L'économie informelle

Paragraph 2 : Reform ord.- law of 1990 of the point of

sight of the methods of exercises

A. Analyze these methods

Contrary to the initial ordinance-law, the new ordinance-law does not enumerate the methods of exercise of the small trade.

B. Appreciation critical and suggestions

Inexistence of the enumeration by the news ord.- law of the methods of exercise of the small trade does not mean that these last are repealed. For proof, the small shopkeeper continues without sanction to use about it publicly in the exercise of his activities.

We thus think that the refusal by the legislator to devote these methods expressly aims at avoiding the propensity of the abstract one so that the great economic activities cannot as in the past hiding under the methods of exercise of the small trade in order to be qualified tel. Moreover, the stating of these methods proves to be our days alleviating to allocate with a given activity the character of small trade. This quality of office is allotted according to the sales turnover, which of light ferenda, must be facilitated in its determination.

Paragraph 3 : Reform ord. - law of 1990 of the point of

sight of the conditions and sanctions

A. From the point of view of the conditions of exercises

Have regard to the philosophy of the news ord. - law, it appears to us sclerosed and inconvenient that the prohibition from abroad is maintained to exert the small trade.

We think that this prohibition was rationally justified at the time where the nationals were marginalized by the massive presence from abroad in the exercise of the small trade and not with that of the zairianisation; time to which, realizing compensation, the property of the industrial, commercial or agricultural companies will pass with the hands from abroad to the hands of the Zaireans called for the circumstance purchasers ^(116(*)).

Paraphrasing Professor Masamba Makela, Congolese was invited «to learn how to make deals such as they are practiced in the countries with strong economy...» ^(117(*)).

We note that feared is not any more to let the foreigners jointly exert the small trade beside the nationals which currently are capable to trade without complex beside these whose one feared formerly the presence. Moreover, on the basis of the assertion according to which, the State is the only Master of the orientation of his economy; the lifting by this one of the prohibition from abroad to exert the small trade would not be that to devote of a situation swears de facto and to make right future a true element of the economic and social infrastructure.

Also let us note that the lifting of this prohibition is not contrary with the thought of the news ord. - law more especially as the State needs at present much money to face the multiple projects of development.

The obligation to hold the license remains the single condition for the exercise of the small trade ^(118(*)); the characteristics of the license (personal and personal, restrictive and territorial, etc) remain unchanged ^(119(*)); it is the same for the authorities entitled to deliver it.

On the other hand, the obligation for the small shopkeeper to present the license at the requisition of any representative of authority persists, but article 13 of the new ordinance-law speaks about any duly elected agent thus reducing the possibilities of encroachment of being able and the informalisation of the economy orchestrated by the bureaucratic annoyances by unjustified times which make the law abominable to the eyes of the population. Also persist, the conditions of its obtaining were modified.

Indeed, the ordinance-law of 1990 only retains like conditions of obtaining the license ^(120(*)):

1. the requirement of Congolese nationality,

2. prohibition to exert incompatible functions with the small negotiability,

3. obligation not to be condemned to an infringement of the businesses.

On this, the news ord.- law draws aside from the elements subordinating to obtaining the license the condition relating to the instruction and that relating to the equipment. The suppression of the first condition east seems it justified by the massive presence of the illiterates who carry on this activity, we think that one should not cross the arms and let perpetuate this situation which has as a consequence only clochardiser the national economy. The small shopkeepers must be trained by taking at the same time account of the nature of their activities as well as need for the economic development. Suppression of the second condition which remains AD nutum.

With our humble opinion, it would be desirable, of light ferenda to make on the one hand obligatory the detention of instruments. The latter must be proposed by the public authority in order to avoid the use of measuring units plethoras, unhealthy and nonuniform which cause often abuse and anarchy in the bid prices ratio/quality of the goods on the market.

Concerning the prohibited categories of the nationals (magistrate, agent of the public or para-étatiques services, etc), it is first of all advisable to stress that in the interest of a correct operation of the public services, prohibition by them to exert the small trade is logically justified on the one hand in the fact that the office plurality would result in exerting one little effectively or the other of the «combined» activities and on the other hand given that the tradesman is animated by a spirit of lucre, a speculative goal, the office plurality would be reconciled badly with the spirit of independence and the direction of the dignity which dominate the above mentioned activities ^(121(*)).

But we note that these categories freely exert the small trade without incurring sanctions. Does one have as for the case from abroad devoting this de facto situation juridically? The question is delicate.

Before answering it, let us specify that the nationals as mentioned here exert the small trade like already evoked by need and not in the simple concern of violating the law; who sees himself thus emptied of all his contents.

Prohibition being justified, we recommend his lifting not; but let us wish that the Congolese authorities be able to take effective measures of framing in particular the improvement of living conditions of the above-mentioned categories in order to ensure a minimum of respect of the law in force and to reduce so much is little the phenomenon of the abstract economy.

With regard to the exemptions, they remain similar to those of the repealed ordinance-law. Indeed, the small farmers as well as the small stockbreeders remain exempted payment of the license although this exemption is the resultant of the sales turnover which should not exceed 10.000 zaïres and not absence of a material element (lack of stall) as it was the case for the ordonnace-law of 1979 ^(122(*)).

A report deserves to be evoked about the abuses of which are victims the above-named categories which, although exempted, are victims of the inhuman behaviors on behalf of a certain category of agents known as of the order.

* ⁽¹¹⁶⁾ MASAMBA MAKELA, economic Right, ED. CADICEC, Kinshasa, 1995, p. 84.

* ⁽¹¹⁷⁾ ldem, p.81.

* ⁽¹¹⁸⁾ Art 1 of the ord. - law of bearing 8 August 1990 regulation of the small trade.

* ⁽¹¹⁹⁾ Idem art al.2, 7 al1 and 8 al.1.

* ⁽¹²⁰⁾ Art of the ord. - law of bearing 8 August 1990 regulation of the small trade.

* ⁽¹²¹⁾ MASAMBA MAKELA, Right of businesses, op.cit., p. 35.

* ⁽¹²²⁾ Article 5 al.2 of the ord.loi of bearing 8 August 1990 regulation of the small trade.