Court of Cassation (Democratic Republic of the Congo)

The Court of Cassation () is the main court of last resort in the Democratic Republic of the Congo. It is headquartered in Gombe, Kinshasa, within the Palace of Justice.

The court was established by the Constitution of 18 February 2006 and serves as the supreme authority on judicial legal matters. Its creation signaled a fundamental reform of the Congolese judicial system by replacing the former unified structure dominated by the Supreme Court of Justice. The Court of Cassation does not reassess facts as a third-instance court; rather, its mission is to uphold the rule of law by verifying that lower courts and tribunals have complied with legal provisions, procedural rules, and jurisdictional requirements. Through cassation appeals, it reviews the lawfulness of final judgments delivered by civil and military courts. The Court has original and final jurisdiction over offenses committed by several high-ranking political, administrative, and judicial officials, including members of Parliament, senior government officials other than the prime minister, judges of the highest courts, and provincial authorities. It may also hear, as a court of second instance, appeals against first-instance judgments delivered by Courts of Appeal in cases specifically provided for by law.

Institutionally, it exemplifies the independence and specialization of the judicial order under the 2006 Constitution, as it is devoted exclusively to judicial matters, unlike the former Supreme Court of Justice, which combined judicial, administrative, and constitutional functions. The First President of the Court of Cassation is a member of the General Assembly responsible for decisions falling within the competence of the Supreme Council of the Judiciary (Conseil supérieur de la magistrature, CSM). Per Congolese law, the compulsory retirement age for magistrates on the Court of Cassation is 70 years old.

Legal framework Created in 1982, the Supreme Court of Justice of the Democratic Republic of the Congo was, before the establishment of the Constitutional Court, the Court of Cassation, and the Council of State, the highest judicial authority in the country. It was established by Ordinance-Law No. 82-017 of 31 March 1982, governing procedure, and exercised this role until the enactment of Law No. 13/010 of 19 February 2013 on procedure before the Court of Cassation. Organic Law No. 13/011-B of 11 April 2013, which regulates the organization, functioning, and jurisdiction of courts within the judicial system, stipulated in Article 89 that the Supreme Court of Justice would continue to function in its existing structure until the Court of Cassation of the Democratic Republic of the Congo became fully operational. Article 6 of that law designates the Court of Cassation as the supreme court of the judicial order, which was a role previously held by the Supreme Court of Justice.

History The constitution promulgated on 18 February 2006 was prepared by the Transitional Senate, adopted by the National Assembly, approved by the Congolese people through the referendum of 18–19 December 2005, and enacted by President Joseph Kabila. After sixteen years marked by successive transitional regimes, the country was finally governed by a constitution adopted by its people. This constitution replaced the Transitional Constitution and brought about substantial changes in the organization and exercise of executive, legislative, and, most notably, judicial power. Under the Transitional Constitution, judicial power was exercised through courts and tribunals under the leadership of the Supreme Court of Justice, a body with broader powers than those of other jurisdictions. Historically, however, the Supreme Court did not originate with the Transitional Constitution. Its roots extend back to the Belgian law of 16 April 1889 and the Colonial Superior Council, which was based in Brussels. This Council functioned as an appellate and cassation body for decisions issued by Congolese courts and as an advisory institution to the Sovereign King. It was abolished on 2 March 1892 and replaced by the Belgian Court of Cassation, whose jurisdiction was expanded to cover colonial court decisions.

At independence, the Fundamental Law of 19 May 1960 maintained colonial legislation until formally repealed and ensured that the Belgian Court of Cassation would continue its functions until the Congo established its own cassation court. This happened in 1964 with the adoption of the Luluabourg Constitution, which created a national Supreme Court of Justice. The constitution of 18 February 2006, unlike the Transitional Constitution, established two distinct judicial orders: judicial courts and administrative courts, alongside an autonomous Constitutional Court. A supreme body leads each order — the Court of Cassation for the judicial order and the Council of State for the administrative order. In its explanatory memorandum, the constituent authority briefly outlines the reorganization of the judicial system:

"For greater efficiency, specialization, and speed in the handling of cases, the Courts and Tribunals have been divided into three judicial orders:

the courts of the judicial order, placed under the supervision of the Court of Cassation; those of the administrative order, headed by the Council of State; and the Constitutional Court". Organic Law No. 13/011-B of 11 April 2013, which regulates the organization, functioning, and jurisdiction of courts within the judicial system, stipulated in Article 89 that the Supreme Court of Justice would continue to function in its existing structure until the Court of Cassation of the Democratic Republic of the Congo became fully operational. Article 6 of that law designates the Court of Cassation as the supreme court of the judicial order, which was a role previously held by the Supreme Court of Justice. In this capacity, the Supreme Court of Justice had jurisdiction over cassation appeals against decisions rendered at second instance by Courts of Appeal, High Courts, Commercial Courts, the appeal chambers of Juvenile Courts established under Law No. 09/001 of 10 January 2009 on child protection, as well as Labor Courts; applications for annulment of administrative decisions issued at first instance by Courts of Appeal; criminal prosecutions, at first and final instance, of public officials enjoying jurisdictional privilege; appeals against criminal judgments delivered at first instance by Courts of Appeal; and any additional powers assigned by law pending the full establishment of the Court of Cassation and the Constitutional Court.

In line with the constitutional reorganization introduced by the Constitution of 18 February 2006, which divided the judiciary into three separate systems to improve efficiency and specialization, the Supreme Court of Justice was definitively dissolved in 2018. Its powers were transferred to the Constitutional Court, the Court of Cassation, and the Council of State, while all civil and military courts within the judicial system were placed under the authority of the Court of Cassation.

Court structure and jurisdiction

Jurisdiction Article 153, paragraphs 2 and 3, of the constitution of the Third Republic defines the powers of the Court of Cassation. The Court has jurisdiction over:

appeals in cassation against final judgments and rulings issued by civil and military courts and tribunals; offenses committed by certain high-ranking officials, over which it exercises original and final jurisdiction, including members of Parliament, members of the government other than the prime minister, members and judges of the constitutional court, the court of cassation, the council of state, and the court of auditors, as well as senior judicial officers, provincial authorities, and presidents of provincial assemblies.

The prosecution and indictment of government members require an absolute majority vote of the National Assembly, in accordance with its Rules of Procedure, and any indicted government member must resign. The court of cassation also hears second-instance appeals against judgments rendered at first instance by the courts of appeal. As the highest court of the judicial order, which includes civil and military courts and tribunals, it has jurisdiction throughout the national territory, although it adjudicates only judicial matters involving private individuals.

The Court of Cassation shares many characteristics with the former Supreme Court of Justice, particularly its judicial section. It appears to have inherited the powers of that section. However, notable differences exist, as unlike the Judicial section of the Supreme Court, the Court of Cassation does not have criminal jurisdiction over the president of the republic. In addition, several categories of officials, such as the prime minister, provincial ministers, and presidents of provincial assemblies, were not mentioned in the Transitional Constitution, while new institutions created by the 2006 constitution, including the Constitutional Court and the Council of State, are expressly covered. Positions linked to the transition, such as vice-presidents and leaders of transitional institutions, no longer exist under the current constitutional framework.

Composition and administration The Court of Cassation is composed of a First President, Presidents, and Judges (Counsellors). The First President is responsible for the administration of the Court and establishes its internal rules by ordinance. Élie-Léon Ndomba Kabeya was appointed First President (premier président) pursuant to Judicial Organization Order No. 23/168 of 15 August 2023 and formally assumed office after taking the oath on 14 September 2023 before President Félix Tshisekedi.

First Presidents of the former Supreme Court of Justice and the Court of Cassation: No.NameTitle Term of office1Marcel LihauPremier président de la Cour Suprême de Justice1968–19752Nicolas Bayona Ba MeyaPremier président de la Cour Suprême de Justice1975–19863Evariste Kalala Ilunga Premier président de la Cour Suprême de Justice1986 (a few months)4Gérard Balanda Mikuin Leliel Premier président de la Cour Suprême de Justice1986–19985Bruno Mbiango Kekese Premier président de la Cour Suprême de Justice1998–20036Benoît Lwamba Bindu Premier président de la Cour Suprême de Justice2003–20077Étienne Roger Tikamanyire Bin Ndigeba Premier président de la Cour Suprême de Justice2007–20098Gervais Bemwizi Kyenga Premier président de la Cour Suprême de Justice2009–20109Jérôme Kitoko Kimpele Premier président de la Cour Suprême de Justice et de Cassation2010–202010Dominique Ntambwe wa Kaniki Biselela Premier président de la Cour de Cassation7 February – 29 June 202011David Christophe Mukendi Musanga Premier président de la Cour de CassationJune 2020 – September 202312Élie-Léon Ndomba KabeyaPremier président de la Cour de Cassation14 September 2023 – present The provisions of Article 20 of the Organic Law governing the organization, functioning, and jurisdiction of courts within the judicial order apply mutatis mutandis to the Court of Cassation. On the basis of the quality of their scholarly publications, the High Council of the Judiciary (Conseil supérieur de la magistrature) may designate certain sitting and prosecutorial magistrates to serve as referendary counsellors at the Court. These counsellors support the judges of the Court and the Office of the Prosecutor General in carrying out their functions and are appointed in accordance with the statute governing magistrates. The First President is supported by a private office (cabinet), whose members are appointed by him. The registry is directed by a Chief Registrar holding the rank of Secretary General of the Public Administration (Secrétaire général de l'Administration publique), assisted by one or more registrars.

Chambers