-> Independence and impartiality of electoral justice
Electoral justice plays a highly important role in an electoral process. This is because, in the last analysis, it is electoral justice that proclaims the final results. The 2011 elections were an important marker in this sense: many elected officials won their case before the judges whereas the Independent National Electoral Commission (Ceni) had not proclaimed them winners. Opposition critics in recent years have focused on the Constitutional Court because of its important role in the presidential election.
In recent years, the decisions of the Constitutional Court have all been handed down in favour of the regime and have been strongly contested by the opposition. Many legal experts have considered that some violated the Constitution outright. Two examples illustrate these claims: in 2016, the Court met five out of nine to authorise the Independent National Electoral Commission (Ceni) to postpone elections without setting any deadline whatsoever. The decision was taken in breach of Article 90 of the law on the organisation of the Constitutional Court.
The second example involves the replacement of 1/3 of the members of the Court after three years. While the three judges to be replaced were supposed to be selected by a random draw, the government managed to force two judges to resign after the death of another. As for the courts of appeal, which act as electoral judges for the legislative and provincial elections, they outdo themselves with corrupt practices and a total absence of training in electoral issues.
Concerns grow about the composition of the Constitutional Court because of its partiality and submission to the regime. Nor does its recent past plead in its favour. Particularly since the presence of one of Kabila’s closest aides in this court coupled with the appointment of the only relatively independent judge to the Council of State, is perceived as a sign that President Joseph Kabila wants to control everything. The appeal courts have just been moved into the new provinces and magistrates newly appointed. Today, just like the entire judiciary, electoral justice is corrupt, lacks resources and is at the service of the regime. Given the circumstances, we can hardly talk about independent, impartial justice.
All attempts to reform the Constitutional Court have failed, because president Joseph Kabila has made it an instrument to cling to power. However, this high court is still the only remaining legitimate institution in DR Congo. Even if, to achieve this status, it has violated the legal provisions that govern it. On account of the loss of confidence and widespread corruption in the judicial system, some people are wondering about working conditions in the appeal courts on the eve of the elections. Will they be able to handle appeals relating to electoral disputes? Nothing says they will.