Call edition 2012

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Legislation on juvenile delinquency in the Congo (1950). A case of congenital ineffectiveness

Raoul KIENGE-KIENGE INTUDI student laureate

°1968 Congo (DRC)
Licence in law, University of Kinshasa, Congo (DRC), 1990

La législation sur l’enfance délinquante au Congo (1950). Un cas d’ineffectivité congénitale

Raoul Kienge-Kienge’s work concerns legislation on juvenile delinquency in Congo. The Royal Prince’s decree of 6 December 1950 is still in force today, but there are now plans to reform it. These are based on the presupposition that the decree, which dates back to the colonial era, is obsolete and ill-adapted to the political, economic and social context of modern Congolese society. Mr Kienge-Kienge’s work contributes to the reform with a view to increasing its chances of success and dispelling any illusions about it. Before they undergo any overhaul, the legal norms inherited from the colonial era, which were imported in an unintelligent manner, need, indeed, to undergo an evaluation which looks at how they were constructed, how they are applied and how they are represented by those responsible for applying them (in order to ascertain the position of these norms in the practices of the latter).
The author rigorously and vigorously demonstrates, on the base of an elaborate genealogical analysis, that the legislation shows, in its adoption procedure and its text, all the signs of an ineffectiveness which he aptly describes as congenital. The hypothesis of obsolescence, suggesting that at the time of its adoption the decree may have been adapted to the social reality of Belgian Congo, is thus demolished. The decree, which was hastily adopted and then, paradoxically, suspended for several years, equates neglect with delinquency in young people and aims to provide protection against it by means of socially defensive measures. The magistracy for juvenile delinquency is conferred by the legislation on an unqualified official who lacks qualifications and assistance and who has no establishments at his disposal where he might implement the educational measures which he is nonetheless required to arrange. A twofold image-boosting function dominates a legislation, the application of which was never the subject of any real concern: to position Belgium as a pioneer of child protection in Central Africa in the eyes of the United Nations, and to offer an clear security response for colonials and colonial commercial enterprises concerned about the increase in the black population in the towns.
Today more than ever, the condition of the “street children” constitutes a challenge for the Democratic Republic of Congo and its development, and this is a point which also applies to other former African colonies. If the decree is worth reforming, it is important to not repeat, mutatis mutandis, the image-boosting functions and the obstacles to effectiveness revealed by Mr Kienge-Kienge’s study. On the contrary, the emphasis should be on an offensive social policy (targeting improvements in the living conditions of the population concerned) rather than a defensive penal policy drawn up against the future generations of the country. In the light of this prize-winning work, the challenge of reform can be summed up in a simple question (but one hard to answer) which must be framed for many countries in sub-Saharan Africa: how can a legal system for minors be built up that simultaneously contributes to child protection and the development of society?

report by Prof. D. Kaminiski, Department of Criminology and Penal Law, Université de Louvain-la-Neuve, Belgium