Democratic Republic of Congo: Customary chiefs, including their authority, regions where they are present and their legal recognition; how to become a customary chief, including the need for human sacrifice; consequences of refusing to become a customary chief; state protection

1. Overview of the Situation of Customary Chiefs in the Democratic Republic of the Congo (DRC)

According to International Crisis Group,

[International Crisis Group English version]

in the DRC, provinces are divided into territories, which are in turn divided into decentralised territorial entities (ETDs) called sectors (secteurs), chiefdoms (chefferies) and groups (groupements). The chefferies are administered by traditional (or customary) chiefs and their council (International Crisis Group 23 July 2013, 3).

Customary chiefs are known as "mwami" (International Crisis Group 23 July 2013, 3; CICR 2 Mar. 2011). According to International Crisis Group, this title literally means "king" (23 July 2013, 3).

The customary chiefs are recognized by the Constitution of the DRC (France 24 17 Jan. 2014; International Crisis Group 23 July 2013, i; Buaguo Mosabi and Fufulafu Zaniwe 2012).

Article 207 of the Constitution states the following:

[translation]

Customary authority is recognized. It is transferred in conformity with the local custom, provided that the latter is not contrary to the Constitution, the law, public order and morality. Each customary chief who desires to exercise an elective public function must submit themself to an election, unless the provisions of Article 197, Section 3 of the current Constitution are applicable. Customary authority has the duty to promote national unity and cohesion. A law establishes the status of the customary chiefs (DRC 2006, Art. 207).

According to the provisions of Article 197 mentioned above, provincial deputies

[translation]

are elected by universal, direct and secret suffrage or co-opted for a renewable term of five years. The number of co-opted provincial deputies may not exceed a tenth of the members of the Provincial Assembly (ibid., Art. 197).

International Crisis Group explains that, in practice, this provision of the Constitution means that [International Crisis group English version] "10 percent of seats in provincial assemblies are allocated to traditional chiefs, who are co-opted by the provincial deputies on the basis of one chief for each territory" (International Crisis Group 23 July 2013, 11).

Chapter III of Organic Law No. 08/016 of 7 October 2008 on the Composition, Organization and Operation of Decentralized Territorial Entities and Their Relations with the State and the Provinces (Loi organique n° 08/016 du 07 octobre 2008 portant composition, organisation et fonctionnement des Entités territoriales décentralisées et leurs rapports avec l'État et les provinces) contains the provisions regarding the sectors and chiefdoms in the DRC and provisions regarding the roles and responsibilities of the chiefs (DRC 2008, c. III). This chapter is attached to this Response.

However, according to International Crisis Group, the role of customary chiefs is [International Crisis Group English version] "not fully defined"; the international NGO explains that

this reorganization of local government was only partly implemented. Successive governments failed to organise local elections or pass legislation on the status of the traditional chiefs (International Crisis Group 23 July 2013, i, 17).

Congolese media point out however that a bill on the status of customary chiefs was presented and debated in the fall of 2013 (ACP 5 Nov. 2013; Le Potentiel 5 Nov. 2013). Information on the progress of this bill could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources state that in 2012, there were 259 chiefdoms in the DRC (Buaguo Mosabi and Fufulafu Zaniwe 2012; France 24 17 Jan. 2014). According to France 24, an amalgamation of three 24-hour television news channels, [translation] "most" of the chiefdoms are located in the north-eastern part of the country (17 Jan. 2014). According to an article written by academics from the University of Uélé on chiefdoms in Haut-Uélé [a district in the Oriental Province], 139 of these chiefdoms are located in the Oriental Province (Buaguo Mosabi and Fufulafu Zaniwe 2012).

2. Power of Chiefs

Sources report that customary chiefs are considered to be the guardians of morality (ACP 5 Nov. 2013; ICRC 2 Mar. 2011). Congolese media state that the customary chief also acts as [translation] "protector" of cultural identity (Le Potentiel 5 Nov. 2013; ACP 5 Nov. 2013). According to the International Committee of the Red Cross (ICRC), customary chiefs are [ICRC English version] "the ones who advise and soothe, but also who mobilize the community in order to find solutions" (2 Mar. 2011).

The International Crisis Group states that, [International Crisis Group English version] "[i]nstead of acting as secondary figures, traditional chiefs play a leading role in Congo's politics and administration" (International Crisis Group 23 July 2013, i). The NGO adds that

[International Crisis Group English version]

the provincial and national authorities have only a weak hold on local governance. The primacy of traditional authorities over state administrations and institutions is strengthened by the present government's lack of legitimacy. Lacking public support, it tries to use the traditional chiefs to build a power base, following the example of other African governments (International Crisis Group 23 July 2013, 16).

In a book on the relations between traditional authority and state authority in the DRC, Héritier Mambi Tunga-Bau, who holds a PhD in political science and who teaches in the department of political and administrative science at the University of Kinshasa and at the Bandundu University Centre (Centre universitaire de Bandundu) (La Prospérité 9 Jan. 2012), states that [translation] "today, like yesterday, the structure of traditional authority fundamentally organizes and exercises state authority" (Mambi Tunga-Bau 2010, 16).

In practice, according to the International Crisis Group, customary chiefs are "both land administrators and arbitrators in land disputes" (International Crisis Group 23 July 2013, 18). The same source adds that

[International Crisis Group English version]

these functions still do not have a legal basis but they represent a popular response to the state's absence. Often exceeding their powers, traditional chiefs give land, take it away and sell it as they please, which is the source of many conflicts throughout the country (ibid.).

3. Selection Process

With respect to naming a successor chief, Articles 66 and 67 of Organic Law No. 08/016 cited above establish a distinction between sectors and chiefdoms:

[translation]

The sector is a generally heterogeneous group of independent traditional communities, organized around customs. Its leader is a chief elected and vested by public authority.

...

The chiefdom is a generally homogeneous group of traditional communities organized around customs. Its leader is a chief designated by custom, and recognized and vested by public authority. (RDC 2008).

The International Crisis Group states that customary chiefs are appointed by national authorities, namely, the Ministry of the Interior and of Traditional Affairs (International Crisis Group 23 July 2013, 3). However, according to Dr. Mambi Tunga-Bau,

[translation]

nomination and recognition by the state are merely appendices that legalize an entirely traditional situation. They give customary power legal legitimacy (Mambi Tunga-Bau 2010, 30).

Thus, sources state that the position of customary chief is hereditary (International Crisis Group 23 July 2013, 3; Mambi Tunga-Bau 2010, 26-28). According to International Crisis Group, this responsibility is [International Crisis Group English version] "passed on from father to son" (23 July 2013, 3). Dr. Mambi Tunga-Bau states however that [translation] "birthright is not an absolute right" in succession, explaining that

in practice, the eldest becomes the person who has the greatest virtues for assuming power. Therefore, it is the noble candidate who socially justifies more assets who assumes power. The election is organized between the right holders, excluding widespread competition in the population, as well as in terms of the eligibility of candidates and the elective population (Mambi Tunga-Bau 2010, 29).

Dr. Mambi Tunga-Bau adds the following:

[translation]

It goes without saying that it is not possible for individuals outside of the chieftain family to assume power (ibid.).

4. Consequences Stemming from Refusing to Become Customary Chief

According to Dr. Mambi Tunga-Bau, customary chiefs' mandates are [translation] "unlimited", and "the chief remains invested for his entire life"; "succession is only possible in the event of death, revocation or abdication of the chief in power" (Mambi Tunga-Bau 2010, 26, 29). According to the author, it is [translation] "rare" that chiefs "voluntarily renounce customary power" because "their role procures not only wealth but prestige" (Mambi Tunga-Bau 2010, 26). He adds that [translation] "customary chiefs who have abdicated did so, undoubtedly because of social constraints, to preserve their life after contravening customary rules" (ibid.).

Further information on the consequences of refusing to become a customary chief and on the availability of state protection could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. Need for Human Sacrifice

Information on the need for human sacrifice in the selection process of customary chiefs could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Agence congolaise de presse (ACP). 5 November 2013. "Le ministre de l'Intérieur Richard Muyej défend devant le Sénat le statut du chef coutumier congolais." [Accessed 14 May 2014]

Buaguo Mosabi, Dieudonné and Amand-Félix Fufulafu Zaniwe. 2012. Démocratie et pouvoirs coutumiers dans les chefferies du Haut-Uélé. [Accessed 14 May 2014]

Democratic Republic of the Congo (DRC). 2008. Loi organique n° 08/016 du 07 octobre 2008 portant composition, organisation et fonctionnement des Entités territoriales décentralisées et leurs rapports avec l'État et les provinces. [Accessed 14 May 2014]

_____. 2006. Constitution de la République démocratique du Congo. [Accessed 14 May 2014]

France 24. 17 January 2014. "Assassinats en série des chefs coutumiers au nord-est de la RDC." [Accessed 14 May 2014]

International Committee of the Red Cross (ICRC). 2 March 2011. "Violences sexuelles en RD du Congo: la tradition contre l'exclusion." [Accessed 14 May 2014]

International Crisis Group. 23 July 2013. Comprendre les conflits dans l'Est du Congo (I): la plaine de la Ruzizi. Rapport Afrique n° 206. [Accessed 14 May 2014]

Mambi Tunga-Bau, Héritier. 2010. Pouvoir traditionnel et pouvoir d'État en République démocratique du Congo: esquisse d'une théorie d'hybridation des pouvoirs politiques. [Accessed 14 May 2014]

Le Potentiel. 5 November 2013. Stéphane Etinga. "Sénat: le projet de loi sur le statut des chefs coutumiers soumis à l'examen de la plénière." [Accessed 14 May 2014]

La Prospérité. 9 January 2012. Cherry Mwanda. "Pouvoir traditionnel et pouvoir d'État en Rdc contemporaine." [Accessed 15 May 2014]

Additional Sources Consulted

Oral sources: Attempts to contact the following organizations were unsuccessful: Centre des droits de l'homme et du droit humanitaire; Ligue pour la paix, les droits de l'homme et la justice.

Internet sites, including: AllAfrica; Amnesty International; Congo Forum; Democratic Republic of the Congo - ministère de l'Intérieur, Sécurité, Décentralisation et Affaires coutumières; Digital Congo; ecoi.net; Factiva; France - Cour nationale du droit d'asile; Freedom House; Human Rights Watch; Jeune Afrique; Leganet.cd; L'Observateur; Le Phare; Radio France internationale; Radio Okapi; Search for Common Ground; Le Soft International; United Kingdom - Home Office; United Nations - United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, Refworld, Integrated Regional Information Networks; United States - Department of State.

Attachment

Democratic Republic of the Congo (DRC). 2008. Loi organique n° 08/016 du 07 octobre 2008 portant composition, organisation et fonctionnement des Entités territoriales décentralisées et leurs rapports avec l'État et les provinces. [Accessed 14 May 2014]