[ANALYSIS] – « I make the commitment and reiterate, as Supreme Magistrate, my wish to appoint honest men and women to redo the tarnished coat of arms of our justice, » said Félix-Antoine Tshisekedi in his message to the Nation on June 30, 2019. Concretely, he revealed to the people his determination to proceed to the renewal of the Judiciary for obvious reasons of credibility.
This paragraph of the message of the Head of State has provoked reactions within the opinion. Many non-initiates seek to understand how will it proceed not only for the entire judiciary but especially for the Constitutional Court which is at the heart of the news?
Magistrates of the seat and the public prosecutor’s office
Experts consulted by Zoom Eco agree that there are general assemblies of the Superior Council of Magistracy to be held in ordinary session each year. It is at the end of this meeting that proposals including nominations are made.
And the head of state has 15 days, according to the law, to exercise its constitutional prerogatives in order to challenge and / or approve the men and women enjoying the qualities required for Congolese justice.
This is done in accordance with Article 82 of the Constitution which states: « The President of the Republic appoints, relieves them of their duties and, if necessary, revokes, by ordinance, the magistrates of the seat and of the prosecutor’s office on proposal of the Council Superior of the Judiciary. The orders referred to in the preceding paragraph are countersigned by the Prime Minister. »
Judges of the Constitutional Court
The procedure is also provided for by the legal and regulatory texts. Article 158 of the Constitution defines its composition and the figure to nine members. If all are appointed by the President of the Republic, three are appointed on his own initiative; three by the Parliament meeting in congress and three others by the Superior Council of the Judiciary.
To make a new appointment, the Basic Law provided for a three-member renewal mechanism every three years to replace three random draws. Two reasons are mentioned by lawyers to encourage the head of state in his approach.
Primo. The violation by the Constitutional Court of the procedure concerning the drawing of lots of members who had to be replaced last year. In place and this procedure, the President of the Court had in April 2018 simply proceed to the replacement of three to judge Kalonda, deceased; and Banyaku Luape and Esambo JJ., forced to resign. And so, the head of state can question this approach and order the Constitutional Court to conduct a regular draw to replace three judges including one to be appointed on his initiative, one by Parliament and finally another by the Superior Council of the Judiciary.
Second. The seriousness of the facts deplored by all in the series of the results of the national and provincial legislatures. In fact, according to some jurists, Article 168 of the Constitution has been violated by the members of the Constitutional Court as long as its judgments have been appealed against, while they are immediately enforceable and enforceable against all.
Taking note of this violation and the ensuing public clamor, the Head of State may, under Article 69 of the Constitution, apply to the Superior Council of Magistracy and to the Congress (both Houses of Parliament ) to consider a new composition of the Constitutional Court to ensure fair justice by honest judges.
In all cases, the President of the Republic, Felix Antoine Tshisekedi should wait until all the renewed institutions of the country whose government and the Senate are functional to activate such an approach.
Emilie MBOYO