Transition démocratique et évolution constitutionnelle en République Démocratique du Congo

Introduction

Since good of years, the wind of democratization extremely shakes the world politics to such a degree that from one end to another of the sphere, the policy undergoes its pressure.

All the history of the democracy proves that it is a movement which, never does not stop because, for the men who cause it, it is a good.

It is not only one formula of political organization or a method of adjustment of the social reports/ratios, it is a value. «  And it is this value (inalienable vocation of the men to take their destiny so much individual which collective) which constitutes the major unity of what for the clearness of the analysis, one calls various designs of the democracy.

In Western Europe, the democratic culture dates for a long time. According to C. POUTHAS, it goes back to 1848 although its first steps were apparent since strong a long time. The author specifies that the period which extends from 1848, in the neighborhoods of 1860 its mark in the history printed and because it destroyed and started to build. It opens with the crash revolutions, it involves Europe, one can say even the world, in a continuation of the quarrelsome convulsions, inaugurated by liberalism. It has a precise starting point, but it does not have a term, because the facts which form the history of the world after 1860 have their source in these twelve years. These closely bound facts are the democratic one and the capitalist economy »^1(*)

Today, Western Europe liberal, is industrialized and directs itself more and more towards the democracy. Its system tends to include freedom in relations of command with obedience inseparable from all the organized companies. In addition to that, the people alone remain sovereign in the choice of his representatives. He is added also the multi-party system become current currency in this part of the sphere.

North America, following the example Western Europe, obtained a true democracy. This one is the product of a long history. Indeed, if one wanted to characterize of a word the adoption by the United States of the system of the controlled democracy, it will have to be known that it was introduced there in a not very democratic form.

George Burdeau stresses that nothing is far away any more from the spirit of a truly democratic constitution than the text adopted in Philadelphia in 1787. He says then that, even if the political structure were not very democratic, the company was it deeply.^2(*)

It is thanks to this contradiction which the democracy made a success of in America bus if the American man had not been fundamentally democratic, the institutions would have led to monarchy or perhaps to anarchy.

For its part, J.M Besnier adds that American philosophy really does not need to draw the democratic model among Europeans, the democracy became, according to him, like the dew in the morning, naturally, of simple fact that the men were born equal and resemble. ^3(*)

The French author Alexis de Tocqueville evokes three reasons having militated in favor of the democracy in America :

1. The geographical situation of America. It is far from the European continent accustomed to the wars ; what made it possible to the American people to live in a certain stability, bases of any democracy.

2. Laws of the country. These laws rise from the federal form. Certain federate laws reduce certain federal provisions which are not in conformity with the interests of the federate States.

However, in Africa, since the beginning of the years 1990, the wind of democratization blows everywhere in the continent. The disputes multiplied in several countries to require the democratic reforms which, until there, were under the authoritative modes which incarnated for the majority by military juntas.

These modes were characterized by the concentration of the capacities in the executive which incarnated by the father of the nation, the guide, through a constitution cut to measure.

Like corollary, the civil laws and policies are sacrificed there to the profit, seems it, of the economic rights, social and cultural which one can wonder about the effective realization. In other words, these modes with some rare exceptions, were not concerned with the wellbeing of the populations and consequently, the continent beats the record of the regression and the evil : refugees, fratricidal fights, epidemics, exiled political, corruption, diversion,...

Following several internal factors : popular pressures due to misery, disputes political intern and external (the fall of the wall of Berlin, the influence of the péréstroîka, the speech of Mitterand to Baule) a great number of African countries are in the democratic phase of transition.

But, that is necessary it to understand by democratic Transition ?

The democratic transition is defined in two shutters i.e. it is appropriate to define the democracy initially, then the democratic expression transition.

The generally allowed definition of the concept democracy is the capacity of the people by the people and for the people.

This definition given by former American president Abraham Lincoln in 1863 in a speech made to Pennsylvania is the best compared to the contents than gave him the socialist modes and allows us to approach the democratic transition.

According to professor Robert Dossou, there are two principal criteria to determine the form of the transition : the criterion of the consensualism and the diachronic criterion. ^4(*)

From the criterion of consensualism, one distinguishes three forms from transition :

- The consensual transition marked by a consensual bench enters the capacity in place and the sharp forces or forces of the change.

- The transition - recovery where quickly the capacity in place recovers with its profit the claims of the people.

- The forced transition where the capacity in place of a position of refusal of the change finishes without conviction by resigning itself to the change.

All the transitions always pose problems but they are the two denières transitions who raise more of the difficulties even after the transition.

As for the diachronic criterion, there is always and necessarily everywhere a formal transition and an abstract transition.

- The formal transition is that expressly envisaged by an act and limited in time. While the abstract transition is that not envisaged by the new constitution nor by any text and which leaves the end of the formal transition.

It is not limited in time and can last of the decades. It is during this phase of which the duration will vary from one country to another that are made the training and the consolidation of the democracy.

Professor Theodore Holo, for its part, defines the democracy « as a mode in which the capacity is exerted by the citizens or is subjected to their control »^5(*)

As for the democratic transition, it can be defined as a passage of the political régime monocratic in a pluralist or more open political régime. It is also, according to Salmon Pierre « the emergence of the political systems founded on new principles : pluralism, alternation, the State of right »^6(*)

The analysis of the transitions in Africa makes it possible to classify those in three categories, namely :

1 the granted transition or the presidential strategy which is accompanied by the delegitimation by the single party and the nomination by responsible a Prime Minister before the Parliament.

2 the negotiated transition or advisory national conference with the legal stability and the opening of the political power.

3 the imposed transition or sovereign national conference with the rupture of the constitutional order and the renewal of the leader bodies.

With regard to the Democratic Republic of Congo, it is important to say that he is one of the countries of the African continent whose policy remains subjected to an acute crisis. Since its, accession with taken place independence on June 30, 1960, the changes of the several orders marked particularly the political field and in a general way, the whole of sectors of the national life. There is no need to show only the political acts posed by the leaders be disastrous. Like consequence, the DRC is embarked, since April 24, 1990, in the democratic transition longest that Africa even the world did not know.

Various constitutional texts governing this period in particular followed one another the constitutional Act of the transition resulting from the CNS, the constitutional Order in Council of May 27, 1997 as well as the constitution of transition resulting from the overall and inclusive agreement signed to Pretoria in 2003.

Have regard with what precedes, it is necessary to release some concerns which constitute the discussion thread of this work :

Why one attends a so long democratic transition in DRC ?

- Which are the factors of blocking ?

- The people have it the sufficient means to control and limit the capacity of controlling ?

As assumptions, let us say that the factors which block the transition in DRC would be not only of order socio-policy in particular the patrimonial management of the State, the violence but also of order legal, namely the constitutions worked out with an only aim of perennializing the capacity of the Head of the State by reducing fundamental freedoms of the citizens. However, if the publicity agents agree for saying that there is no State, to the legal direction of the term without constitution and that like the Carré writing of Malberg « the State must before all its existence with the fact that it has a constitution »^7(*)

Professor CONAC writes that the constitutions are not only techniques of the authority, they are also techniques of freedoms^8(*)

The constitution is thus the average privileged person of regulation and limitation of the capacity of controlling in order to guaranteeing the freedom of controlled. Those being in a State of right, true holders of the political power which is exerted on their behalf and according to their free assent.

Through our topic, we initially will outline the difficulties which have the African States, in general and the DRC, in particular in their evolution following the superposition of the democratic principles on the principles dictatorial and néo-patrimonial.

The study of the relations between democratic transition and constitutional evolution revêt an undeniable interest. The man being the engine of any idea of democracy, the respect of its rights constitutes the condition sine-qua-non process of democratization.

Then, the historical evolution of the DRC shows that this country knew two decisive moments of the constitutional change.

The first share of independences and stops at the period of the single party and the second, which at first sight interests us, is that of the democratic transitions. It began at the end from the années1980 and has as a climax the years 1990 and continues until our days.

It consists in setting up a more open mode granting a broad place to the humans right, but often intersected by wars.

Our step consists in studying the rules which are posed as well as the established institutions guaranteeing their respect for the limited period.

We propose to resort to the constitutionnalism, because of its importance in the change occurred.

The Senior J.Y MORIN says that it « constitutionnalism plays a part of foreground in the transition from the authoritative modes to the democracy. This constitutionnalism consists in enchasing freedoms, the civil laws and political as well as the rules of the State of right in the constitutions of each State and guaranteeing the respect of it while making them justiciable before the institutions legally established by the constitution »^9(*)

The object of such a step is to arrive at a dynamic analysis integrating the chronological and sometimes descriptive dimension of the question.

The architecture of our analysis arises in the following way :

The democratic Revival and the historic insight form the first part while the constitutional evolution in DRC constitutes the second part.

FIRST PART : THE DEMOCRATIC REVIVAL

The democratic transitions which proceeded throughout the world had as a starting point the claims for a more democratic company.

Vis-a-vis the recrudescence of this phenomenon and considering the favorable planetary environment, the populations did not spare any effort to claim the advent of a mode where all the human rights would be recognized. But, for better including/understanding the process of democratization in Congo, it sied to analyze the preceding histories (Chapitre1) having precipitated the introduction of political pluralism (Chapter 2)

CHAP 1 PRECEDING HISTORIES

The period which goes from 1965 up to 1990 will be marked by the dictatorship of Mobutu. This dictatorship will be rich in history and tinted realities which weighed heavy on what could be the democratization of 1990.

This chapter will try to contribute a share by examining in turn the political outline of the second Republic through the consolidation of the system monopartisan (section1) and the management of the capacity of the State (section2).

POLITICAL section 1 SEEN OF the SECOND REPUBLIC

The second Republic begins after the active coup d'etat on November 24, 1965 by Mobutu.

All had started with the disorder generalized in all the country following the various rebellions and tendencies secessionists.

« In his capacity as commander-in-chief of the army, the Mobutu General could convene the commanders of each military area to a routine meeting on November 23, 1965, without waking up the attention too much ; it is during this meeting that it was decided to reverse president Joseph Kasavubu and to set up another capacity^10(*)

This idea will concretize on November 24, 1965 at dawn.

Various arguments had been advanced to justify this coup d'etat, thus the Prime Minister Patrice Emery Lumumba was accused of Communist, Satan and president Kasavubu of inefficient.

Like consequence, this takeover by force will put an end to the first democratically elected Congolese government and will open the way with the second Republic of which we will present the organization of the political power (§1) and the emergence of the single party (§2).

§1 the ORGANIZATION OF the POLITICAL POWER

After his seizure of power, the Mobutu General holds, initially, with R to ensure the public opinion that it is not a coup d'etat nor a takeover by force which it made but a salutary measurement that the high command of the Congolese national army took to put an end to chaos and anarchy.

This reconciling language will not be long in hardening because on March 22, 1966, president Mobutu presents a new style of the management of the capacity consisting in entrusting to the executive power (A) the essence of competences to the detriment it legislative power (B) and of the judicial power (C).

A little later the post of Prime Minister will be removed until 1977.

A. executive power

The role of the executive power was to stop the general policy of the government. The president of the Republic and president of the party incarnated it, it had competence to name and revoke the ministers according to his mood. All the ministers were responsible in front of the Head of the State.

Key ministries, namely : defense, the interior, finances, safety were placed under direct control of the Head of the State and their holders seemed simple observers. It is advisable to say that the executive was placed at the top of the legislature and the legal one.

B. legislative power

The parliamentary institution was only one body of the party among others and did not have to disunite authorities. According to J.C. Willame, it is the secretary of the political office of Mr. P.R, professor Mpinga Kasenda which took care of the defense of the toughening of the party and declared at the Parliament what follows : you form part, that you want it or not, of the leaders of this country.

The legislative council was not the only one to represent the people, it shared this prerogative with the president of the party and president of the Republic. The word of this last was higher than very other and into force had the force of law under the terms of the political doctrines in Zaire, the mobutism. The legislative council did not have any role to play with regard to the fundamental options of the party. The assembly consequently becomes a room of ratification, function which will be made official by the constitutional revision of 1974. The executive power extended its influence on the judicial power.

C. judicial power

This one had not been independent i.e. any judgment before being pronounced by the courses and courts must require the approval of the executive power. The political opponents were condemned and carried out with the absence of the evidence. Promotion with the magistrature was related to the degree of the militancy within the party.

The interference of the executive in the judicial power gave place to impunity because justice not being independent did not have any stopping power nor to condemn the tenors of the single party on which it depended.

This being, it is important to pass to the single party.

§2 the EMERGENCE OF the SINGLE PARTY

Maurice Duverger affirms that one « generally regard the single party as the great political innovation of the 20° century. So if the dictatorship is old like the world, the dictatorship supported on a party (...) is a new system.^11(*)

One of the justifications of the monopartism is the fight against the tribalism and regionalism. This holds, undoubtedly, with the fact that historically « many African political parties preserve a base is tribal or regional »^12(*)

J.Y Calvez, for its part, gives arguments which want that one makes recourse to the single party in the Third World.

These reasons are as follows :

- the single party is a means of supporting national integration while the pluralism of the parties would tend to national disintegration.

- pluralism, as for him, is a luxury.

- pluralism requires the existence of the social classes but the single parties do not tolerate the social classes.

- in a country where an effective governmental action is necessary in the sight of development, the system of the single party supports integration « vertical » ; so it constitutes a network intensifying the communication between the government and the mass^13(*)

In several African countries, the institutionalization of the monopartism was carried out through the constitution ; thus the institutionalization of Mr. P.R (A) contributed to the reinforcement of the bodies of the party (B)

A. Institutionalization of the Popular Movement of the Revolution

Article 33 of the constitution of Zaire of 1973 laid out : « any formation of another political party was prohibited and that any Zairean was obligatorily member of the popular movement of the revolution ».

However, it is necessary to wonder why name movement and not party ?

Ndaywel explains why that rose from the concern for its initiators to give him a generalizing range in order to become a Congolese national movement.

To go up with the advent of the MPR, it is necessary to leave the speech of December 12, 1965 when the General puts at light his ideas. It insists on the words putting an end to the activities of the political parties during five years.

Not to contradict itself, Mobutu thought initially of the creation of body of the volunteers of the Republic, the idea which will concretize on January 09, 1966. Mobutu is defended not to be founder for it even if it were the first to be registered there like member. The MPR which went imposed as single party was born officially on May 20, 1967 by the proclamation from its proclamation close to the river saddle. The proclamation was a kind of national pact where were to concretize the principles essential to the national development.

Of entry of play, it proclaims that the purpose of the MPR was of « to release Congolese and Congolese of all the constraints and to ensure their progress by building a Republic (...) really democratic. Its fundamental options are precise and multiple : economic independence, the respect of the protection of freedoms (...). Accordingly, a place of choice must be reserved for the emancipation of the woman, with education and with the formation of youth, the promotion of science and arts is to be encouraged^14(*) It is in this atmosphere that the MPR will evolve/move without there not being another party at its sides until 1990.

B. Bodies of the MPR

Like other single parties, the MPR merged with the State and gathered with its center all the sharp forces of the country and to which all the other institutions were subordinate.

The president of the MPR is of right the president of the Republic.

- The president of the MPR , president of the Republic, is the central body of the decisions and control of the activities of the movement. He chairs all the bodies of the party.

- The congress includes/understands the members representing all the sharp forces of the Nation. Their mode of designation is fixed by the central committee.

The congress has as a principal role to rule on all the questions relating to the fundamental options of the party and its doctrines.

The congress is usually convened every five years by the president.

- The central committee is the decision-making body of design, inspiration, orientation and of the MPR. It takes care of the respect of the fundamental options and the application of the resolutions taken by the congress. Its members are named and, if necessary, raised of their function by the president of the MPR, chair Republic.

- The political office is the emanation of the central committee. It controls the application of the decisions of State of the central committee.

- The legislative council is formed of the police chiefs of the people elected by the vote for all for five years.

- The executive council is composed of a first police chief of State and police chiefs of State who assist the president of the Republic in his functions.

- The legal adviser includes the public ministry and the courses and courts, namely : supreme court of justice, the general council of war, Courts of Appeal, state security court, courts and councils of war.

At the regional level one finds : the regional assembly and the regional president of the MPR.

One understands well under these conditions that the not very orthodoxe design of the management of the capacity of the State contributed unfortunately to the longevity of the mode mobutist. SECTION 2 THE MANAGEMENT OF THE STATE

At the time of the transition, as during more than one quarter century of the reign mobutist, authoritarianism (§ 1) and the neo-patrimonialism (§ 1) were the engine of the system. That led to the rallying of the opponents, with the seduction of the Zaireans and abroad. The money was also used to bribe the conscience and to scramble the political charts.

§1 AUTHORITARIANISM

Authoritarianism is a mode in which contradiction is not tolerated. It is also known under the name of the dictatorship and is based on the personal capacity (A) and violence (B).

A. Personal capacity

The personal capacity usually appears in Africa like elsewhere, by the concentration of the political power to the hands of a very powerful man who dominates simultaneously the executive power, the legislative power and the judicial power.

This man controls also the party with the capacity, a party, in general single of which he is usually the president founder.

One can say with Jean-François Bayart whom it incarnates the principle of authority of which it is the substance even.

In this type of mode close to the autocracy, absolute capacity of a man, the principle of confusion of the capacities overrides that of separation of the capacities expensive to the liberals and particularly in John Locke and M ontesquieu.

In his capacity as holder of the executive power, the strong man of the mode performs at the same time the presidential functions and the governmental functions. Thanks to the first, it names with all civil higher employment and soldiers of the State ; he is the supreme chief of the armies, he represents the State in the international relations, accredits the ambassadors abroad and receives the letters of accreditation of the foreign ambassadors, negotiates and ratifies the treaties, exerts the right of reprieve, promulgates the laws, implements the exceptional capacities^15(*)

Thanks to the seconds, it determines and leads the policy of the nation.

It is assisted in this task, inter alia, by the members of the government which it names and revokes freely.

Generally, those do not have any clean authority and thus do not act that on delegation of the capacity of the president of the Republic, a delegation on whom this one can always return while directly treating the businesses of which they have in theory the load.

Professor Conac notes in a remarkable analysis that in « their quality of chief of the executive, the presidents tend to behave like true seniors in rank (...) they do not hesitate to mention with them (ministers) the questions which appear important to them (...) one seems to consider without being shocked of it that attributions of the ministers and the civils servant are delegated to them by the Head of the State.

In 1967, president Mobutu indicated that the president of the Republic is in Zaire at the same time the chief of the government and Head of the State joining together all the capacities.

He does not discharge any on any other individual and does not make that to delegate them.

Through this strongly concentrated organization, main goal pursued is to ensure the complete seizure of the Head of the State on the executive power and consequently on the public administration of which it is without question the very powerful chief.

This domination of the executive power is accompanied by a total control on the legislative power. The Head of the State can influence on his recruitment and his operation.

Indeed, the selection of the candidates to the legislative elections is generally done by the single party.

Thus in Zaire, no one cannot be seen entrusting an elective public office if it is not invested by the party.

As professor Lavroff underlines it « he follows himself from there that no one cannot be elected without to be presented by the single party and that designation as candidate is worth election since the electoral operations are done on a list or with a candidate. The intervention of the voters does not aim to choose representatives of the people but to ratify the choice made by the party. ^16(*)

However, within this one, the Head of the State occupies a position privileged in his capacity as president founder. Under these conditions, no deputy can be elected without his approval.

Thus controlling the composition of the Parliament, the president of the Republic in control also operation by means of a whole of the mechanisms borrowed from the parliamentary system rationalized inter alia the determination of about a day of the assembly, the blocked vote, the limitation of the field of the law, inadmissibility of the private bills which overflow the legislative field, which worsens a public office or decreases a public resource. But over all, the Head of the State has the prerogative to dissolve the Parliament without being able to be relieved in counterpart. Like consequence, the role of the deputies is restricted to applaud and to ébaudir projects of the executive failing to cause them or to discuss them^17(*)

In addition, this qualified mode of the African presidentialism by certain doctrinary is characterized by a total constraint of the justice of the president of the Republic in spite of the constitutional and legislative provisions which affirm the principle of independence of the magistrature.

It arises that the rules envisaged by the constitutional or legislative texts did not always put the judges at the emanating shelter of the injunctions even of the sanctions of the executive power. It could take place a rather annoying shift between the proclaimed principles and their application.

The omnipotence of the Head of the State is accompanied naturally by the negation of the humans right who often results in violence.

B Violence

In an authoritative mode, violence and the corruption amalgamate. Violence is not a specificity of Africa ; where is the capacity, there must be also an amount of violence but, this one must be channeled, controlled as in the modes of liberal democracy.

According to the article1 of convention against torture and other sorrows or treatments inhuman or degrading, torture indicates any act by which a pain or sufferings acute, physical or mental, is intentionally inflicted with a person for purposes to obtain from it or a third person of the information or consents, to punish it of an act that it or a third person made or is suspected of having made, to intimidate it or make pressure on it or to intimidate or make pressure on a third person, or for any other reason based on a form of discrimination whatever it is, when such pain or as of the such sufferings are inflicted by an agent of the public office or any other person acting on a purely basis official or its instigation or with its assent express or tacit. This term does not extend to the pain or the sufferings resulting only from the sanctions legitimate, inherent in these sanctions or caused by them.

Let us say that in order to preserve their capacity without division, controlling them impressive mechanisms of repression set up which strike all the dissidents in particular by their arrest and their arbitrary detention.

Professor Rene DEGNI SEGUI notes that « the period of monopartism knows successive waves of arrests and consecutive detentions with putshs or attempts, which they are real or imaginary. One can have an approximate idea of it if one does not lose sight of the fact that Africa knew of 1963 to 1990, eighty coups d'etat, that is to say three on average per annum. Are added to the already long list, the arrests and detentions resulting from the attempts of the plot or coups d'etat false, much more than those successful. ^18(*)

Once stopped, any citizen can be subjected to torture. The reports periodically published by the humane organization, Amnesty International prove it extremely eloquently.

The catalog of the ill treatments inflicted to the held people is very richly provided. Among these treatments inhuman and degrading, the beating ups are the maltreatments most frequently announced. The victims are struck with blows of belts of the soldiers, of sticks of rifle, bludgeons and ders sticks. The prisoners are often maltreated as of the moment of their arrest, then some times daily during all their detention by the forces of safety.

Thus the political prisoners of a center of detention of Bukavu (ex-Zaire) were awaked the morning, often obliged to drink their own urines, then struck in the back and the shoulders by their guards^19(*)

Many other treatments inhuman and degrading the such electric discharges can also be quoted hard the genitals, the insertion of the rods between the fingers which are then crushed the ones against the others, the exposure prolonged to the sun, the deprivations of food and water.

This being, the violent practices mark the majority of the modes where the arbitrary one, nonthe respect of the right, the violation of the humans right are daily. They also indicate the confusion maintained deliberately between the LMBO publica and the private thing.

§2 THE NEOPATRIMONIALISME

The neo-patrimonialism term is according to J.F. Medard « under product of the interaction enters the local traditional companies and the modern States. This is why it corresponds neither to a traditional political logic, nor with a modern official political logic while borrowing from both. The form or external appearance is official : constitution, right written, administration, etc but the logic of operation is patrimonial. ^20(*)

One can add that the neo-patrimonialism aims at the political systems of the Black Africa at the end of the 20° century, copied on the European model.

It is thus about under product of the interaction between the local traditional companies and the States north-Europeans. Always according to J.F.Médard, neo-patrimonialism indicate « the confusion of the public thing and the private thing which is generalized in Africa that one manages from there to question the notion even of the State, which precisely rests on this distinction. The neo-patrimonialism has as a result to personalize the political relations and to transform the political resources into economic resources. ^21(*)

This concept makes it possible to gather under the same term the phenomena such as the nepotism (A) being often accompanied by the tribalism (B) without losing sight of the fact the clientelism (C)

With the nepotism

The nepotism impregnates from top to bottom the operation of the State. It consists of what a family monopolizes the capacity. When a country is of more important size, a family can with difficulty succeed in monopolizing the capacity.

However, it can cut a good share of the cake. The nepotism gathers also the family members.

This phenomenon is observed on all the levels of the official apparatus.

It acts, therefore, of a type of néo-traditional solidarity in which family solidarity has cultural roots deeper than official national solidarity.

The nepotism was a considerable weapon used by Mobutu during its reign. This was remarkable during the zairianisation where the near total of the companies were entrusted to the members of its family who also had an unquestionable influence in the decision-making. As example, Lithography, his uncle, Antoinette, his wife, Wazabanga, her cousin see himself day at the following day entrusting the prosperous business management.

The capacity of Mobutu thus benefitted the members from his family so that its nearest relatives constituted the new middle-class. This distribution of the richnesses between the members of family will not be long in extending on the level from the tribe.

B. Tribalism

Thirty seven years after the independence and at the end thirty two years of reign of Mobutu, a Zairean observer will say that « the politicians transformed the public space structured around the clan and of the tribe of the Head of the State. The State became a State-tribe »^22(*)

The tribalism is perceived like the extension of the nepotism to a vaster scale, beyond the family.

The tribe ngbandi of the Mobutu Marshal was privileged compared to other tribes of the country estimated at more or less four hundred and fifty. This situation was perceptible as well in the police headquarters in the army. The case more striking is the creation of the strong presidential special division of fifteen thousand men, primarily of the Ngbandi tribe.

The equatorisation of the political system caused internal disputes from where, the recourse to the clientelism.

C. clientelism

This one is often practiced beyond the borders of the ethnos group. It constitutes sometimes one of the instruments which make it possible to transcend the tribalism.

The distribution of patronage in a way balanced between the members of different ethnos groups is one of the traditional means that a Head of the State employs to constitute a base of the supports pluriethnic. The political parties in Africa as the administrations thus tend to be constituted in genuine political machines resting on patronage and the president becomes a kind of superpatron.

The clientelism such as it appears in its definition, was practiced by Mobutu.

Indeed, « beyond the army which guarantees its maintenance at the top, Mobutu wanted to create a political community with its devotion, dependant on him on the material level.

With its faithful of the party, it declares : you enrich and if you fly, do not fly at the same time (...) fly intelligently, a little at the same time »^23(*)

With the wire of time, it obtained an important network of friends : businessmen, agents political, international civils servant.

Inside like abroad, Mobutu uses the corruption to obtain the rallying of the opponents and certain civils servant highly placed.

During more than twenty five years, the political goal of the capacity is reached, Mobutu consolidates its personal capacity and is pressed on a caste who owes him all.

This state of the things will cause frustrations within the population reduced to poverty intentionally which will not delay to dispute the capacity in place and to ask for political pluralism ; thus on April 24, 1990 will be announced a new era of the history of Zaire : end of the second Republic and the release of the process of democratization.

CHAP 2 INTRODUCTION OF POLITICAL PLURALISM

In January 1990, Mobutu launches a popular consultation on the work of the institutions and on April 24, 1990, it announces the end of the party-State and the re-establishment of the separation of the capacities. The politicians hasten to create or recreate their own political parties. But, it remains that the mode convenes the national conference (section1) starting the democratic process but which will know seven years later the interruption (section2) following the context of war led by the forces of the A. f.d. L.

SECTION2 NATIONAL CONFERENCE HOLDING

Measurements partial of liberalization of the mode did not have is enough to make democratic the State. It was necessary to announce a transition towards the democracy to reconsider the whole of the system. Into several countries of French-speaking Africa, democratization was introduced by the national conferences gathering all the sharp forces of the nation. The Zairean mode tried this experiment this experiment by organizing the national conference begun in August 1991 whose assets (§1) will not be implemented because of the absence of the process of training (§2).

§1 assets of the national conference

Those are all the more important as it sied to present the assessment of the national conference (A) and the lack of political good-will of the leaders to accept the change (B).

A. The Assessment of the national conference.

The assessment which one can draw from the action of the conference is as follows :

- The second reading of the history of the country was conceived like an instrument of national reconciliation. However, few the intervened lecturers admitted having made fixed prices with the detriment of the State ; and the prelate was to fail to obtain from the Head of the State which it goes to the national conference and makes repentance.

- With the constitutional act, the national conference defined the legal framework of the transition.

- On November 14, 1991, the plenary one adopts a project of constitution for the third Republic worked out by a commission chaired by Marcel Lihau of the U.D.P.S. It is an extremely detailed text of 203 articles. It takes systematically the opposite course to the mode mobutist. It returns to the name Congo like to the emblem and the anthem of independence.^24(*) It founds a federal system and it chooses parliamentarism. Although elected by the vote for all, the president of the Republic is irresponsible. The federal government is directed by a Prime Minister whose candidature must be presented by the party or the coalition of the parties holding the absolute majority of the seats with the congress. The members of the federal government are politically responsible collectively and individually in front of the congress.

- Lastly, the national conference adopted an electoral bill which is supplemented in appendix by a project of calendar below :

January 1993 : identification and census

April 1993 : constitutional referendum

February 1994 : End of the operations of census

April 1994 : Inscription with the electoral roles

April 1994 : Local and urban elections

June 1994 : Elections of the provincial deputies

July 1994 : Elections of the governors and the senators

August 1994 : Elections of the deputies and the president of the Republic

October 1994 : Ordinary and extraordinary session of the Parliament.

Thus, with the adoption of this project, the conference achieved its mission but with which effectiveness ? The latter was blocked by the lack of political good-will of the Congolese leaders (B).

B Lack of the political good-will

The political good-will requires a major engagement on behalf of the leaders to the capacity. Obviously, this parameter failing this in Zaire following the dictator who did not want to hear any change in favor of the democracy.

Since 1990, date on which the process of democratization was déclanché, this last process will be obstinate with a great misfiring of the politicians allergic to the change. More than ever, they were concerned with their interests and relegated to the second plan those of the population.

Mobutu déclanché the process of democratization following the internal and external pressures. Its single objective was to control the transition in order to preserve its interests. With this intention, it launches out in this adventure without any will to change the things but to maintain the status quo. It is noticed since many changes intervened nothing to change. The first signs of crispation appear with the adoption of the constitutional act of transition. The Head of the State refuses that the emblems, the national anthem and the name of the country change, estimating that they are matters to be subjected to the referendum. The electoral calendar did not know even not a beginning of its implementation.

§2 the absence of the process of training to the democracy

The absence of the process of training results in the weakening of the opposition (A) and délitement of the authority of the State (B).

With the weakening of the political opposition

The Congolese opposition at the origin gathered a hundred and thirty political parties of which most important are :the U.D.P.S, the UFERI, P.D.S. turnover the interior of this crowned union of the opposition, the affiliations was rather fluid, the members regularly changing from one party to another, and even outgoing or remaining in the union. In spite of that and the efforts of Mobutu, the group remained plain until 1994. In April 1994, it had a schism between the radical elements, which followed Tshisekedi and of the moderate ones, of which P.D.S.C, which created the union for the Republic and the democracy and supported the government of compromise of Kengo wa Dondo. The UFERI joined even the camp of Mobutu.

The Congolese opponents, indeed, underlines Balagizi, showed tangible less love of the fatherland related to the richness and selfishness ; they agreed to be combined with the dictator, to undergo dishonor provided that they reach the capacity and his corollaries that, are for the case here, the money and the property movable and real. ^25(*)

The Zairean opposition was let allure by the president of the Republic and like consequence, it followed from there large a political turbulence with a waltz of the successive governments which lasted often only a few months.

B. délitement of the authority of the State

The weakening of the authority of the State appeared when the government was unable to meet the needs for the population. The mode continues to weaken as well at the internal level as external under the pressure of a social dissatisfaction which is expressed in particular through student's demonstrations. Let us announce that Zaire engaged in a turning of democratization whereas the mode was already tired, incompetent to face waitings of democratization, the report/ratio of command-obedience was already to exhaust to emerge with a disintegration partial or total of the State.

It shows through that the training of the democracy was missing in Zaire, interpretations were numerous as for the exact contents of the term democracy. For the least educated, the democracy meant the law to do everything, absence of the laws. L. of Saint Mill shows that the latter insufficiently perceive the technical aspects of the democracy.^26(*)

SECTION2 the INTERRUPTION OF the PROCESS OF DEMOCRATIZATION

After six years of the sterile constitutional debates, of disavowal of the opposition and notorious layings off of opponents, the Zairean political community seemed to be discredited with the eyes of the population, which consequently, will not be mobilized masses some to support their recreation. In this context the change could come only besides. Whereas president Mobutu was made look after in Switzerland and the diary for the transition envisaged like dates ultimate for elections the summer from 1997, the rebellion bursts in the east of the country. After seven months of armed struggle, A.F.D.L seizes the power on May 17, 1997 and stops the process of democratization. This interruption did not fail to expose the authoritative drift (§1) and the privatization of the State (§2) having led to the return to the war.

§1 authoritative drift

In democratic Republic of Congo, the manifestations of the authoritative drift of the capacity of A.F.D.L were the suspension of the activities of the political parties (A) and the concentration of the capacities (B).

A. The suspension of the activities of the political parties

The democracy is generally identified by freedoms. If it is true that the concept is ambiguity, the expression « public freedom » supposes that the State recognizes with the individuals the right safe from all the external pressures.^27(*) But these freedoms are thus delimited by the State, alone titular of legal sovereignty. The democracy requires that the man be free to do what seems to him good within the limits of the law to express its opinion as it hears it, this one must be or not identical to that of the leaders with the capacity ; the man must still free create a political formation, an association, etc

Under the mode of L.D. Kabila, freedoms were asphyxiated by the authorities taking into consideration this report :

. The first element which marks the attack with the right of association charged to the mode is the suspension of the activities of the political parties of the opposition.

. August 28, 1997, the Minister of Interior Department Mwenze Kongolo went even further in a made address to the population. Not only, it reaffirmed the suspension of the activities of the political parties but also, it prohibited on the public highway the port of the distinctive signs of the political parties : badges, hats and various inscriptions.

Contrary act with the democracy, this suspension is lived like the return to the single party and the abandonment of the research of the consensus. A little later associations of defense of the humans right were suspended on April 03, 1998 with the reason which they destabilized the government and contributed appreciably to the reduction in the assistance external by the propagation of the false noises and the lies.

B. Concentration of the capacities

Since the autoproclamation of Kabila to the presidency of R.D.C, all the capacities were concentrated between its hands.

From May 17, 1997 began what C. Kabuya Lumuna calls « the second dictatorial transition ».^28(*) It is in this objective that the constitutional Order in Council was born of May 27, 1997 was born. This fundamental text recognizes with the Head of the State the right to exert only the executive power and legislative by decrees and Orders in Council and that under the terms of article 5 of the same constitutional Order in Council.

For this reason, all that relates to the legislature, the executive and the legal come under responsibility of the Head of the State. The Head of the State is the chief of the government and of the armies, it has the right to beat the currency and to emit paper money. It names and revokes the members, of the government, the ambassadors, the senior officers of the army, the executives of command in the public office, the governors, the active and nonactive agents in the companies and public organizations.

This concentration of the capacities between the hands of the Head of the State was accompanied by the institutionalization of A.F.D.L like the only authority of the transition.

§2 the privatization of the State and return to the war

The privatization of the State it is the appropriation of the means of the State at ends deprived under nonavowable conditions. The economic bankruptcy of the State led some to consider a private management of the State like a company deprived to help it to leave itself there. Heard thus, it would be in extreme cases a good thing since the goal is to find a solution with a situation which does not finish any to worsen. However, the privatization of the State is not to seek, it is a diversion of assignment, a trading of favors, an abuse the capacity, which amounts saying that each holder of the capacity becomes the manager, so not the owner of the piece of the capacity which is entrusted to him. The present study leads us to seek the causes of the privatization of the State (A) having led to the war known as of correction (B).

A. Causes of the privatization of the State

Those are numerous but, one can retain the heritage of the patrimonialism or « policy of the belly » to take again the expression of J.F. Bayart. Indeed, since the introduction of the multi-party system, the leaders know that their time is counted and that they are not sure favor of the vote. This time is then made profitable in the direction of a fast enrichment. The tribalisation of the capacity was an aspect of the patrimonialism more used by the mode of Kabila.

In addition to the tribalisation of the capacity, the personal management of finances was extremely remarkable especially with the presidency.

C. Brackman called on this subject that president L.D. Kabila managed finances in a very personal way. Thus, it gave in person, of the very important sums to his collaborators so that they discharge arrears of payment of the embassies or refund certain war debts.^29(*) Let us announce that the co-optation was the only mode of nomination members of the government and the high executives of the public administration. The brothers of tribe, the friends, the faithful customers are named and revoked according to moods and political situations' given.

B. the second war known as of « correction »

According to insurrectionists', the objective is to fight against the introduction of a mode characterized by the nepotism, the corruption, the clientelism, the violations of the humans right in order to found a democratic State parking of the rights and personal freedoms. All these claims will not be long in appearing false because, the movements rebel instead of putting at the foreground the national interest, will defend the advantages of their foreign guards.

Well of foreign countries intervened directly for the ones and indirectly for the others.

Rwanda, Burundi and Uganda were the principal allies of the rebellion. Actually, the mode installed with Kigali in July 1994 was given for mission of preventing the republication of the genocide and of ensuring the safety of the tutsis of Rwanda and all the area of the large lakes. Burundi, at its turn, estimates to continue the rebels of the F.D.D and those of the F.N.L whose back bases would be respectively in Congo-kinshasa and in Tanzania. Uganda fears the attacks of the army of resistance of lord (LRA) as those of the allied democratic forces (ADF) whose cutting off would be in the mountains overhanging Uganda and Congo.

However, instead of dealing with the sedentary problems along the borders, the above mentioned countries engaged in plundering and the illegal exploitation of the resources of Congo. On this subject, a board of inquiry of UNO returned into 2002 the conclusions a report/ratio in which Rwanda, Uganda, Zimbabwe as some Congolese ministers were quoted by name.

Angola, Zimbabwe, Namibia and Chad supported the governmental army to resist the attacks of the rebels. The first three countries intervened in democratic Republic of Congo with the downstream of the SADC.

With regard to the indirect speakers, one can note :

The United States of America. This country seeking to get rid of Kabila which did not appear with the height of the hopes that one had based on him. However, the dismissal of this last which should have been a simple political correction is revealed much more difficult than envisaged insofar as it ran up against African nationalism, that of Congolese and their allies. However, American does not imply itself with discovered face, they operate via local actors, in fact the Ugandan and Rwandan forces in their granting the traditional military aid in the form of training of the officers in the American military academies which teach with their recruits of the techniques as various as the close combat, the detection of the mines, the operations psychological and counter insurgency.

France. This one was acknowledged not overcome because, being already to some extent the rival of the United States, it can only be combined side opposed for better preserving its interests. Thus it supported and supports always the government of the democratic Republic of Congo.

The United Kingdom. The British also intervened in the Congolese conflict, coveting the potential richnesses of Congo, they supplied the military faces and guaranteed the violation of the integrity of the Congolese territory.

Crystallized Congolese A creates the instability in central Africa and in under area because of the epidemics and of destroying military activities. But, that to make to leave this chaotic situation ?

An agreement of cease-fire of Lusaka was signed by six countries with knowing, Angola, the democratic Republic of Congo, Namibia, Rwanda, Uganda and Zimbabwe and by the Congolese armed opposition : Mr. L.C, and R.C.D, under the auspices of the Organization of African Unity, United Nations and of the SADC.

Its importance is due to the fact that it considers the return to peace and defines four basic elements essential to the durable resolution of the conflict in under area. These elements are as follows :

. The installation of a Joint Committee charged to observe the cease-fire until the deployment of a gripping force of the peace of the United Nations.

. Deployment of a force of the United Nations charged to ensure disarmament, the demobilization, repatriation, the rehabilitation and the reintegration of negative forces, commonly called DDRRR

. The calendar for a methodical withdrawal of the foreign troops

. The dialog intercongolais on the new political order and the national reconciliation.

This agreement identifies also the Congolese parts called to take share with the dia&logist and states the principles on which should be based the control of the dialog. It stipulates that the political negotiations intercongolaises must include the government, the RCD, the MLC, the political opposition and the representatives of the sharp forces of the nation. The components profit from an identical statute and are bound by the resolutions resulting from the forum. Thus this dialog left the overall and inclusive agreement having given rise to the constitution the transition from the democratic Republic of Congo.

Any democratic mode is pressed on a legal framework traced by the constitution. For the case of Congo, the process of democratization is extremely related to the various changes operated on the level of the constitution referring to the basic rights and personal freedoms.

SECOND PART : The DEMOCRATIC DASH DEPENDANT ON the CONSTITUTIONAL EVOLUTION WITH the CONGO-KINSHASA.

The retrospective examination of the procedures of constitutional change occurred since June 30, 1960 in DRC shows that the mechanisms of the constitutional innovation were never put moving at the time of the substantial reforms of the fundamental law. It is true that the constitutional innovations have like objective acknowledged the improvement of the political and socio-economic conditions necessary to the satisfaction of the legitimate aspirations of the people.

However, certain declared objectives often had the appearance of a true counter-deed.

The various constitutional changes can be grouped in two categories.

The first is characterized by the will of the authors of the innovation to dissociate itself from a past considered as alienating. Here, one finds the constitution of luluabourg whose objective was to replace the fundamental law, resulting from the Belgian Parliament. It is also the case of the proclamation of the high command of the Congolese national army of 1965 which regarded the constitution of luluabourg as the work of the not very concerned politicians of the wellbeing of the population. ^30(*)

It is the same for the constitution of 1967 which was a means of legalization of the capacity conquered by the coup d'etat in 1965. The glance can be related to the constitutional Act resulting from the national conference which regarded the second Republic as a state of confiscation of the capacity and freedoms of the people, it is also the case of the declaration of catch of being able by the AFDL of May 17, 1997 followed by the constitutional Order in Council n° 005 of 27 May 1997 relating to the organization and the exercise of the capacity in democratic Republic of Congo.

The second category contains the changes occurred for the period which covers the second Republic since 1970 and is prolonged until the dialog intercongolais.

To analyze the constitutional evolution in democratic Republic of Congo, the stress will be laid initially, on the process of constitutional innovation (chapitre1), then on the place of the basic rights and the personal freedoms in the various constitutional texts (chapter 2).

CHAPTER 1 the PROCESS Of CONSTITUTIONAL INNOVATION

The task consists here, to recall briefly initially, several ironically named texts constitutions worked out between 1960 and 1967 (section 1) and then to present the constitutional reforms occurred during the time ranging between 1990 and 2003 (Section 2)

HISTORICAL SECTION1 BREVE OF the CONSTITUTIONAL TEXTS Of BEFORE 1990

Historic present extends, in turn, on the constitution of luluabourg (§1) and the constitution of 1967 as well as the mechanism of its revision (§2).

§1 the constitution of luluabourg of 1964

As for the preceding text, it sied to present the context of development (A) and the procedure of revision (B).

A. Context of development

The setting-up of the constitution of lulabourg was carried out apart from the procedure envisaged in section 4 of the fundamental law on the structures of Congo. The development process was déclanché by the constitutional law of June 24, 1964.

September 29 of the same year, this law created the constitutional commission whose mission was to work out a constitution having to be subjected to the referendum.

L resort to the constitutional referendum has the advantage compared to the procedure envisaged in the fundamental law because in the event of affirmative vote of the people, legitimation are institutions cannot be questioned.

One can say that when the change of the constitution is done by ways, nonthe respect of the procedure causes sour criticisms because the right is not only the bottom but also the form.

B. procedure of revision

Let us announce that the procedure of modification of the fundamental standard such as one envisaged it was complex. The initiative of the innovation corresponded to a multiplicity of bodies^31(*), the adoption of the project of revision was subjected to a strict condition of majority^32(*).

When the reform had as an aim the modification of the titer2 relating to the basic rights, the project was to be approved, in more by two thirds at least of all the regional assemblies. This means that the constitution of luluabourg set up a mechanism of revision which could not easily circumvent the popular will translated by the positive vote of the people at the time of the constitutional referendum of 1964.

November 24, 1965, the Congolese national army, following a coup d'etat, imposes a change derogating from the procedure of constitutional revision and is based on the higher interest of the nation as that was of habit since the period of the Orders in Council.

He was proceeded gradually to the liquidation of the democratic institutions so that, E March at October 1966, the new Head of the military State exerted the ordinary legislative power. ^33(*)

On the theoretical level, the constitution of luluabourg was repealed by that of 1967.

§2. The Constitution of 1967 and the step towards the institutionalization of the monolithic system

The birth of this text does not result from the application of the former fundamental text in other words this constitutional text does not present any teleological bond with the constitution of luluabourg (A) and provided the foundations of the monolithism (B).

A. The absence of the teleological bond with the constitution of luluabourg

The constitution of luluabourg left the discussions of the Political Affairs Committee of the government which were crowned by the constitutional referendum organized under the terms of the ordinance-law n°67/233 of March 03, 1967^34(*) as modified by the ordinance-law n°67/239 (a) of May 29, 1967. ^35(*)

As in 1964, the constitutional referendum made it possible to cure vice of procedure, bus in this matter the intervention of the people is used as sapper fireman whose role consists in standardizing the extraconstitutionnelles situations produced by the accomplished fact.

The procedure of revision of the constitution envisaged in the text of 1967 is very loose. It is not demanding. The majority of initiative is not any more two thirds, it is half of the members of the legislative body called national Assemblée. This situation gave to the Head of the State a margin of the operations important which did not fail to cause inclinations monopartisanes or monolithic.

B .Pas towards the monolithism

The constitution of 1967 does not envisage intangible provisions. Whole or part of the constitution could be modified apart from any referendum, whose convocation concerned the will of the president of the Republic.

Extremely of the opening which the constitution left him, the president committed himself institutionalizing the single party by the introduction of ideological conformism.

This situation ended in 1990 with the constitutional reform of 1990.

Section 2 Of the constitutional reform of 1990 with the constitution

One can raise that to the national conference, the delegates managed to work out and to adopt the fundamental text having to govern the limited period (§1) ; modified by the presidential class after four years of constitutional confusion, this fundamental law will be supplanted by the Order in Council. But in the case of species, the attention will be related to the constitution of transition resulting from the overall and inclusive agreement (§2).

§1 the constitutional Act of transition

This fundamental text is one of the assets of the national conference (A) but it was put at evil (B) by the tenors of the monopartism.

A. The constitutional act of transition : one of the assets of the national conference.

The bearing Act constitutional provisions had been adopted according to the procedure envisaged in the rules of procedure of the sovereign national conference. Even if this procedure is far from joining together the adhesion which the former constitutions because of the popular referendum had received to which they had been subjected, it should be stressed that it is the first time in the constitutional history of the Republic which a fundamental text made the object of a broad discussion and a debate in which took part of the people of various horizons of the country. The people were in a hurry to see arriving the change, which made it possible to overlook the violation of the principles planned for the modification of the fundamental text.

Here, also constancy remained the same one : the procedure of the constitutional reform was only one legal ornament.

It should be noted that this text put a term at the influence of the single party on the people and the caciques ones of the party swore to prevent its promulgation.

B. a constitution put at evil by presidential mobility

Let us say that the political minority made up of those which are not recognized in this provisional fundamental charter decided to take their revenge by setting up the harmonized constitutional act, without regards to the mechanisms planned for the constitutional reform, thus violating the fundamental act resulting from the sovereign national conference.

The constitutional act of transition harmonized remained into force April 1994 at May 1997.

Here, as in the former cases of revision, the majority of the sharp forces of the nation are put in front of a de facto situation. Thus after seven years of constitutional confusion, the rebellion bursts in the east of the country and carries Kabila to the capacity which will manage the country while being based on the constitutional Order in Council of 27 May 1997 revised in 1998.

§2. The Constitution of transition resulting from the overall and inclusive agreement

As for the other constitutional texts, the constancy which characterizes this reform is the absence of the constitutional formalism (A) and especially its merits in the distribution of the political power (B)

A. The absence of the constitutional formalism

The Congolese political community after rough negociations was solved to observe a certain constitutional habit. The principal reason of the drafting of this constitutional text is to equip initially, the democratic Republic of Congo of a fundamental law putting at the legal situation created by the constitutional Order in Council which placed the essence of the capacity on the level of the executive and then, to answer waitings or the claims of the belligerents and the Congolese political community.

It is advisable to announce that the mechanism makes a tiny place with the will expressed by the people. However, it is clear that the constitution of transition presents undeniable merits.

B. Merits of the constitution of transition

Let us say that the great merit of this text is to have put an end to the war by giving to all the political actors of the Congolese scene a piece of the capacities during the limited period having to lead to the organization of the free elections and transparencies envisaged in June 2005.

The political institutions of the transition in Republic are as follows :

- The president of the Republic

- The government

- The national assembly

- The senate

- Courses and courts. ^36(*)

The important innovation brought by the constitution of the transition is the creation of post of four vice-presidents.

Article 83 lays out : « It east creates four posts of vice-presidents of the Republic. The vice-presidents come respectively from the components government of the Republic of Congo, the Congolese Gathering for the democracy, the Movement of release of Congo and the political opposition ». ^37(*)

Before taking up duty, each vice-president lends oath before the supreme court of justice in public. In accordance with prescribed overall and inclusive agreement, each vice-president is in load of one of four governmental commissions, established below :

- Political Affairs Committee, defense and safety chaired by component R.C.D

- Economic and financial Commission, chaired by the component Mr. L.C

- Commission on the rebuilding and the development, chaired by the component government

- Social and cultural Committee, chaired by the component political opposition.

According to article 87 : «  The vice-presidents convene and chair the meetings of their commission. They submit the reports/ratios of their commission to the Council of Ministers. They coordinate and supervise the application of the decisions of the Council of Ministers in connection with their respective commission ». ^38(*)

Let us announce that the four commissions chaired by the vice-presidents present themselves in the following way :

.La Political Affairs Committee includes/understands the ministries for the interior ; press and information ; defense ; female condition and family ; Foreign Affairs and international co-operation ; justice ; humane solidarity and businesses ; human rights ; regional co-operation

.La economic and financial commission gathers the ministries for finances, industries, small and medium-sized companies ; economy ; wallet ; plan ; budget ; agriculture ; mines ; public office ; foreign trade

.La Commission on the rebuilding and the development contains the ministries for energy ; stations ; telephones and telecommunications ; public works and infrastructures ; seek scientific ; transport ; town planning ; tourism ; rural development ; environment

.La Social and cultural Committee includes/understands the ministries for health ; culture and arts ; work and social welfare ; higher education and university ; primary education and secondary education ; youth and sports ; social affairs ; land businesses.

The constitutional innovation is, certainly, a process aiming at the wellbeing of the people but, that is not possible that in comparison with the place reserved for the basic rights and fundamental freedoms in a given country.

CHAPTER 2 THE PLACE OF THE BASIC RIGHTS AND PERSONAL FREEDOMS IN THE VARIOUS CONSTITUTIONAL TEXTS TO THE CONGO-KINSHASA

In the contemporary States claiming democracy, one finds beside the international legal instruments to which the States in particular adhered the international charter of the humans right and various international treaties, of the supposed internal provisions to explain the engagement of these States to the respect of the humans right.

Thus the constitution defines the legal framework in which the citizens can exert the rights which are recognized to them.

With regard to the democratic Republic of Congo, the majority of the rights and freedoms recognized to the citizens are not absolute. They can be the subject of the limitations and suspension.

To be regular, these limitations and suspension must be the only possible means to avoid a larger evil with the nation but, in the case of species, they gave place to the deconstitutionnalisation of the rights and freedoms (section1) initially, and to the reconstitutionnalisation in other words with their reinforcement (section2).

SECTION 1 the DECONSTITUTIONNALISATION OF the RIGHTS AND FREEDOMS FUNDAMENTAL IN the FUNDAMENTAL LAWS Of R.D.C

According to professor M. VUDISA, the deconstitutionnalisation is a constancy of the constitutional history which results in the withdrawal of the constitutional text of one or more rights, freedoms or guarantees which were recognized with the individuals or groups of individuals in the reformed or substituted text. ^39(*)

This deconstitutionnalisation will be analyzed firstly, compared to the fundamental law relating to public freedoms of 1960 until the constitution of 1967 (§1) and secondly, compared to the constitutional act of the transition and to the Order in Council n°003 from May 27, 1997 (§2).

§1 Of the fundamental law of 1960 with the constitution of 1967

It is important to announce that the guarantees granted to the citizens by the fundamental law incorporated, by improving them, the rights and freedoms recognized by European convention of the humans right.^40(*) In our attempt at explanation, the stress will be laid on the principle of dignity and equality (A) and the loss of liberty (B).

A. The principle of dignity and equality

In the fundamental law, the principle which was used as value of reference to all the rights and freedoms appears to be the dignity of the individual, reinforced by the value of equality.

Article 2 of the fundamental law relating to public freedoms laid out : All the inhabitants of Congo are free and equal in dignity and rights. This article is the eloquent translation. This fastening of the rights and freedoms to the principles of dignity and equality draws its base with the aim of pass sponge on the inequalities generated by the colonial fact.

This value of dignity of the individual disappeared from the constitution of 1964. This text did not admit the attitudes likely to attack the dignity of the individual : it is the case of the prohibition of slavery. However, the dignity of the individual does not constitute any more one value of reference whose account the public authorities and the private individuals must hold. But, it seems that the constitution of 1964 regarded as fundamental value the rule of the equality of all in front of the law. ^41(*)

We think on this subject that the principle of equality of all in front of the law cannot at all replace the dignity of the individual like fundamental value. A law to which all the individuals are held equally can attack the dignity of all ; in this case the equality in front of the law will not correct the violation of human dignity. It sied to add that the constitution of 1964 was unaware of the determination of the restrictive character of the cases of loss of liberty.

B. The loss of liberty

Article 5 of the fundamental law relating to public freedoms laid out in its subparagraph first that no one could not be private of its freedom, except in the cases limitativement defined in the same provision. It is true that the constitution does not have as an aim to regulate the details of the matters only it treats. This task concerns the law. But in the case of the democratic Republic of Congo, the legislator empties the substance of the right without no recourse in appreciation of the constitutionality of the adopted standard being exerted. The constitution of 1964 did not refer to the habeas corpus, this guarantee allows the private person freedom by a measurement not ordered by a judge, to bring an action near the qualified jurisdictional authority, so that is ruled in the near future on the legality of the decision and that its setting in freedom is issued, if measurement proves to be illegal.

A little later the coup d'etat of 1965 paralyzed the implementation of the rights and freedoms recognized by the constitution of 1964. The author of the coup d'etat succeeded in installing a called legal framework « The proclamation of the high command of the Congolese national army of November 24, 1965 ». This text whose object was to regulate the principles of the organization and the exercise of the capacity, proceeded to a selective and limited recognition rights and freedoms guaranteed by the constitution of luluabourg.

The point 11° of this proclamation laid out what follows : « rights and freedoms guaranteed by the constitution of August 01, 1964, as envisaged in its articles 24, 25, 26, 27 and 28 will be respected ».

This provision will overlook the fate of thirty other articles of the constitution of 1964 relating to the rights and freedoms.^42(*) This selective recognition is surprising because, logically, one could have expected the recognition in block of the rights and freedoms, insofar as the goal of the coup d'etat were to put an end to the incurie politicians.

Indeed, this selective recognition of the rights and freedoms has affected plus the people that the politicians maintained at their station, excluded the Head of the State and the trainer of the government who were neutralized and replaced by military chiefs.

In 1967, the proclamation of the high command of the Congolese national army was replaced by the constitution of June 24, 1967. This text constitutes the illustration of the deconstitutionnalisation making disappear the clause relating to the State from right and supremacy of the right.

One finds there no provision comparable with article 12 of the constitution of luluabourg which laid out but : « the respect of the rights devoted in the present constitution is essential on the legislative powers, executive and legal of the Republic ». Another demonstration of this phenomenon is the limitation of the right of association. One attends the limitation with two of the number of the parties likely to be create. This text removed the right of the private person of freedom to be informed of the reasons for its arrest as well as charge carried against it, which recognized article 18 subparagraph 1 of the constitution of luluabourg. Among the other most important guarantees of the private person of freedom or the defendant, the new constitution removed the right to repair for loss of liberty illegal listed in article 19 of the constitution of 1964, the notion of the reasonable time of the lawsuit as well as the responsibility for the State in front of the ordinary courts because of its bodies. ^43(*)

The freedom of press was also affected so much so that the legislator remained free in the determination of contour to give to this freedom. Whereas the constitution of 1964 laid out that no authorization to appear was not required and that the censure could not be established, the text of 1967 was unaware of these guarantees by leaving to the legislator the care to found the censure.

This situation goes perdurer until the release of the process of democratization taken place on April 24, 1990 and which started the reconstitutionnalisation of the rights and freedoms in the constitutional act of the transition adopted to the national conference.

§2 Of the constitutional act of transition to the Order in Council n°003 from May 27, 1997

The abandonment of the monolithic system was followed gradually by the theoretical expansion of the rights and freedoms. Thus we go initially, to present the constitutional act of transition like the instrument from reconquest from the rights and freedoms (A) and the Order in Council n°003 of May 27, 1997 as an elliptic legal framework (B), then.

A. The constitutional act : instrument of reconquest of the rights and freedoms

One of the most important points of the constitutional reform was the recognition of the plurality of the popular representation i.e. the new system entrusts the exercise of the capacity to the representatives of the people, which should be elected freely. This evolution meant for the people very high cost. The recognition of several rights and freedoms was not a gift. It was a conquest sometimes at the price of the life of Congolese and Congolese and very often at the price of freedom and physical integrity. ^44(*)

This constitutional text resulting from the conference can be regarded as the most significant expression of this conquest. However the successive changes that the constitutional text of the conference had undergone did not affect title 2 relating to the basic rights and the duties of the citizens. This title contains a true declaration of the rights matched of the guarantees which had missed legal scheduling since 1964. The protection of the rights is reinforced by the direct application of the constitutional act. In short, the three generations of the rights are clearly defined there.

To tell the truth, this text constituted the manifestation of the symbolic system of the change claimed by the people and, therefore, should be used as module of direction towards a democratic company. However, this text was frustrated because of the modification of the provisions relating to the organization and the exercise of the capacity during the transition by the harmonized constitutional act. The political struggles which were organized around the exercise of the capacity led to the stressing of the frustration of the people. It seems to us that this frustration was expressed by a great popular adhesion with the conquest of the capacity by the alliance of the democratic forces for the release of the people. The lesson to be learned from this situation is that the people tolerated the use of the force in the hope to see proceeding to the installation of the structures which enable him to really enjoy its conquests as regards the rights and freedoms in dignity and solidarity. Thus a few days after the fall of Ancien Régime, the authorities of A.F.D.L preferred to supplant the constitutional act of transition harmonized by the Order in Council.

B. the Order in Council n°003 of May 27, 1997 : an elliptic legal framework

No person profiting from the minimum of good direction can pour tears about the fall of the dictatorship which corrupted to the spinal cord and, which will have reduced a whole people to the begging. This is to affirm by there that the change occurred in Congo-Kinshasa will have automatically involved political changes in acting it political ? P. Letamendia supports that the fall of an authoritative or totalitarian mode does not bring inevitably to a new democratic mode. ^45(*)

This being, let us say that the presentation of the Order in Council of May 27, 1997 is far from meeting the requirements of constitutional grammar. There is neither preamble, nor titles. It is exactly a unidimensional structure, under a tone monocorde. Fifteen aligned articles organize the exercise of the capacity around a central character, the Head of the State which concentrates, between his hands, the whole of the capacity of the State. This Order in Council is the shortest constitution which the democratic Republic of Congo knew. It is necessary to ask to us whether such is the will posted of the component to adopt the design of Bonaparte according to whom « the shortest constitutions are the best »^46(*)

Let us say for our part that the shortest constitutions comprise the defect to be quiet on essential questions by thus giving the latitude to controlling to make accredit their whims. It seems, therefore, easier with controlling to make say to an elliptic constitution than it does not say than to deny a provision of an explicit constitution. It should be noted that this constitutional decree is connected, by its structure, with the declarations of the rights. Allusion is made here to the declaration of the rights of man and of the citizen of 1789 who includes/understands seventeen articles like with the universal declaration of the humans right of 1948, composed of thirty articles. But, where there is rupture with these two instruments of the basic rights, it is precisely that those state in a prolix way of the rights inalienable and inherent in the human nature, while the constitutional Order in Council of May 27, 1997 is very scanty as regards the humans right. Another differentiation resides in what the two instruments of promotion of the above mentioned humans right were adopted by the representative assemblies, while the constitutional decree, under examination, is the fruit of the imagination of a bunch which justifies the seizure of power by the force.

The reading of the whole of the provisions of the constitutional Order in Council reveals the absence of the declaration of the rights. According to article 2 : In democratic Republic of Congo, the exercise of the rights and personal freedoms and collective is guaranteed subject to the respect of the law, the law and order and the moralities. This can lead us to imagine that the rights guaranteed under the terms of this article 2 are those which provides the constitutional act. This fact suggests us the need for seeking the sources of these rights. The appeasing is given by article 14 according to which « all the provisions constitutional, legal and lawful former contrary to the present decree are repealed ». That means, a contrario, in other words that the former provisions of nature constitutional, legal or lawful noncontrary are not repealed and, consequently, remain in force. We consider that the plausible reading of article 2 should be done by supplementing it by article 14 in this manner : In democratic Republic of Congo, the exercise of the rights and personal freedoms and collectives recognized by the constitutional act of transition is guaranteed subject to the respect of the law, the law and order and the moralities. The consequence of this reading is the consolidation of the declaration of the rights which the constitutional act in its title 2 contained. It shows through in the constitutional Order in Council that the institutions of political management attached to the constitutional text are removed while provisions on the rights and freedoms seem to remain in force, because they are compatible with articles 2 and 14. If our reading coincides with that which its authors do, then we can say that the last change of constitution was not followed a phenomenon of deconstitutionnalisation of the rights and freedoms. In this case, it rested to the holder of the provisional legislative power to adopt all the useful provisions to give to these rights and freedoms either more clearness, or their total effectivity.

Revised in 1998, this text will be supplanted by the constitution of transition from the democratic Republic of Congo exit of the overall and inclusive agreement signed to Pretoria after six years of civil war. This text constitutes the illustration of the reinforcement of freedoms and basic rights.

SECTION 2 EFFORT OF RECONSTITUTIONNALISATION OF the RIGHTS AND FREEDOMS OF the CITIZENS

The reinforcement of freedoms and basic rights returns to the existence of declaration of the rights contained in the constitution of transition (§1) resulting from the overall and inclusive agreement but which, certainly, present of the undeniable weaknesses (§2).

§1 the constitution of transition resulting from the overall and inclusive agreement

This fundamental text tried reconstitutionnaliser the basic rights by the dedication of the fundamental principles (A) and the progressive phasing-in of an independent justice (B)

A. Dedication of the fundamental principles of the humans right

He results from the total saving in this text that it there was devoted clearly and clearly certain fundamental principles in particular :

- That of the right to the life and the physical integrity of the human person. Article 15 lays out : the human person is crowned. The State has the obligation to respect it and protect it. Any person is entitled to the life and the physical integrity. No one cannot be subjected to torture nor with treatments inhuman, cruel or degrading. No one cannot be private life or freedom, if it in the cases is not envisaged by the law and in the forms only it prescribes.

This constitutional text in its title 2 devotes forty eight articles to public freedoms, right and fundamental duties of the citizens. One finds there a whole of the principles considered to be fundamental for the person. Its préam bubble returns to the international instruments of promotion of the humans right such as the universal declaration of the humans right of December 10, 1948 as to all the other instruments adopted within the framework of the United Nations and the African union, duly ratified by the democratic Republic of Congo. Being the civil laws and political, the constitution of transition proclaims political pluralism and sets up the monopartism in crime of high treason punished by the law. ^47(*)

The political opposition, therefore, is recognized. The rights related to its existence, its activities and its fight for the conquest of the capacity are crowned and fixed by an organic law^48(*) In other words, the constitutional text proclaims freedom the freedom of creation of the political parties as well as the free exercise of the political activities, the right for all to take part in the management of the public goods while choosing controlling them. It is clear that the pleasure of these rights requires the existence of an independent justice.

B. progressive phasing-in of an independent justice

With regard to the independence of the legal apparatus, article 147 of the constitution lays out : the judicial power is independent of the legislative power and the executive power (...) the judicial power is guaranteeing personal freedoms and basic rights of the citizens. The judges are subjected in the performance of their duties only to the authority of the law. An organic law fixes the statute of the magistrates and their remunerations.

In addition, this fundamental text confers on the supreme court justice competence to know appeals in cassation formed against the stops and judgments given in last spring by the courses and civil and military courts, as well as proceedings for annulment of the acts and decisions of the central authorities of the Republic.

Beside the supreme court of justice, one finds the institutions of support to the democracy following :

- Independent electoral commission

- The national observatory of the humans right

- High authority of the media

- The commission truth and reconciliation

- Commission of ethics and the fight against the corruption.

Let us say that the constitution of transition reaffirms the inviolability of the basic rights of the human person and independence of justice and declares in its article 2 what follows : Any law nonin conformity with the present constitution is, insofar as this nonconformity were established by the supreme court of justice, null and nonwhich occurred. The judicial power is declared independent and consequently, the judges can be recruited only after opinion of the higher council of the magistrature. This body also takes care on the management of their career and rules like disciplinary board. Lastly, the judges of the seat are irremovable.

However, this text, like other constitutions supra studied, show some weaknesses.

§2 weaknesses of the constitution of transition

The constitutional text of transition which is a legal reinforcement however conceived well seems to present some gaps. So a priori the least dash of effort and patriotism for purposes of a good restarting of Congo, is only theoretical ; with the analysis, it is all the same curious to note that the constitutional provisions do not envisage the abolition of the (A) death penalty nor the procedure of sasine of the supreme court of justice (B).

A. The maintenance of the capital punishment

On this subject, article 15 lays out : the human person is crowned. The State has the obligation to respect it and protect it. Any person is entitled to the life and the physical integrity. No one cannot be subjected (...) degrading. No one cannot be private life or freedom if it is not in the case envisaged by the law.

The reading of this article leads us to conclude that the death penalty is maintained and that seems to be justified by the will of the Congolese component to discourage the authors of the massacres perpetrated during the war provided that the judge is impartial and the equitable lawsuit. It was known as above that the supreme court of justice is qualified to know the appeals formed against the stops and judgments given by the courses and courts.

B.La procedure of sasine of the supreme court of justice

The constitution of transition does not comprise any provision likely to allow the individuals to seize the supreme court of justice in the event of unconstitutionality of the law or from the illegality of the administrative acts but, the mode of sasine of the supreme court or the constitutional court varies from one country to another. Thus to Togo, direct sasine is reserved for the only authorities, namely the president of the Republic, the Prime Minister, the president of the national assembly and a fifth of the deputies.^49(*) With Benign, on the other hand, the president of the Republic and very appointed, the citizens can also actuate the constitutional court.^50(*) As for indirect sasine or by way of exception, to Togo, it is allowed any person or entity and with Benign, it is authorized for any citizen in a business which relates to it. Always in this country, it is important to stress that the constitutional court comes to a conclusion office about the constitutionality of the supposed laws and any lawful text to attack the basic rights of the human person and to public freedoms^51(*). She thus has the right of initiative.

In addition to these insufficiencies, it is necessary to note that this constitutional text governs the limited period which goes from June 2003 to the organization of the general elections envisaged in June 2005.

CONCLUSION

As a recapitulation of our work, let us say that the complexity which the complexity of the political situation in Congo-kinshasa makes however remain all the same enormous concerns if one does not take into account in the chiefs of the political actors the need for distinguishing the burning desires from positioning and monopolization in the exercise of the capacity and those, major, inherent in the political solution resulting from the common will to respect the commitments entered into by consensuses and run in the form of legal text. Thus, it is to be noted in this short course that the lethargy on the Congolese political scene whose causes, on the basis of the insufficiency of instruction as for the management of the public thing, generated the concentration of the capacity and the continual parentalisation in the management of the country thus destroying the institutional mechanism of control and emerging with the current groping in the direction of the country.

Indeed, the Congolese political environment of the hour posts at the same time mutual skepticism, suspicion and reserve in the chief of the political involved actors. This climate causes many interrogations on, on the one hand the real range of the democratic transition term, its corollaries, its chances of success ; and in addition on the place which devotes the constitution to the fundamental rights and freedoms. The transition is meant in the manner of binding between them the ideas that one expresses and that in term of period. It is political, when it translates a preparatory phase with another to come and whose operation sat on a scheduling whose base is political. The process is often characterized by a certain evolution. The climate of suspicion susévoqué goes back with the history of Congo and the implications of the international community in the resolution of the crises in the country.

Shortly after independence, the Congolese political scene, under the foreign put hand was divided between the federalists and the unitarists. This situation led to the secessions and the destabilization of the top of the State by the revocation and the historical against-revocation between Kasavubu and Lumumba. This climate made place with the coup d'etat by which Mobutu reached the capacity ; on its arrival with the capacity, it instituted the system of the single party founded on the recourse to the authenticity like expression of the monopolization of the official apparatus. April 24, 1990, it was obliged to institute the multi-party system like one of the expressions of the democratic current. However, it pressed with the feet all the assets of the forum likely to lead to the consolidation of the democracy by oppressing the population as well as the political actors and personalities others as of its political family. This asphyxiation was used as opportunity with the armed struggle with alliance with the democratic forces for the release with Congo by which Laurent Désiré Kabila reached the capacity with like consequence the interruption of the democratic process. The latter began on May 17, 1997 with dashes communisants in the system of management which did not fail to attack with public freedoms and political pluralism with the contempt of the reality of the political environment international. One year later, a rebellion supported by its old allies was turned over against him and invades is country with attempts at incursion in the west. This climate caused its assassination to which the accession from there to the capacity of the General - major Joseph Kabila followed, by coup d'etat. In order to solve the Congolese crisis, the political community by a patriotic pretense of fervour agreed at Sun City in South Africa to make be confined the overall and inclusive agreement on basis of which the day the constitution of the transition saw of which the promulgation was made on April 04, 2003. Like there is no democratic process without the respect of the humans right, this last constitution devoted clearly and clearly certain fundamental principles of the humans right in particular :

- That of the right to the life and the physical integrity of the human person ;

- That of the independence of the magistrature and the authority of the courses and courts ;

- That of the safeguard of the civil laws, political and public freedoms, etc

This legal reinforcement however designed well, seems unfortunately to meet certain gravity in its applicability. The blow of theater intervened when the Congolese Gathering for the democracy decided the suspension of its participation in the government of transition. A little later the measurement of suspension was raised.

One can also add that the mechanisms of constitutional production in the constitutional evolution in Congo-Kinshasa make a tiny place with the expressed will of the people. Generally, the recourse to the people was used like a figurehead.^52(*) In fact, one realizes that the applicable rule as regards constitutional reform is the absence of the formalism as well as the constancy of the accomplished fact which determines it. The constitutional changes that the democratic Republic of Congo knew, generally, were followed by the deconstitutionnalisation of the rights and freedoms. Since the organization of the national conference, one notices that the fundamental charters maintained the rights and freedoms conquered by the people. IT thus rests with the political power to carry out that the effectivity of the basic rights does not constitute a danger to the governmental action. More the authorities make real the pleasure of the rights and freedoms, more they receive the adhesion of the people. The history teaches us that that which is unaware of the rights of the people finishes by being ignored and being scolded by this last. The change of Zaire in democratic Republic of Congo in is an illustration.

Ultimately, the rights and freedoms envisaged by a good constitution constitute the foundation on which must put back the democratic building and especially, like the pillar of the legitimation of the authorities.

BIBLIOGRAPHICAL INDICES

1 GENERAL WORKS

1 ARON (RAYMOND) : Democracy and totalitarianism, bets, ED. Gallimard, 1965

2 BURDEAU (George) : The Democracy, bets, ED. threshold

3 Idem, Treated political science, volume 5, bets, LGDJ, 1970

4 DUHAMEL (Olivier) : Democracies, bets, ED. threshold, 1993

5 FARES (Zahir) : Africa and democracy : Hope and illusion, bets, Harmattan, 1992

6 Universalis Encyclopedia, France, SA, Paris, 1995

7 GICQUEL (Jean) : Constitutional law and political institutions, bets, 15 ED., Montchrestien 1997

8 KAMTO (Maurice) : To be able and Right in Black Africa under the direction of PF GONIDEC and A. BOURGI, bets, LGDJ, 1986

9 LEROY (Paul) : Political régimes of the contemporary world, Grenoble, ED., 1993

10 QUERMONNE (Jean-louis) : Western political régimes, bets, ED. Threshold, 1994

11 J.M BESNIER , Tocqueville and the democracy, bets, Hatier, 1995

12 PIERRE (Pactet) : Political institutions, constitutional Law, 18° ED. up to date August 1997, Armand hake, bets, 1999

13 MICHEL (Lascombe) : Constitutional law of the 5° Republic, 6°édition, Harmattan, bets, 1999

14 LOUIS (Favoreu), courses constitutional, 3° ED., That I know, bets, 1986

15 PIERRE-YVES (Chereul) : To build the democracy : the democratic contract of the active citizens, social chronicle, Lyon, 1993

15 BENJAMIN R. (To bore), strong Democracy, Street of the saints fathers, bets, 1997

16 POUTHAS C. Democracy and capitalism (1848-1860), Paris, PUF, 1948

17 legal Encyclopedia of Africa, volume 1

18 BOISSONADE E, Zairean evil, Paris, ED Hermé, 1990

19 DUVERGER Mr. : Political parties, Paris, Armand hake, 1969

20 GONIDEC Pierre-François : African political systems, Paris, LGDJ, 1978

21 JEAN-YVES Calvez, the Third World, a world in the world, Paris, ED workers, 1989

22 NDAYWEL, Historique of Zaire : Old heritage at the contemporary age, Leuwen-the-new, Duculot, 1997

23- GICQUEL Jean : Presidentialism in Black Africa, Paris, LGDJ, 1962

24- BUCHMANN Jean : The independent Black Africa, Paris, LGDJ, 1962

25- COLETTE BRACKMAN, the dinosaur, Buxelles, Buylant, 1989

25- Idem, Congolese stake, Brussels, Bruylant, 1999

26- MORANGE J. public freedoms, Paris, LGDJ, 1986

26- KNIGHT J.J, History of the institutions and the political régimes of France of 1789 to our days, 4° ED., Paris, Dalloz, 1971

2 WORKS SPECIALIZE

1 - ZAMBOKO Atumba, the transition to Zaire. The long tunnel, noraf, Kinshasa, 1995

2 - Idem, trapped Democracy, S.I, balances today, 1994

3 - LUNDA Bululu, the concluding of treaty in Zairean constitutional Law. Study of international law and national law, Brussels, Bruylant, ED of the university of Brussels, 1984

4 - COULON Christian, Senegal : Development and brittleness of a semi-democracy in the developing countries and the experiment of the democracy by LARRY Damond, JUAN J. LINZ and SEYMOUR Martin Lipset, Manille-Philippines-New horizons, 1996

5 - IBRAHIM Jibrin : Political transition and successions in Niger, in the figures of the policy in Africa under the direction of Momar-Coumba DIOP and Mamadou DIOUF, Dakar, Codesria, bets, Karthala, 1999

6 - NOUDJENOUME Philippe : The democracy with Benign, Paris, Harmattan, 1999

7 - NIANDOU SOULEY Abdoulaye : Democratization and crisis of the competitive model in Niger, in the figures of the policy in Africa under the direction of Momar-Coumba DIOP and Mamadou DIOUF , Dakar, Codesria, Paris, Karthala, 1999

8 - GERALD Conac, constitutions of the States of Africa and their effectivity. Dynamic and finalities of the African rights, Paris, economica, 19980

9 - JEAN-YVES Morin : Freedoms and basic rights in the constitutions of the States having French in division, Brussels, Bruylant/AUF, 1999

10 - GERALD Conac, constitutional evolution of the States of Black Africa and the Malagasy democratic Republic, Paris, economica, 1979

11 - RENE DEGNI Ségui : Humans right in French-speaking Black Africa (theories and realities), Abidjan, Imprimob, 1998

12 - GAUTHIER de Villers, OMASOMBA Tshonda J, missed Transition, Zaire, year 1990, vol.7, Paris, Harmattan, 1997

13 - BALAGIZI B., crimes, plunderings and wars. Congo, patient of his men : June 30 May 1960-17, 1997, Bukavu, Kivu-press, 2000

14 - LETAMENDIA P the democratic transition : a comparison of Chilean and Spanish case, Studies offered to Jean-Marie AUBY, Paris, Dalloz, 1992

15 - QUERMONNE J.L « The balance general of the constitution ». The revision of the constitution, days of studies of March 20 and December 16, 1992, French Association of constitutionnalists, Aix-en-Provence, Paris, PUAM, 1993

3 PERIODICALS

1-ARIFARI Bako Nassirou : « Democracy and logics of the soil to the Benign one » in African Policy, n° 59, 1995 pp7-24

2- BANEGAS Richard : « Social mobilization and opposition under Kérékou » in African Policy, n° 59, 1995, p 25-42

3 - Idem, « Marchandisation of the vote, citizenship and democratic consolidation with the Benign one » in African Policy, n° 69, 1991, pp75-87

4 - BERTRAND Monique : « One year of transition from the revolt to the third Republic » in African Policy, n° 47, 1992, pp9-22

5- Idem, « Communal elections Malians of 1998, first edition : electoral stretching and stir in favor » in African Policy, n° 72, 1998, pp212-220

6 - ROBERT Dossou, Systemic of the transition the years 1990 in Africa, department of the information and the documentation of the ASD, February 2000

6 - BLUNDO Giorgio : « Corruption like mode of local governorship : three decades of decentralization in Senegal » in contemporary Africa, special number, 3° quarter 2001, pp115-127

7 - COULON Christian : « The democracy sénégalaise : Assessment of an experiment » in African Policy, n° 45, 1992, pp3-8

8- DAF Foamed : « Adjustment of the direction of the concept democracy in Senegal » in African Policy, n° 64, 1996, pp31-40

9- WILL UNSTITCH TOKEN ENTRY. ; GAZIBO Mr. : Niger : « Democracy ambiguous-chronicle of an announced coup d'etat » in African Policy, 1997, pp155-189

10 - CRAENE Philippe : « Anticipated legislative elections of April 29, 2001 : president Wade received the moment to act » in contemporary Africa, n° 198, 2° quarter 2001, pp3-8

11- NZOUANKEU Jacques Mariel : « Theoretical remarks on the transition towards the pluralist democracy in the Third World » in democratic Alternative, n° 1, pp39-47

12- MABANGA Mr. « Impact of the motion of censure of March 18, 1997 on the democratic process in Zaire » in the city, n° 152, 1997

13 - Idem, « Problems of the legal bases of the political régime of May 17, 1997 » in the city, n° 156, 1997

14- NTUMBA Lwaba : « The suspension of the presidential functions in Zairean constitutional law » in Zaire-Africa, n° 261, 1997

15- VUNDUAWE Tepe Mako : « Reflection on the validity of the constitutional act of the transition taking into consideration total political compromise and stop R.A 266 from the supreme court from justice » in the Software of finance, n° 127, 1993

16 - DECRAENE P : « Elements of reflection on the African political parties » in Being able, n° 58, Paris, PUF, 1983

17 - MEDARD J.F : « The specificity of the African capacities » in being able, n° 58, Paris, PUF, 1983

18- Idem, « the State transcended clientelist » in African Policy, n° 1, Paris, Karthala

19- International Amnesty , torture : instrument of the capacity, plague to be fought, Paris, Threshold, 1984

20 - KAKINDA J. « Of the tribal State towards the Congolese State » in challenge-south, n° 27, Kinshasa, 1997

21 - KIKASSA F. « Dialogs belgo-Congolese with the dialog intercongolais, 1960-2001. With the research of legitimacy as a R.D.C » in Congo-Africa, n° 358, Kinshasa, 2001

22- Congolese monitor, special number, sd

23 - Review of African right, 2° quarter, Brussels, 1998

24 - QUERMONNE J.L : « The constitutional project the referendum proof » in Review of the popular action, 1958

4 OFFICIAL PUBLICATIONS

1 - Fundamental law of June 19, 1960

2- The constitution of luluabourg of the 1964

3- The proclamation of the high command of the Congolese national army

4 - constitution of the 1967

5 - Constitutional act of transition resulting from the national conference

6 - Constitutional Order in Council of May 27, 1997

7- Constitution of transition resulting from the overall and inclusive agreement signed to Pretoria in 2003

8- Constitution of Benign of

9- Constitution of the Togo of

5 CONFERENCES, SEMINARS AND CONFERENCES

1- Outline of the constitutional life in some countries of French-speaking Africa and with Haiti : fundamental texts and observations on the existence of the institutions envisaged by the constitution, volume 1, volume 1 and volume 3, volume 2, 1998

2 - Foundation Konrad Adenauer : civic education and animation of the civic action. Handbook of the courses for adults ; realization, Kilimandjaro Institute.

3 - National school of police force : The public police force and freedoms in a State of right. Seminar held in Cotonou from the 17 to April 21, 1990

4 - Democratic process in Africa : impact and prospects, acts of the national conference, April 11, 1994

FACULTY N4ENTEND TO GIVE ANY APPROVAL NOR IMPROBATION TO THE OPINIONS STATED IN THE MEMORIES. THESE OPINIONS MUST BE CONSIDER CLEAN THEIR AUTHORS.

DEDICATE

With the Eternal, GOD of the skies and ground your graces, your kindness, your protection and your blessings.

With my late father JOSEPH MALABI NYONGOLO

With my mother BERNADETTE SHAMAMBA, for your sacrifices, your education and your love

With my wife AIMEE CIRHEZI TABANA for your love, your tenderness, your councils, your affection and your support

With my elder brother BITINGINGWA KALALA, my maternal uncles PATERSON SHAMAMBA, CIZA and EMMANUEL NYABYENDA for your supports as well material as moral

With the Beninese people for his hospitality

All my brothers and sisters

All those which are expensive to me

I dedicate this work

THANKS

This work marks the end of a stage full with rigor. Ourselves, its result would be impossible. It would be then ungrateful, for our part, to conceal the names of the personalities which helped us to carry it out.

Thus, our thanks more particularly address to our Master of memory professor Maurice A. GLELE, aggregate of the science and Faculty of Law political and responsible for the Institute of the humans right of Benign to have accepted, in spite of its multiple occupations, to direct this memory. Its remarks and its encouragements marked extremely us and will remain engraved in our memory.

Our feelings of gratitude are also addressed to professor THEODORE HOLO, Titulaire of the Pulpit, in Maître-assistant VICTOR TOPANOU, scientific secretary, with Miss SABINE CAPART, JOSEPHINE like with all the personnel of Pulpit UNESCO of the Rights of the person and the Democracy.

Our thanks want to be as collective with all the African teachers as well as European of the Pulpit.

We also think at all the Congolese community living of Benign and especially of our comrades of fight : Michel CHIRHUZA BAGISHA, Hippolyte NR. TOGOGO, Domenica KAMWANGA, Doctor KITOGA, Blaise SHABANI, Doctor Abdon SHABURWA, Chanikire GOGOGO, Doctor Jules BASHI.

That the families Vital BALOLA, Doctor BILLY, Sister GENEVIEVE, Doctor SARAH, Doctor JACQUES, BALIBUNO, Da LILY find, here, the expression of our deep gratitude.

Lastly, we warmly thank all our friends for promotion and well for others which made our stay pleasant.

BAGALWA MALABI JOSSART

PRINCIPAL INITIALS AND ABBREVIATIONS

Al : Subparagraph

A.F.D.L : Alliance of the democratic forces for the release of Congo-Kinshasa

Mr. P.R : Popular movement of the revolution

L.G.D.J : General bookstore of right and jurisprudence

COp. Cit : COp citatum

P.U.F : University presses of France

§ : Paragraph

Flight. : Volume

ED. : Edition

Sd. : Without date

Art. : Article

U.D.P.S : Union for the democracy and the social progress

UFERI : Union of the federalists and the independent republicans

P.D.S.C : Christian social democratic party

U.R.D : Union for the Republic and the democracy

R.C.D : Congolese gathering for the democracy

Mr. L.C : Movement of release of Congo

L.D : Desired Laurent

J.L : Jean-Louis

Cfr : Confer

J.M : Jean-Marie

CEDAC : Center study for documentation for civic animation

R.D.C : Democratic republic of Congo

G.S. SP : Group presidential special safety

N° : Number

D.D.R.R.R : Disarmament, Demobilization, Reintegration, Rehabilitation and Repatriation

C.N.S : Sovereign national conference

P. : Page.

SYNOPSIS

Page

Introduction

First part : The democratic Revival ...................................................

Chapter 1 : Preceding histories .........................................................

Section 1 : The political outline of the second Republic ..............................

Section 2 : The management of the capacity of the State ...............................................

Chapter 2 : Introduction of political pluralism ...............................................

Section 1 : National conference holding ...............................................

Section 2 : The interruption of the process of democratization ........................

Second part : The democratic dash dependant on the constitutional evolution in Congo-Kinshasa .................................................................................................

Chapter 1 : The process of constitutional innovation ..................................

Section 1 : The overflight of the constitutional texts of before 1990 .....................

Section 2 : Constitutional reform of 1990 ................................

Chapter 2 : The place of the basic rights and personal freedoms in the constitutional texts of the democratic Republic of Congo ..........................................

Section 1 : The deconstitutionalisation of the basic rights and personal freedoms .................................................................................................

Section 2 : Effort of reconstitutionalisation of the rights and freedoms of the citizens .................................................................................................

General conclusion ........................................................................................

Appendices .....................................................................................................

Bibliography ..............................................................................................

Contents ...........................................................................................

TABLES OF CONTENT

ENDPAPER

.

* ¹ C.pouthas, democracy and capitalism (1848-1860), bets, PUF, 1948, p1

* ² G.Bbrdeau, political treaty of science, Tome1, bets, LGDJ, 1970, p594

* ³ J.M Besnier, Tocqueville and the democracy, bets, Hatier, 1995, p62

* ⁴ Robert Dossoue and systemic Rene Ahouanou of the transition the years 1990 in Africa, published at the time of the 10° birthday of the national conference of Benign by the department of the information and the documentation of the ASD  , February 2000, p10

* ⁵ T. Holo, communication on the topic  : the public police force and freedoms in a State of right, seminar held with cotonou du17 at April 21, 1990 at the national school of police force.

* ⁶ S. Pierre, democratic process in Africa  : impact and prospects, act of the national conference, cotonou, April 11, 1994, p13

* ⁷ C.de Malberg, contribution to the general theory of the State, Tome1, p65 in Mr. GLELE, the State and right, legal Encyclopedia of Africa, Tome1, p22

* ⁸ G. Conac, constitutions of the States of Africa and their effectivity. Dynamic and finalities of the African rights, bets, Economica, 1980, p391

* ⁹ J.Y MORIN, freedoms and basic rights in the constitutions of the States having French in division, Brussels, Bruylant/AUF, 1999, p11

* ¹⁰ E. Boissonade, Zairean evil, bets, ED. Hermé, 1990, p27

* ¹¹ Mr. Duverger, political parties, Armand hake, bets, 1969, p286

* ¹² L. Sylla, quoted by P. Decraene, «  elements of reflection on the African political parties  » in being able, n°58, bets, PUF, 1983, p83

* ¹³ J.Y. Calvez, the Third World, a world in the world, bets, ED. Worker, 19989, p94

* ¹⁴ Ndaywel, history of Zaire  : Old heritage at the contemporary age, Leuwen-the-new, duculot, 1999, p665

* ¹⁵ cf G. Conac, constitutional evolution of the French-speaking States of Black Africa and the Malagasy democratic Republic, bets, Economica, 1979

* ¹⁶ In the political parties in Black Africa, COp cit, p97

* ¹⁷ cf J. Gicquel, the presidentialism négro-African, Burdeau Mixtures, p87  ; J. Bbuchmann, the independent Black Africa, bets, LGDJ, 1962

* ¹⁸ R. Degni Segui, humans right in French-speaking Black Africa (theories and realities), Abidjan, Imprimab, 1998, p149

* ¹⁹ cf Amnesty International. Torture  : Instrument of the capacity, plague to be fought, bets, threshold, 1984, p168

* ²⁰ J.F. Medard,  «  the specificity of the African capacities  » in being able n°58, bets, PUF, 1983, pp10-16

* ²¹ Idem, «  the State transcended clientelist  » in African policy, n°01, bets, Karthala, pp120-123

* ²² J.Kakinda,  «  Of the tribal State towards the Congolese State  » in challenge-south, n°27, Kinshasa, 1997, pp18-19

* ²³ C. Brackman, the dinosaur, ........... p198

* ²⁴ Gauttier of Villers and J. Omasombo Tshonda, missed Transition, Zaire, year 1990, flight 7, Harmattan, 1997, p 122

* ²⁵ Balagizi, B., crimes, plunderings and wars. Sick Congo of its men  : June 30 May 1960-17, 1997, Bukavu, Kivu-press, 2000, p 11

* ²⁶ L. of Saint Mill and U. Mambuku  «  the movement of democratization in the Zone of Ngaba  » in Zaire-Africa n°247, Kinshasa, 1993, pp225-244

* ²⁷ J. Morange, public freedoms, LGDJ, bets, 1986, p 8

* ²⁸ C. Kabuya Lumuna, capacities and freedoms  : the transition to Congo-Zaire (triumph and crisis of the democratic idea), Kinshasa, secco, 1998, p 44

* ²⁹ C. Brackman, Congolese stake, Brussels, p.319

* ³⁰ One can read what follows in the proclamation made by the high command of the Congolese national army on November 24, 1965  :  «They (military chiefs) made the review of the political and military situation of the country. They noted that if the military situation were satisfactory, the bankruptcy was complete in the political field... the political leaders were confined in a sterile fight to reach the capacity without any consideration for the wellbeing of the citizens of this country  ».

Cfr Congolese Monitor, n° special, sd, p1  ; to also see P. PIRON, supplements with the Congolese codes, fascicule1, p15.

* ³¹ Article 175 of the fundamental law of June 19, 1960

* ³² Idem, article 176, alinéa1

* ³³ Cfr the ordinance-law n° 66/92 (a) of 07 March 1966 allotting the legislative power to the president of the Republic

* ³⁴ Congolese monitor p389

* ³⁵ idem, p549

* ³⁶ Constitution of the transition from the democratic Republic of Congo, p17

* ³⁷ Idem, p17

* ³⁸ Idem, p22

* ³⁹ Review of right afrcain, p45

* ⁴⁰ Such is the case of article 5 of the fundamental law relating to public freedoms. It was there a creditable effort of the Belgian Parliament.

* ⁴¹ Cfr article 13 of the constitution of luluabourg

* ⁴² Title 2 of the constitution of luluabourg was devoted to the rights and lmibertés. It was composed of 35 aricles.

* ⁴³ This system of civil liability consists in repairing the damage caused with an individual by an insolvent agent.

* ⁴⁴ Allusion made here to the bloody events that the country knew since 1991

* ⁴⁵ P. Letamendia «  The democratic transition  : a comparison of Chilean and Spanish case  », Studies offered to Jean-Marie AUBY, bets, Dalloz, 1992, p559

* ⁴⁶ J.L.Quermonne  «  the constitutional project the referendum proof  » in Review of the popular action, 1958, p904

* ⁴⁷ Article 11 of the constitution of transition.

* ⁴⁸ Cfr article 13

* ⁴⁹ Article 104 of the constitution of Togo

* ⁵⁰ Articles 121 and 122 of the constitution of the Benign one

* ⁵¹ Article 21 of the constitution of the Benign one.

* ⁵² Cfr the technique common lawyer or commercialist of figurehead in whom simulation constitutes the substance of the transaction considered.