Conceptual vagueness in the case law of the Congolese Constitutional Court

Any legal system in which the Constitution holds the highest place in the hierarchy of legal norms, and whose integrity and/or authority is protected by a judge, establishes for that purpose a system of constitutional review.¹

In the Democratic Republic of the Congo, under the Constitution of 18 February 2006², a category of acts³ is subject to review by the constitutional judge. In principle, constitutional review consists in checking the conformity of a lower norm with the formal Constitution. This exercise requires the judge to show conceptual clarity so as to guarantee legal certainty, which translates into predictability, that is, the ability of those subject to the norm to anticipate, in a reasonable manner, the legal consequences arising from the application of a given rule. However, in its case law, the Constitutional Court frequently uses expressions that point to more uncertain legal categories, such as the fundamental values of the modern State guaranteed by the Constitution⁴, the values and principles of constitutional value, the principles of constitutional value⁵, or even the principles and objectives of constitutional value.⁶

This variation in the expressions used in the reasoning of judgments has never been explained by the Constitutional Court. Yet it states that it is committed to these principles, rules and objectives of constitutional value, and even presents itself as their protector, going so far as to grant itself powers in the name of preserving them⁷.

Do these principles, objectives and values of constitutional value have the same status as the Constitution itself? What would their content be? What effects do they produce in the legal order? Would they form an integral part of the reference norms of constitutional review?

It seems to us that the Court regards all of these formulas as equivalent, using them, depending on the judgment, according to its inspiration of the moment. The choice of one expression or another would thus result from occasional stylistic choices.

These rules, principles and objectives of constitutional value would appear to stand on an equal footing with the formal Constitution itself, insofar as, according to the Court, “they take precedence over any other consideration”⁸. However, this position raises a series of questions about their legal nature. In comparative law, these categories are generally regarded as unwritten norms; yet unwritten norms cannot, in principle, have the same status as the formal Constitution. As for their content, it requires a work of conceptualisation that the Court does not carry out explicitly, usually limiting itself to simply mentioning them. However, with regard to objectives of constitutional value in particular, the Court has identified a few⁹.

This research is of particular interest in that it seeks to (re)define the semantic framework of uncertain legal categories which nonetheless produce major legal consequences in the legal order, since invoking them widens the material scope of the very notion of the Constitution, insofar as they are liable to constitute reference norms for constitutional review by the constitutional judge.

By taking on the mission of enforcing the principles, rules and objectives of constitutional value, the constitutional judge seems to have included them among the reference norms of its review. It follows that all norms subject to review, including legislative ones, must comply not only with the Constitution but also with these principles, rules and objectives of constitutional value, on pain of being struck down as unconstitutional. Such a situation increases the burden on the legislature and on the authorities whose acts are liable to review, as they are bound to respect normative categories whose content they do not master.

Notes

1. P.G NGONDAKOY NKOY-EA-LOONGYA, Le contrôle de constitutionnalité en République Démocratique du Congo : étude critique d'un système constitutionnelle dans un État à forte tradition autocratique, Louvain-la-Neuve, Thèse, 2007-2008, p. 1. ↑
2. Constitution du 18 février 2006, in JORDC, numéro spécial, 52ème année, 5 février 2011. ↑
3. À ce sujet, lire utilement les articles 160 et 162 de la constitution du 18 fév. 2006 telle que modifiée, in JORDC, numéro spécial, 52ème année, 5 février 2011 ; art. 45 de la loi organique n° 13/026 du 15 octobre 2013 portant organisation et fonctionnement de la cour constitutionnelle : JORDC n° spécial, 54^e année, Kinshasa, 2013. ↑
4. C.const, 22 juillet 2022, R.const 1800. ↑
5. C.const, 18 Nov. 2022, R.const 1816. ↑
6. C.const, 22 juillet 2022, R.const 1800. ↑
7. C.const, 08 oct. 2021, R.const 1640. ↑
8. C.Const, 18 nov. 2022, R.const 1816. ↑
9. C.const, 08 oct. 2021, R.const 1640. ↑

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