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Constitution of the Democratic Republic of the Congo

May 2005

This constitution was adopted by referendum. It came into force 18 February 2006 following its promulgation by the President of the Republic, Joseph Kabila. A copy is available in the original French on the official website of the President of the Republic.

Explanatory Memorandum

Since its independence 30 June 1960, the Democratic Republic of the Congo has faced recurring political crises, the fundamental causes of which have been challenges to the legitimacy of its institutions and leaders.

These challenges have become particularly significant in light of the wars that have divided the country from 1996 to 2003.

In order to end the chronic crisis of legitimacy, and give the country every opportunity to rebuild itself, delegates of the political class and of civil society, the vital forces of the nation, met in the Inter-Congolese Dialogue, and agreed on the Global and Inclusive Agreement signed in Pretoria, South Africa, on 17 December 2002, to establish a new political order, based on a new democratic Constitution, founded on the principle that the Congolese people hold the sovereign right to choose their own leaders, in elections which are free, pluralistic, democratic, transparent, and credible.

With the intent of materializing the political will thus expressed by the participants in the Inter-Congolese Dialogue, the Senate, based on the Global and Inclusive Agreement herein described, has deposited pursuant to Section 104 of the Transitional Constitution a preliminary draft of the new Constitution with the National Assembly, which has adopted the draft Constitution subject to popular referendum.

The Constitution thus approved is structured primarily around the following key ideas:

The State and its Sovereignty

In order to, firstly, consolidate national unity undermined by successive wars, and secondly, to create centers of leadership and grassroots development, the constitutional framers will structure the Congolese State administratively into 25 provinces, and the City of Kinshasa, with their own legal personalities, equipped to exercise the powers of proximity enumerated in this Constitution.

In addition to these powers, the provinces shall exercise other powers in conjunction with the central government, and share the national income with the latter, in the proportion of 40% to 60% respectively.

In the case of conflict of jurisdiction between the central government and provinces, the Constitutional Court shall hold the sole authority to decide between them.

Moreover, the provinces shall be administered by a Provincial Government and a Provincial Assembly. They include each of the decentralized territorial entities that are the city, the commune, the sector, and the chiefdom.

Furthermore, this Constitution reaffirms the democratic principle that all power emanates from the people as the primary sovereign.

The people express themselves through political pluralism enshrined in the Constitution, which establishes as an offense of high treason the imposition of a single-party system.

With regard to nationality, the constitutional framers maintain the principle of the uniqueness and exclusivity of the Congolese nationality.

Human Rights, Fundamental Freedoms, and the Duties of the Citizen and of the State

The constitutional framers would like to reiterate the commitment of the Democratic Republic of the Congo to human rights and fundamental freedoms as proclaimed by the international legal instruments to which it has acceded. Therefore, they have integrated these rights and freedoms into the body of the Constitution.

In this regard, responding to signs of the times, the current Constitution introduces an important innovation in formalizing gender parity.

The Organization and Exercise of Power

The new Institutions of the Democratic Republic of the Congo are:

• the President of the Republic;
• the Parliament;
• the Government; and
• the Courts and Tribunals.

The major concerns which govern the organization of these Institutions are:

1. ensuring harmonious operation of State Institutions;
2. avoiding conflict;
3. establishing the rule of law;
4. circumventing any dictatorial temptations;
5. ensuring good governance;
6. fighting against impunity; and
7. ensuring a democratic transition.

Therefore, not only shall the mandate of the President of the Republic be renewable only once, but he shall exercise his prerogatives as the guarantor of the Constitution, national independence, territorial integrity, national sovereignty, and respect for international agreements and treaties; as well as the regulator and arbiter of the normal operation of the Institutions of the Republic, with the involvement of the Government and under the control of Parliament.

Regulatory acts signed by the President in matters relating to the government or to ministerial management shall require the countersignature of the Prime Minister, who shall assume responsibility before the National Assembly.

Moreover, matters of foreign affairs, defense, and security, areas formerly controlled by the Head of State, have become areas of collaboration.

However, the Government, under the leadership of Prime Minister, remains the master of the conduct of policy that defines the nation in consultation with the President of the Republic.

The Government is accountable for its actions before the National Assembly, which may sanction it collectively by adopting a motion of censure. The National Assembly may also call into question the responsibility of individual members of the Government by a motion of no confidence.

Assembled in Congress, the National Assembly and the Senate have the power to refer the President of the Republic and the Prime Minister before the Constitutional Court, particularly for high treason and insider trading.

Moreover, while enjoying the monopoly of legislative power and control of the Government, parliamentarians are not above the law; their immunities may be lifted and the National Assembly may be dissolved by the President of the Republic in case of persistent crisis with the Government.

This Constitution reaffirms the independence of the judiciary, whose members are managed by the Supreme Judicial Council, henceforth composed solely of judges.

For greater efficiency, specialty, and celerity in the processing of cases, the Courts and Tribunals have been split into three jurisdictional orders:

• the courts of the judicial system, under the control of the Court of Cassation;
• those of the administrative system, topped by the Council of State; and
• the Constitutional Court.

Relevant provisions of the Constitution determine the exclusive sphere of action of the central government and of the provinces, and the area between the two competing levels of state power.

To ensure harmony between the provinces themselves on the one hand, and the central government on the other hand, there is established a Conference of Governors chaired by the Head of State, the role of which is to provide counsel to the two levels of government.

Similarly, the duty of solidarity between the different components of the nation requires the institution of the National Equalization Fund, placed under the authority of the Government.

Given the magnitude and complexity of the problems of economic and social development which the Democratic Republic of the Congo is facing, the constitutional framers created the Economic and Social Council, whose mission is to provide advisory opinions on this matter to the President of Republic, the Parliament, and the Government.

To guarantee democracy in the Democratic Republic of the Congo, this Constitution retains two institutions to support democracy; namely, the Independent National Electoral Commission responsible for the organization of the electoral process on a permanent basis, and the Supreme Council for Audiovisual and Communications, whose mission is to ensure the freedom and protection of the press and all means of mass communication in accordance with the law.

Constitutional Revision

To preserve the democratic principles contained in this Constitution against the vagaries of politics and untimely revisions, the provisions relating to the republican form of the State, the principle of universal suffrage, the representative form of government, the number and durations of mandates of the President of the Republic, the independence of the judiciary, and political and syndical pluralism may not be subject to any constitutional revision.

Such are the main guidelines which characterize this Constitution.

Proposed by the Senate;

Adopted by the National Assembly;

Approved in a referendum of the Congolese people held 18–19 December 2005;

The President of the Republic promulgates the Constitution which reads as follows:

Preamble

We, the Congolese people, united by fate and history around the ideals of freedom, brotherhood, solidarity, justice, peace, and work;

Motivated by our common desire to build in the heart of Africa the rule of law and a strong and prosperous nation based on a true political, economic, social, and cultural democracy;

Considering that injustice, with the impunity, nepotism, regionalism, tribalism, clanism, and cronyism it entails, for their many vicissitudes, are the cause of the general inversion of values in, and the destruction of, the country;

Affirming our commitment to safeguard and consolidate independence and national unity while respecting our diversity and our positive characteristics;

Reaffirming our commitment and attachment to the Universal Declaration of Human Rights, the African Charter on Human and Peoples' Rights, the United Nations Conventions on the Rights of the Child and on the Rights of Women, particularly the goal of parity of representation between men and women within the institutions of the country, as well as all international instruments concerning the protection and promotion of human rights;

Driven by the desire to see all African States unite and work together to promote and consolidate African unity through the continental, regional, and subregional organizations, to offer better prospects for development and socioeconomic progress to the peoples of Africa;

Committed to the promotion of mutually beneficial international cooperation and rapprochement of the peoples of the world, in accordance with their respective identities and of the principles of sovereignty and territorial integrity of every State;

Reaffirming our inalienable and imprescriptible right to freely organize ourselves and develop our political, economic, social, and cultural life, in our particular ethos;

Conscious of our responsibilities before God, the nation Africa, and the world;

Solemnly declare the adoption of this Constitution.

Title I: General Provisions

Chapter 1: On the State and its Sovereignty

Section 1: The State

Article 1

Congo, Democratic Republic of the