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Beyond corruption. The everyday life of a justice of the peace court in the Democratic Republic of Congo

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11 Beyond corruption
The everyday life of a justice of the
peace court in the Democratic
Republic of Congo
Benjamin Rubbers and Emilie Gallez
In their strategy of ‘good governance’ and to make the Congo a ‘state of law’,
foreign donors have attached crucial importance to the reform of the judicial
system.
1
An audit of this sector (Mission conjointe multibailleurs 2004) was
commissioned in 2004 and concluded that there had been a ‘total collapse’ of the
judicial system: submission to the executive, corruption at all levels, wrongful
arrests, low enforcement rates and so on (for a brief history of the Congolese
judicial system, see Rubbers and Gallez 2012). In accordance with the recom-
mendations of this report, the J. Kabila government, elected in 2006, adopted a
new constitution, new legal codes and a plan to restructure the judiciary (see
Ministère de la Justice 2007, 2009). Particularly noteworthy are the introduction
of a Conseil Supérieur de la Magistrature, responsible for determining the con-
ditions for recruiting and promoting judges; the gradual replacement of tribun-
aux coutumiers (customary courts), which cover most of the country, with
tribunaux de paix (justice of the peace courts); the recruitment of new magis-
trates and better pay.
Thisambitiousreformhasalreadyfacedfourmajorobstacles:(1)aninsuf-
cient budget, under 1 per cent, for justice; (2) the reticence of the political elites
in consolidating the independence of the judiciary; (3) the inability of the Minis-
try of Justice to enforce its instructions in the courts; and (4) the corruption of
legal staff (Vircoulon 2009). Consequently, it is undeniable that, although there
have been some results, it is taking a long time for them to become noticeable on
the ground. At the time of our research in 2010, two new justice of the peace
courts had been created in Katanga, a campaign to recruit 1,500 magistrates was
under way and their salary had been increased to $890, compared with $300 in
2005. But magistrates’ careers were still dependent on the Ministry, and corrup-
tion remained widespread at all echelons of the judicial system. Given this, we
can but question (yet again) the formal ‘fetishism’ of this type of reform which
bestowsonlaws,plansandgurestheintrinsicpowertochangebehaviour(see
Scott 1998). There is a discrepancy between the main problem raised, that of the
poor quality of services delivered by the judicial system, and the solutions envis-
aged: informal routine practices which are highly normalized across the whole
of Congolese society cannot be changed merely by adopting new laws, changing
theofcialorganizationalchartofthejudicialhierarchyorincreasingthepayof
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246 B. Rubbers and E. Gallez
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the people in question. Before reforming the legal system, it is important to
understand the day- to-day life of the courts by placing them in their organiza-
tional and social context.
Although the study of the ordinary functioning of African bureaucracies was
for a long time neglected by social scientists (Copans 2001), it has aroused
growing interest on the part of anthropologists over the last ten years (see, in
particular, Olivier de Sardan 1996; Blundo 2000; Blundo and Olivier de Sardan
2001, 2007; Jaffré and Olivier de Sardan 2003; Anders 2005; Blundo and Le
Meur2009).Itis inthiscontextthat, to ourknowledge,therstethnographic
works were conducted on state justice handed down by professional judges
(Tidjani Alou 2001; Crook 2004; Bierschenk 2008). Taking as a starting point
the theme of corruption, this literature has revealed the social strategies that
underlie it, the words and discourse that surround it and the resulting plurality of
norms that regulate public administrations. Cataloguing these different aspects
of corruption does not, however, go all the way to describing the complexity of
the day- to-day functioning of public services. Recently, new avenues have been
suggested by the same authors to develop our understanding of these institutions.
T. Bierschenk (2010, p. 3) invites us to enter into a dialogue with the sociology
of organizations in the countries of the North, G. Blundo (2007, p. 77) to do a
better job of studying what makes people become ‘corrupt’ or not, and G. Anders
(2009)tomonitorthesociallivesofpublicofcialsinandoutoftheworkplace.
As for Olivier de Sardan (2001, 2008), he invites us to go beyond the ‘complex
of corruption practices’ and to study the ‘practical norms’ that organize the ‘real
governance’ of public institutions, in order to identify those likely to play a
positive role in terms of development outcomes. For this author, the discrepancy
between ofcial norms and behaviours which we pointed out above derives
mainly from the fact that these behaviours generally follow other norms, which
he calls ‘practical norms’. To identify these ‘practical norms’, or modes of real
governance, should therefore allow policymakers to develop better tools for
improving the quality of public services in Africa.
This article will pursue these avenues of research by studying the daily life of
two justice of the peace courts in Lubumbashi from two analytical angles: (1)
the zones of uncertainty around which the power relationships are organized in
these courts and (2) the social background of magistrates. As we will see, these
two approaches are not a departure from the theme of corruption but allow it to
be studied in a new light. On a broader level, they provide insights into the
understandingofpracticalnormsintheirconnectionswithofcialnormsandthe
trajectoryof socialactors. They givefood for thought,therefore, forreecting
on a strategy for the reform of public services that pays more attention to the dif-
ferentdimensionsofthepublicofcials’workroutineinAfrica.
Our analysis draws on research conducted by P. Kalume Mwamba, T. Alimasi
Buyamba, N. Kalonda Sangwa, D. Donato, E. Gallez and B. Rubbers between
February and December 2010. This research consisted in comparing the func-
tioning of two justice of the peace courts and two customary courts with the
purpose of understanding the ins and outs of the reform of local justice in the
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Everyday justice of the peace court 247
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Congo. With regard to the justice of the peace courts, we conducted interviews,
in French and Swahili, with ve key witnesses (NGO representatives, human
rights activists, etc.), twelve judges, twelve lawyers and thirty- eight litigants. We
also attended hearings over several months, spent a week in each court and
shadowed two judges and two lawyers in their daily life for a few days. Finally,
we collected any documents and statistics that we were able to obtain. This
chapter focuses primarily on material obtained from legal ofcials; interviews
with and observations of lawyers and litigants are only used as background.
Zones of uncertainty
With jurisdiction for minor criminal offences and cases relating to family law
and juvenile delinquency, the two justice of the peace courts where we con-
ductedourresearch,whichwewillcallCourtsAandB,employedfourandve
judges respectively in 2010. (Concerning the position of the justice of the peace
courts in the Congolese legal landscape, see Rubbers and Gallez 2012).
2
Between
1 January and 30 November 2010, Court A heard 182 civil complaints and 341
criminal complaints, Court B 134 civil complaints and 405 criminal complaints.
In civil matters, the most common cases related to divorce proceedings, inherit-
ance disputes and applications for alimony. Criminal cases related to, in decreas-
ing order, breach of trust, fraud, theft, illegal occupation and assault and battery.
But it goes without saying that one case can involve several types of complaint.
Disputes over land, for example, are often categorized as squatting but also as
fraud or malicious damage.
In order to present the power relationships within the justice of the peace
courts, we will use as a starting point the three main zones of uncertainty
3
around
which they are organized (Crozier and Friedberg 1977; Friedberg 1993).
The rst source of uncertainty, which relates to whether proceedings run
smoothly, is mainly controlled by the clerks. They receive a mediocre salary of
between thirty- four and forty dollars sporadically and have no operating budget
for buying supplies or for serving summons on parties.
4
Under these circum-
stances, their income is mainly derived from negotiating tasks that they carry out
fortheparties.Thebenettheycandrawfromthis,however,seemstodepend
on the position within the court conferred on them by the head clerk. As such,
one of the clerks that we met complained of no longer being able to ‘extort litig-
ants’ since he had lost all responsibility. He was aware of being marginalized by
the ‘tribalism’ of the head clerk whom he suspected of favouring the Katangese.
This negotiation of legal services, which is commonplace in all Congolese
administrations, is tolerated by judges, lawyers and litigants: the clerks have to
make a living after all. But everyone accuses the clerks of exaggerating and not
doing their jobs properly. Indeed, frequently clerks lose exhibits or make mis-
takes when drafting writs or fail to notify litigants. As a result, judges have to
postpone hearings, lawyers have to return to court to re- initiate proceedings and
litigants have to pay their legal fees a second time. Such kinoiseries (annoy-
ances) lead to a degree of exasperation: in the course of our research, on several
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248 B. Rubbers and E. Gallez
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occasions we walked in on judges and/or lawyers in the process of lecturing
clerks on their legal responsibilities. But they have no real sanctions in their
arsenalduetothefactthatclerksdonotofciallyreporttojudges(ortheMinis-
try of Justice) but to the head clerk (and the Ministry of Public Service).
Althoughtheycancomplaintothisindividual,itismoreeffectivetotrytoinu-
ence clerks’ behaviour in an informal way.
As such, lawyers strive to maintain friendly relations with clerks by being
courteous with them and, from time to time, offering them a sucré (a zzy
drink). Otherwise, they run the risk of getting what they want less quickly and at
a much higher price. Indeed much of their own income comes from the differ-
ence between what their client gives them and what the clerks request for initiat-
ing proceedings. Insofar as they are negotiating on behalf of their client, they
cannot ask personal favours of the clerks. Their negotiation strategy is based
mainly on joviality and familiarity, which they demonstrate during the inter-
action. As we observed during the week spent at Court A, lawyers and clerks
teaseeachotheropenlyabouttheunofcialmeanstheycomeupwithtomake
money.
Because they are unaware of the standard costs, the small number of litigants
who represent themselves in court run a greater risk of being ripped off. To bring
acase,forexample,theymaypaybetweenftyand100dollarsinsteadofthe
vetotendollarsusuallynegotiatedbylawyers.Theirvisit,therefore,amounts
to a windfall for the clerks: ‘If a litigant comes to see you for a direct summons’,
oneofthemtoldus,‘you’relucky.Youcangetfeesfromhimforllinginthe
document, informing him about the proceedings . . . That is what allows us to
eat’. Moreover, the litigants are not familiar enough with clerks (or do not have
the necessary social skills) to joke with them. Depending on their social stand-
ing, they are more likely to try to gain their sympathy or to threaten them.
According to our observations, although these strategies sometimes bear fruit,
the clerks are usually immune to them.
As for the judges, they see the clerks as underlings, which manifests itself in
their daily interaction with them: although they use the vous form, they often
speak to them in an authoritarian manner; they never go to their ofce, rather
they make the clerks come to them; they sometimes ask the clerks to go and get
them food or drinks; and, when they enter the courtroom, they let the clerks walk
behindthemcarryingtheirrobesandles.Butthesetheatricsaroundtheirstatu-
tory supremacy should not mislead us: they do not go hand in hand with any
effectiveinuenceovertheclerksduetothefactthattheclerksdonotreportto
them. Moreover, their own work, to a large extent, depends on the quality of that
done by the clerks. As such, in the event of a problem, they will not complain
directly to the clerks’ superior (the head clerk) so as not to attract their hostility.
Theywillrsttrytoexpresstheirdiscontentbyremindingthemofthe(ofcial
or practical) norms that govern the court.
The second main source of uncertainty is in the judges’ sentencing. The
problem here is not just the leeway they have in interpreting the law but also the
potential for negotiating the judgment. An ethical principle invoked by all judges
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was that they only accept ‘gifts’ from the person who is going to win the case
(‘For those of us who pray, we say that we mustn’t accept a gift for an unjust
judgment’). As such, the judge may see the money given as a way of ‘motivat-
ing’ him to do a good job (‘So, if you are right, come and see me and I will have
a feeling that you are right. Come and give me a gift. I can accept it because I
know . . . I take that as a form of encouragement’). But sometimes the litigant
‘who is right’ does not visit the judge whereas the one ‘who is wrong’ offers him
or her a bribe. Faced with this dilemma, some judges told us that they refused to
surrendertheirprinciples.Others,onthecontrary,admittedthatitwasdifcult
for them to resist temptation. For a large sum of money they can, therefore, delay
sentencing, make it more lenient or even make a judgment in favour of the party
that has bought them. After all, the wronged party can always appeal.
The majority of judges say that, unless they need it urgently, they feel
awkward explicitly asking parties for money prior to the sentence: they prefer to
await their visit, even if it means drawing out their judgment. They can then
listen to their grievances and offer a solution with the hope of receiving a ‘gift’
in return. As explained by Judge Bernard, ‘I am not going to ask. I’m not that
typeofperson.Iwillrstserveyouand,ifyouarehappywiththeworkIhave
done, I know that you can always come and see me’. The amount of this ‘gift’ is,
to a large extent, left to the litigant to determine insofar as only a vague indica-
tion is given (‘You decide, give me around 1,500’) and the judge can ultimately
accept a smaller amount to that which he or she initially planned. Moreover, the
parties can themselves explicitly offer money (‘My client has asked me how
much money he can set aside for you’) or by bringing up a ‘tradition’ of civility
(‘As we are Africans, we never come and see the chief empty- handed. So, I have
put something aside for you’). What is in fact an interested exchange is therefore
presented as a free gift (Blundo 2003; see also Rubbers 2009, pp. 221–274). The
manoeuvre is all the easier as the litigants sometimes give judges donations as a
‘thank you’. The judge Sophie told us,
Sometimes you have handed down a judgement and someone comes after-
wards to thank you. In principle, it’s not allowed [laughter]. We are not
allowedtoacceptgifts.Butgiventhedifcultiesthatweface,youtellyour-
self that it is money that you haven’t asked for and someone is giving you
it. . . . You say to yourself, ‘I’ll take it’.
The preceding account, as with the audit of the Congolese judiciary in 2004,
should not be taken to mean that justice is for sale. Major corruption, that which
is likely to have an impact on the judgment, generally only takes place where a
lot of money is at stake and/or in cases involving the wealthy. In these important
cases (usually disputes over land), judges can expect an ‘envelope’ of between
500 and 5,000 dollars. In the majority of cases, however, they are faced with
individuals who are relatively poor from whom they receive nothing or only a
smallamountofmoneyofbetweenftyand200dollars.Whenfacedwithpar-
ticularly impoverished litigants, judges claim that they may even take pity on
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them and take money out of their own pocket to come to their aid.
5
In all cases,
judges intend to settle disputes in accordance with the law, an attitude which
does not prevent them from receiving from ‘the person in the right’ the neces-
sary sums to make ends meet and/or from negotiating a lighter sentence with
‘the person in the wrong’.
It is the Presiding Judge who is responsible for dividing the cases between the
chambers.Thisresponsibility,denedbylaw,bestowsadegreeofpowerinthat
it allows him or her, not only to decide which of the judges under his or her
authority will have the opportunity to rule on ‘juicy’ (juteux) cases, but also to
give a steer on the judge’s decision in these cases. He or she therefore has a tight
griponthesecases,whetherthelitigantcomestondhimorherdirectlytoask
him or her to intervene, or whether he or she expects a cut from the judge from
any ‘gifts’ he or she receives. The magistrates are careful not to challenge his or
her (informal) power or they run the risk of no longer receiving interesting cases
and, moreover, getting a negative appraisal. Given by the head of jurisdiction,
thiscanhaveaninuenceonwheretheyaretransferredand/orwhethertheyare
promoted. Questioning what the presiding judge says is, therefore, a good way
ofndingyourselfinacourtinaruralarea.Onthecontrary,judgestrytoattract
the favour of their superior by showing him or her a certain deference and asking
him or her for advice in cases they have to try an attitude that is likely to
generate some rivalry between them and, as such, cause a breakdown in
relations.
Meetings between judges and lawyers or litigants for the purposes of negoti-
atingajudgmentdonottakeplaceintheirofceorattheirhomebut,discreetly,
often in the evening, in a bar or restaurant. In addition to these meetings, in their
chambers they may receive visits from lawyers for different types of request
(warrant, bail, trial adjournment, etc.) as well as from litigants asking for advice.
If the ‘favours’ that they do them on these occasions also lead to them receiving
a sum of money, this – like that received by the clerks – is part of the administra-
tive routine, as it were: the sums involved are not as high as in the negotiation of
a judgment, nor is it subject to a private transaction with the use of the language
of gift exchange; it hardly has any inuence on the outcome of the trial. The
judges explicitly request it, in their chambers or in court, for le carburant (fuel),
les unités (phone units) or la motivation’. As for their interlocutors, their only
hope in giving it is to speed up proceedings or to stay in the magistrate’s good
books.
Generally speaking, the relationships that Congolese magistrates have with
lawyers and litigants are not embedded in strong social networks (see Blundo
and Olivier de Sardan 2001). They may, of course, have studied with certain
lawyers and see them regularly in their daily life at the court. But the general
opinion is that, due to their respective positions in the judiciary, their relations
are characterized by a degree of distrust. According to our observations, they are
sometimes formal, characterized by the mutual respect that legal specialists with
thesamequalicationsmustshowtoeachother,sometimesfamiliar,duetothe
fact that they frequently come to interact in a more or less informal setting. The
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magistrates and lawyers that we met nevertheless told us that appearances could
be deceptive: whereas lawyers complain of the corruption of judges, the judges
themselves are wary of the lawyers, who can take them off cases or even report
them to their superiors to have them permanently removed.
With regard to relations with litigants, it should be highlighted that, insofar as
the judges are regularly transferred from one end of the Republic to another,
some of them are outsiders who hardly know anyone in their jurisdiction. As for
those who grew up in Katanga, they seem to be rarely called upon by their
family members or close circle. That said, judges can very quickly build a
network of contacts within the local bourgeoisie and nd themselves asked to
intervene in their legal affairs. A judge who began his career in a small town
thus explained that he had made many friends in a veterans’ football team, which
included businessmen and executives from private companies.
6
He received so
many requests, he told us, that he ended up asking to be transferred to another
town. Moreover, magistrates are sometimes visited by people who have been
given a recommendation or who come from the same province. Without contacts
in the judiciary, these people try to exploit the ‘weak ties’ available to them to
meet a judge and have him or her intervene in their case, whether it is being
handled by the justice of the peace court in which the latter works or another
court.
From the point of view of litigants, lawyers create a third source of uncer-
tainty which adds to those which are inherent in the internal organization of the
court. Due to their limited knowledge of the justice system, which they often
confuse with the ‘prosecutor’ or the ‘State’, the majority of litigants hire a
lawyer or a legal defender (défenseur judiciaire) to represent them (see Rubbers
andGallez2012).Theyrstdripfeedmoneyaccordingtothespendingincurred
for the proceedings. Then, no later than the end of the trial, it is expected that
they pay his or her fees. Given the impoverishment of litigants and the slow
nature of the justice system, lawyers can, however, work for a long time without
being paid. In this case they tend to take advantage of their client’s ignorance by
over- invoicing expenditure that they incur in court, whether clerks’ fees or ‘gifts’
for the judge, and keep them in their pay by requesting trial adjournments. Even
if clients try to negotiate a discount on the sums they have to pay, they still
manage to retain a commission. Unless they have a monthly contract with a
private company, it is in large part through these extra- judiciary payments that
lawyers manage to make ends meet.
Depending on the sources of uncertainty that they can control in the organiza-
tion of legal work, the clerks, judges and lawyers thus get a certain power over
each other as well as over the litigants. Everyone admits that central to these
power relations is the money of litigants. However, these power relations are for
better or worse restricted by the legal and regulatory framework which governs
court activities. As such, they do not prevent litigants from ultimately obtaining
justice under the law. On the one hand, clerks, judges and lawyers use the rules
available to them not just to create leeway for themselves, but also to restrict that
of others. On the other hand, they claim to adhere to the ideal of justice under
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the law and, as such, feel as we will see later some discomfort in subverting
it through their own manoeuvres to make money and earn a living. Whether con-
ceived as a mechanism to regulate social relationships or as a principle to which
individuals try to conform, the law does, therefore, place restrictions on the arbit-
rary power of judicial actors.
To a large extent, these power relationships go hand in hand with the social
practices of clerks, judges and lawyers, with each socio- professional category
developing closer social ties due to their shared interests. To limit ourselves to the
caseofmagistrates,intheirofcetheyhavemorepersonalconversations,farfrom
the ears of clerks and the presiding judge. As a profession, they also show a certain
esprit de corps, which manifests itself during strikes, at the funeral of a colleague
or visits of high ofcials from Kinshasa. Relations between clerks, judges and
lawyers are more ambiguous in that they are both obligatory or complementary
and potentially contentious. On a daily basis, they all try to reduce this tension by
joking or by demonstrating strict respect.
7
But their respective interests can take
precedence and damage what appeared to be a good relationship.
To conclude, we could suggest that out of these modes of interaction between
peers and strategic groups within the courts, emerges a ‘negotiated order’ which
is always fragile, but is shared by the different justice of the peace courts of the
Congo.
8
Indeed, from one transfer to another, judges and clerks appear to have
no difculty adapting to the mode of organization of each court: according to
their own accounts, all of them work in a similar way a point of view con-
rmedbyourresearchinCourtsAandB.Thisobservationshouldnot,however,
lead us to conclude that, on an individual basis, all judges and clerks do their job
in the same way. As we will see for judges, in the next section, in this respect
there are differences according to their professional and social expectations.
Becoming a magistrate
Three general features can be seen in the social and academic background of the
twenty- four judges and lawyers we interviewed: First, with only a few excep-
tions, the majority of them grew up in the city, in families that were relatively
well endowed in terms of cultural capital and one or several members of which
were in the legal profession. Second, at secondary school they took the ‘literary’
route, which is generally considered to be preparation for university because of
the classes in Latin and classical philosophy. Third, their decision to take this
course of study, whether made by themselves or their parents, is to a great extent
determined by the prospect of holding a well- paid position and enjoying a certain
social prestige (for the background of university graduates, see Rubbers 2003).
Indeed, to the question of how they saw the role of magistrate during their study,
all highlighted the fact it was a noble profession, associated with the ideal of
justice; the noble status with the ‘bourgeois’ way of life; and the fear that it
inspires due to the magistrate’s power to send someone to prison.
9
All these
powers and qualities they saw as being embodied in the simple wearing of the
robes.
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At the time of the Mobutu regime, the recruitment of magistrates was organ-
ized by the Ministry of Justice, which made a selection from the applications it
received each year. Since L- D. Kabila’s rise to power in 1997, those who want
to become magistrates have had to take a test: a test took place in 1998, straight
after the change of regime; due to the war, the following test could not be organ-
ized until 2010. Once their application has been accepted, future magistrates
must still wait an average of two years for their posting. In these circumstances,
a period of several years may elapse between the end of their study and taking
up their posting a period in which some begin legal internships and others do
various activities to get by in the informal economy. It is the precariousness that
they experienced during this period that led the majority of them to go into the
magistracy in the absence of anything better: although magistrates earn a medio-
cre salary, at least they have a stable job which allows them to take up many
illicitopportunitiestoprotanda statuswhichcommandsrespect.The magis-
tracy only appears to be a real vocation for women due to the fact it allows them
to spend more time with their families. Whereas lawyers have to constantly
canvass clients, clerks and judges, sitting magistrates have the opportunity to
have a quieter professional life between hearings, their chambers and home.
All judges start their career with an internship of two to three years as deputy
public prosecutors. During this internship, they report solely to the prosecutor, who
intervenes in the cases they handle so that they regularly have to convict the inno-
cent and free the guilty. The main currency available to state prosecutors is remand
awaiting trial: plaintiffs pay to put the opposing side in prison and, unless they
have powerful enough contacts, they will have to negotiate their temporary
freedom at a higher price. In this work, magistrates must show aggressiveness and
intransigence towards the accused and their family with any expression of pity
mocked by their superiors as ‘sentimentalism’. However, they barely concern
themselves with the law, which is seen as the business of the courts: ‘At the Public
Prosecutor’sOfce’,saysJudgeSophie,wedidnotmakealotofefforttoread
because we said to ourselves that afterwards there is the Court.
It would seem that this internship plays an essential role in learning the prac-
ticalities of being a judge as described in the previous section. That said, it is for
manymagistratesadifcultordealastheyhavetoindulgeinpracticesthatarein
contradiction to what they learned in their family or in the university lecture
halls.
10
When they talk about these practices our interlocutors often express feel-
ings of disgust and frustration. Some of them have indeed tried to resist their
superiors’ instructions but they often nd themselves marginalized, with no
cases to handle or bail to negotiate, then gradually pushed towards the bench.
At the end of their internship, magistrates are likely to be transferred to a
justiceofthepeacecourtoranotherprosecutor’sofce.Intheory,thesetransfers
are decided upon by the Conseil Supérieur de la Magistrature: they have to take
place around every three years and, based on the appraisal of the head of juris-
diction, go hand in hand with a promotion. In practice, transfers and promotions
are decreed without warning by presidential order, on advice given by the Minis-
try of Justice and the Prime Minister, behind closed doors. So, Judge Stéphane
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tells us, ‘we don’t know what happens in Kinshasa’. From the point of view of
the magistrates, it is a lottery as they can spend anything from a few months to
ten years in the same post and be promoted or demoted regardless of their per-
formance and length of service. Of course, such arbitrary decisions are inter-
preted as corruption and favouritism by magistrates. That said, they have a
variety of means of getting or avoiding a transfer. First of all, women – and men
who have a university position – can opt to stay in the same urban area to assume
their responsibilities as mother or lecturer. Then, although the success of this
type of approach is not assured, those who wish can ask the Ministry for a
transfer. Finally, many magistrates who are posted to rural areas far from home
refuse to leave or to stay in their new posting.
11
They take leave for the time it
takestolobbytheMinistryinKinshasatondasolution.
Once they have been told of their position, magistrates must still get to the
place where they are to be posted. But the State only covers travel costs for the
judge, not his wife and children, nor removal costs. As a result, in order to move
as a family, magistrates often have to sell some of their property and pay for the
travel costs of their wife and children out of their own pocket. Since the State
residences were sold by the barons of the Mobutu regime, they have had to stay
inahoteluntiltheyndaccommodation.IntownssuchasKinshasaorLubum-
bashi, this cannot be in the city centre as dictated by the prestige of their posi-
tion. It must be bought or rented in a cité (peripheral area) where the cost of
housing is in line with their pay. Finally, if their wife has a job (and cannot be
transferred), some magistrates decide to leave and live alone, far from their fam-
ilies. It is the price that they agree to pay so that their household is not deprived
of a second income and/or so the children can continue to attend the same
school.
Since the beginning of their careers, magistrates pay (salary and bonus)
has increased considerably, reaching around 890 dollars in 2010.
12
However,
it is always paid sporadically.
13
In any event, all of our informants see it as
being far from enough given what they have to pay out (rent of at least 250
dollars, primary school fees of around fty dollars per child, etc.). In their
eyes, their profession is a ‘calling’ which does not allow them to have living
standards that are in keeping with their status. According to them, justice has
been reduced to a simple public service and magistracy to the prestige of the
gowns alone. To make ends meet our informants claim they have to take on
activities on the side (farming, small- scale retail, etc.) while handing over the
management, which is, in principle, not allowed, to their wife or a third party.
One of them, who came to our appointment in a huge four by four, even
worked as a legal advisor for a private company. As such, they claim that it is
their inadequate pay that pushes them to engage in practices (extorting litig-
ants, letting off the guilty, etc.) which are against the law that they are sup-
posed to embody and against their own moral convictions. Thus they
exonerate themselves of widespread corruption among magistrates by placing
responsibility for it on the state, which is deemed to be incapable of meeting
their aspirations:
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Everyday justice of the peace court 255
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I always said, as long as the government does not understand that it has to
make the magistrates comfortable, in good working conditions, how can it
expect the magistrate to do a good job? Because it knows that at the end of
the month he has to pay the rent, the electricity, the water. . . . He will have
to, because he is human, he will have to look for something to survive on, to
meet his needs and . . . at some point he will risk straying, straying and
asking for money from people from whom he shouldn’t ask for money, and
that’s corruption.
Although it seems self- evident, the link between pay and corruption is not imme-
diate (Blundo 2007, pp. 72–74). After all, the continuous increase in the pay of
magistratessince2000hasnotbeen accompaniedby asignicant reductionin
haggling over sentencing. When asked how much they would have to receive to
put an end to all forms of corruption, two of them even answered a minimum of
5,000dollars,notincluding fringebenets....Inthecontext ofKatanga,these
pay demands must be understood less in the light of the social obligations of
publicofcials,asthesalaryexpectationsofuniversitygraduates.InCongo,tra-
ditiondictates that pay is determined by qualications. By virtue ofthistradi-
tion, magistrates consider they are entitled to a salary that is at least equivalent
to that of those who graduated from the same university and are now working in
the private sector (see Cartier- Bresson 1998), where executive pay has practi-
cally doubled since the new mining companies were established in the rst
decadeofthetwenty-rstcentury.Similarly,judgesexpecttohaveabighouse
withmodernttings,toputtheirchildrenintothebestprivateschoolsandenjoy
a certain comfort on a daily basis (car, leisure, etc.).
Although magistrates attribute their own corrupt practices to not being paid
enough, they do acknowledge that this troubles their consciences. They say that
in their profession they are regularly faced with a ‘conict’ (see Lahire 1998)
between the moral schemas they learned during their socialization (at university,
in their family, at school etc.) and what they come to do to allow themselves to
have a particular lifestyle. These situations of conict give rise to a certain
unease, which leads to some of them considering leaving the magistracy for
another occupation in the private sector. This is the case of Judge Bernard:
My ambition is to resign from the magistracy and do something in the
private sector. Even if it means selling corn. . . . But the private sector would
be better. (. . .) I often tell colleagues that the situation of the state here is
going to send a lot of people to hell as sometimes you are forced to do
things that go against your conscience.
Beyond this common discourse on the pay, corruption and conscience of
magistrates, it is important to draw at least a general distinction between men
and women. Unlike women, men are expected to work and earn enough money
to offer their family a ‘good life’: consequently they often seem more preoccu-
pied with money. As for women, unlike men, it is difcult for them to have
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informal relations with the parties without risking making their husband jealous
and the disapproval of their entourage: as a result, they tend to remain within the
courthouse. This difference manifested itself clearly when we shadowed Cather-
ine and Stéphane in their daily lives. The focus of Catherine’s life is mainly
around the home and court and when a lawyer called her to arrange a meeting in
a bar in the evening she answered: ‘But I’m a married woman. I don’t go to bars
like that (. . .). Call me tomorrow’. She also accepts money from the parties for a
warrant, to bring forward a judgment or as a ‘thank you’. As she considers that
the low pay of magistrates does not justify corruption (‘We chose this job, we
knew what we were getting ourselves into’), she does have some feelings of guilt
(‘Even what I’m taking is too much, it isn’t legal’) and she tries to adapt to the
resources of the litigants. In this she differs completely from Stéphane, who
seems to spend most of his time looking for money. When lawyers or litigants
do not call him to offer him ‘one hundred francs’, he has no qualms about asking
them for carburant (fuel) or unités (phone units) when they come by the court-
house, or he is visiting them at their workplace. Here is an account of one of
these visits:
On the rst day of the shadowing, Stéphane took E. Gallez to choquer
(canvasstogetmoney)inamedicalcentretondalitigantwhoisundergo-
ing arbitration in his chambers. Upon entering his ofce, he called out to
him: ‘You’ve abandoned me. I have come to see you because I’m not
feeling well. Say the word and I’ll get better’. Then he turned to E. Gallez to
ask her with a smile: ‘Emilie, what did I tell you a bit ago was missing in
order for me to work?’, to which she had to answer: ‘Motivation’. At this
point, Stéphane asked his interlocutor for 1,000 dollars, which made both of
them laugh. After a short silence, he added, ‘Right, what are you going to
give me?’ before the litigant handed him 20 dollars. Later in the week,
Stéphane visited this litigant twice to ask him for medicines. One of his chil-
dren had a fever.
The comparison of the lives of Catherine and Stéphane shows that the category
of ‘corruption’ is too unequivocal as a way of characterising the way magistrates
see their work. It is not, of course, a question of determining whether magistrates
are ‘corrupt’ or not but of gaining a better understanding of the different factors
that are taken into account when dispensing justice. Of these factors, we have
noted the importance of moral schemas learned during childhood, which can
lead judges to impose limits: although the corrupt practices in which they engage
mainly result from their adaptation to the world of courts during their internship
inthe prosecutor’s ofce, they remain troubled by their professional, religious
and social conscience. We have also highlighted, in a more general way, the role
played by the expectations of magistrates in terms of their lifestyle and their
family duties, whether they are the main breadwinners or not. If Judge Stéphane
is constantly on the look out for money, it is because he is in the process of
building a big house on the outskirts of town, which he wants to equip with
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luxuryxtures andttings. JudgeCatherine’shousehold hasmore peopleinit
but she can, to a large extent, rely on the income of her husband who is a lecturer
in law at the university.
Conclusion
At the end of this close analysis of our eldwork, we would like to conclude
with thoughts on the insights that the two approaches here are likely to bring to
the understanding of African bureaucracies. Inspired by the sociology of organi-
zations, the approach in terms of zones of uncertainty allows for placing corrupt
practices, social strategies and the pluralism of norms (beyond mere cataloguing)
inamore dynamicperspective, inthe lightofthepowergames ofpublic of-
cials.Thereisnodoubtthatitmakesitmoredifculttocompareandgeneralize
on the scale of a country or sub- region. However, it gives us the opportunity to
identify the differences between institutions and administrations in the broad
sense,thepowergamesbetweenpublicofcialswhichdevelopinonenotneces-
sarily being identical to those which take place in the other.
Such an approach should also help us to free ourselves from the tendency,
which is shared by political scientists and anthropologists, to neglect the
rational–legal aspect of African administrations in favour of an over- emphasis
on their informal dynamics (see the critique of Van de Walle 2008, p. 128;
Anders and Nuijten 2007, p. 9). However, we cannot understand this without
studyingthewayinwhichpublicofcialsusetherulesintheirsocialrelation-
ships on a daily basis. A formal, ofcial, legal order cannot be isolated in an
abstract way, as a distinct entity, from an informal, unofcial, parallel order,
referred to as a ‘shadow state’ by W. Reno (1995). Rather we are dealing with a
‘negotiated order’ (Strauss 1994), where negotiations between social actors are
interwoven in the ‘structural context’ which makes up laws and regulations.
From this point of view, the way work is organized in the justice of the peace
courtsofLubumbashiseemslessexoticthanitmightrstappear;itisnotfunda-
mentally more informal, for example, than that of the Michael- Reese Hospital in
Chicago, studied by A. Strauss (1994) at the end of the 1950s.
The interest shown in power games and zones of uncertainty should not,
however, lead us to adhere to the somewhat utilitarian, strategic, disembodied
and past- less conception of the social actor advanced by M. Crozier and E. Fried-
berg (1977). Here, the analysis of social relations in bureaucratic organizations
wouldbenetfrom being combined with that of the trajectory of social actors
and their daily life, in order to gain a more comprehensive understanding of their
relationshipwiththeirwork.Studyingthetrajectoryofmagistratesconrmsthe
hypothesis that what comes under the heading of corruption in the broad sense is
more about adapting to the social world of administration than the primary
socialisation of individuals (Olivier de Sardan 2001). There is even a certain
conictbetweenthetwo,whichleadstoadegreeofcognitivedissonanceonthe
part of magistrates. We must, therefore, study how these corrupt practices are
learned and transmitted on a daily basis. At a broader level, they must be placed
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in the historical context of the organizations in question, and not in a so- called
traditional African context (Olivier de Sardan 2004, 2010).
That said, administrative work is not solely determined by the imperatives
of the organizational situation; it is also affected by the moral schemas
learned in the family, in the university lecture halls and in church (see Lahire
1998). Consequently, we would benet from gaining a better understanding
of the way public ofcials (more or less consciously) manage the double-
bindthey face, between their desire to do a good job, in accordance with the
law, and the desire to be paid in accordance with their status and offer their
children a good life. The analysis does not, therefore, lead us to strategies
of power which bear no relation to the social and cultural context in which
the public ofcials move, but to a characterization of their work in light of
the moral schemas they have learned through their socialization, their expec-
tations in terms of standard of living and their various commitments outside
of work.
This double approach, organizational and biographical, is likely to bring
useful insights to the analysis of practical norms as conceived by J. P. Olivier de
Sardan (2001, 2008). Although his discussion paper for the ‘Africa, power and
politics programme’ does not exclude taking ofcial norms into account,
14
it
clearly lays stress on the discrepancy between these norms and the actual
behaviour of public ofcials, in order to focus on the inuence of practical
norms.Intheapproachwehaveadoptedhere,ofcialnormsplayacrucialrole
in the structuring of power relationships between judges, clerks and lawyers:
these norms create sources of uncertainty for them to control and, at the same
time, restrict their leeway; at a broader level, they constitute general, legitimate,
referents for all the parties involved. Following P. Englebert’s (2009) hypothesis,
the law, regulations, and more generally all the attributes of state sovereignty are
central to power strategies in Africa. One could therefore wonder how far the
regularities observed between courts, or between bureaucracies, are a result of
the existence of shared practical norms or of a common formal framework, the
constraintsandopportunitiesitimposesonpublicofcials’workgivingwayto
more or less similar power games. Such a question invites us, at least, to study in
more detail the articulations between ofcial norms, practical norms and
strategies.
From a practical point of view, socio- anthropological analysis of courts
should allow us to develop better tools for thinking about how to reform them. It
must be recognized, following J.-P. Olivier de Sardan (2001, p. 73, 2008), that
those used by donors, development organizations and government authorities
remain fairly ineffective: the ordinary work of magistrates is barely affected by
new laws, organizational changes, theoretical training, speeches on ‘zero toler-
ance’ or indeed pay rises insofar as, as early as their internship at the prosecu-
tor’sofce,theyarecaughtinpowergameswhichlargelyescapesuchmeasures.
The best that we can suggest, with J.-P. Olivier de Sardan and Y. Jaffré (2003,
pp. 339–358), is to break with the doublespeak inherent in ‘developmental
optimism’ and try to take action on the actual organization of work in the courts,
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with the cooperation of all participants (clerks, litigants etc.). It is only by taking
theproblemstheyfaceseriouslyandmakingthereciprocalrelationshipsofinu-
ence that they have woven with each other explicit that practical, operational
solutions may take shape.
Following our approach, the ‘real’ governance of courts cannot, however, be
isolatedfromtheofcialnormsthat provideitwithaframework. Thestrategy
for reforming courts cannot be limited, therefore, to the research of practical
norms most favourable to development outcomes (Olivier de Sardan 2008, p. 6).
In line with our argument above, it is more broadly the articulations between
ofcialnorms,practicalnorms, andstrategiesthat shouldbepresented fordis-
cussion with the actors involved. The good news is that they do draw (in some
way or another) on laws and rules in their everyday relationships and, more
broadly, that all of them adhere to the ideal of the law and the state of law (for
similar observations in Congo, see Young 2004; Englebert 2009; Rubbers 2010;
Titeca and De Herdt 2011). Instead of taking as a starting point that all public
ofcialsarecorruptandopportunistic,thesearepracticalandmoralschemasthat
proponents of reform could better take advantage of.
Notes
1 Far from being an isolated phenomenon, the reform of the Congolese legal system is
part of a broader movement of rewriting constitutions and reorganizing the legal
apparatus, which goes hand in hand with the hope of extending human rights, good
governance and the state of law worldwide (Comaroff and Comaroff 2006).
2 Court A, in the town centre, generally tries people who are more well- off than those
tried by Court B, located on the outskirts of the town. However, they operate in a very
similar way. We will not, therefore, draw a distinction between the two courts in the
presentation of our research below.
3 M. Crozier and E. Friedberg (1977, chap. 2) take as a basic premise that social actors
draw their power from their capacity to control the uncertainties inherent in organiza-
tional life. To study power relationships in a given organization, they therefore invite
us to take as a point of departure the sources of uncertainty that characterize it and the
strategies that social actors develop to control them. Their agency (that is, their rel-
ativeautonomy and inuence of others’ actions) depends to a large extenton these
strategies.
4 In the two courts that we studied, a fund to which all court staff are meant to con-
tribute from their personal earnings has been introduced for this purpose but it is
usually empty.
5 Although we did not actually see judges giving money to poor litigants, A. Kakudji’s
(2010, chap. 3) research on Sendwe hospital in Lubumbashi suggests that this is not
just a claim to allow public ofcials to make a positive impression. Faced with an
impoverished patient, doctors and nurses do indeed, in certain circumstances, collect
money to assist him/her.
6 By coincidence, B. Rubbers, who was conducting research about the former workers
of Gécamines in the same town, was part of this team and was even able to attend the
wedding of the judge in question.
7 Here we can refer to the classical analysis of joking relationships and avoidance
speech developed by A. R. Radcliffe- Brown (1952). It is nevertheless important to
highlight here that formality and joking can also express a certain social distance,
indeed contempt.
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8 As originally dened by A. Strauss (1994, also see 1978), a negotiated order is an
order within an institution which is constantly moulded by social actors. Insofar as it
implies the use of formal rules, it is not a parallel order in the shadows. Nor does it
imply that everything can be negotiated, as the negotiation can fail or be called into
question and give way to force or coercion.
9 As we saw on several occasions when shadowing them, magistrates have no qualms
about acting as if they were above the law in their daily lives.
10 However, we cannot describe this as a case of ‘reality shock’ (Davis 1966). Having
carried out several internships over the course of their studies, magistrates are already
(intellectually) aware of the ‘reality’ of the public prosecutors’ work. The problem
they face is that when they take up their position, they have to do this work (in prac-
tice) themselves.
11 It is a structural problem, which in 2007 led to the Ministry of Justice wanting to pay
magistrates in the place where they are posted. However, the Supreme Court opposed
this measure as long as the Ministry was not covering the moving expenses of magis-
trates and their families.
12 This amounted to 600 dollars in 2009 and 300 dollars in 2005. It was less than 100
dollars at the beginning of the 2000s.
13 When we started our research in January 2010, the magistrates had not been paid in
three months.
14
[F]or the researcher and actors alike, he notes, the ofcial norms are part of the
denition of the situation. They cannot be dispensed with under the pretext that
the level of adherence to them is cant, nor is it possible to focus on the practices
asifitwerethecasethatofcialnormsdidnotexist.
(Olivier de Sardan 2008, p. 9; italics in the text)
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... Only a handful of researchers have considered the magistrates' careers and discourses, most often within the corruption paradigm. In their ethnography of the justice of the peace courts in Congo, Rubbers and Gallez (2015) investigated the judges' professional trajectories. They detailed the reasons why they chose the profession, the importance of socialization through professional training and internships, and the (informal) politics of appointments. ...
... If men seem to care more about income, and women about human rights and access to justice, it is probably because male judges are often the main or only provider for their families. This is congruent with Rubbers and Gallez's (2015) findings, who argue that in the Congolese context, judge's strategies are contingent upon their position within the household: as the main breadwinners, men generally need more additional revenue that their female counterparts. In Benin, women therefore have more time to engage in social activities. ...
... Over the last couple of years, justice systems across the African continent have been at the core of a number of "good governance" reforms (Rubbers andGallez 2015, Comaroff andComaroff 2006). Focusing on the main actors of the judicial process, this paper explored the multifaceted dimensions of being a magistrate in the Republic of Benin. ...
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Since 2012, Beninese magistrates have gone on multiple strikes. Most of them complain about their substantial workload, low pay, and poor working conditions. They also highlight the discrepancies between magistrates’ social status and what their families expect from them. However, judges and prosecutors also insist on the importance of their work and on the ethics that goes together with it. This paper analyses the discourses and representations of the social and professional status of Beninese judges, showing that they are contingent upon gender, political and economic contexts. It delves into the magistrate’s changing relationship to the state, as well as into their professional identities and daily practices.
... Other evidence from Africa nuances the picture further, showing how normative imaginaries of state justice can legitimate legal institutions, even in the perceived absence of any conventional legitimacy measures (Cooper-Knock & Macdonald, 2020;Rubbers & Gallez, 2016;Verheul, 2016). Analyzing Afrobarometer data at the continent-wide level, Dreir and Lake find that contrary to the predictions of much legitimacy research, "the perceived right of the state's rule-of-law institutions to arbitrate and govern is surprisingly unaffected by negative personal experiences" (2019, pp. ...
... As with money exchanged for fuel, this was referred to as "facilitation" or "appreciation." Some court-users barely registered these improper transactions and cast little judgment, while others resented but broadly tolerated these exchanges and sometimes expressed satisfaction, particularly after a positive outcome such as the retrieval of an important document (see also Rubbers and Gallez, 2016). ...
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Lower state courts are the focus of both international and national access to justice policies and programs but remain understudied in Uganda. Drawing on 3 years of ethnographically informed research on citizen engagement with a busy magistrates' court in post‐war northern Uganda, we show the diverse reasons why citizens appeal to the rule‐of‐law in places where state authority is contested. In a context of limited statehood, against a backdrop of high‐levels of corruption and inefficiency in the judicial system, people turn to lower state courts for normative, pragmatic, and tactical reasons that are not well captured by conventional measures of procedural justice. Our findings extend theory on citizen‐authority relations in a global context, shedding light on contextual meanings of legitimacy, trust, and corruption in places where lower state courts are deeply problematic sites for achieving justice.
... Lorsqu'il s'agit de comprendre la manière dont les magistrats tranchent les litiges, les sciences sociales se sont, jusqu'ici, principalement intéressées au parcours professionnel des juges (Boigeol 1996, Bessière & Mille 2013, à leur vie quotidienne (Danziger, Levav & Avnaim-Pesso 2011) ou encore aux pressions sociales ou politiques dont ils peuvent -parfoisfaire l'objet (Verheul 2013, Rubbers & Gallez 2015. Danziger, Levav et Avnaim-Pesso (2011) ont notamment testé l'un des postulats phares du réalisme juridique, selon lequel les décisions judiciaires dépendent essentiellement de facteurs extralégaux. ...
... Sur base d'un échantillon de plus d'un millier de décisions, ces chercheurs montrent que plus l'on s'éloigne du dernier repas du juge, plus la probabilité de se voir refuser la mise en liberté sous caution est élevée pour les détenus israéliens de la prison au sein de laquelle l'enquête a été réalisée. Sur le continent africain, la plupart des chercheurs analysent le fonctionnement des tribunaux à l'aune de la corruption et des « normes pratiques », par opposition aux règles officielles (Bierschenk 2008, Hamani 2014, Rubbers & Gallez 2015, Verheul 2013. Le genre (Schultz & Shaw 2013, Bessière & Mille 2013, Cornet 2016, la trajectoire professionnelle des magistrats et leurs perceptions des différences culturelles, ethniques ou religieuses (Sommers 2006 comme grilles d'analyses pour comprendre le travail « ordinaire » des juges, notamment en Belgique. ...
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Depuis 1993, une disposition explicite de la loi organique des CPAS limite l’aide sociale aux personnes qui séjournent légalement en Belgique (Loi du 8 juillet 1976, Art. 57§2). Pourtant, de nombreux recours sont introduits devant les juridictions du travail par des étrangers en séjour illégal invoquant des exceptions prétoriennes développées par les juridictions belges sur le fondement du droit à la dignité humaine tel que consacré par l’article 1er de la loi du 8 juillet 1976 et l’article 23 de la Constitution, d’une part, et par les juridictions internationales (la Cour de justice de l’Union européenne et la Cour européenne des droits de l’homme, par exemple), d’autre part. Basé sur une enquête ethnographique, qui repose sur des observations et des entretiens dans plusieurs juridictions de Belgique francophone, cet article revient sur la manière dont les magistrats envisagent leur rôle, traitent les dossiers et prennent leurs décisions dans un contexte où l’aide sociale est en partie liée aux politiques migratoires et à la manière dont elles sont mises en œuvre par les administrations belges. Il examine la place de la preuve, des doutes, des émotions et du contexte social et politique dans le travail quotidien des juges. Ces éléments montreront comment les décisions judiciaires sont « construites », à travers, notamment, la manière dont les magistrats mobilisent le droit pour produire des effets sociaux ou politiques – dans ce cas, pour changer les pratiques des administrations publiques. Cet article permettra aussi de réfléchir à ce que « fait » la politique migratoire au travail des juridictions sociale.
... « En effet, pour le personnel détenu, la présence de ces normes peut s'expliquer par le fait qu'il ne reçoit aucune indemnité en contrepartie des services qu'il rend à la prison. Cependant, cet argument n'est pas valable pour le personnel officiel étant donné qu'il perçoit des indemnités mensuelles » (Kakule Kinombe 2014 : 12 ; Rubbers et Gallez (2015) fournissent des réponses à cette question en soutenant que « les indemnités mensuelles notoirement en dessous du minimum vital » dans la fonction publique constituent le facteur explicatif du développement de normes pratiques. ...
... Like the magistrates in Benin, Nigerien magistrates cope with their often insufficient working conditions 'despite everything' (Hamani, 2011). Like in Benin, power relations and informal politics also play a role in magistrates' careers and appointments in Congo, which sometimes leads to great insecurity among the judiciary (Rubbers and Gallez, 2015). Verheul (2013) explored the politicisation of everyday practices of prosecutors in Zimbabwe and distinguished between two types of prosecutors in Harare: 'rebels' and 'good boys', who deal differently with instructions from 'above'. ...
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Since 2012, judges and prosecutors in Benin have repeatedly protested against political interference and demanded compliance with their statutorily guaranteed independence. In 2014 and 2017, magistrates demonstrated in their judicial robes in the streets, protesting against the government's bill to deprive them of their right to strike and other freedoms. Benin has been described as a ‘success story of democracy’ (Stroh and Never, 2006, p. 1) and even as a ‘model democracy’ (cf. Kohnert, 1996, p. 78; Magnusson, 2001, p. 211; Bierschenk, 2009) since its peaceful transition to democratic conditions and its participation in a national conference in 1990/91. So why were magistrates in Benin demonstrating in the streets for the first time in the history of their profession? Based on fieldwork in Benin in 2009 and 2015 and archival research in 2017 in France, my paper analyses the change in the style of interactions between parts of the executive and parts of the judiciary in the history of the profession – a change from political negotiation to confrontation. Through their strikes and industrial action, magistrates fought for judicial independence; yet, at the same time they constructed legality and strengthened democracy because their actions emphasised the rule of law. My paper also considers the specifics of their strikes in the context of other striking civil servants. When magistrates, as bureaucrats, become politically active, it marks a transformation in their self-conception, as they are usually reserved and withdraw themselves from political and public spheres.
... It is explicitly recognised that in such a situation, the balance of power tends to be fragile, prone to instability due to external shocks or internal realignments. While this captures rather [11] For example, in 1980s Zaire, one author discussed the minority of judges who seemed to abide by higher professional standards than their peers in what was a deeply corrupt legal system (Schatzberg 1988: 99-114), a point also discussed by more recent studies using the concept of 'practical norms' to nuance a picture of the Congolese legal system as invariably 'corrupt' -noting it is precisely this sort of analysis which can provide more insight and opportunity to promoters of reform (Rubbers & Gallez 2015). ...
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The expansive literature on law and justice across Africa emphasizes why people do not use lower state courts. Consequently, a striking lack of attention is paid to how and why people do engage with lower state courts. Drawing on a systematic literature review and a multi-sited qualitative study, we make three contributions on this topic. First, we explore how this academic gap emerged. Second, we critique the procedural justice model that currently underlies much ‘access to justice’ programming, which seeks to improve citizens’ engagements with the courts. In place of what we describe as its arithmetic assumptions about institutional engagement, value, and legitimacy, we propose a trifactor framework. Citizen engagement, we argue, occurs as people reconcile how they think the courts should act, how they expect them to act, and how they need them to act in any given instance. Third, drawing on our empirical studies, we highlight that this framework is flexible enough to capture people’s actually existing decision-making in a wide variety of settings and to map how those trade-offs shift throughout the process of their case, providing important insights into ideas of justice and statehood.
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Résumé : La surpopulation carcérale est un problème récurrent auquel sont confrontés de nombreux établissements pénitentiaires en RD Congo comme dans bien d’autres Etats de la planète. Elle génère des conditions de vie inhumaines pour les détenus en créant une promiscuité entre eux et en facilitant la propagation de maladies en prison. En outre, elle crée un mauvais environnement de travail pour le personnel pénitentiaire1. D’où la nécessité de réfléchir, dans le cadre du présent article, sur les mécanismes à mettre en place pour endiguer ce phénomène. Nous examinons dans un premier temps les causes de ce surpeuplement et dans un deuxième temps son incidence tant sur les droits reconnus aux personnes privées de liberté que sur le travail du personnel pénitentiaire. La conclusion qui s’en dégage est que la durée, anormalement longue de la détention préventive est la cause principale de la surpopulation carcérale en RD Congo et pour faire face à ce fléau, la régulation des entrées en prison et la facilitation des sorties anticipées ou des aménagements de peine s’avèrent impérieuses.
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In the Democratic Republic of Congo (DRC), the state administration has retreated from much of the public domain. The specific case of the education sector – a domain traditionally reserved for the state – shows how public services continue to be provided, and how the Congolese state continues to survive and transform itself. Although no overall power governs the system – there is no overall regulatory authority – this does not mean that the education sector is ungoverned. The state survives as an administrative framework whose role in providing public services has been redefined rather than evaporated. This article describes the organization of the educational system as the direct result of an evolving negotiation process between state and non-state actors. It shows how this negotiated nature of statehood, and the power differentials between the various actors, involve constant renegotiation. Instead of producing uniform results within the education sector, this form of regulation depends on power configurations in particular localities at particular times.
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Although Justice of the Peace (JP) courts did not escape the general deterioration of Congolese administrative structures, Congolese people continue to use these courts to resolve their conflicts. Based on qualitative research carried out in Lubumbashi, this article attempts to understand why people bring their cases to the JP court. How do litigants make that decision in the first place? Once their cases are underway, how do they deal with the trial? The authors emphasise the fact that while litigants denounce the corruption that occurs within the legal system, they continue nevertheless to have confidence in justice itself and in the State. This faith reflects the importance of the law and the formal ideal of institutions that were inherited from the Belgian colonial period in various areas of the daily life of Congolese people. But it also suggests that, counter to the dominant paradigm in the study of the State in Africa, these institutional norms do not simply represent an illusion without basis in reality. Where circumstances allow, these norms do indeed play a structuring role in the functioning of bureaucracy in Congo.
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Within the context of its strategy for the reform of public companies in Africa, the World Bank became involved in redundancies of questionable legality. In the Democratic Republic of Congo, for example, the Bank arranged and financed a voluntary severance programme in 2003, whereby 10,000 employees of the mining company Gécamines, some 45% of its workforce, left in return for an arbitrarily fixed lump-sum payment. Based on ethnographic research, this paper discusses the history of the protest movement which emerged from this mass redundancy programme, the arguments deployed by the movement and the resources available to it. On the basis of this case study, the paper goes on to offer some thoughts on the conditions for social criticism in a transitional regime, heir to an authoritarian tradition of long standing, and operating under the tutelage of foreign donors.
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The majority of land in Ghana is still held under a diversity of customary tenures, embedded in family, community and chiefly institutions; but land disputes may be adjudicated in a variety of institutions: informal arbitrations and family tribunals, chiefs’ courts, quasi-legal state agencies and the formal state courts. Current debates on how to protect the land rights of the majority of customary land holders revolve around the respective merits of customary and non-state regulation (said to be accessible, flexible and socially embedded), and state systems, which are said to offer more certainty, impartiality and non-discriminatory codes and procedures. In Ghana, however, customary and state legal codes have been integrated for some time, and the state courts, which are frequently used as first instance adjudicators, apply customary rules. Does this mean that in Ghana the merits of customary law can be combined with the certainty and enforceability of state court dispute settlement?