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KAS Law Study Library Vol 8 - English.Indd 1 10/31/2011 10:57:26 AM Office : Mbaruk Road, Hse, No KONRAD ADENAUER STIFTUNG AFRICAN LAW STUDY LIBRARY Volume 8 Edited by Hartmut Hamann, Kalala Ilunga-Matthiesen & Adalbert Sango Mukalay Hartmut Hamann is a partner of the law firm CMS Hasche Sigle and focuses on complex international projects and arbitration proceedings. He is a lecturer on dispute resolution and international law at Freie Universität Berlin and Technische Universität Chemnitz and regularly works in Africa. Kalala Ilunga-Matthiesen is professor at the law faculty of the University of Lubumbashi, responsible for the Commission for Extension of Human Rights and Development (Commission de vulgarisation des droits de l’homme et du développement) in DRC; co-tutor for seminars on the status of laws in Sub-Saharan Africa, organized at the law faculty of the University of Lubumbashi in partnership with the KONRAD ADENAUER Foundation. Adalbert Sango Mukalay is professor of law at the University of Lubumbashi (DRC), whose research deals with the topic “Law and Society” with special interest in the relationship between the State and respect for human rights. For a number of years he has been contributing to the organization of seminars on the rule of law in Africa, sponsored by the Konrad Adenauer Foundation. Published By: Rule of Law Program for Sub-Saharan Africa ©November 2011 AFRICAN LAW STUDY LIBRARY Vol 8 A KAS Law Study Library Vol 8 - English.indd 1 10/31/2011 10:57:26 AM Office : Mbaruk Road, Hse, No. 27 P.O. Box 66471-00800 Westlands, Nairobi, Kenya Tel: 254 20 272 59 57, 261 0021, 261 0022 Fax: 254 20 261 0023 Email: [email protected] Head Office : Klingelhöferstr. 23 D-10785 Berlin Tel.: 030/269 96-0 Fax: 030/269 96-3217 www.kas.de © Konrad Adenauer Stiftung & Authors, November 2011 ISBN: 978-9966-021-04-5 Typeset & Printing by:- LINO TYPESETTERS (K) LTD P.O. Box 44876-00100 GPO Email: [email protected] Nairobi-Kenya All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission by the publisher. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. B AFRICAN LAW STUDY LIBRARY Vol 8 KAS Law Study Library Vol 8 - English.indd 2 10/31/2011 10:57:26 AM TABLE OF CONTENTS Foreword .............................................................................................................................................. I ORGANIZATION, OPERATION AND COMPETENCES OF THE JUDICIAL COUNCIL IN DEMOCRATIC REPUBLIC OF CONGO By Jean Marc Pacifique MUTONWA KALOMBE 1 ________________________________________________________________________________ DECENTRALIZATION: THE PROBLEM OF COMPLIANCE WITH THE CONSTITUTION - THE LAW ON FREE PROVINCIAL ADMINISTRATION: STATE LEVEL AND APPLICATION By Clement MUFUNDJI TSHINAT-KARL 21 ________________________________________________________________________________ CONSTRAINTS OF APPLICATION OF THE LAW NO 08/012 OF 31 JULY 2008 ON FREEDOM OF PROVINCIAL ADMINISTRATION IN DEMOCRATIC REPUBLIC OF CONGO (ISSUES AND PERSPECTIVES). By Jean Salem Israël MARCEL KAPYA KABESA 45 ________________________________________________________________________________ ARMED FORCES OF THE DEMOCRATIC REPUBLIC OF CONGO ORGANIZATION, STRUCTURE AND LEGAL BASIS By Baudouin WIKHA TSHIBINDA 69 ________________________________________________________________________________ PROBLEM OF COMPLIANCE WITH THE CONSTITUTION OF THE ORGANIC LAW ON DECENTRALIZED TERRITORIAL ENTITIES (STATE AND LEVEL OF APPLICATION) By Cyprien MUSHONGA MAYEMBE 95 AFRICAN LAW STUDY LIBRARY Vol 8 C KAS Law Study Library Vol 8 - English.indd 3 10/31/2011 10:57:27 AM D AFRICAN LAW STUDY LIBRARY Vol 8 KAS Law Study Library Vol 8 - English.indd 4 10/31/2011 10:57:27 AM KONRAD ADENAUER STIFTUNG LIBRAIRIE D’ETUDES JURIDIQUES AFRICAINES VOLUME 8 AVANT-PROPOS FOREWORD Volume 8 of the AFRICAN LAW STUDY LIBRARY is a continuation of previous seminars: The articles in this volume were developed as part of the third seminar in the University of Lubumbashi. As regards the Judicial Council,Jean-Marc P. MUTONWA KALOMBE presents an analytical reading of this body whose mandate is to manage the affairs of the judiciary in the DRC. Due persistent differences in some legal texts, the author proposes for comprehensive legal reform to be initiated by the Congolese legislators in order to make the judiciary truly independent from a democratic perspective without which, it will take longer for the rule of law to take root in the Democratic Republic of Congo. According to Clement MUFUNDJI TSHINA-T-KARLE, regionalism policy as established by understatement of federalism in the Constitution of February 18, 2006 in the Democratic Republic of Congo is far from being accepted by the leaders in the existing institutions. Political leaders show certain inertia: their actions are still all with a centralizing vision, visible on the unconstitutionality of legal documents they issue but also from the non- implementation of some of these provisions. This is about successful examples of: supervisory control exercised by the national minister of the interior of the provinces, the Ministry of the existence of primary, secondary and vocational education at national level Non-application of the provision relating to withholding tax of 40% on revenue of a national character to the provinces, or the lack of actual installation of 15 new provinces. As par the assistant Marcel KAPYA KABESA, he evokes the quintessence of conformity of the law on the free administration of the provinces in the Constitution as a critical issue whose outcome is the actual practice of decentralization in the DRC. Indeed, decentralization in the Constitution of February 18, 2006 is an ambiguous concept which blurred the shape of the state and political system that are worn by the clear intention of the settler to establish a secular democratic state, social and indivisible namely the DRC. In addition, the law on self- government of provinces reveals a consistent practice to which the Constituent has traced the way through Article 175 part 2 of the Constitution and further clarified in Art. 43 of the Law on the free administration of provinces. However, these two provisions both statutory and constitutional state that „the finances of the central government and the provinces are distinct. They are withholding taxes from the provinces. „ AFRICAN LAW STUDY LIBRARY Vol 8 i KAS Law Study Library Vol 8 - English.indd 1 10/31/2011 10:57:27 AM From the foregoing, the Court finds that the withholding was never born, because of the concept to ambiguity meanders between „withholding and surrender“ on the one hand, and to the other between „hierarchical control and supervisory control.“ The head of Works Baldwin WIKHA TSHIBINDA dedicated his reflection on the Armed Forces of the Democratic Republic of Congo: organization, structure and legal basis in carrying out their task of defending the integrity of national territory and borders. They participate in the economic, social and cultural as well as the protection of persons and their property in peace time. The army plays an important role of deterrence as a way of preventing conflict between states. The study shows the different phases through which the Congolese army has increased to reach the current structure. The desire is to see the army of the Democratic Republic of Congo become a professional army that knows the limits of its functions. It must avoid the interference in the political life of the nation to faithfully fulfill its mission. It must be Republican, non-political, serving the entire nation. The incompatibility between the elective and the position of the civil service or military must be strengthened to establish a true democracy in the Democratic Republic of Congo. On his part, Mayembe Cyprien Mushonga, a PHD student retains a largely negative assessment of decentralized territorial entities in the city of Lubumbashi. Indeed, members of the legislative and executive bodies have never been elected, either at the town hall or at all seven municipalities currently in the city of Lubumbashi. This is a departure control system needed for effective decentralization, since decentralization is a connection between rulers and ruled. Financial autonomy to be enjoyed any territorial entity in the context of decentralization has never been realized. No return of funds has been conducted monthly, with that; the mayor of the city of Lubumbashi should receive only 15% of its monthly revenue, 85% returning to the Central Bank of Congo (BCC) on behalf of central government. It is the same in both Ruashi and Lubumbashi that each receives only 10% of its monthly revenue. Decentralization aims at involving the development of basic management. However, no funds of its own and without proper rebates, decentralization can only lead to failure. A standard becomes invalid if the effectiveness is totally or permanently absent. Thus, the Faculty of Law at the University of Lubumbashi including Professor Adalbert SANGO Mukalayi and Professor Kalala Ilunga MATTHIESEN researchers and doctoral students and assistants of the waiver, take the last few years in conjunction with the HAMANN HARTMUT Professor at the Free University Berlin, researching the right balance with the reality on the ground in order to contribute to the emergence of the rule of law. With that, we thank the Rector of the University of Lubumbashi, for his availability in the context of this work and moral support necessary for the success of this work which, moreover, would not be possible without the financial and material support of Konrad Adenauer Foundation. Adalbert Sango Mukalay Hartmut Hamann Kalala Ilunga-Matthiesen ii AFRICAN LAW STUDY LIBRARY Vol 8 KAS Law Study Library Vol 8 - English.indd 2 10/31/2011 10:57:27 AM ORGANIZATION, OPERATION AND COMPETENCES OF THE JUDICIAL COUNCIL IN DEMOCRATIC REPUBLIC OF CONGO By Jean Marc MUTONWA KALOMBE Pacific* INTRODUCTON Under section 152 of the Constitution of the Democratic Republic of Congo of February 2006, the Superior Council of Magistracy is the management body of the judiciary1.
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