Criminal Law and the Penal Code

Contemporary Zairian law still embodies most of the principles established during the Congo Free State and the Belgian Congo eras. These elements do not reflect a simple adoption of existing Belgian law but, rather, a unique combination of royal decrees, administrative and legislative ordinances, native customs, and a body of judicial decisions based on the above as well as "general principles of law equity." The various constitutions before and after independence for the most part recognized the continued legitimacy of earlier laws, except where they conflicted with more recently developed ones. Two important trends have, however, characterized Zairian law during the Mobutu era. First, the official role of non-Western "customary" law dwindled significantly in the process of centralizing and personalizing authority, although local custom and belief can still be considered in establishing punishment. Second, an often confusing and ill-defined body of codes emerged as a result of a 1972 ordinance giving all the public statements of President Mobutu the force of law. For the most part, however, these codes concerned only crimes against the state or the president.

The penal code adopted by the Congo Free State in 1888 remained in force until it was finally abrogated and replaced by the penal code of 1940. This later code was not abandoned at independence but has since undergone a variety of amendments, the most important of which was the creation in 1963 of a set of crimes concerning public order and state security. Unlike the penal codes of other Frenchspeaking states, the nomenclature of the Zairian code does not distinguish among different classifications of criminal offenses and refers to all of them as "infractions."

It has been on the basis of political infractions that the state has most often invoked the death sentence and other severe penalties. By contrast, it has tended to be somewhat lenient in its punishment of common criminals, preferring, at least in theory, to attempt their rehabilitation. Special consideration is typically given to juvenile offenders, who are often remanded to the custody of the family in lieu of imprisonment.

The 1974 constitution imbued Zairian criminal law with certain fundamental principles, but in practice these principles are often violated, especially when other elements of the state apparatus are involved or interested. For example, although habeas corpus and bail do not exist, people arrested are supposed to be brought before a magistrate within forty-eight hours of arrest. This principle is rarely adhered to, however. Often, those arrested (frequently arbitrarily to begin with) are held for months without a hearing. People who can afford bribes buy their way out of detention without ever having been formally charged.

Data as of December 1993