The Governing Council of the Inter-Parliamentary Union,

Having before it the case of 29 former members of the National Assembly of the Democratic Republic of the Congo (DRC) disqualified by the Supreme Court decisions of 25 April 2012, which has been examined by the Committee on the Human Rights of Parliamentarians, pursuant to its Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Referring to the information provided by the Speaker of the National Assembly in his letter of 16 October 2012 and by the National Assembly delegation heard by the Committee during the 127th IPU Assembly (Quebec, October 2012), and to the large volume of documents and information transmitted by the sources,

Considering the following information on file:

• After the legislative elections of 28 November 2011, the National Independent Election Commission (CENI) published the provisional lists of elected candidates in early February 2012; the political parties and the unelected candidates subsequently filed numerous applications contesting the results before the Supreme Court, sitting provisionally as the Constitutional Court, which has jurisdiction over electoral disputes; on 25 April 2012, the Supreme Court handed down its decisions on the applications, invalidating the elections of 32 members of parliament; of those 32 members, 30 contested the Court’s decisions, filing applications for rectification of clerical errors, the only remedy under the Constitution and Congolese legislation in electoral disputes; 29 of the 30 brought their cases before the Committee on the Human Rights of Parliamentarians, claiming that the decisions were arbitrary for the following main reasons:
  1. The failure (adequately) to reason the decisions;

  2. Violations of the rights of defence, to the point that, in some cases, members whose elections had not been contested and who had not taken part in the proceedings were disqualified;

  3. Failure (adequately) to investigate the cases;

  4. In particular, procedural flaws in the recounts conducted by the Supreme Court judges in camera, without informing the parties involved or drawing up a report on the recounts, with the result, according to the sources, that the Court proclaimed arbitrary results and violated the rights of defence;

  5. Failure to comply with the rules of evidence;

  6. Violations of Article 75 of the electoral law;

• The sources also allege that the National Assembly plenary vote of 4 May 2012 disqualifying the members concerned, in application of the Supreme Court decisions, and validating the replacement members the Court had proclaimed to be elected, even though applications contesting the decisions were pending before the Court, was flawed and rushed;

• The Supreme Court held public hearings from 17 to 19 August 2012 on the applications for rectification of clerical errors introduced by 30 of the 32 disqualified parliamentarians; it handed down its decisions from 31 August to 6 September 2012, turning down all the applications by the disqualified parliamentarians;

• The decisions were notified for the most part only one month after being read out by the Court and without being reasoned; of the 27 decisions forwarded to the Committee by the sources, only eight are reasoned;

• The Speaker of the National Assembly, in a letter dated 16 October 2012, indicated that the Supreme Court had explained why the applications had been turned down on a case-by-case basis: they were either inadmissible because they had been introduced by candidates rather than parties, or they were unsubstantiated because the parties had provided no evidence of the alleged clerical errors, or the applications had raised questions relating to the merits rather than the rectification of clerical errors,

Also considering that, given that all internal remedies had been exhausted and that the invalidation decisions remained arbitrary in nature, the group of disqualified parliamentarians turned as a last resort to the Head of State in September 2012, asking for compensation for the disqualified members; in the specific case of Mr. Kiluba Longo (DRC/51), who was a senator before his election to the National Assembly, steps were taken to allow him to reclaim his Senate seat, to no avail,

Recalling the following: after the first presidential and legislative elections in the DRC, in 2006, the Supreme Court also invalidated the elections of parliamentarians while proclaiming the final outcome of the legislative elections; the disqualified members of parliament brought the case before the Committee, claiming that the Court’s decisions were arbitrary (Group of 18 [G18] case, DRC/30-45 Tshibundi et al.); in view of the numerous criticisms directed at the Court for the way in which it had ruled on the electoral disputes, the National Assembly established a special committee tasked with examining the follow-up to be given to Supreme Court decisions on cases involving the election of national members of parliament; that committee uncovered numerous procedural flaws in the Court’s proceedings and the National Assembly consequently adopted, on 17 July 2007, a resolution denouncing the Court’s decisions as “marred by serious irregularities and abuse of rights”; the National Assembly played a key role, pledging to reform the judicial system and take the necessary measures to ensure that such cases did not recur and to find means of repairing the injustice suffered by the parliamentarians concerned,

Taking into account the following: in his letter of 16 October 2012, the Speaker of the National Assembly stated that “at this point, and in view of the principle of separation of powers and of the binding and enforceable nature of Constitutional Court decisions, as set out in Articles 151 and 168 of the Constitution of the DRC respectively, the National Assembly has no choice but to take note of the decisions handed down by the higher court on the applications for rectification of clerical errors. There is no call for it to comment on the decisions handed down (…)”; the Congolese delegation heard by the Committee during the 127th IPU Assembly (Quebec, October 2012), stated that, in 2007, the National Assembly had ignored the constitutional principle of the separation of powers and criticized the Supreme Court’s decisions, but that in 2012 it had decided by a vote in plenary strictly to respect the separation of powers and not to take a stand on the matter; as a result, there is currently no National Assembly resolution similar to that adopted in 2007 and providing a legal basis on which to compensate the disqualified parliamentarians,

Noting the Supreme Court’s acknowledged lack of independence, mentioned over the years in numerous reports, including United Nations and European Union reports on the justice system in the DRC, and specifically underscored with regard to electoral disputes in the final report of the 2011 European Union Election Observer Mission (EU EOM) in the light of the Court’s dual role as sole judge of electoral disputes and the institution confirming the results of the ballot,

Considering that, in its resolution of 13 June 2012 on the follow-up to elections in the DRC, the European Parliament considered that “independent judicial […] systems are essential in shaping and regulating the democratic process, with a view to reinforcing the rule of law, building democratic institutions, including a functioning parliament based on political pluralism (…)” and emphasized “the importance of setting up a Constitutional Court that will ensure more transparency in the electoral process, especially as regards the settlement of electoral disputes”,

Recalling the following: the procedure applying to electoral disputes was modified in 2011 by new Articles 73 to 76 of the electoral law; the previous oral and transparent adversarial system was replaced by a written, non-transparent accusatory system, in which a judge examines the case ex officio and collects all the information needed to resolve the dispute, the aim being to reduce the length of the proceedings; in the electoral dispute arising from the 2011 elections, it was up to the judge to examine the case and decide on the integrity of the election results by conducting all the investigations needed to collect all the elements required to substantiate his decision (Art. 74quater of the electoral law); the final report of the 2011 EU EOM recalled that, in a country like the DRC, where some political players did not have confidence in the independence of the judicial branch and had already criticized its lack of transparency, the new procedure came in for criticism; moreover, the final report concluded that, in the 2012 dispute over the results of the presidential election (the EU EOM did not observe the dispute in the legislative elections), the Supreme Court did not follow the new procedure, having failed to conduct all the investigations needed to verify the integrity and lawfulness of the provisional results,

Recalling that the DRC is party to the International Covenant on Civil and Political rights, Articles 25 and 26 of which establish the right to vote and to be elected at elections guaranteeing the free expression of the will of the electors, and the right to equality before the law,

1. Is deeply concerned to observe that the Supreme Court decisions of 25 April 2012 invalidating the elections of 32 parliamentarians are marred by serious procedural flaws and violations of the rights of defence, that the applications for rectification of clerical errors introduced by 30 of the disqualified parliamentarians did not allow the cases to be re-examined on the merits, and that there is therefore in practice no remedy in Congolese law with respect to Supreme Court decisions on electoral disputes, which is tantamount to a denial of justice;

2. Firmly recalls that the arbitrary invalidation of election results, by distorting the results of the ballot, violates not only the right of the parties concerned to discharge the parliamentary mandate conferred on them by the people, but  also the right of electors to choose their representatives; deeply regrets that, in spite of the resolutions adopted by the Governing Council in the case of the 18 parliamentarians whose elections were invalidated by the Supreme Court in 2007 in similar circumstances, such a situation could recur;

3. Urges the competent authorities to take all the necessary measures to remedy the situation, which, following on the arbitrary invalidation of the election of opposition parliamentarians in 2007, has again arbitrarily disqualified not only opposition parliamentarians but also many members of the presidential majority, several of whom have expressed views that are not in line with those of the President of the DRC; emphasizes that this situation is extremely detrimental to democracy, the rule of law and respect for human rights;

4. Invites the authorities to call on experts in electoral dispute procedure, so as to take the opportunity provided by the ongoing reform of the electoral law to guarantee transparency and equity in the proceedings, to establish two levels of courts or a genuine avenue of appeal in the event of serious flaws, and to set out the rules for the administration of proof in electoral disputes;

5. Is deeply troubled by the fact that, six years after the adoption of the 2006 Constitution, which provides for the elimination of the Supreme Court, whose lack of independence has long been publicly denounced, the Supreme Court continues “provisionally” to discharge, on the basis of Article 223 of the Constitution, the tasks of the three new independent high courts intended to replace it, one of which is the Constitutional Court, which has jurisdiction over electoral disputes; wishes to know why the law on the organization and functioning of the Constitutional Court adopted by the two houses of parliament and sent to the President of the DRC twice for promulgation has still not been promulgated or published in the official journal, and wishes in particular to be informed of the date on which the new court is effectively to be established;

6. Requests the Secretary General to convey this resolution to the Speaker of the National Assembly and to all the competent authorities, including the Head of State;

7. Requests the Committee to continue examining this case and to report back to it in due course.

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* The delegation of the Democratic Republic of the Congo expressed its reservation regarding the resolution.

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