sources of Defendant's Rights
There are several fundamental principles of criminal procedure, some of which are set out in the Constitution. These principles include guarantees of due process during arrest and detention, the prohibition of retroactive laws, the presumption of innocence, and the right to a fair trial.
Detainees must appear before a magistrate within 48 hours. Authorities must inform those arrested of their rights and the reason for their arrest, and may not arrest a family member instead of the individual being sought. They may not arrest individuals for non-felony offenses, such as debt and civil offenses. Authorities must allow arrested individuals to contact their families and consult with attorneys.
Legal Aid System
A legal aid system is in place since 1979, but is not state-sponsored. A law graduate has to complete a 2 year internship in a law firm. During these 2 years practice as an intern-lawyer, opportunity to become a “défenseur judiciaire” (literally: legal defender), that-is-to-say a legal aid lawyer. The défenseur judiciaire can represent pro-bono cases only before at the TGI (Tribunal de Grande Instance) jurisdictions. The Bar Association holds free consultations for indigents seeking legal counsel and some NGOs are also active in DRC.
- Prison population total (including pre-trial detainees / remand prisoners) - c.30,000 at January 2004 (criminal justice experts, D.R.Congo)
- Prison population rate (per 100,000 of national population) - c.57 based on an estimated national population of 52.8 million at mid-2003.
Pre-trial detainees / remand prisoners (percentage of prison population) - A 2006 United Nations report found that 70-80 percent of prisoners detained nationwide were in pre-trial detention.
- Female prisoners (percentage of prison population) 3.2% (January 2004 - of prisoners in the main prison in Kinshasa)
- Number of establishments / institutions 213 in 2007 but fewer than 100 are functioning, according to the director of CPRK, which is the central prison in the capital Kinshasa)
- Occupancy level (based on official capacity) July 2007 - 270.5% in the main prison in Kinshasa, there being 4,057 prisoners and an official capacity of 1,500
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