LEGALITY OF PROSECUTIONS BROUGHT BY THE MILITARY PROSECUTOR'S OFFICE AGAINST CIVILIANS IN THE DRC: ANALYSIS IN LIGHT OF THE CONSTITUTIONAL PRINCIPLE OF LEGALITY

Abstract

This article examines the legality of prosecutions initiated by the military auditor against civilians in the Democratic Republic of Congo in light of the constitutional principle of legality and the right to one’s natural judge. It demonstrates that, under the Constitution and the Military Judicial Code, military courts are, in principle, not competent to prosecute civilians, except in narrowly defined and legally established exceptions.

Through a legal, doctrinal, and jurisprudential analysis, the study highlights recurring abuses in judicial practice, where civilians are prosecuted by military prosecutors for ordinary criminal offenses that clearly fall under the jurisdiction of civil courts. The article emphasizes that the military prosecutor’s office is a specialized institution primarily tasked with maintaining discipline within the armed forces and related services.

The study further exposes the illegality of certain practices involving the collection of judicial fees by military magistrates, particularly transactional fines and bail for provisional release, which are explicitly prohibited by military law. Such practices constitute a violation of the principle of equality before the law and may give rise to disciplinary, civil, and criminal liability. Ultimately, the article calls for strict enforcement of constitutional and legal provisions governing military jurisdiction, in order to safeguard fundamental rights, ensure legal certainty, and strengthen the rule of law in the Democratic Republic of Congo.