The organization and jurisdiction of the military courts constitute the set of Courts and Tribunals Militaries hierarchized with regard to the administrative diversity of the territory of the Republic with the attributions devolving them according to their hierarchical level. Organization and competence are two interrelated concepts that can be defined together in accordance with the approach followed by the legal provisions governing these matters. These derive from Law No. 023/2002 of 18 November 2002 on the Military Judicial Code, which, together with Law No. 024/2002 of 18 November 2002 on the Military Penal Code, forms the military criminal law.
The Military Criminal Law undergoes its first reform under the decree law of May 8, 1958 which had privileged the material competence. This reform had proved harmful for the discipline within the Armed Forces during the rebellions and secessions of the time, the legislator had returned to the personal competence of the military jurisdictions consecrated by the decree law of December 18, 1964 relating to the provisional code of justice military.
The Military Justice will be endowed with a definitive Code under the ordinance-law n ° 72/060 of September 25th, 1972 to fill the gaps that included the Provisional Code. This Code defined defined the rules of organization and competence devoting a complete jurisdictional set called Council of War to which was instituted a Military Prosecutor’s Office called Military Prosecutor and renewing the personal competence. It also defined the rules of procedure that provided for ordinary and extraordinary remedies and determined the specific offenses against the Armed Forces.
To consolidate the positions won by the forces of the Alliance of Democratic Forces for Liberation (AFDL) after the takeover by the latter, the decree-law of 23 August 1997 created the Military Order Court (COM), a real exceptional jurisdiction annihilating the judicial edifice built by the preceding texts, particularly the ordinary and exceptional remedies.
Following the abuses found in the functioning of this Court, it was abolished by Law No. 023/2002 of 18 November 2002 on the Military Judicial Code. This text rehabilitated the legal framework of September 25, 1972 with the only difference that it introduced a new nomenclature in the military judicial organization by adopting in particular the terms of the Courts and Military Courts instead of the War Councils. This last text governs today the military judicial law which in its provisions speaks in particular of the organization and the competence of the military jurisdictions dividing thus our matter in two main parts namely:
• The organization
There is established a High Military Court whose ordinary seat is fixed in the capital.
B.1.a. Military Magistrates of the High Military Court
First President of the Military High Court
Presidents and Councilors.
They are appointed and, if necessary, relieved of their duties by the President of the Republic, in accordance with the statute of the magistrates.
In case of absence or impediment, the First President is replaced by the oldest President or failing that by the oldest Counselor. The same is true of the President with regard to the Councilors.
B.1.b. Auxiliary of the High Military Court
The auxiliaries of the High Military Court are the Clerks who compose the Registry of this Court.
The Registry is headed by a Chief Clerk, assisted by one or more Principal Clerks. They are senior officers.
B.1.c. From the composition of the Military High Court
The High Military Court consists of two or more chambers. It is composed of five members, all general or superior officers, including two career judges. It sits with the assistance of the Public Ministry and the assistance of the Registrar. When sitting on appeal, the High Military Court is composed of five members, including three career judges. In the matter of annulment, review, take-over and settlement of a judge, she sits with five members, all career judges.
B.2. MILITARY COURSES
One or two Military Courts are established in the territorial jurisdiction of each province and in the city of KINSHASA. Their ordinary seat is established in the chief town of the province, in the locality where is the headquarters of the military region or in any other place fixed by the president of the Republic. In exceptional circumstances, the seat of the Military Court may be fixed in another place of jurisdiction by order of the Minister of Defense.
B.2.a. Magistrates of Military Courts
There is in each Military Court:
A first President;
They are appointed and, if necessary, relieved of their duties by the President of the Republic.
B.2.b. Auxiliary Military Courses
The Auxiliaries of the Military Courts are the Military Clerks who compose the Clerk’s Office. The Clerk’s Office is headed by a Principal Clerk, assisted by one or more Division Clerks. They are at least junior officers.
B.2.c. Military Courts Composition
The Military Court is composed of five members, all senior officers at least, including two career judges. It comprises two or more chambers presided over by career magistrates. The Military Court is presided over by a General Officer or by a Senior Officer, Career Magistrate. It sits with the assistance of the Public Ministry and the assistance of the Registrar. The first President of the Military Court may, if necessary, require the services of a civilian magistrate, with a view to completing the siege.
In addition to the material skills mentioned above, the Military High Court knows of the appeal of the judgments rendered in the first degree by the Military Courts. With regard to the current Military Judicial Code, the High Military Court currently exercises the special powers defined in Article 123, namely: “the actions for annulment for violation of the law formed against the judgments and judgments rendered as a last resort by the Military Courts and Tribunals, the requests for review, the strikes and the rules of the judges “. The action for annulment meanwhile, will be exercised before the High Military Court only until the installation of the Court of Cassation in accordance with Article 123 of the Constitution.
The Military Courts are competent for the offenses of which an act characterizing one of the constitutive elements was carried out on the territory of the Democratic Republic of Congo and in the maritime and air spaces which are bound to him. The territorial jurisdiction of each military court is determined according to the place where one of the offenses was committed and the place where the defendant was found. Offenses committed aboard ships flying the Congolese flag or aircraft registered in the Democratic Republic of Congo are subject to Congolese criminal laws. The same is true of offenses committed against these ships or aircraft. Military courts have jurisdiction over anyone who has made an act of authorship, co-perpetrator or accomplice to the facts of their jurisdiction committed abroad.
The territorial jurisdiction of the High Military Court constitutes the whole territory of the republic. The territorial jurisdiction of the Military Courts extends over the jurisdiction of each province and the city of KINSHASA. The territorial jurisdiction of the Garrison Military Courts extends over the area of a District, Garrison or Military Base. The Military Police Court has jurisdiction for the jurisdiction of the Garrison Military Tribunal.
The military courts are soldiers of the Congolese Armed Forces and similar. By analogous means, members of the national police and the builders of the Nation for the acts committed during the training or during the exercise of their functions within the national service. By military we mean all those who are part of the Armed Forces:
1. Officers, NCOs and ranks;
2. Those who are incorporated by virtue of legal obligations or voluntary commitments and who are in active service, without it being further established that they have read the military laws. It is the same when, before being incorporated, they are placed in a military capacity in a hospital, a penitentiary establishment or in the custody of the public force, or have subsisted in a unit;
3. The reformed, the available and the reservists even assimilated, called or recalled to the service, since their meeting in detachment to join, or if they join in isolation, from their arrival, until the day included where they are sent back to their homes ;
4. Members on Unlimited Leave are deemed on Active Service.
Are justiciable of the High Military Court:
a) The General Officers of the Congolese Armed Forces and members of the National Police and the National Service of the same rank;
(b) Persons amenable, by state, to the Supreme Court of Justice, for acts falling within the jurisdiction of the military courts;
c) The Military Magistrates who are members of the High Military Court, the General Prosecutor’s Office, the Military Courts, the Military Operational Courts, the Military Prosecutors’ Offices near these Courts;
(d) Military members of the said courts, prosecuted for acts committed in the exercise or in the exercise of their functions as judges.
Extract from Military Judicial Code