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DISTRIBUTION OF NATIONAL REVENUE BETWEEN THE CENTRALGOVERNMENT AND THE PROVINCES IN THE DEMOCRATIC REPUBLIC OFCONGO: MODALITIES AND CHALLENGES

By Jean Salem Israël Marcel KAPYA KABESA*

INTRODUCTION

When the Greeks asked Solon1 the question: “Which is the best constitution?” Heanswered, without hesitation “tell me for which country, for which people and atwhich period in history….”

The development of the decentralization in the DRC has, since the acquisition ofnational and international sovereignty of our nation, been characterized by ups anddowns. Why decentralize? What is the reason for this entire process that results inthe establishment of decentralized territorial entities?

The legislature does not answer these questions; it simply obeys a provision of theconstitution of 18th February 2006 which “opted for decentralization as a mode ofgoverning certain territorial entities of the republic; that the Statutory law No. 08-016of 7th October 2008 was only reinforcing a declaration already made in article 3, al 2and 4 of the Constitution, to draft a statute establishing the rules regarding thecomposition, organization and operations of decentralized territorial entities andtheir relationships with the State and the provinces”2 .

Decentralization cannot simply be summarized as an addition of reforms. It is aboveall a state of mind, a willingness to forge forward in reinforcing democracy, which isseen as a policy of redistribution of administrative jurisdictions of the State with aview to achieving good governance and the development of areas by the localsthemselves, was the policy chosen by the Congolese Constitution and reinforced bythe legislature within the framework of the reforms of 2008, which enshrines thedivision of territories and the free administration of provincial and local authorities3,as democracy and development are the practical application of national and

* Assistant at the University of Lubumbashi and Advocate at the Court of Appeal of Lubumbashi1 Solon (638-559 BC.) is an ancient greek politician. He is considered one of the founders of athenian democracy.Microsoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation. All rights reserved..2 Simon pierre METENA M’nteba , « des entités territoriales décentralisés (ETD ) » ,pourquoi faire ?in Congo-Afrique ,n°433, march 2009, pp ;187.3 Faustin TOENGAO L okundo, « la reforme sur la décentralisation et le découpage territorial : portée etfaiblesse »,in Congo- Afrique, n° 433 ?mars 2009,pp.15

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international solidarity; they are characteristic of regimes of open societies that arewilling to cooperate among themselves, while respecting their diversities4.

Decentralization is not just a technique but mainly a mystique. It had thus beenpracticed in the Bible: We are told of how Moses, who issued orders directly to allthe people gathered around his tent, had to get advice from Jethro his father-in-lawon better administration. The advice given was to spread his authority by entrustingit to leaders over groups of thousands, hundreds and tens (Exodus 18:17-21 ). Theexistence of de-concentrated entities should not reduce our faith in the virtues ofdecentralization. We should simply understand that “decentralization is a supportmechanism for the public policy of the State5.

The territorial, administrative and political structure of the DRC has undergonenumerous changes from the era of the Independent State of Congo (1885-1908) todate, via the colonial period (1908-1960). Several adjustments and readjustments interms of centralization and decentralization, reduction and increase in the number ofterritorial entities as well as their naming have no doubt left a mark on the historicaldevelopment of this structure. These changes have however not been motivated bythe need to modify the sociological content of the Congolese administrative system.Yet the changes have always been declared as founded on the idea of setting up aterritory for development: the need to correctly divide the national territory for easyadministration and therefore for better development6.

As a matter of fact, the notion that African tribes are a group of people closed in onthemselves and to whom every stranger or neighbour is an enemy, is a “colonialinvention”. During the colonial period, ethnic groups were only studied in a waythat omitted the large social units of which they were part and in which they livedbefore. Professor Jan VANSINA says that tribalism is a colonial form of ethnicity7.

It is scandalous that the ethnic factor was accorded only a limited role in the newdivisions. The boundaries of the new administrative entities are the same as those ofthe old. Moreover, wherever the tribal factor was mentioned as a basis for thecreation of a new province, there was a rise in tribal animosity especially where the

4 CONAC ,G. l’Afrique en transition vers le pluralisme politique, économica, paris,1993, p. 5.5 MADIOT,Y., « les techniques des corrections de compétences entre collectivités locales »,RFDA 1996,p.964.6 KANYINDA LUSANGA, « la décentralisation territoriale zaïroise à l’épreuve de la théorie et des faits » ,in lescahiers du CEDAF ( avril 1984 ), n° 2, p.1.7 JAN VANSINA, living with Africa, Madison, 1994, p.230.

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province’s economic potential was weak. Competition for power was more stringentas it constituted the main avenue for social advancement8.

The territorial divisions and decentralization as envisaged by the currentConstitution of 18th February, 2006 only reflect the need that motivated the Vaticanto subdivide the religious territory in the DRC into 25 dioceses, based on thelinguistic, social and cultural representation of the indigenous peoples.

Administrative decentralization is enshrined in article 3 of the Constitution whichstates that: “Provinces and decentralized territorial entities are endowed with legal powersand are governed by local bodies. These decentralized territorial entities are: Cities, districtsand villages. They enjoy administrative freedom and freedom in the management of theirhuman, economic financial and technical resources”.

In addition, article 171 of the Constitution and article 43 of law No. 08-012 of 31st July2008 on the fundamental principles to free administration of the provinces stipulatethat “the finances of the central government and those of the provinces are distinct”,confirming the fiscal and financial decentralization of the country9. In addition,article 175 paragraphs 2 and 3 of the Constitution affirm that “The portion of nationalrevenue allocated to the provinces is fixed at 40 %. It is retained at source; the names of otherlocal revenues and the modalities for their distribution are fixed by law”.

If the objectives pursued by reforms that are operational in the territories remain thesetting up of an efficient administration for the realization of harmonious andintegrated development, it is sad to note that four decades later, this objective hasonly been realized to a very small extent, especially after attaining independence on30th June, 1960. Being conscience of this state of affairs, the institutions emanatingfrom the free and democratic elections of 2006, basing themselves on the provisionsof the Constitution of 18th February 2006, have decreed a new reform ondecentralization and division of the territory.

This reform has materialized in the form of three laws called “laws ondecentralization”. These are:

· Law No. 8/012 of 31st July 2008 on the fundamental principles of free administrationof the provinces ;

· Law No. 08/015 of 7th October 2008 on modalities of organization and operation of theforum of provincial governors.

8 J.C. WILLAME, Les provinces du Congo, structures et fonctionnement, n°5, Léopoldville, 1965, p .121.9 MABI MULUMBA, décentralisation et problématique de fiscalité, in Congo, n°432, February 2009,pp 126

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· Structural law No. 08/016 of 7th October, 2008 on the composition, organization andoperation of territorial entities (ETD) and their relationship with the provinces.

The major problems which are the subject of this thesis revolve around the followingquestions:

· What is the nature and the legal basis for the distribution of revenue betweenthe central government and the provinces?

· What are the modalities and hindrances?

I. DECENTRALISATION AND ITS APLICATION IN THE DRC

I.1. Historical backgroundTerritorial decentralization is a system of administrative organization in which otherlevels of responsibility and decision making, outside the centre are created by law orby the Constitution itself. It involves conferring decision-making powers to organsother than to mere agents of the central government.

For one to speak of territorial decentralization, three conditions must existconcurrently:

- Legal authority;- The existence of special decision-making organs, preferably elective; what is

termed organic autonomy. This accompanies recognition of a category of localaffairs that are distinct from national affairs. For it to be more efficient,decentralization must be supplemented with financial autonomy which in turngoes with technical autonomy, that is to say having an independent treasury,separate from national accounts;

- Lastly, administrative supervision is traditionally organized as a regulatoryauthority, especially at the level of basic decentralized territorial entities (ETD);cities, communities, sectors or villages. It may however be replaced by anadministrative judge on a regulatory capacity

Between 1960 and 1982, the evolution of local administrative structures wentthrough three important phases.

The first phase, from 1960-1966: The phase of haphazard change at the provinciallevel without overall coordination at the national level;

The second phase, from 1966-1977: The establishment of State authority over theentire national territory. It is characterized by a strong centralization of power;

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Lastly, the third phase from 1977-1982: Gradual move towards real decentralizationof responsibilities to the benefit of the local administration10.

Unlike previous legislation on the territorial and administrative organization of thestate, order No. 82-OO6 of 25th February 1982 on territorial, political andadministrative organization of the republic institutes territorial decentralization inboth urban and rural areas. As stated by the Head of State, this territorialdecentralization is designed as a “strategy to bring together administrative actorswith the purpose of better organizing the development of their entities11”.

As can be seen, all important territorial entities are decentralized. “One can thereforeassert that the decentralization process of 1982 is the most significant in the historyof this country”, remarks VUNDAWATE, T12. Henceforth, besides general interestfor which the State is responsible, this legislation provides for the existence of publicinterests of a specifically different nature because of the extent of their geographicalfield of application, whether regional, urban or local for whose administration thelaw has provided local organs.

In the history of administrative and political division, transition began before theconstitutional vote of 2003 and the political fallout of Mobutu’s speech of 24th April1990. The two wars of Shaba of 1976 and 1977 manifested a great disaffectiontowards the 2nd republic and imposed a series of changes in orientation. A freshspeech on decentralization came in 1977. Elections were held that same year and alaw on decentralization was promulgated on 25th February 198213. This law accordslegal powers to the region, towns and their urban zones, rural zones and localauthorities. The City just like the sub-region and the community were notrecognized as administrative entities. The decentralized entities had electedcouncils, but except for the communities group, their heads were appointed

10 By virtue of the law of 27th April 1962, the first province that was created was nord-Katanga Province on 11July 1962. Then on 14th August 1962, fifteen other provinces were instituted (See the Congolese monitor ofSeptember 1962,n°23 ,24 ,pp.226 -233) . In 1963, le central government finally instituted the provinces of moyenCongo (5 février), haut-Congo (27 mars), Kivu central (18 mai ), Lualaba and Katanga oriental (8th July).Moreover, it can be pointed out that the status of Leopoldville was established on 10th October 1962. On thesame subject, one may also read Léon de st Moulin, « historique de l’organisation administrative du Zaïre »,Zaïre –Afrique (april 1988) n°224, pp.24-26.11 MOBUTU SESE SEKO, Speech delivered at the opening of the 4th congress of the MPR of 16th May 1988”,speeches and messages 1983-1988, t. 4., paris, les Éditions du jaguar, pp.631-632.12 VUNDWAWE, T., la dynamique de la décentralisation en RDC », in CONGO-AFRIQUE, n°432, February 2009,pp.83_160.13 The text is presented in VUNDWAWE te Pemako, la décentralisation territoriale des responsabilités au Zaïre.Pourquoi et comment ? In Zaïre Afrique (1982) n°165 , p.261-273 et n°166 ,p.327-343.

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discreetly by the Head of State. Sure enough, elections were held in 1982 and 1987 toappoint members of diverse councils. The list of communities group in which themembers of the council were to be divided into was contentious.

With leaders appointed as before, the people did not experience the feeling ofchange but that of a façade. They therefore placed all their hopes ofdemocratization14 in the national sovereign conference. Another law ondemocratization was promulgated on 20th December 1995 and fresh electionsscheduled for 1997. These never went beyond the proposal stage.

Following a period of centralized and totalitarian authority launched by the adventof power of the AFDL on 17th May, 1997, the law on territorial and administrativeorganization of 2nd July, 1988 provided for the existence of consultative councils atthe provincial, city, territory and commune level in the city of Kinshasa. Thesecouncils were to be composed of authorities of territorial subdivisions of theadministrative entity and representatives of its social forces. All the authorities werehowever appointed and eventually dismissed by the President of the Republic15.

Decree No. 081 of 2nd July 1998 was made with the aim of governing the territorialand administrative structure of the DRC during the transition period: This is a newtransition, this time unilaterally decided on by the larger council of the AFDL, asupreme organ which put an end to the consensual transition of the political class ofZaïre, founded on the protocol accord of 14th January 1994.

Under this transitional regime, Decree No. 081 of 2nd July, 1998 was modified twicethrough Decree No. 018/2001 of 28th September 2001 and Law No. 04/008 of 19th May2004. The two modifications concern the leadership of the provinces and the city ofKinshasa.

Initially, the Decree of 28th September 2001 created two posts of Provincial DeputyGovernor. The governor of the province or of the city of Kinshasa is assisted by twoDeputy Governors in charge of political and administrative affairs and economic,financial and developmental affairs respectively. He ensures the civic protection ofthe people and the monitoring of political and administrative activities in theprovince under the leadership of the Provincial Governor.

14 The national sovereign conference was held at the palais du peuple from 31 July 1991 to 6th December 1992.15 Cfr les codes Larcier, Bruxelles, de Boeck et larcier, 2003, tome VI, vol.1.,p. 23-44.

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On the other hand, in the application of the Comprehensive and Inclusive Accord onTransition signed in Pretoria, South Africa on 17th December, 2002 by the parties tothe Inter-Congolese Forum16 and adopted at Sun-City (South Africa), on 1st April,2003, Law n° 04/OO8 of 19th May, 2004 modified Decree No. 081 of 2nd July 1998 so asto accord Kinshasa three posts of Vice Governor. The first one is in charge ofpolitical, administrative and socio-cultural matters while the second is in charge ofeconomic and financial issues. The third is in charge of reconstruction anddevelopment.

The structure and operations of the city of Kinshasa and the provinces, as well as thedistribution of jurisdiction between the State and the provinces, as stipulated inarticle 5, paragraph 4 of the transitional Constitution of 4th April, 2003, was to beestablished by the statute law which was to be voted on during the first session ofthe National Assembly and Senate to form the new transitional parliament.However, it is still Decree No. 081 of 2nd July 1998, in its modified and completedstate that continues to govern the territorial and administrative structures of thestate in this transition period. We are talking about a consensual transition based onan accord, more specifically, the Comprehensive and Inclusive Accord of 17th

December 2002. It is the elections of 2006 that opened the door to the democraticprocess.

I.2. Decentralization and Rebuilding the Congolese StateThe DRC is a country in a perpetual search for an ultimate form of government. As amatter of fact, since its establishment as a state, the DRC has often been tossed froma federal form to a centralized form of government. Following independence,opposition between the two schools of thought resulted in a basic law on thestructure of government in Congo that produced a hybrid form of government. Onthe political dimension, this constitution already showed signs of problems whenPresident Kasa-Vubu dismissed his prime minister. The prime minister dismissedhim in return.

The Constitution of 18th February, 2006 made an attempt at compromise between thetwo sides by instituting a hybrid system. To reassure the federalists, the worddecentralize was heard like “a cry from oppressed chests.”17 Decentralization wasfrom then henceforth cast in marble on the front wall of this fundamental document.

16 The Inter-Congolese Forum was followed by the Lusaka (Zambia) accord of 10th July, 1999 for a cease-fire inthe DRC, see the official journal, (May 2001), special edition, pp.105-111. ;which in article 3, point 19 recommendsthe holding of an open national dialogue with the aim of establishing a new political order and nationalreconciliation. These negociations took place in Sun-City (South Africa) from 25th February to 12th April, 200217 Letters on decentralization, RDP, April, 1985, p .1

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This centralization is scary because when misunderstood, it is likely to threaten theunity of the country by awakening separatist excitement which lies dormant in thesub conscience of those nostalgic about secession, writes MODESTE Mutinga18.

It is important to remember that the Congolese process is guided by a “state-building” imperative, of reconstructing and rebuilding the nation, meaninginventing a modern or post-modern Congolese state which brings together theheritage of the traditional past and modernity in a positive and not an antagonisticperspective. It is a major strategic objective as this reconstruction, in the case offailed African States, is not about infrastructure destroyed by war: For donors andinternational bodies, it is about rebuilding a functioning state, meaning agovernment with a public service, budget and forces of law and order, which allowit to assume all its stately functions while upholding democratic practices.”19

“It may not be the role of the law to awaken dying beliefs but it is the role of the law to getmen interested in the destiny of their country. It is upon the law to awaken and direct thisvague patriotic instinct which never leaves the human heart and to connect it with thoughts,passions and everyday habits to turn it into a logical and lasting feeling”, points out Alexisde Tocqueville.20

Plural African societies had such an advanced knowledge of this reality that to keepawake the hopes of the people, they placed at the heart of multinational power, animportant institution called the “Council of elders”. These are the “custodians ofcustoms and traditions”, who in the pre-colonial African Law, remarksVANDERLINDEN, J21 that the colonialists confused with supposedly intransigentcustoms, reduced to the vestiges of the past and destined to disappear. Without everhaving heard of Kelsen and his concept of legal positivism, pre-colonial African lawalready knew the concept of hierarchy of norms, as witnessed by the Lubacommunity: They distinguished between the “Meyi aka bukulu” or “ancestral laws”which are inviolable and which form the basis for political and social order, alsocalled “bishimbi meyi” or “laws of the root or of the vase”. This meant that they werefundamental laws as the word “bishimbi” and its plural “tshishimbi” derived from the

18 « Introduction », in kengo wa dondo, ‘reforme de la territorial et respect de l’unité nationale, palais du peuple,Kinshasa, sept. 2008, p.4.19 VIRCOULON, th., « ambigüités de l’intervention internationale en RDC »,in politique africaine, n°98,June,2005 ,p.80.20 Alexis de Tocqueville, la démocratie en Amérique, paris, Gallimard ,1968)21 VANDERLINDEN,J21 , « justice et droits: quels droits appliquer ? le juge et la coutume en Afriqueaujourd’hui », in Afrique contemporaine, special edition 156 on justice in Africa,4th trimester 1990, pp.233-235)

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verb “kushindama” meaning “to anchor, to entrench or to plant”. Next are the simplelaws called “meyi” and the taboos called “mikandu.” In such an order of ideas, onecan easily see the importance of interpreting law in a society under legal pluralism.That is why irrespective of which African Country one is looking at, the Council ofwise men or the council of elders is the highest constitutional court, if we are to usemodern terminology. Its peculiarity is to have, in varied forms, two major courses ofchange.

On the one hand, the institutionalization of justice as an independent and impartialauthority and not just as an authority. On the other hand, popular legitimization ofjudicial authority through the system of appointing judges. As a matter of fact,justice is considered an independent authority by the popular legitimacy held by thejudges of the council of elders.

Chosen from the ruling class on the basis of competence and exemplary behaviourthe judges testify by their presence at the heart of the political arena that the powerof the ancestors, represented by Princes, Kings and Emperors cannot be reduced, inline, to their characters of those wielding it. It is a peoples’ power of which the thejudges are the custodians of fundamental law, as we would say today. Surroundedby this social prestige, each of the judges of the council of elders was considered bythe King or Emperor as “un Primus inter Pares”. Thanks to this status, they neverceased from time immemorial to act and to defend the principle which states that“No man is above the law”. In order to change eras, one only has to change thelegitimacy of the old with that of the new, that is, through popular election (eitherdirect or indirect) of judges of the council of elders just like members of parliamentand the Head of State. This election of judges to the council of elders is meant to givebirth to a constitutional democracy, thereby putting an end to the democraticchallenge,22 a major cause of controversy surrounding the administration of judgesin France for example, for which the constitutional council is the secular arm.Dominique Rousseau is indeed right in asserting that “constitutionality checks drawa part of their democratic legitimacy from the function that they fulfill, ensuringrespect for the rights and freedoms of the citizens. This respect has been viewed as anecessary condition to the quality of a political regime. The organ that guarantees itis therefore also a necessary component of democratic systems23”.

22 Bastien François, « justice constitutionnelle et démocratie constitutionnelle : critique du discoursconstitutionnaliste européen », in CURAPP, Droit et politique, PUF, 1993, pp.53-63.)23 Dominique Rousseau, la justice constitutionnelle en Europe, Paris,montchrestien, 1996, pp.43-44.

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This is a rebuilding that needs to operate within a complex and ambiguous contextof a fragmented state, structural instability and the involvement of diverse interests.The need for de-concentration in the decentralization process is made apparent.

Opening such a form of perspective is to conceptualize legal culture and the practiceof law as a cultural intervention.”24 According to PETER GABEL, it would beconsidering “the law as a social conscience, a mixture of images and ideas whichlegitimize the existing social order while at the same time provide an opportunityfor change. The law is a mode of social conscience, focused on meaning, rather thana heap of rules whose impact can only be found in the results which supposedlyflow from them” The specific operating significance of each legal rule should bemeasured as a legal text or procedure…. is not just a reflection but also a technicalmeans more or less effective, but which draws from a history and a culture. Yet thetragedy of black Africa is that it has been content to slavishly copy from foreign law,to the detriment of multi-secular African legal cultures.

I.3. Decentralization and De-ConcentrationBoth methods emanate from a unitary system of government. Yet de-concentrationis a variant of centralization in that it is opposed in principle of decentralization as“proper decentralization cannot work without de-concentration.”25

DJOLI, E, finds that this theoretical imperative becomes a necessity in the case of aterritory seeking permanent status as a nation. As a matter of fact, the history andgeography of the DRC necessitates a huge transfer of power to the periphery butalso a constant reassuring presence at the centre.26

This balanced approach requires that henceforth, the policy of decentralization takesplace in the context that is a weak, artificial, post-conflict state. Today, it has beenestablished that “weak or failing states are the source of many of the seriousproblems faced by the world today”27 and that “numerous African countries areplagued by a myriad of evils and like Congo have become almost Ghost States.”28

Yet, “the structure and functioning of a legal system does not happen by chance. It isas a result of a multi-dimensional game of social, economic and political factors

24 PETER GABEL, « critical legal studies et pratique juridique : la conception de la culture juridique et de lapratique du droit comme interventions culturelles » in revue droit et societé,n° 36-37, 1997 .25 LIEGEOIS , M., la décentralisation en RDC, enjeux et défis, GRIP,1 /2008.p.7 .26 DJOLI, Eseng’Ekeli, « les entités territoriales déconcentrées : contre poids ou contrefort de la décentralisationcongolaise », in Congo- Afrique, n°432, Février 2009, pp.83-160.27 FUKUYAMA,F,state building, gouvernance et ordre du monde au XXe s, la table, paris,2004,p.2.28 BRAUD, Ph, la science politique ii, l’État, paris, seuil, 1977, p.229.

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which agree or conflict at a given time within the context of the realities of anynation.”29

The lesson taught by DURKHEIM, E. remains relevant. He aptly points out that “ Itis within the bowels of the society that the law should be made and the legislator isonly sanctioning work that has been done without it. It is therefore necessary toteach the student how the law is made under the pressure of social needs, how it isgradually adjusted, how it passes from one level of crystallization to another, how itis transformed. He will no longer see in the legal formulas, types of sentences,speeches whose, sometimes; mysterious meaning one has to guess. He will be ableto determine the impact and not the obscure and sometimes subconscious intentionof a man or a gathering of men, but according to the very nature of the reality.”30

The DRC is faced with inherent problem of governing a very vast territory. Whenpower is too centralized, the result is an “apoplexy of the centre and an atrophy ofthe periphery”. On the other hand, if power is distributed too much to the grassroot,there is likely to be a schism and fragmentation of this artificial State, a fruit ofcompromise which is the envy of neighbouring countries ( DJOLI, EIdem).

Decentralization is the process of transfer of power from the central to the locallevel. Fundamentally political in nature, it is a way of managing public services thatinvolves conferring certain responsibilities to elected local authorities, with thecentral government contenting itself with supervising the manner in which theauthorities contribute to their proper functioning.

These local authorities or entities have the power to administer themselves, meaningthey have their own elected organs, jurisdictions, local affairs and resources.

A national decentralization strategy such as the art of setting objectives, ofdetermining the means, of drafting a programme, of anticipating areas of impulsion,growth, transduction and respiration, an ownership of the process asdecentralization is not just a collection of text. “Manuals can leave one thinking thatthe law is all contained in text: Reality however rises up in opposition to themysticism of text. It shows its real meaning and efficiency; it makes the law appearlike a collection of practices which result in a general consensus, the text being only

29 KABANGE, Nt., droit administratif, université de Kinshasa, 2001, p.10.30 DURKHEIM, E., cours de sciences sociales, leçon d’ouverture (1888), XV, pp.23-24, Revue internationale del’enseignement, la science sociale et l’action, PUF, 1970, p.334.

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one way of discerning this consensus; in brief, the law has no power in itself. Itneeds men. 31

De-concentration is an administrative technique by which the central governmentconfers to its representatives heading simple administrative entities or diverseservices, the power to make some important decisions. The State thus governs andadministers using local agents appointed by the central government each of whomhas decision-making powers over a certain geographical area but who is completelysubordinate to the central authority. It is therefore about delegating decision-makingto agents at the local level who remain dependent on and subject to hierarchicalregulation by the central authority. “Decentralization and de-concentrationtherefore, far from being contradictory, are actually complementary forms ofadministration”. De-concentration seeks to improve the efficiency of Stateoperations. Decentralization tends to bring closer the decision-making process ofcitizens, thereby favoring the practice of democracy of proximity and goodgovernance.” 32

De-concentration is a simple demand to lighten the load of the structure of a unitaryState. In addition, State agents are not independent, they remain totally linked to thecentral government. A famous quote from an author of the 19th century, OdilonBarrot can be applied to this situation. According to him, “It is the same hammerwhich strikes, only that the handle is shorter”

Emphasis is laid on the deployment of State representatives to every part of thenational territory, for the purpose of safeguarding unity and establishing, re-establishing or reinforcing its presence through the provision of services.

It then appears absurd to organize de-concentration in a state that has opted forconstitutional regionalism. This middle-ground structure is halfway between aclassic unitary state and a federal state. The doctrine accepts that “the regional stateconstitutes a new legal form of the state, distinct from the two traditional models.”33

Pierre Bon describes the regional state more explicitly as “an intermediary formbetween the unitary state and the federal state which combines the singleness of theState with the autonomy of its constituent parts.”34 In brief, “constitutional

31 ALLIOT, M., in le droit et le service public au miroir de l’anthropologie, Karthala, paris, 2003, p.230.32 TSHIAMA, J.R et SANA Clarisse, « Des entités déconcentrées et décentralisées pour asseoir la bonnegouvernance », in journal du citoyen, hebdomadaire indépendant d’éducation civique, p.1.33 MODERNE, F., Lestât des autonomies dans l’État autonomique, in revue française de droitconstitutionnel,1990,n°2 ,p.205.34 BON, P.,l’ État autonomique, forme nouvelle ou transitoire en Europe, paris, economica,1994,p.6O.

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regionalism or even political decentralization is described as an antechamber offederalism.” 35 Decentralization is not a denial of the central government, but theestablishment of a political, social and financial pact between the rulers and theruled. HAURIOU, also states that decentralization is “a way of being of the state,decentralization does not affect the being of the state.”36 Has professor LACHAUMEnot declared that “decentralization does not draw for itself a boundary line thatmust not be crossed but rather defines a “zone” inside which several solutions areequally possible and conform to the Constitution.”37

In summary, decentralization is a long process which involves several actors withdivergent local, provincial and national interests. In organizing de-concentratedservices and simple administrative areas at certain levels of the politico-administrative landscape, the purpose is not to obliterate or ignore those interests.On the contrary, it is to have those interests guided by the need to offer the bestservices closer to the people and to involve the latter in every step of managing localpublic affairs38.

Decentralization should not be confused with administrative division. The latter isnot a neutral technical operation. It also gives names and shapes identities. One ofthe mechanisms of this process is that the majority of studies and action on aparticular group are organized on the basis of administrative units. Nations werecreated on the basis of national borders which are the fruit of gradual historicaldivisions. The same process marks, to a certain extent, the history of provinces,districts, territories and even sectors, villages and communities, depending to acertain extent on their age. If the identities evolve, each person and each social groupis deeply affected by the boundaries in which they live or lived. A change of theseboundaries is not without effect and often produces conflicts that need to beresolved by the constitution and by the law.

Moreover, the division is not just a reorganization of space into sub-units. Moreprofoundly, it is a system of social relations. Each border defines zones of solidarityand opposition. A border can only be crossed under certain regulations. During thecolonial period, one needed a relocation passport, stamped by a white agent to be

35KABANG,NT .,droit administratif, Vol III, Kinshasa, 2001,p .32.36 Cité par AUBIN, E., et ROCHE, C., l’essentiel du nouveau droit de la décentralisation, Giuliano éditeur, Paris,2006, p.21.37 LACHAUME, J.F., décentralisation ou libre administration ? Rapport introductif du colloque de Bordeaux surles vingt ans de la décentralisation, September 2002, gaz CNES, 2003.38 MOUNTAIN,R.,in Monuc magazine, January-February 2008,p.13.

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able to leave his or her village.39 The texts structuring the divisions also definerelations between different authorities: who creates the authorities and appoints theleaders. In the case of Congo, what is the relationship between the centralgovernment, provincial governors, district commissioners and administrators ofterritories? They have not always been the same and the change introduced in thedistribution of power is one of the stakes in the evolution of administrativedivisions.40

I.4. Decentralized Entities and Constitutional Foundation of Decentralization in DRCOn reading the objectives of the Constitution of 8th February, 2006, it is indicated onfirst point on the State and sovereignty that the objectives of the Congolese people is“on the one hand, to consolidate national unity that has been damaged by successivewars and on the other hand, to create centres of growth and development at thegrassroot.” The Constitution therefore structured the Congolese state into 25provinces including Kinshasa, endowed with legal powers and exercisingjurisdiction over an area defined by the Constitution.” Likewise, “the provinces areadministered by a provincial government and a provincial assembly. They eachinclude decentralized territorial entities which are cities, communes, sectors andvillages.”41

In case of conflicts over jurisdiction between the central government and theprovinces, only the Constitutional Court is competent to settle the conflict”. TheConstitution is therefore responsible for organizing areas of jurisdiction, the firstarea is reserved for the central government and the second for the provincialauthority, the third is shared as indicated in article 202 and subsequent articles. Thisdivision arithmetically favours the central government which reserves for itselfenormous state powers in terms of defence, foreign affairs, the police force andnational planning etc. It is with this perspective that article 194 of the Constitutionstates that a “statute law establishes the organization and operations of publicservices of the central government, provinces and decentralized territorial entities”,while article 196, paragraph 2 clarifies that territorial sub-divisions within thedecentralized territorial entities (ETD) are fixed by a statute”.

In the Statute consisting of 40 articles divided into five titles, the decentralizedterritorial entities reviewed by article 4 paragraph 2 are: the territory, the location

39 According to the decree of 2nd May 1910, In the official gazette of Belgian-Congo (1910 ), p.456-471)40 Léon de st MOULIN, les défis et les enjeux du découpage administratif », in congo-afrique,N°432, February2009, pp.83-160.41 A presentation of the objectives of the constitution of 18th February, 2006 in the official gazette of the DRC,47th year, special edition.

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area, the community group and the village. These are administrative divisionswithout legal authority.

The consequence of this new development is the disappearance of the district andthe cities as territorial entities in the administrative structure; de-concentratedentities being under the leadership of appointed rather than elected officials unlikethe case of decentralized entities. The territory therefore, which is the level ofgrowth, coordination, support/advice and inspection of state action (article 6 ofstatutory law) is governed by a territorial administrator assisted by two deputies.They are appointed and if need be, dismissed by the President of the Republic onrecommendation by the minister in charge of internal affairs (article 8 of thestatutory law).

The same statutory law stipulates in article 10 that the administrator of the territoryis the representative of the central government and the province in hisadministrative division. As such “he can, through delegation, exercise supervisoryauthority over the acts of decentralized entities under his area of jurisdiction (art 13).His mission is to support decentralized entities “in the exercise of their jurisdictions,by having the services of the central and provincial government” In order toreinforce the unity of state action, article 7 in fine stipulates that administrators andtheir assistants are “affected by a decree of the Minister of the republic in charge ofinternal affairs on recommendation by the provincial governor”

The other de-concentrated entities are led by the chief of the location for the location,community chief for the community and the village chief for the village. Thelocation is a basic administrative division of the community, headed by a locationchief. The latter is responsible for administrative supervision of the people, hygieneand public health of the administrative division under his jurisdiction.

In rural areas, the community group and the village are traditional entitiesorganized on the basis of customs.

I.5. Federalism, Regionalism and Division of Territory.I.5.1. Federalism.

The main concern here is to know how the status of a decentralized province in aunitary state differs from that of a State, province that is a member of a federation. Inour case, we shall start off from Hauriou’s idea which states that “decentralizationand federalism are fundamentally different”42. It is appropriate to first talk of

42 M. HAURIAU, précis élémentaire de droit administratif, p. 52.

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federalism as an example of a form of government, and decentralization as a meremethod, or mode of administrative leadership which can be applied in both aunitary state and federal states.

The difference between the two models of government or administration resides inthe level of autonomy. This autonomy is administrative and is granted by astatutory law to decentralized territorial entities. However, when it comes to themake-up of a federal state, autonomy becomes political and is enshrined in theConstitution. Political autonomy assumes a break-up of legislative unity: Eachfederal province becomes a secondary state, with its own constitution, legislationand structure. Nonetheless, provincial constitutions, laws or decrees cannot in anyway contradict the national or federal laws or constitution.

I.5.2. Political regionalismThough decentralization cannot be confused with federalism, it is also notsynonymous with political or constitutional regionalism.

This is also a method of managing State power which involves political andconstitutional decentralization of provinces which in a unitary state become politicaland constitutional components with legal powers and financial and institutionalautonomy.43

Compared to decentralization, political regionalism is organized in such a way thatthe distribution of authority between the central government and the provinces aswell as the institutional structure of the same are defined by the constitution and notby a statute which can be changed any time by the simple majority of the legislature.To avoid untimely interferences in the periphery by the centre, the fundamental lawis careful, like in the case of federalism to make a clear distinction on matters:

· of exclusive jurisdiction of the central authority (matters related to sovereignty andthose of national importance) ;

· of competing jurisdictions (requiring efficient management) and,· of exclusive jurisdiction of the provinces (requiring close administration and matters

of provincial or local interest)

However, unlike the case of federal states, in political or constitutional regionalism,the provinces do not enjoy the liberty of each having its own constitution or internalstructures. Unlike in the decentralized unitary state, the central government in

43 J. MEKHANTAR, Droit politique et constitutionnel, Paris, 1997, p. 51. Also read X. PHILIPPE, « la réparationdes compétences entre l’État central, l’État provincial et les municipalités : structures politiques ouadministratives ? » in Revue française de l’administration publique, n° 85, janvier-mars 1998, pp. 15-34.

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political or constitutional regionalism does not exercise administrative supervisionover the provinces. Finally, constitutional regionalism clearly translates what somecall “a highly decentralized unitary state”. It is therefore an intermediaryadministrative lying between a unitary decentralized state and a federal state.

All the three systems of government (decentralization, federalism and politicalregionalism are nonetheless based on the principle of free administration. Havingclearly established the difference between decentralization, federalism and politicalregionalism, let us now look at the issue of the basis for the territorial administrativereform of 2008 in the DRC and the main developments.

I.5.3 Territorial divisionReform consecrates a new subdivision or a new political and administrativedistribution of the national territory.

Indeed, the DR Congo now consists of the city of Kinshasa and 25 provinces withlegal capacity:

· The province is subdivided into towns and territories;· The city is divided into divisions;· The divisions into suburbs and/or into incorporated groupings;· The territory is divided into divisions, sectors and / or townships;· The sector or the townships into groupings;· The groupings are divided into villages.

The direct consequence flowing down from this division is the suppression of theadministrative card of the country called a “District” followed by the considerableincrease of provincial Entities whose number rises from 11 to 26, the city of Kinshasaincluded. This policy of territorial re-division is not in itself, an innovation in thepolitical and administrative history of the DR Congo.44

Following the formation of provincial governments at independence, those whocame under the jurisdiction of the marginally or non-represented districts amongthem started to demand the setting up of their Entities in autonomous provinces. Inresponse to these demands, the law of 27th April 1962 organized the creation of new

44 For more information about the background of administrative découpage of the DR Congo, read L. de SAINTMOULIN, “History of administrative organisation of Zaïre”, in Zaïre-Afrique, n°261, January 1992, pp. 29-54.

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provinces, adding themselves to the existing 6 provinces at independence to raisethe number to 21 which the ideology of Mobutist referred to as “provinces”45

After raising this number from 9 (in 1966) for the need of centralization of power,President Mobutu included this dossier into the agenda of the 12th Ordinary Sessionof the Central MPR Committee (in 1988) when he became aware of the fact that thecountry was under-administered. That is how a State decision was taken in view ofinitiating a re-division of the regions (provinces). Following the refusal by thepolitical leaders of Upper-Zaire (today known as the Eastern province) at the time,the largest and most densely populated region, the operation began with the ex-Kivu and later gave birth to the current provinces of Maniema, North and South-Kivu (three former districts of the former region of the Kivu), thus raising thenumber of provinces to 11.

The current configuration of the DR Congo into 26 provinces had already beenadopted by the National Sovereign Conference (CNS) in 1992 and consecrated in theConstitution project of the 3rd Republic which needed to be submitted to thereferendum before ascension to State power by the Alliance of the Democratic forcesfor the Liberation of Congo (AFDL).

We can summarize the evolution of the territorial division in Congo-Kinshasa in thefollowing manner:The criteria of creation of a province such as the National Sovereign Conferenceare46:

· The Entity has to satisfy a minimum area of 50,000 Km²· It must at least have a population of 800,000 people;· It has to prove its economic viability, in other words have at its disposal

enough resources for the good management of its administration.

The thesis of territorial division does not enjoy unanimity within the Congoleseintellectual élite. To this end, there are arguments for and against the division of thecurrent provinces.

Those opposed to a new territorial division hold that:· The creation of new provinces brings about exorbitant costs that installation of new

provincial institutions will occasion in terms of infrastructure, equipment, functions

45 It must be pointed out that the subdivision of the country into 21 provinces was spelt out in the Constitution of1st August 1964, otherwise known as the “Luluabourg” adopted by the Congolese people during theréférendum organised from 25th June to 10th July 1964.46 CNS, Administrative and Territorial commission report, palais du peuple, Kinshasa 1992, p. 92.

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and the remuneration of political personnel whose number has considerablyincreased. The current districts set up in the province would not have sufficientresources to deal with the weight of ensuring their self-development;

· With the recurring wars that the DRC has gone through under the direct or indirectinvolvement of the neighboring countries; the fear of cessation is real for as long ascertain Congolese leaders; completely subservient to the power of the neighboringcountries and mostly due to their selfish interests, are capable of aiding theseneighboring countries who harbor annexationist ambitions to fulfill their dreams.47

On the other hand those who advance territorial division hold three arguments thus:

a) On the administrative frontThe division brings government closer to the people, the governor to the governedand, consequently, resolves problems of the under-administration that manyprovinces suffer from.

b) On the political sphere:Division appears like a mechanism of regulating the tensions generated bythe conflicts of the leaderships, especially at the level of national andprovincial institutions. Thus the citizens will enjoy a more democraticrepresentation, more equitable and more balanced in the national andprovincial political institutions. The eastern province for example dividedinto 4 new autonomous provinces, will own more parliamentarians, senatorsand government members following the example of the former Kivu, theformer province of Leopoldville and the Greater-Kasaï.

c) Economically:Territorial division will stimulate the creation of new centers of power and ofeconomic and social development.

Thus the current eastern province will have 4 Entities each empowered with legalcapacity and its own budget enabling it to design and carry out its owndevelopment program. It is a question of ensuring that the far flung provincialheadquarters do not slow down development of the base collectivity.48

II. THE PROVINCE’S FINANCIAL RESOURCES

47 NKEMA Roger, « Découpage territorial : avant qu’il ne soit tard », in soft, kin n°536, 1993, p. 6.48 Faustin TOENGAHO Lokundo; art. cite p. 224.

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Law No. 08-012 of 31st July 2008 setting out the fundamental principles relating tothe free administration of the provinces distinguishes, on one hand, the province’sresources (art 48 ) and on the other hand, the resources coming from the incomes ofa national nature (art 55)

II.1. The Provinces’ Resources

II.1.1. Notions and enumerationThese include income taxes, fees, provincial and local rights as well as revenueparticipation (article 48). It is the province that establishes the mechanism for theircollection while respecting the procedures laid down by legislation.

Taxes, local and provincial rights include: interest charges, taxes specific to eachprovince and each entity and administrative revenues associated with generatingacts whose decision falls within the competence of the provinces (article 40)

Common interest taxes comprise (article 50):· special annual tax for road use, various taxes on beer, spirits and alcohol as

well as on tobacco; the land tax over areas in forestry concessions; land taxover mining concessions; tax on sales of artistic products from preciousmetals, all the other taxes instituted by the central power and revertingentirely or in part to the provinces according to the law.

3.1.2. DistributionThe key product of common interest between provinces and decentralized territorialentities (ETD) taxes is fixed by the legislation that establishes the said taxes, afternotification of the Conference of Governors of the province.In addition, the province is entitled:

· To the incomes arising from the specific taxes raised from the local materialsnot imposed by the central power. These specific taxes are eitherremunerators or fiscal taxes according to the legislation on the nomenclatureof provincial rights and fees. Perception of specific tax rules are laid down,after consultation with the Conference of Governors of the province, by lawlaying down the nomenclature of local revenue (article 51)

· Over administrative incomes associated with generating acts whose decision iswithin its jurisdiction

· Over earnings of participation including profits or revenues of itsparticipation in the capital of companies and non-profit enterprises.

II.2. National Revenue

II.2.1. Incomes of a national scale

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According to article 54 of the Law N°08-012 of 31st July 2008 relating to the basicprinciples of free administration of the provinces, the portion of national financialresources allocated to the provinces is set at 40%. It is withheld from source. It ispointed out that retaining it at source is effected by the automatic disbursement of40% into the province’s account and 60% in the treasurer’s general account. Thismechanism is executed by the Congolese Central Bank in accordance with theFinance Act.As per article 55, the following are considered as incomes of a national character:

a) administrative, judicial, private and participation revenues;b) revenue from customs and excise,c) revenue from taxes collected from big petroleum producing enterprises as well as

the other taxes raised from their area of operation.

The province may receive resources from the national treasury of adjustmentprovided for in article 181 of the Constitution (art 57). Exceptional resources mayequally complement the province’s revenue budget. It can use internal borrowingsto finance its investments under the conditions laid down by the financial legislationand legislation on credit. Moreover, the State can contract and guarantee inaccordance with the Constitution and financial law, external borrowing for needs ofthe province. It can equally benefit the grants and gifts under conditions defined bythe law

II.2. 2. Mechanisms of financial transfers: retrocession and adjustment fundThe new Constitution provides for a new national public revenue distributionsystem (art.175 and 181).

a) Retrocession according to the rule of origin of public revenuesIn accordance with article 175 of the Constitution of the DRC, the provinces areentitled to 40% of the total national public revenue – according to the rule of origin:each province will retain at source 40% of the revenue collected within its territory.These constitutional dispositions raise a series of observations:

· Automatic retrocession indeed presents some simplicity in its design andimplementation, as well as transparency insofar as provincial authorities have accessto information on the incomes collected from their territory. It is also an instrumentfor reducing the vertical imbalance of local finances (when a collectivity’s ownresources do not correspond with the extent and actual cost of the devolved scope ofactivities) ;

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· However, such a system could be unfair: the base not being evenly distributednationally in a homogeneous manner, the “poorer” the province is, the less it willreceive in retrocession ;

· Thus, in the absence of an adequate correction mechanism, the sharing system as setout by the Constitution may aggravate the disparities between the provinces(horizontal imbalance) as demonstrated by the simulation of the retrocession on thebasis of the collections actually received in 2004.

Thus if the new constitutional dispositions are applied to the letter, two provinces(Kinshasa and Bas-Congo) will receive 88% of the retrocession while their combinedpopulations represent a mere 18.06% of the country’s total population.

In the same vein, the retrocession based on rule of origin raises the problem ofexportation of taxes in that the revenues are retained by a given province while inreality they are paid by contributors from other communities, as is the case withcustoms rights or taxes owed by the big enterprises operating in the entire territory.It would have been better to exclude this category of local revenue from theretrocession and include them in the base of adjustment.

The World Bank, in a note on fiscal decentralization sounded an alarm over theconstitutional disposition relative to the 40% of retrocession to be transferred to theprovinces49. According to this note, literal application of this principle inherent in theConstitution posed serious risks insofar as:

· It may worsen the already existing economic imbalance and would leave a greatnumber of provinces with insufficient resources even to pay salaries ;

· It is opposed to one of the most important principles of fiscal decentralization whichrequires that “resources should follow functions”;

· It may fail to take into account the necessity of a programmed transfer of thefunctions in the long run that the institutions will be established whether at theprovincial level or at the local level. In particular, the fiduciary capacity at both theselevels will need to be reinforced before thinking of the entirety of the levels of transfer.

b) The adjustment mechanismThe Constitution in article 181 has also provided a second mechanism of financialtransfers in the form of an adjustment fund aimed at financing projects and publicinvestment programs “with the aim of correcting the development imbalance amongthe provinces and among the other decentralized territorial entities”.

49 World Bank, document n°42612-ZR, the DRC, decentralisation in the DRC: note on fiscal decentralisation,(January 2008 ), p.8.

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From this formulation it follows that:· “The transfers by way of adjustment are reserved only for financing the investment

expenses of the provinces and the Decentralized Territorial Entities...;· The provinces can benefit from transfers from the adjustment fund in the same way

as the basic Decentralized Territorial Entities;· The goal of the adjustment is to correct the horizontal disparities between provinces

and the Decentralized Territorial Entities in terms of local infrastructures;· There is no doubt that an equalization mechanism is mandatory in view of the

current situation which characterizes itself by the glaring disparities between thecountry’s territorial communities in terms of equipment and collective services, aswell as in potential of resources all the more so since these disparities will beaggravated by the establishment of the retrocession system due to the excessivegeographic concentration of fiscal revenues;

· The adjustment will be financed by an annual contribution from the State budget upto 10% of the national fiscal revenues. Therefore taking into account the financing ofthe retrocession system, half of the national public resources will be allocated to theDecentralized Territorial Entities. This may bring to question the already fragilebalance of the public finances, notably if the actual transfer of the responsability of thepublic expenses (corresponding to decentralized scopes of operation), to the provincesand the Decentralized Territorial Entities.

· the adjustment fund is aimed solely at financing the investment expenses as permodalities yet to be defined;

· The system of adjustment will be administered by a fund with the status of a publicorganism endowed with legal personality whose organization and function will beestablished by statute.

The Constitution having resolved the question of resource distribution betweencentral government and the provinces and the Decentralized Territorial Entities, thechallenge faced by the national authorities consists of reconciling the respect of theconstitutional dispositions with: “the imperatives of equity (all the DecentralizedTerritorial Entities must benefit from equitable transfers outlined in the distributioncriteria), and the safeguarding of public finances”.

As for retrocession: it is necessary to define with the base of resources having toserve in the retrocession, that is, the limited list of national revenue belonging to theretrocession; but pertaining to adjustment, the statutory law laid down by theConstitution will have to, a part from organizing the future fund, spell out the goalsof the system of adjustment and to determine the modalities of resource distribution.

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II.3. Financial Resources for the Decentralized Territorial EntitiesThe composition, organization and function of the Decentralized Territorial Entitiesand their relationship with the State and the provinces are regulated by the statutorylaw n° 08-016 of 07 October 2008 which stipulate in article 100 that: “finances of theDecentralized Territorial Entities are distinct from those of the provinces”. This lawequally distinguishes what is viewed as own resources and, on the other hand, theresources coming from national revenues allocated to the provinces, resources fromthe national adjustment fund as well as exceptional resources: the decentralizedterritorial entity establishes its own mechanisms for their collection (art.105).

3.3.1. Resources owned by the decentralized territorial entityThe resources owned by the Decentralized Territorial Entities include (art. 108);

a) The minimum personal tax; that is levied for the exclusive benefit of thecommunes, sectors or chiefdoms. It is established and levied in conformitywith the law. “the key product of common interest between decentralizedterritorial entities taxes is fixed by the legislation that establishes the saidtaxes, after notice of the Conference of Governors of the province"

b) Participation revenues; they include profits or income from their participationin capital of public enterprises, mixed economy societies and momentaryassociations with economic goals.

c) Taxes and local rights; these include taxes of common interest, special roadtax, annual patent taxes, various tax charges on beer and tobacco, area tax onforestry and mining concessions, taxes on sales of artistic products from theprecious metals and any other instituted by the central government andreverting entirely or in part to the Decentralized Territorial Entity as per thelaw (art.112).

d) The taxes specific to each Decentralized Territorial Entity are taxes levied onthe local materials but not imposed by the central government. They areeither winding, or fiscal according to the legislation on the nomenclature oftaxes and provincial and local laws. “The regulations of specific taxes arefixed, after notification of the governors’ conference, by the law fixing thenomenclature of local revenues”.

e) Administrative revenues associated with generating acts whose decision fallswithin the competence of the Decentralized Territorial Entity.

3.3.2 Resources from national revenueDecentralized Territorial Entities are entitled to 40% of the national revenueallocated to the provinces. “The allocation of resources between the DecentralizedTerritorial Entities is based on the criteria of production capacity, area andpopulation.The edict determines the mechanism of distribution”. As for the national

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adjustment fund resources (article 117) and exceptional resources: a DecentralizedTerritorial Entity can resort to internal borrowing to finance its investments; it canalso receive grants and gifts within the conditions defined by the law.

3.3.3. State and provincial budgetThe State budget comprises central government budget and provincial budget. It isdrawn up each year by law (article 44 of law n° 08-012 of 31st July 2008 providing forthe fundamental principles relating to the free administration of the provinces). Thebudgets of the Decentralized Territorial Entities are included, expenses andrevenues, the budget of the province pursuant to the provisions of financial law(article 45 of law No. 08-012 of July 31, 2008). The provincial budget is handed overto the central government by the provincial governor latest by 31st August (article16 of the same law).

III. CRITICAL REVIEW OF DECENTRALISATION AND ITS APPLICATION IN DRC.

III.1. Impressive Mastery of the Matter by the LegislatureReading through the text of the Law No. 08-016 brings out a the impression ofmastery of the material by the legislator whose prime literary concern here is theclarity of language, the pedagogy in the exposé and the deliberate willingness not toleave any ambiguous formulation, neither in the definition of its concepts (except forthe one on “decentralization”), nor in the attributions of the Decentralized TerritorialEntities, nor in the organization of the scope of operations for their diverse organs,nor in the function of their respective executive apparatus. These are efforts worthyof commendation on the part of the legislator.

III.2. Towards a New Culture of Govern mentalityThe elaboration of law along with its legislative content, are borne by a doubleconcern and goodwill, to unite in an “ignorance of govern-mentality” theprocedures of the contemporary democratic system and the « sensitivities » of theCongolese territory. Therefore, during the first extraordinary session of the urbancouncil, before the elected officials would proceed to the election of provisionaryoffice to the “aged dean assisted by two younger urban councilors” (article 16).Though trivial on first sight, this manner of handling matters through complicity toour cultural sensibilities and our “sacred” traditions reveals itself as politicalwisdom and as pragmatic respect of the social dynamics that innervate andstructure our political communities. The wisdom behind this approach lies in thefact that it directs delicate situations and fragile political equilibriums whilerespecting the sentiment and the ordinary customary reflex of the citizen without in

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any way sacrificing, or departing from the logic and the praxis of government by thelaw and the rights, which are necessary for the functioning of the rule of law.

The same approach is also at work, but in unpleasant and problematic conditions, inthe organization of the Decentralized Territorial Entity chiefdom. Hence, in the twocases mentioned above, the legislator authorizes, for example, during the firstextraordinary session, the direction of the urban council’s provisionary office behanded over to the “older dean assisted by two younger urban councilors” of theassembly. However, once put in place, the urban council, along with the communitycouncil and all the other organs of the Decentralized Territorial Entities function inline with the constitutional dispositions and internal regulation that govern them.The case of the leader of the chiefdoms- whose power is legally limited beforehandby the presence of the “first elderman/municipal councilor, in charge of goodgovernment of the administration and responsible before the council” (article 86)and further down the line, by his “responsibility” of head of chiefdom and by the“non-effect” of his activities, if they are not countersigned by the elderman (article82) is more delicate.

III.3. A Deliberate Flaw between the Decentralized Territorial Entity and theProvinces?

Beyond the strongly democratic face and the responsible vision of the DecentralizedTerritorial Entities, Law n° 08-016 maintains a deliberate flaw between theDecentralized Territorial Entities and the provinces. Even if the executive localauthorities of the Decentralized Territorial Entities represent the central power intheir respective jurisdictions, execute the laws, the edicts and the national orprovincial regulations and ensure the maintenance of public order, their executiveauthority is nonetheless placed under the supervision of the governor of theprovince. The supervision is understood in “terms of control à priori or à posteriori” ofactions.

How would this control in the daily association between the DecentralizedTerritorial Entities and the authority of the provincial Decentralized TerritorialEntities operate and be handled?

Nothing has been specified to this end: the decrees of application of the law thatneed to provide for this have delayed to be enacted. Yet, the structures and theinstitutions are already in place and are operational, at least visibly, or according tothe modus Vivendi (inter-) personally or “politically”, negotiated. This state ofaffairs may become a generator of a state of affairs or even of fait accompli, full ofexcessive intercommunity tensions and confrontations, prejudicial to the authority

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of the law, a nuisance to the authorities of the Decentralized Territorial Entities; tothat of the provincial authority and catastrophic for the good of the entirepopulation. This is not a hypothetical danger... it is written/inscribed even in thedialectic of the institutions and the entities in the form of the Law n° 081-012 of 31stJuly 2008 touching on the fundamental principles relative to the free administrationof the provinces, and also confers to the provinces, mutatis mutandis, the sameattributes as the Decentralized Territorial Entities, (article2):

· they are endowed with legal capacity;· They enjoy autonomy of management of their human, economic, financial

and technical resources – which they nonetheless, in conformity with thedispositions of Law 08- and art 100, 103, have to put in the hands of theDecentralized Territorial Entities, if the latter do not requisition simply, but inconformity with the law, the services of the State or provincial organsinstalled in their jurisdiction.

III.4. A New Judicial Praxis at the Service of a Renewed Management ofResPublica

It is also important to note the introduction, in the denomination of theDecentralized Territorial Entities of a new political vocabulary which emphasizesthe deliberation and the dialogue, peculiar to the government mentality of thedemocratic kind. The organs of the Territorial Decentralized Entities are, in effect,either “councils”, or “colleges”. This changes for us from the not so autocraticvocabulary of the unitary Unitarianism and the directive and the not so centralizingpractices of it’s “people’s committees” and of its “political or people’scommissaries”. The option of the legislator for terms more consensual such as“councils”, “colleges”, “legislative organs”, “executive local authorities”, “membersof deliberant organs”, is a confirmation of its attachment to the will expresslyexpressed by the constituet…:

· To give privilege to the democratic and absolute principle of listening to andrespecting the “primary sovereign” in the running of the res publica.

· To guarantee free popular expression of people’s opinions; and· To stem any attempts to institute a single party by labeling the act as “highly

treasonable” (refer to exposé of motives, point 1, 5, and 6)

This is why the law deprives the heads of these councils and colleges of anyautocratic or discretionary powers. If they continue to statute, as it stands today,through a decree they should do it only “after deliberation of the council or of theunited council” (article 14-27, 45, 45, 62, 63). And the councils, as well as the colleges,are no more “offices of consorts” for perpetuating an absolute reign. They have aclear sociopolitical role: to be the “legislative organs”. The epithet condenses, precise

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in this context, a new way of thinking “politically” the State and to convey itotherwise.

III.5. Privileges and Immunities against Judicial ProceedingsTo ensure to those who administer these organs a financial security that is refractoryto corruption and good independence of spirit and initiative, capable ofconsolidating their scope of activity, the legislator:

· Ensures for “members of these legislative organs” “immunities of pursuits”resulting from the limits of dispositions of article 107 of the Constitution andto those of articles 32, 120 of the current law.

· Institutes to the “benefit of authorities” of the Decentralized TerritorialEntities “a privilege of jurisdiction’’ which has it that the Mayor, the deputymayor and the urban council chairman are liable, in penal matters, from theCourt of Appeal and from the urban council, the burgomaster, the head ofsector and of the chiefdom and their deputies as well as the communitycouncilors, sector and chiefdom are, in this same matter, liable from thecounty court (article 121). Not forgetting the active part accorded to thecouncil and to the office of the council to articulate itself over the eventualarrest of one of their members during the sessions, and over his eventualimprisonment, as being minus the dispositions of article120 of the currentlaw.

· Recommends that the personnel committed to the Decentralized TerritorialEntities have the right to an equitable indemnity which ensures itsindependence and dignity (article10).

CONCLUSION

Since Congo’s rise to national and international sovereignty on 30th June 1960, itsterritorial, political and administrative decentralization has evolved in a jaggedmanner.

In effect, the reforms recorded from 1960 to 1982 sufficiently demonstrate thetendency towards the centralization of power in the hands of a single person actingas guarantor of the nation and of the national interest at the detriment of the policieswhich would lead the country towards prosperity and good management of theState’s political affairs.

Nonetheless, the enlargement of scope to decentralize administrative entities byeasing those of the central power by itself says that their means of action borrow thesame tendency, hence the necessity for planning or for reform of the fiscal system.

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While recognizing the small size of the budgets involved for the decentralizedterritorial entities, their management tends towards dysfunction in the sense that theadjustment funds are irregularly disbursed, at times not utilized at all by the centralgovernment, which under the guise of a budgetary imbalance between the provincesrefuse the deduction at the source and to this effect, deliberately violates theConstitution.

The setting up of a provincial assembly to which the provincial government willhave to be accountable for its management during the law and regulations vote onthe execution of provincial budget may be considered as a step forward in the pathof good management of State affairs.

It is regrettable that only three years after the promulgation of the Constitution of18th February 2006, the political elite has launched an attack and want to amend theConstitution in the pretext that the territorial division is a utopia, because it favorscertain provinces that have infrastructures to the detriment of other provinces.

BIBLIOGRAPHY

1) Alexis de Tocqueville, la démocratie en Amérique, Paris, Gallimard ,19682) ALLIOT, M., le droit et le service public au miroir de l’anthropologie, Karthala, Paris,

2003, p.230.3) Banque mondiale, document n°42612-ZR, the DRC, décentralisation en RDC : note sur la

décentralisation fiscale, (janvier 2008), p.8.4) Bastien François, « justice constitutionnelle et démocratie constitutionnelle : critique du

discours constitutionnaliste européen », in CURAPP, Droit et politique, PUF, 1993,pp.53-63.

5) BON, P.l.v.’ État autonomique, forme nouvelle ou transitoire en Europe, paris,economica, 1994, p.60.

6) BRAUD, Ph, la science politique ii, l’État, paris, seuil, 1977, p.229.7) Cité par AUBIN, E., et ROCHE, C., l’essentiel du nouveau droit de la décentralisation,

Giuliano éditeur, Paris, 2006, p.21.8) CONAC, G. l’Afrique en transition vers le pluralisme politique, économica, Paris, 1993,

p.5.9) DJOLI, Eseng’Ekeli, « les entités territoriales déconcentrées : contre poids ou contrefort

de la décentralisation congolaise », in Congo- Afrique, n°432, Février 2009, pp.83-160.10) Dominique Rousseau, la justice constitutionnelle en Europe, Paris, montchrestien, 1996,

pp.43-44.11) DURKHEIM, E., cours de sciences sociales, leçon d’ouverture (1888), XV, pp.23-24,

Revue internationale de l’enseignement, la science sociale et l’action, PUF, 1970, p.334.

30

12) Exposé des motifs de la constitution du 18 février 2006, in journal officiel de the DRC, 47ème année, numéro special.

13) Faustin TOENGAO L okundo, « la reforme sur la décentralisation et le divisionterritorial : portée et faiblesse »,in Congo- afrique,n° 433 ?mars 2009,pp.15

14) FUKUYAMA,F,state building, gouvernance et ordre du monde au XXe s,la table,paris,2004,p.2.

15) J.C. WILLAME, Les provinces du Congo, structures et fonctionnement, n°5,Léopoldville, 1965, p .121.

16) JAN VANSINA, living with Africa, Madison, 1994, p.230.17) KABANGE, NT ., droit administratif, tome III, Kinshasa, 2001,p .32.18) KABANGE, Nt., droit administratif, université de Kinshasa, 2001,p.10 .19) KANYINDA LUSANGA, « la décentralisation territoriale zaïroise à l’épreuve de la

théorie et des faits », in les cahiers du CEDAF (avril 1984), n° 2, p.1.20) Kengo Wa Dodo, ‘reforme de la territorial et respect de l’unité nationale, palais du

peuple, Kinshasa, sept. 2008, p.4.21) La conférence nationale souveraine s’est tenue au palais du peuple du 31 juillet 1991 au

6 décembre 1992.22) La Constitution du 18 Avril 2006.23) La loi n°08/015 du 07 octobre 2008 portant modalités de l’organisation et du

fonctionnement de la conférence des gouverneurs de province.24) La loi n°8/012 du 31 juillet 2008 portant principes fondamentaux relatifs à la libre

administration des provinces.25) La loi organique n° 08/016 du 07octobre 2008 portant composition, organisation et

fonctionnement des entités territoriales (ETD) et leurs rapports avec l’État et lesprovinces.

26) LACHAUME,J.F., décentralisation ou libre administration ? Rapport introductif ducolloque de Bordeaux sur les vingt ans de la décentralisation, Septembre 2002, gazCNES,2003.

27) Le dialogue inter-congolais a fait suite à l’accord de Lusaka (Zambie) du 10juillet 1999pour un cessez- le feu en RDC, voir journal officiel, (mai 2001), numéro special, pp.105-111. ; qui, en son article3, point 19 préconise la tenue d’un Dialogue national ouvert envue de l’instauration d’un nouvel ordre politique et de la réconciliation nationale. CESNEGOCIATIONS Ont eu lieu à Sun-city (Afrique du Sud), du 25 février au 12 avril 2002.

28) Le texte en est présenté dans VUNDWAWE te Pemako, la décentralisation territorialedes responsabilités au Zaïre. Pourquoi et comment ? dans Zaïre Afrique (1982) n°165,p.261-273 et n°166, p.327-343.

29) Léon de st MOULIN, les défis et les enjeux du division administratif », in Congo-Afrique, N°432, février 2009, pp.83-160.

30) Léon de st Moulin, « historique de l’organisation administrative du Zaïre », Zaïre –Afrique (avril 1988) n°224, pp.24-26.

31) Les codes Larcier, Bruxelles, de Boeck et Larcier, 2003, tome VI, vol.1, p. 23-44.32) Lettre sur la décentralisation, RDP, avril, 1985, p .133) LIEGEOIS, M., la décentralisation en RDC, enjeux et défis, GRIP,1 /2008.p.7 .

31

34) MABI MULUMBA, décentralisation et problématique de fiscalité, in Congo, n°432,Février 2009,pp 126-

35) MADIOT,Y., « les techniques des corrections de compétences entre communitieslocales »,RFDA 1996,p.964.

36) MOBUTU SESE SEKO, Discours prononcé à l’ouverture du 4è congrès du MPR, le 16mai 1988 », Discours et messages 1983-1988 , t. 4., paris, les Éditions du jaguar, pp.631-632.

37) MODERNE, F., Lestât des autonomies dans l’État autonomique, in revue française dedroit constitutionnel, 1990, n°2, p.205.

38) MOUNTAIN,R.,in Monluc magazine, janvier-février 2008,p.13.39) PETER GABEL, « critical legal studies et pratique juridique : la conception de la culture

juridique et de la pratique du droit comme interventions culturelles » in revue droit etsocieté, n° 36-37, 1997.

40) Selon le décret du 2 mai 1910, dans bulletin officiel du Congo –belge (1910), p.456-471)41) Simon pierre METENA M’nteba, « des entités territoriales décentralisés (ETD) »,

pourquoi faire ?in Congo- Afrique, n°433, mars 2009, pp ; 187.42) TSHIAMA, J.R et SANA Clarisse, « Des entités déconcentrées et décentralisées pour

asseoir la bonne gouvernance », in journal du citoyen, hebdomadaire indépendantd’éducation civique, p.1.

43) VANDERLINDEN, J , « justice et droits : quels droits appliquer ? le juge et la coutumeen Afrique aujourd’hui », in Afrique contemporaine, numéro special 156 sur la justiceen Afrique ,4è trimestre 1990, pp.233-235)

44) VIRCOULON, th. « ambigüités de l’intervention internationale en RDC », in politiqueafricaine, n°98, juin, 2005, p.80.

45) VUNDWAWE, T., la dynamique de la décentralisation en RDC », in Congo-Afrique,n°432, Février 2009, pp.83-160.