The Governing Council of the Inter-Parliamentary Union,

Having before it the case of the above-mentioned parliamentarians, all elected members of the National Assembly of the Democratic Republic of the Congo (DRC) whose mandates were invalidated, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/183/12(b)-R.1),

Taking into consideration the information and observations provided to the Committee by members of the Congolese delegation to the 119th IPU Assembly on the occasion of a hearing organized for it,

Also taking into consideration the information provided on that occasion by Mr. Chalupa and Mr. Diongo,

Considering the following information on file:

• the mandates of the persons in question, all declared elected in the first multiparty elections held in the Democratic Republic of the Congo (July 2006), were invalidated by Judgment R.E. 007 delivered by the Supreme Court of Justice on 5 May 2007; given the considerable criticism voiced of how the Court ruled on the electoral appeals, and in particular the fact that it handed down most of those rulings outside the two-month time limit set by the electoral law and allowed third-party objections, not provided for under that law, the National Assembly decided to establish a “Special Committee to examine follow-up to be taken on the rulings of the Supreme Court of Justice with respect to the electoral disputes of the national deputies”; in its final report of 24 May 2007, the Special Committee finds many irregularities committed by the Court, including the removal from office of non-existent deputies, modification of the method of voting, removal of the deputies for whom no appeal had been lodged and their replacement with candidates having received fewer votes, the absence of any recount of votes under cross-checking conditions despite an interim order issued by the Court on 9 February 2007 directing such a recount, and despite the legal provisions on the subject, inflating of the number of votes in some constituencies beyond the real number of voters; the Special Committee submitted two proposals to the Assembly, namely (a) rejection of the rulings given outside the time limit on the grounds of excess of jurisdiction, and (b) application of Judgment R.E. 007 of 5 May 2007;

• in its resolution of 17 July 2007, the National Assembly adopted a resolution on this case denouncing the rulings of the Supreme Court of Justice as being “marred by serious irregularities and abuse of rights”; the resolution requests the President of the Republic: (i) urgently to convene an inter-institutional meeting of various authorities in order “to draw all relevant conclusions from the dysfunction of our justice and to lay down the major policy lines for a reform of our judicial system”, and (ii) “to contemplate any possible political solution in favour of the victims of the injustice of the Supreme Court of Justice, in a context of reconciliation and national solidarity and in order to preserve civil peace in the country”; the resolution further requests the Higher Council of Magistrates “to assume its responsibilities and institute disciplinary proceedings against the offending magistrates of the Supreme Court of Justice. Magistrates found guilty should be disbarred and banned from any judicial and legal professions”; with respect to the rulings under consideration, the National Assembly, in order not to “go from irregularity to irregularity”, recommended their application in keeping with Articles 151 and 158 of the Constitution, while nevertheless demanding that all material errors committed by the Supreme Court of Justice be corrected by the Court itself;

• following that resolution the parliamentarians concerned were replaced by persons declared to have been elected by the Supreme Court of Justice and, according to the sources, close to the President of the Republic;

• the parliamentarians concerned, who constituted the “Group of Deputies victims of injustice and discrimination (G 18)”, argue that, although Articles 151 and 168 establish the immediate enforceability of the rulings of the Constitutional Court/ Supreme Court of Justice, that body is nevertheless subject to the authority of the law and bound to respect it (Article 150 of the Constitution); that had not happened as the Court had breached several provisions not only of the electoral law but also of the Constitution, a state of affairs determined by the National Assembly itself;

• the inter-institutional meeting recommended in the National Assembly was held on 23 July 2007 under the direction of the President of the Republic, and at the meeting the First President of the Court agreed to the correction of two cases of material error in Judgment R.E. 007; however, according to the sources, the results of the meeting were not made public;

• following a request for the correction of material error, the Supreme Court of Justice, by judgment delivered on 14 December 2007, reinstated two of the parliamentarians concerned, Ms. Dembo and Mr. Kingotolo, and two other parliamentarians concerned accepted posts on boards of directors of public enterprises and one parliamentarian concerned, standing in a by‑election, was not re-elected;

• in the judgment it delivered in the case of Ms. Dembo, the Supreme Court noted, inter alia, that “it is accepted that the judge cannot refuse to rectify a material error … , that the electoral magistrate is judge of the accuracy and genuineness of the result and that, in the case under consideration, the rectification of such errors, to the extent that they concern figures, is such as will restore the genuineness of the ballot”,

Considering that, in its meeting with the Committee, the Congolese delegation contended that, owing to the separation of powers and the fact of the final character of Supreme Court judgments and the obligation of all State institutions to apply them, the National Assembly would have caused a grave institutional crisis had it refused to apply Judgment R.E. 007; that the National Assembly was conscious of the need not only to reform the judicial system, but also to find solutions for repairing the injustices done to the parliamentarians concerned, and noting that the National Assembly invited the Committee in this respect to carry out an on-site mission to contribute to the settlement of this matter,

Considering lastly that the Democratic Republic of the Congo is a party to the International Covenant on Civil and Political Rights, Articles 25 and 26 of which establish the right to vote and be a candidate in elections ensuring the free expression of the will of the electors, and the right to equality before the law, respectively,

1. Thanks the delegation of the Democratic Republic of the Congo for its cooperation;

2. Emphasizes that the arbitrary invalidation of election results, by distorting the truth of the ballot box, violates not only the right of the persons concerned to exercise the parliamentary mandate entrusted to them by the people, but also the right of their electors to be represented by persons of their choice; commends the fact that the National Assembly has clearly voiced its disapproval of the arbitrary invalidation of the parliamentarians concerned and has stated its readiness to repair the injustice done to them;

3. Is alarmed at the refusal of the Supreme Court to rule on the applications for rectification of material error duly filed, and affirms that such refusal constitutes a grave fault denying the persons concerned their fundamental right of access to justice and throws unflattering light on how the highest jurisdiction of the country administers justice;

4. Therefore urges the authorities immediately to redress this state of affairs, which is an affront to a fundamental principle of democracy, namely that the results of free and fair elections must be respected;

5. Welcomes the invitation extended to the Committee to carry out an on-site mission with a view to contributing to the rapid settlement of this case, and requests the Secretary General and the Committee to take the necessary steps to this end;

6. Requests the Secretary General to convey this resolution to the President of the National Assembly;

7. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 120th Assembly of the IPU (April 2009).

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