FOCUS

Law, religion and human rights in the Democratic Republic of Congo

André Mbata B Mangu

Professor, Department of Public, Constitutional and International Law, University of South Africa; Professor, Faculty of Law, University of Kinshasa, DRC

SUMMARY

In 2005, the Parliament of the Democratic Republic of Congo (DRC) enacted a new Constitution aimed at establishing democratic rule and replacing the interim Constitution that was enacted after and in line with the resolutions of the inter-Congolese dialogue held at Sun City, South Africa, in 2002 and 2003. The new Constitution was approved by referendum in December 2005. It was promulgated by the President on 18 February 2006 and has since then governed the country. This Constitution provides that the DRC is a democratic country based on the rule of law and respect for human rights. It enshrines the rights of all the people in the country, including the right to freedom of thought, conscience and religion. This article reflects on law, religion and human rights in the DRC. It argues that the right to freedom of religion is closely related to other civil and political rights or fundamental freedoms. This right is subject to the law and is critical for peace, development, and democracy.

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* LLB (Kinshasa), LLM, LLD (South Africa); manguamb@unisa.ac.za. This material is based upon work supported financially by the National Research Foundation (NRF). Any opinion, findings and conclusions or recommendations expressed in this material are those of the author and therefore the NRF does not accept any liability in regard thereto.
1Evolués referred to 'civilised' blacks. These were teachers, clerks or civil servants who had been educated and christianised. They attended Christian schools. They had learnt the colonisers' language and spoke French. They could talk, dress, and walk like the whites. To borrow from Frantz-Fanon, they were 'Black men in white masks.' Accordingly, they were part of the colonisers and were therefore co-opted to work with them in their colonial enterprise. They enjoyed a special status as compared to other blacks. An indigenous Congolese only qualified as or deserved the status of évolué if she or he could demonstrate that her or his education or way of life approximated that of a 'civilised' white from Belgium.
2 The University of Lovanium was established in Leopoldville around 1954 as a Catholic university. Later on, the Protestants created their own university in Stanleyville, currently Kisangani. The University of Elisabethville (Lubumbashi) was the only state university.
3 P Tempels The Bantu philosophy (1959).         [ Links ]
4 SP Huntington The clash of civilisations? (1993).         [ Links ]
5 Workshop held from 10 to 12 July 2007 in Dakar, Senegal.
6 Trust Africa Report of the Workshop on Meeting the Challenge of Religion and Pluralism in Africa (2007) 1.         [ Links ]
7 This CODESRIA Summer Institute was held in Dakar, Senegal, from 4 to 29 September 2008.
8 See http://www.state.gov/g/drl/rls/irf//2007/90091.htm (accessed 27 March 2008).
9 According to the statistics released by the Inter-Diocesan Centre in Kinshasa, the Catholic Church counts 47 dioceses divided into six ecclesiastic provinces headed by 49 bishops and archbishops. There are 1 104 missions and parishes, 3 773 local or 'secular' priests and 1 806 missionaries or 'regular' priests, 8 102 nuns and 1 440 brothers. The number of Catholic believers is estimated at 26 067 715, almost 44,2% of the total population of the Congo.
10 C Young Introduction à la politique congolaise (1979) 143-144.         [ Links ]
11 AMB Mangu The road to constitutionalism and democracy in post-colonial Africa: The case of the Democratic Republic of Congo (2002) 317-318.         [ Links ]
12 Mangu (n 11 above) 318.
13 JO Magbadelo 'Pentecostalism in Nigeria: Exploring or edifying the masses' (2005) 1 & 2 CODESRIA Bulletin 45-46.         [ Links ]
14 Trust Africa (n 6 above) 3.
15 Mangu (n 11 above) 318.
16 n 8 above.
17 Mangu (n 11 above) 319-320.
18L'Association sans but lucratif Les Témoins de Jéhovah v La République du Zaïre judgment RA 266 of 8 January 1993.
19 Art 1 of the 2006 Constitution.
20 Arts 11-33 of the Constitution.
21 Arts 34-49 of the Constitution.
22 Arts 50-61 of the Constitution.
23 Art 22 of the Constitution.
24 Art 23 of the Constitution.
25 Art 24 of the Constitution.
26 Art 25 of the Constitution.
27 Art 26 of the Constitution.
28 Art 27 of the Constitution.
29 Art 29 of the Constitution.
30 Art 31 of the Constitution.
31 Art 34 of the Constitution.
32 Art 37 of the Constitution.
33 Art 43 of the Constitution.
34 Art 45 of the Constitution.
35 Arts 16 (right to life), 34 (property rights), 36 (right and duty to work) & 63 (duty to defend the country and its territorial integrity) of the Constitution.
36 Act 87-010 of 1 August 1987 on Family Code published in the official journal (Gazette) special issue of August 1987.
37 Art 330 of the Family Code.
38 Arts 448-450 of the Family Code.
39 Art 38(1) of the Statute of the International Court of Justice.
40 J Dugard International law: A South African perspective (2000) 43-45.         [ Links ]
41 Dugard (n 40 above) 43.
42 Arts 213-217 of the Constitution.
43 Art 213 of the Constitution.
44 Art 215 of the Constitution.
45 Sec 231 of the 1996 Constitution of the Republic of South Africa.
46 Art 18 of CCPR.
47 Art 8 of the African Charter.
48 Art 18 of the Universal Declaration.
49 Arts 50-61 of the Constitution.
50 Art 50 of the Constitution.
51 The duty to promote the rights and legitimate interests of Congolese citizens in or outside the country (art 50); to ensure and promote a peaceful and harmonious coexistence of the different ethnic groups as well as the rights of vulnerable and minority groups (art 51).
52 See the DRC 2006 Constitution: the right to peace and security (art 52); the right to a safe environment conducive to development (arts 53-57); the right to enjoy the national resources and to development (art 58); and the right to enjoy the common heritage of humanity (art 59).
53 Art 22 of the Constitution.
54 Arts 11 & 12 of the Constitution.
55 Art 18 of the Universal Declaration.
56 Art 18 of CCPR.
57 Art 8 of the African Charter.
58 Art 18(3) of CCPR.
59 Art 22(2) of the 2006 Constitution.
60 Art 22(3) of the Constitution.
61 Decree-Law 004 /2001 of 20 July 2001 on General Provisions related to Non-Profit Organisations and Public Utility Institutions (2001 Decree-Law). In the Congolese legal order, a decree-law is an act taken by the President where legislation would have been passed by parliament. It is therefore a legislative act emanating from the executive when parliament is unable to legislate. It therefore has the same status as an Act of Parliament and remains valid as long as parliament has not amended it or passed a new Act.
62 Art 1 of the 2001 Decree-Law.
63 Act 04/002 of 15 March 2004 on the Organisation and Functioning of Political Parties.
64 Art 2 of the 2001 Decree-Law.
65 Art 3 of the 2001 Decree-Law.
66 Ch I, arts 4-9 of the 2001 Decree-Law.
67 Art 4 of the 2001 Decree-Law.
68 Art 5 of the 2001 Decree-Law.
69 Art 6 of the 2001 Decree-Law.
70 Art 7 of the 2001 Decree-Law.
71 Art 9 of the 2001 Decree-Law.
72 Ch II, arts 10-34 of the 2001 Decree-Law.
73 Ch III, arts 35-37 of the 2001 Decree-Law.
74 Ch III, arts 35-45 of the 2001 Decree-Law.
75 Arts 58-73 of the 2001 Decree-Law.
76 Ch III, arts 46-56 of the 2001 Decree-Law.
77 Ch III, art 46 of the 2001 Decree-Law.
78 Ch III, art 47 of the 2001 Decree-Law.
79 Ch III, art 48 of the 2001 Decree-Law.
80 Ch I, arts 4, 6 & 7 of the 2001 Decree-Law.
81 Ch III, art 52 of the 2001 Decree-Law.
82 Ch III, art 49 of the 2001 Decree-Law.
83 Ch III, art 50 of the 2001 Decree-Law.
84 Ch III, art 51 of the 2001 Decree-Law.
85 Trust Africa (n 6 above) 14.