Overview of the Legal System of the Democratic Republic of the Congo (DRC) and Research

Dunia P. Zongwe is a consultant, an academic, and an author. He specializes in finance and development and international human rights, usually focusing on Africa and the Global South. Mr. Zongwe studied at the University of Namibia (law), Université de Montréal (humanities), and Cornell University (law) where he earned a master’s degree and a doctorate (foreign investments in mining and infrastructure in Africa). He now serves as an Associate Professor at the University of Namibia and an Adjunct Associate Professor at Walter Sisulu University.

François Butedi is a Congolese legal advisor and human rights defender with considerable experience in the courts of the DRC. The non-governmental organization (NGO) for which he worked advised the government on several pieces of legislation and was actively involved in training and monitoring during the historic 2006 presidential and legislative elections in the DRC. He holds a law degree from the University of Kinshasa (2002) and completed his LL.M. in Human Rights and Constitutional Practice at the University of Pretoria in South Africa. He also worked at the United Nations Development Programme (UNDP), the Lawyers’ Association of the Southern African Development Community, and the African Union. He is currently a Technical Advisor at the United Nations Office for Project Services (UNOPS) in New Caledonia. He co-wrote this update in his personal capacity.

Phebe Mavungu Clément is a former lecturer at the University of Kinshasa where he obtained his first law degree. He has an LL.M. in Human Rights and Democratization in Africa from the Centre for Human Rights at the University of Pretoria. He now works as Legal Counsel at the Pan-African Parliament. He co-wrote this update in his personal capacity.

1. Historical Background

The Democratic Republic of the Congo (DRC), formerly known as Za?re, straddles the equator in Central Africa. With the Congo River in the west, a low-lying plateau in the center, and mountains in the east, the DRC is a vast country endowed with fabulous natural wealth. Roughly one-fourth the size of the United States (US), the DRC is Africa’s second-largest country after Algeria. It is also the only country on the continent surrounded by as many as nine neighbors (Angola, Burundi, the Central African Republic, Congo-Brazzaville, Rwanda, South Sudan, Tanzania, Uganda, and Zambia).

1.1. Pre-Colonial and Colonial Times

The first inhabitants of the DRC were the Pygmies. Pygmies, locally known as “Batwa” or “Twa,” lived in small groups on the outer limits of the Equatorial Forest and in other parts of the DRC. Subsequently, a second group, the semi-Bantus, entered the DRC from the northwest and established small kingdoms. The semi-Bantus attempted to subjugate the Pygmies, but the Pygmies fled deeper into the Equatorial Forest. A third group, the Bantus, arrived in the DRC from the north, went around the Forest, and settled almost everywhere in the DRC. They would either subjugate or chase the Pygmies and the semi-Bantus.

The migration of Bantus in the DRC lasted five centuries. They founded kingdoms and empires, including the Kongo, Kuba, Lunda, and Luba kingdoms. They created and followed their customary laws. Today, the descendants of these Bantu tribes still make up the majority of the Congolese people, estimated at 110 million as of July 2024. The DRC comprises no less than 450 ethnic groups.

The history of the Congo as a state has three milestones. First, the 1884-85 Berlin Conference consecrated the creation of the Congo as a “free state.” A colonial charter (Charte de l’État indépendant du Congo) served as a constitution for the newly created state of the Congo. Notwithstanding its creation as “Congo Free State” (État indépendant), at the time, Congo was the sole property of the Belgian king, Leopold II. Systematic violence, massive forced labor, and the extermination of millions of innocent Congolese were the hallmarks of King Leopold II’s horrid rule in the Congo.

In 1908, in accordance with the wishes of Leopold II, as expressed in his will, Belgium annexed Congo. The country became “Belgian Congo,” a colonial territory. Another colonial charter replaced the older charter as the fundamental law of Congo. In the 1950s, mass movements for independence gathered momentum. The leader of one of those movements, Patrice Emery Lumumba, argued for a “calm and dignified” march towards independence and against the balkanization of Congo. On 30 June 1960, Congo won its independence from Belgium, with Joseph Kasavubu as President and Patrice Lumumba as Prime Minister.

1.2. After Independence

Shortly after Independence, conflict and civil strife marred Congo. Belgium partly instigated the mayhem. Lumumba was assassinated on 17 January 1961. Later, on 24 November 1965, Mobutu Sese Seko staged a coup d’État by ousting Kasavubu. In its heydays, Mobutu’s reign brought relative stability and economic growth, but, starting in the 1970s, it was punctuated by popular demands and actions for political change. Under Mobutu’s rule, the country experienced a brutal dictatorship, the upsurge of corruption, and the downfall of public service. In 1989-1991, under domestic and international pressure, Mobutu conceded political pluralism and convened a national conference (Conférence Nationale Souveraine), with the declared aim of establishing a new political and constitutional order. The convention of the National Conference spelled the beginning of a difficult transition.

By the mid-1990s, it was clear that the political process had run into a dead end, an impasse that would only be broken by a protracted conflict fueled by security considerations, the competition for the control of strategic minerals, the fragility of the Congolese state, ethnic rivalries, and territorial ambitions.[1] On 17 May 1997, a rebellion–backed by Burundi, Rwanda, and Uganda, which Laurent Désiré Kabila had set off in October 1996–toppled Mobutu. After Kabila decided in August 1998 that his Rwandan and Ugandan allies had to leave the country, another armed conflict erupted. Though a ceasefire agreement was signed in Lusaka in July 1999, all parties to the agreement violated it.

Admittedly, the first (1996-1997) and the second (1998-2003) Congo civil wars are the deadliest after World War II, causing directly and indirectly the death of more than 5 million people. In particular, throughout the second Congo War, often referred to as “Africa’s World War,” Uganda and Rwanda each backed a major rebel group in Congo. On the other side, Angola, Namibia, Zimbabwe, Chad, and Libya intervened to support the government of Laurent Kabila in his fight against rebels in Congo.

President Laurent Désiré Kabila, while fighting the civil war that had broken out in August 1998, was gunned down by one of his bodyguards on 16 January 2001. In the wake of Laurent Kabila’s death, his son Joseph Kabila was named head of state. In December 2002, all warring parties signed in Pretoria (South Africa) a peace accord, known by its French title as “Accord global et inclusif,” to end the fighting. Following that agreement, a transitional government was formed in July 2003.

1.3. The Third Republic

The transitional government successfully organized a constitutional referendum for the adoption of a new constitution (on 18 and 19 December 2005) and elections for the presidency, national assembly, and provincial legislatures in 2006. Joseph Kabila promulgated the new constitution on 18th February 2006. In December 2006, Joseph Kabila was inaugurated President after winning the second round of the presidential elections. He formed his government on 7 February 2007.

Despite the country’s reunification and the holding of democratic elections, intense rebel activities continued, mostly in eastern DRC, until 2013, when the Congolese army put a stop to the decade-long presence of foreign-backed rebels in Congo. However, in late 2021, the Rwandan-backed March 23 (M23) resurged and occupied huge swathes of territory in the North Kivu province of the DRC.[2] This ongoing conflict has worsened the humanitarian situation, displacing and leading to the deaths of countless civilians in eastern Congo.

Provincial, legislative, and presidential elections occurred in December 2018. For the first time since independence in 1960, an opposition candidate won the presidential elections when Félix Tshisekedi defeated the candidate from the ruling party to become the DRC’s fifth President in history. Tshisekedi got re-elected as President in 2023. He assumed office for his second term in 2024, continuing his leadership in a vast country facing myriad political dilemmas and ongoing issues related to governance and stability.

2. Overview of the Congolese Legal 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 primarily rests on Belgian law. The general characteristics of the Congolese legal system resemble those of the Belgian legal system because the DRC received its law from the Belgian colonialists.

Customary law or tribal law also underpins the legal system of the DRC, where approximately 56% of the population lives in rural areas. Local customary laws regulate both personal status laws (like marriage and divorce laws) and property rights, particularly the inheritance and land tenure systems, in the diverse traditional communities of the country. Even though the Constitution subordinates customary laws to state laws, customary laws settle 75% of disputes in the Congo.[3] “Customary law” does not refer to a body of rules merely stemming from usages and practices that have acquired over time the character of law. Rather, it refers to a general system of norms enacted by legitimate law-making organs (i.e., patriarchs, family councils, clan councils, and traditional or tribal chiefs). That normative system is “customary,” not because it results from traditional customs, but because it finds expression in or through them.[4] In other words, customary laws derive their authority from a legitimate law-making organ and exist independently of the individuals whose behavior they regulate. This characteristic of customary laws implies that, unlike state laws, ethnographic studies, as opposed to the usual (i.e., doctrinal) legal research methodologies, are necessary to ascertain the content of a given customary rule. Another distinctive characteristic of customary laws is, they do not apply generally; they only apply to the traditional communities from which they originate.

2.1. Sources of Law

Congolese law draws its substance from at least seven formal sources, namely the Constitution, international treaties, legislation, administrative regulations, custom, case law, and doctrinal writings. At the apex of the legal system, the 2006 Congolese Constitution stands as the first source of law. It is the basic organic law of Congo with three components. It sets up the institutions and the apparatus of government, defines the contents and limits of government powers, and protects fundamental human rights and freedoms. The contents of the 2006 Constitution have been informed by Congolese constitutional law and history, comparative law, and international law. French and Belgian laws are the primary substantive sources of the Congolese Constitution,[5] whose drafting also drew on constitutional experiences in Benin, Mauritius, Senegal, South Africa, and Togo.[6]

International treaties and agreements are the second source of law. By Article 215 of the Constitution, treaties and international agreements that the DRC duly concluded must, upon publication in the government gazette Journal Officiel, prevail over Congolese legislation. Article 215 confirms the status of the Congolese legal system as a monist. Articles 214 and 216 limit the operation of Article 215 of the Constitution by subjecting the application of international law in the DRC to the Constitution and requiring domesticating legislation for specified types of international treaties. The application of international law is rare; still, military courts have relied on Article 215 to apply international law in a handful of cases.[7]

As a source of law, legislation comes third. The Constitution distinguishes between organic laws and ordinary laws. Unlike ordinary laws (lois ordinaires), organic laws (lois organiques) exist as a special kind of legislation that organizes key areas of national life and requires absolute majorities to be passed and amended. As an additional requirement, the Constitutional Court must declare that the organic bill is consistent with the Constitution before the President of the Republic can sign the organic bill into law. Administrative regulations count as a fourth source of law. The Constitution confers on the President and the Prime Minister the power to issue administrative regulations, which they exercise using ordinances. Ministers and other administrative officials also have the power to issue ministerial and other regulations. Often viewed as the oldest source of law, custom (la coutume) consists of usages that have acquired the character of law after they have been widely observed over a long period by individuals who subjectively see them as binding. Custom is not to be confused with customary laws.

Case law or judicial precedents (la jurisprudence) do not constitute a binding source of law, even if they carry persuasive authority. The same holds for doctrinal writings (la doctrine). The writings of individuals whose job is to study the law (e.g., professors, judges, legal practitioners, etc.) do not bind anyone; they only enjoy persuasive authority.

2.2. Divisions of Law

The Congolese legal system may be divided into three branches: public law, private law, and economic law (see also the classification of the legal system by Droit Congolais, a leading portal on Congolese law). Public law regulates legal relationships involving the state; private law regulates relationships between private persons; and economic law regulates interactions in such areas as labor, trade, finance, mining, and investment.

The distinction between public law and private law undergirds Congolese law as in all civil law systems. Public law (droit public)–which includes constitutional law, administrative law, tax law, criminal law, and the organization of the judiciary–regulates relationships to which the state, or a subdivision of the state, is a party. Public law therefore regulates relationships between public bodies and private persons; and between public bodies among themselves.

Private law (droit privé) applies to relations among citizens or private groups. It comprises civil law, which in turn comprises the law of obligations, the law of persons, family law, property law, and succession law. Private law also encompasses the law of business organizations, private international law, and certain areas of commercial law.

2.3. Latest Developments

The past few years have witnessed ongoing efforts by the government to reform the law, modernize public administration and administrative law, and strengthen and stabilize the macroeconomy. Since 2019, the Congo has enacted several significant laws and legal reforms, such as the law on credit institutions the law on credit institutions, and legislation combating money laundering and terrorism financing. In the field of human rights, the President promulgated a law that protects and promotes the rights of the indigenous Pygmies peoples in 2022 and an ordinance law that criminalizes gender-based intimidation and stigmatization in 2023. Likewise, Parliament legislated on the protection and the liability of human rights defenders. Furthermore, following the National Assembly, the Senate passed on 15 November 2023 its first-ever bill on land-use planning (l’amémanagement du territoire). However, some reforms, particularly the Digital Code endorsed in March 2023, have aroused misgivings about its restrictive effects on freedom of expression and press freedom.

The DRC’s gross domestic product (GDP) grew at a relatively rapid clip after the COVID-19 pandemic caused it to drop. In 2023, growth was accelerated by activities in mining and infrastructure construction. The government has undertaken a series of initiatives to enhance the DRC’s competitiveness. Particularly, the government adopted an Emergency Reform Plan in 2023. In the preceding years, it had approved a value-added tax, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the OHADA Treaty, a one-stop shop for the creation of businesses, and another for external trade. Crucially, the DRC signed the African Continental Free Trade Area (AfCFTA) Agreement on 21 March 2018 and ratified it on 23 February 2022. It then joined the East African Community on 11 July 2023.

Over the period running from 2019 to 2024, four major developments impacted the law and politics in the DRC. First, in January 2023, President Tshisekedi announced a new agreement with the Chinese-backed Sicomines consortium, increasing infrastructure development investment from three billion to seven billion US dollars.

Second, President Tshisekedi initiated a controversial push for constitutional reform. On 23 October 2024, he announced that he would have a commission assembled to review the 2006 Constitution, arguing that it no longer mirrors the country’s realities. This initiative has sparked strong opposition, with critics accusing Tshisekedi of attempting to remove term limits to extend his presidency beyond his current second term. The opposition leaders have called on Congolese citizens to resist what they describe as a ploy to consolidate dictatorship through a life presidency.

Third, the Rwandan-backed M23 armed group resurged in North Kivu in late 2021. Since then, that province of eastern Congo bordering Rwanda has suffered conflict pitting the M23 against the Congolese military, supported by local militias (the so-called “Wazalendo”) and regional allies, such as SADC and Burundi. The conflict has resulted in human rights violations, mass atrocities, and large-scale population displacements with the provincial capital Goma, and surrounding areas struggling to support the displaced people adequately.

On 17 December 2024, the Congolese government filed criminal complaints against Apple subsidiaries in France and Belgium. The lawsuit accuses Apple of sourcing “blood minerals” from conflict zones controlled by armed groups, especially the M23, within the DRC for use in its devices, such as smartphones. This action aims to hold global firms accountable for their role in fueling conflict and exploitation in mineral-rich regions of eastern Congo.

Overall, notwithstanding significant government policies and legal reforms, factors–such as lack of infrastructure, weak institutional capacity, serious resource limitations, and corruption–undermine the effectiveness, stability, and predictability of the legal system.

3. Constitutional Law

The 18th of February 2006 Congolese Constitution is the fundamental organic law of the DRC. It heralds the Third Republic. In the decades before the promulgation of the 2006 Constitution, the DRC had passed a recital of constitutions and constitutional laws. Some of these fundamental laws were tailor-made to suit the government of the day, some had not been applied, and others had altogether been ignored by the very people mandated to enforce them. For the Third Republic, the Senate proposed, the National Assembly adopted, the Congolese people approved during the constitutional referendum organized in December 2005, and the President promulgated in 2006 the Constitution. To guard the democratic principles engraved in the 2006 Constitution against political vicissitudes and untimely amendments, the Constitution entrenches some of its provisions. Thus, no one may amend the republican form of the state and the representative form of the government, the principle of universal suffrage, the number and duration of presidential terms, the independence of the judiciary, political pluralism, and freedom of association (Article 220). The Constitution entrenches these provisions by setting up an amendment procedure that requires either a national referendum or a super-majority (three-fifths) of both houses of Parliament, voting collectively as a congress (Article 218).

3.1. Constitutional History

The 2006 Constitution marks the latest installment in a long, painful series of concerted efforts to define and redefine the Congolese state. The first act took place from 20 January to 20 February 1960 in Brussels, Belgium, where various stakeholders participated in a historic conference, the Conférence de la Table Ronde. Representatives of Congolese political parties and traditional communities, as well as representatives of the Belgian government and Parliament, attended the Conference. The representatives decided on the date of independence of Congo and adopted several resolutions on the organization of the future state of Congo and on the transitional legal regime that would be obtained before independence on 30 June 1960. Most importantly, on 19 May 1960, the Belgian Parliament passed, and the Belgian King Baudouin promulgated a constitution for the Belgian Congo called the Fundamental Law on the Structures of the Congo (Loi fondamentale relative aux structures du Congo). The 1960 Fundamental Law remained in force till its repeal in 1964.

The second act in the Congo’s constitutional history unfolded in the wake of the country’s Independence and the midst of great political upheavals. After the secession attempts of the Katanga and South Kasai provinces in 1960, the assassination of Independence Prime Minister Patrice Lumumba in 1961, and a rebellion in 1964, the Congolese people adopted a constitution, the so-called “Lualabourg Constitution,” on 1 August 1964. The Lualabourg Constitution, the First Republic Constitution, stood out as the first constitution written by the Congolese people and submitted to a constitutional referendum. The Lualabourg Constitution repealed the 1960 Fundamental Law when it entered into force.

On 24 November 1965, Mobutu staged a coup d’État. That date ushered in a dictatorship spanning thirty-two years, the radical curtailing of constitutional rights, and the erection of a one-party state in Congo. Mobutu promulgated on 27 June 1967 a new constitution for the Second Republic, also known as the “Constitution révolutionnaire” (the “Revolutionary Constitution”). Even though the 1967 Constitution was also submitted to a referendum, it had been amended several times. For instance, it provided for at least two political parties, but in practice only one political party operated, Mobutu’s Mouvement Populaire de la Révolution (M.P.R.). In 1978, a constitutional law went further and removed presidential term limits. On 27 October 1971, Mobutu renamed the country “Za?re.” The country retained that name until 17 May 1997, when Laurent Kabila reverted the name of the country to the “Democratic Republic of the Congo.”

After the fall of the Berlin Wall in 1989, erstwhile Western allies exerted pressure on Mobutu–a key player in Africa during the Cold War–to open up the political space in Congo. In February 1991, a national conference (Conférence nationale souveraine) began work and initiated a project for a new constitution for the future Third Republic. The start of the national conference is a watershed as it also signifies the start of the transitional period in the Congo’s constitutional history. On 9 April 1994, the then-Congolese government adopted a Constitutional Act. Likewise, the national conference produced a constitution, but it would never be implemented such that the 1994 Constitutional Act applied until 17 May 1997.

From 1996 to 2003, the DRC was in the throes of two civil wars. In May 1997, upon deposing Mobutu, Laurent Désiré Kabila issued a decree-law that performed the function of a constitution. On 17 December 2002, a year after Laurent Kabila’s assassination by one of his bodyguards, Congolese political parties and belligerents sealed a peace agreement sponsored by the international community, the Accord Global et Inclusif (Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo), signed in Pretoria, South Africa. The 2002 Pretoria peace agreement established a constitution of national unity, the Transition Constitution (https://www.leganet.cd/Legislation/JO/2003/numeros/jos.05.04.2003.pdf). The Transition Constitution laid down a few cardinal principles that endure in the 2006 Congolese Constitution, such as the unity of the country and several fundamental human rights and freedoms.

Joseph Kabila promulgated the Constitution of the Third Republic on 18th February 2006. His swearing-in as President in December 2006, following his victory in the presidential elections, formally ended the decade-long transition period that started in 1991. The 2006 Congolese Constitution provides for institutional law and human rights law, as explained in the next section of this article.

3.2. Institutional Law

3.2.1. Institutions of the Third Republic

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Overview of the Legal System of the Democratic Republic of the Congo (DRC) and Research