Constitutional Court Judgment Declaring the Bill Establishing the Procedures for Organizing a Referendum in the Democratic Republic of the Congo Constitutional and Admissible: A Judicial Decision or a Political Decision?

COGEX Position and Analysis

(Congo Is Great and Demands Greatness from Us)

Authors:
Magister, Serge and Pukace

The Constitutional Court is the guardian of the Constitution, not its author. The Constitution of 18 February 2006 and Organic Law No. 13/026 of 15 October 2013 entrust it with a clearly defined mission: to safeguard the supremacy of the Constitution, review the constitutionality of legislation, interpret constitutional provisions, and adjudicate disputes falling within its jurisdiction. Nowhere do these legal instruments empower the Court to rewrite legislation, substitute its own text for that adopted by Parliament, or create new legal rules in order to render a law constitutional.

This mandate must be exercised within the strict limits of its constitutionally assigned powers. Under constitutional law, the Court is neither a constituent authority nor a legislative body. It cannot supplement the Constitution, alter the institutional framework, or substitute its own will for that of either the constituent power or the legislature. Whenever legislation is incompatible with the Constitution and no constitutionally compliant interpretation is possible, the Court's duty is to declare the law unconstitutional and return it to Parliament. Yet, in its judgment concerning the proposed referendum law, the Court did not merely interpret Article 8; it substantially rewrote it. It introduced a constitutional replacement procedure, referred to the establishment of a Constituent Assembly, imposed prior consultations, and redefined the procedures governing constitutional initiative, all without identifying any explicit constitutional provision authorizing such innovations.

This inevitably raises a fundamental question: from which constitutional provision does the Court derive the authority to create a Constituent Assembly? Where does the Constitution authorize the President of the Republic to initiate the adoption of a new Constitution? Where does it require the mandatory consultations envisaged by the Court? The answer is nowhere.

Article 5, which enshrines national sovereignty, cannot serve as the legal basis for such judicial rewriting. The principle of popular sovereignty is already governed by Articles 218, 219, and 220 of the Constitution, which together constitute a coherent constitutional framework. Article 218 identifies those entitled to initiate constitutional amendments; Article 219 establishes the amendment procedure; and Article 220 protects the Constitution's unamendable provisions. None of these provisions authorizes the replacement of the Constitution, grants any privileged constitutional initiative to the President of the Republic, or establishes the mechanisms created by the Court.

In a constitutional democracy, the people are not a permanent consultative body. They exercise their sovereignty only through the procedures established by the Constitution, particularly through elections and referendums. No institution—not even the Constitutional Court—may invoke the sovereign people as a justification for disregarding constitutional procedures.

Article 74 further provides that the President of the Republic takes an oath to respect and defend the Constitution. This constitutional obligation binds every institution of the Republic: no authority stands above the Constitution. The strength of the rule of law depends precisely upon this universal submission to the supreme law.

The distinction between the original constituent power and the derived constituent power is therefore essential. The former establishes an entirely new constitutional order; the latter operates exclusively within the limits established by the existing Constitution. Confusing these two concepts effectively erases the distinction between constitutional amendment and constitutional replacement. Likewise, the principle of popular sovereignty cannot be invoked to circumvent constitutional procedures; it must be exercised strictly within the constitutional framework itself.

Had the Court concluded that a legislative provision was unconstitutional and incapable of a constitutionally compliant interpretation, the solution consistent with the rule of law would have been to declare it unconstitutional and return the bill to Parliament. It is Parliament—not the judiciary—that bears responsibility for amending legislation. Such an approach would have preserved both the separation of powers and the constitutional balance between institutions.

A Constitutional Court that rewrites legislation is no longer exercising constitutional review; it is legislating. A Court that creates constitutional mechanisms unknown to the Constitution is no longer interpreting the Constitution; it is transforming it. And a Court that assumes powers not granted by the constitutional text ceases to function as a guardian of the rule of law and instead becomes an autonomous normative actor operating outside the constitutional framework.

The history of constitutionalism demonstrates that constitutions may be weakened not only through their violation, but also through excessively expansive judicial interpretation. For this reason, the legitimacy of a constitutional court depends not only upon its independence but equally upon its strict fidelity to the constitutional text and to the principle of enumerated constitutional powers.

The central question therefore remains: how far may the power of constitutional interpretation extend without encroaching upon the authority of either the constituent power or the legislature? The answer will determine the balance of powers, legal certainty, and the stability of the constitutional order. As Montesquieu wisely observed:

"There is no crueler tyranny than that which is perpetrated under the shield of the law and in the name of justice."

Conclusion

In light of this analysis, COGEX – International Think Tank considers that this judgment goes beyond the ordinary exercise of constitutional review and raises a fundamental issue concerning the constitutional limits of judicial power. By introducing, under the guise of constitutional interpretation, mechanisms lacking any explicit constitutional foundation, the Court has established a precedent capable of undermining the separation of powers, legal certainty, and the supremacy of the Constitution.

The principal danger lies in the jurisprudence that this judgment may inaugurate. By conferring an appearance of legality upon mechanisms foreign to the constitutional text, it opens the door to lasting institutional instability and to the gradual transformation of the constitutional order outside the procedures prescribed by the Constitution itself.

COGEX believes that this development may properly be understood as a process of weakening the very foundations of the rule of law, in contradiction with Articles 218, 219, and 220 of the Constitution. It therefore poses a serious threat to the institutional balance of the Republic and to the stability of the Democratic Republic of the Congo.

Accordingly, COGEX calls upon the institutions of the Republic, political leaders, academics, legal practitioners, civil society organizations, and all citizens to defend, without compromise, the supremacy of the Constitution, the separation of powers, and the principle that every public institution may exercise only those powers expressly conferred upon it by the Constitution. No institution may arrogate to itself powers that the Constitution does not grant. Only through unwavering respect for these principles can the rule of law, institutional stability, and the future of the Democratic Republic of the Congo be preserved.

Done at Washington, D.C., on 1 August 2026.

FOR COGEX

(Congo Is Great and Demands Greatness from Us.)

COGEX – INTERNATIONAL THINK TANK

THE CONGO IS GREAT AND IT DEMANDS GREATNESS FROM US

DOCTRINAL POSITION AND IN-DEPTH STUDY

THE VARIOUS ATTEMPTS THROUGHOUT HISTORY TO RESOLVE THE QUESTION OF BANYAMULENGE NATIONALITY, FROM PRE-COLONIAL SOCIETIES TO THE PRESENT DAY

Problems, Limitations, Prospects, and Proposals for Lasting Peace in the Democratic Republic of the Congo

Strategic Reflection Paper – COGEX
Working Version – August 2026

Authors:
Magister and Pukace
Founding Members

Executive Summary

The issue commonly referred to as the “Banyamulenge nationality question” is one of the most sensitive issues in the political history of the Democratic Republic of the Congo. COGEX considers that it can neither be understood nor resolved through an exclusively contemporary reading. It must be placed within a long-term historical perspective: pre-colonial population movements, the formation of local political authorities, the construction of colonial borders, administrative categorization, the emergence of Congolese nationality, successive citizenship policies, land disputes, the weakening of the State, the militarization of identities, and the internationalization of crises in the Great Lakes region.

The research conducted for this doctrinal position systematically distinguishes four realities that are often conflated: the history of a population, legal nationality, community affiliation, and land rights. This distinction is decisive. Historical presence does not, in itself, constitute title to land; ethnic affiliation is not nationality; nationality does not automatically confer rights over a particular piece of land; and State sovereignty over the soil and subsoil does not mean that legally recognized rights of individuals and communities may be disregarded.

COGEX concludes that the crisis does not primarily result from an absence of law. Since 2004, the DRC has had a modern legal framework governing nationality, subsequently reflected in the 2006 Constitution. The central problem lies rather in effective implementation, certification, administration, justice, security, and confidence in the uniform application of the law. COGEX therefore speaks of a functional failure of the State in certain sovereign functions, rather than the legal nonexistence of the State.

The proposed lasting solution rests on one principle: no Congolese citizen should be treated as a foreigner in his or her own country; no community may collectively determine nationality; no foreign power may substitute itself for the Congolese State in militarily protecting Congolese citizens; and no community may be held collectively responsible for crimes committed by some of its members.

I. Methodological Note and Historical Precautions

This study adopts a long-term historical approach and cross-references Congolese positive law, available historical and political science scholarship, United Nations reports, and Belgian archival collections. It does not claim to have exhaustively examined the Annals, Official Bulletins, or colonial administrative files. It does, however, identify the archival collections that should be consulted for a definitive scholarly edition.

The African Archives of the Belgian Ministry of Foreign Affairs cover, in particular, the period from 1885 to 1962 and contain files relating to the Belgian Congo and Ruanda-Urundi, as well as documents concerning administration, justice, civil registration, security, ethnography, history, and official acts. These collections constitute an essential primary source for verifying administrative categories, migration patterns, and colonial administrative practices.

II. Before the Birth of the Congo: Population Movements, Pre-Colonial Powers, and Forms of Belonging

Before the Congo existed as a State, there was obviously no such thing as “Congolese nationality.” The areas corresponding today to North and South Kivu, Rwanda, and Burundi were structured around kingdoms, chiefdoms, clans, lineages, and pastoral, agricultural, and commercial networks. Human mobility predated modern international borders.

Scholarly literature differs regarding the precise chronology of the various migrations that contributed to the formation of the community now known as the Banyamulenge. Some traditions and scholarly works trace these movements back to earlier periods, while others emphasize settlement and consolidation during the eighteenth century or, especially, the nineteenth century. A rigorous approach must therefore avoid mythologizing any particular date and distinguish between different waves of migration, because, according to available evidence, Kinyarwanda-speaking populations—as noted by Professor Ndesho, former Dean of the Faculty of Law at the University of Kinshasa—were living in the areas where they are found today well before the creation of the independent Congolese State.

This uncertainty is not an obstacle to analysis; rather, it provides an important lesson. Contemporary law cannot retrospectively transform pre-colonial mobility into “illegal immigration” in the modern sense. Conversely, ancient presence alone is insufficient to establish, for every contemporary individual, a particular nationality without examining the applicable law.

III. 1885–1960: Colonization and the Transformation of Belonging into Administrative Categories

The creation of the Congo Free State and the subsequent consolidation of colonial borders progressively transformed spaces of mobility into territories falling under the authority of distinct States. The colonial administration was required to identify populations, organize chiefdoms, administer land, register individuals, and manage population movements.

Colonization did not create ethnic identities ex nihilo, but it contributed to fixing and administratively categorizing them. Organized migrations during the colonial period, particularly those involving Rwandophone populations transferred to certain areas of the Kivu region, must be distinguished from older settlements in South Kivu. COGEX considers this distinction essential in order to avoid grouping historically different situations under a single category.

Research in Belgian archives should therefore focus primarily on territorial administrative reports, civil registration records, chiefdom files, censuses, ethnographic reports, population movements, land records, and correspondence relating to Kivu and Ruanda-Urundi.

IV. 1960–1971: The Birth of Congolese Citizenship and the First Crises

Independence transformed the issue. The question was no longer which pre-colonial authority an individual belonged to, but rather who was a citizen of the newly independent State. Nationality became a legal status whose determination fell within the Congolese legal order.

The political crisis of the 1960s, rebellions, and local rivalries nevertheless contributed to the politicization of forms of belonging. COGEX adopts here a methodological rule: identity-based violence should never be explained by ethnicity alone. Such violence results from the interaction between the crisis of the State, political competition, access to land, local authority, security, and foreign intervention.

V. 1972: The First Major Legislative Attempt

Law No. 72/002 of January 5, 1972 constituted a major attempt to stabilize nationality law in the Democratic Republic of the Congo. It broadly recognized Congolese nationality for populations originating from Rwanda and Burundi who had settled on Congolese territory before the reference date of January 1, 1950. Through this approach, the legislature sought to take into account a historical and sociological reality predating independence and to reduce the risks of statelessness and legal exclusion.

This legislation nevertheless suffered from a structural weakness: collective recognition of nationality was not accompanied by sufficiently robust mechanisms to ensure, for each individual, proof, registration, and lasting certification of that status. Yet legal recognition, however clear, remains fragile when the administration responsible for implementing it and the judicial institutions tasked with guaranteeing it are weak or unstable.

The 1972 experience therefore reveals an essential distinction between normative recognition of nationality and its effective legal security. To be durable, nationality could not simply be proclaimed by statute; it needed to be transformed into a documented personal status, officially registered, enforceable against the administration, and protected by effective judicial mechanisms. Without such safeguards, legislative recognition could subsequently be called into question by political and institutional developments.

VI. 1981: Reversal and the Politicization of Nationality

Law No. 81/002 of June 29, 1981 marked a major restrictive shift in the development of nationality law. This legislative reversal notably challenged nationality previously acquired by certain Rwandophone populations by moving the reference date for determining Congolese nationality back to August 1, 1885. This change introduced a narrower historical conception of belonging to the Congo, even though several other cross-border populations entered the Congolese space or became attached to the territory of the post-colonial State after that date.

This approach therefore raises a fundamental question concerning equality in the application of nationality criteria. It weakened previous legal recognitions and called into question, in particular, nationality certificates issued under the previous legal regime. Nationality—which should constitute a stable legal bond between an individual and the State—thus became particularly vulnerable to legislative changes and fluctuations in the political environment.

For COGEX, the principal lesson from this development is institutional: when a State can recognize and subsequently challenge the citizenship of the same category of persons according to changing political circumstances, the issue ceases to be exclusively demographic or identity-based. It becomes a fundamental question of the rule of law, legal certainty, and institutional stability.

VII. 1990–1996: From Citizenship to Competition for Land and Political Power

With the political opening of the early 1990s, nationality progressively ceased to be merely a question of legal status and became directly connected to eligibility for public office, political representation, access to chiefdoms, land, and recognition as “autochthonous.” The debate therefore shifted from the fundamental question, “Who is Congolese?”, toward increasingly political questions: “Who may exercise power?”, “Who may have access to land?”, and ultimately, “Who must be recognized and protected by the State?”

The Sovereign National Conference (CNS), held in Kinshasa from August 7, 1991 to December 6, 1992, was particularly revealing in this respect. Several Kinyarwanda-speaking delegates were excluded because their nationality was contested. They included Cyprien Rwakabuba Shinga, a long-standing Congolese political figure, as well as Bishop Patient Kanyamachumbi, then Secretary-General of the Episcopal Conference of Zaire. Recent academic research indicates that three Banyarwanda delegates, including Rwakabuba, were excluded on grounds related to the allegedly doubtful nature of their citizenship.

This exclusion is also documented in testimonies and memoranda produced by the populations concerned. The Memorandum of the Banyamulenge Population, Kinshasa, July 6, 1991, is an important primary source for understanding how the community presented its history, territorial roots, and participation in the construction of the Congolese State.

The controversy did not end with the CNS. Against the particularly tense backdrop created by population displacement and the massive influx of Rwandan refugees after 1994, the High Council of the Republic–Transitional Parliament (HCR-PT) established a commission to examine the nationality question in Kivu, known as the Vangu Mambweni Commission. Its conclusions contributed to strengthening the view that populations of Rwandan descent living in Zaire should be regarded as foreigners. Historical and academic studies describe the Vangu report as having played an important role in institutionalizing this exclusionary logic.

The culmination of this development occurred on April 28, 1995, when the HCR-PT adopted a resolution officially rejecting Banyamulenge claims to Zairian nationality and recommending that the Government repatriate them to Rwanda or Burundi, alongside certain Hutu refugees and Tutsi immigrants. The International Court of Justice itself referred to this episode in its examination of the context of violence in eastern Zaire, noting that the decision was followed in subsequent months by confiscations of Banyamulenge-owned property.

Thus, the nationality issue progressively developed into a genuine question of political citizenship and collective security. Contesting a person's right to be recognized as Congolese could potentially result in deprivation of political rights, challenges to access to land, exclusion from structures of local authority, and, in certain circumstances, even questioning the right to remain within the national territory.

It is this interaction between nationality, political representation, access to land, and autochthony that helps explain the progressive militarization of the citizenship question. When a community's national belonging is contested, its political rights challenged, and its access to land or local institutions made conditional, an identity issue can progressively become a security issue.

A fundamental distinction must nevertheless be maintained. Internal discrimination against a community and the exploitation of that discrimination by a foreign power are two distinct phenomena. The first concerns the responsibility of the State and its institutions to guarantee equality, citizenship, and legal certainty; the second concerns geopolitical dynamics and intervention strategies pursued by neighboring States. Historically, however, these two phenomena can reinforce one another: internal exclusion may create conditions for external mobilization, while foreign intervention may, in turn, reinforce perceptions of an internal threat and fuel further exclusion.

For COGEX, the institutional lesson from this period is therefore essential: denying discrimination and instrumentalizing discrimination must never be confused. The former consists in denying a lived and documented reality; the latter consists in transforming genuine vulnerability into justification for foreign intervention. A responsible republican policy must combat both simultaneously: guaranteeing every Congolese citizen full protection of his or her rights without distinction of origin, while refusing to allow the State's internal weaknesses to be exploited to legitimize attacks on its sovereignty.

VIII. 1996–2003: Internationalization and Militarization

The Congo wars progressively transformed the nationality question into a regional security issue. In this context, a particularly dangerous confusion developed between Banyamulenge identity, affiliation with or proximity to Rwanda, and participation in armed movements. These three dimensions must be clearly distinguished.

For COGEX, an ethnic community is not a State; a citizen is not an armed group; and historical, cultural, linguistic, or family ties to a neighboring country do not, by themselves, constitute proof of foreign nationality. Likewise, responsibility for acts committed during armed conflict must be assessed individually, not collectively.

Consistent with the principle that criminal responsibility is individual, justice must identify perpetrators, victims, and responsibility in each particular case. It cannot replace fact-finding with a logic of collective guilt based on ethnicity, family origin, or presumed foreign allegiance. A crime committed by an individual does not turn his or her community into a criminal community; likewise, membership in a community cannot constitute a presumption of guilt or hostility toward the State.

This distinction is fundamental in a context where armed conflicts, regional interventions, and cross-border identities have historically overlapped. It makes it possible to avoid two symmetrical errors: denying foreign interference and support for armed groups when such support has been established, while also avoiding attribution to an entire community of responsibility for the actions of particular armed or political actors.

Lasting peace therefore requires dual protection, which must never be regarded as contradictory: on the one hand, effective protection of all Congolese citizens against discrimination, exclusion, and collective accusations; and, on the other hand, protection of the sovereignty, territorial integrity, and institutions of the Democratic Republic of the Congo against any instrumentalization, interference, or foreign intervention.

For COGEX, national reconciliation can be based neither on denying external threats nor on collective guilt. It must rest on a simple principle: protect the State without criminalizing a community, and protect citizens without weakening national sovereignty.

IX. 2002–2006: The Inter-Congolese Dialogue and Legal Refoundation

The Inter-Congolese Dialogue, followed by the adoption of Law No. 04/024 of November 12, 2004 on Congolese nationality, constituted a major attempt to break the cycle of politically fluctuating nationality and put an end to recurring disputes over national belonging.

The explanatory memorandum to this law explicitly reflects the choices arising from the Inter-Congolese Dialogue and affirms that the ethnic groups and nationalities whose persons and territories constituted what became the Congo at independence must enjoy equal rights and the protection of the law. This formulation marks an important departure from earlier approaches based on historical criteria susceptible to interpretation or alteration according to political circumstances.

Article 6 of the law accordingly defines a Congolese citizen by origin by reference to the ethnic groups and nationalities whose persons and territories constituted what became the Democratic Republic of the Congo at independence. The choice of 1960 as the reference date is particularly significant. It differs from the two other major historical dates that had previously fueled controversy: 1885, the year in which the Congo Free State was established, and 1908, the year in which the Congo Free State was annexed by Belgium and the Belgian Congo began.

The choice of 1960 therefore allows the nationality question to be placed within the framework of the formation of the independent Congolese State, rather than being linked exclusively to different stages in the construction of the colonial order. In this respect, it represents a considerable advance toward a legally more stable criterion less vulnerable to political fluctuations.

The law also establishes a fundamental distinction between Congolese nationality by origin and Congolese nationality by acquisition, thereby distinguishing two legally separate methods of obtaining nationality.

This architecture was subsequently enshrined at the constitutional level. Article 10 of the Constitution of February 18, 2006 provides that Congolese nationality is one and exclusive and specifies that the conditions governing its recognition, acquisition, loss, and recovery shall be determined by law. The Constitution therefore places nationality within the sovereign competence of the State and, in principle, removes its determination from the particular assessments of communities, local authorities, or neighboring States.

For COGEX, this stage therefore constitutes a major legal and institutional turning point. The question of who is Congolese can no longer be left to ethnic, community, territorial, or geopolitical considerations. It falls within a national legal framework, consisting of the Constitution and legislation, whose application must be guaranteed by the competent institutions and ultimately subject to judicial review.

This development establishes an essential principle: Congolese nationality is a legal status defined by the Congolese State, not a favor granted by a community or a recognition that may be dictated by a neighboring State.

Thus, the 2004 Law and the 2006 Constitution sought to transform nationality—long vulnerable to fluctuations in the political environment—into a stable, constitutionally protected, and legally enforceable status. The contemporary challenge is therefore no longer merely to determine the criteria governing nationality, but to ensure that those criteria are applied uniformly, predictably, and without discrimination.

X. The Congolese State: Legal Monopoly and Functional Failure

The State's monopoly over the objective determination of nationality must be distinguished from its effective capacity to exercise that monopoly. Legally, the Democratic Republic of the Congo remains a sovereign State with its own Constitution, territory, institutions, and legal order. It would therefore be excessive to conclude that the State has legally ceased to exist or that its sovereignty has disappeared.

However, when the State is unable to guarantee uniformly civil registration, birth registration, issuance and preservation of nationality certificates, access to justice, effective territorial administration, personal security, and enforcement of its own decisions, there is a genuine functional failure of the State.

Civil registration is particularly illustrative of this vulnerability. Every year, millions of Congolese children are born under circumstances in which their births are not necessarily registered within the prescribed deadlines or in accordance with legally established procedures. Yet failure to register a birth creates major legal vulnerability: later in life, it can make establishing identity, parentage, and, where relevant, nationality more difficult. An administrative failure today can therefore become a citizenship dispute tomorrow.

For COGEX, it is consequently more appropriate to speak of a “crisis in the effectiveness of sovereignty” than an “absence of sovereignty.” Sovereignty is measured not only by the constitutional proclamation of authority or international recognition of the State. It is also measured by the concrete ability of public institutions to apply the same law throughout the entire national territory in a predictable, uniform, and impartial manner.

The nationality question is particularly revealing in this regard. The State must be capable of answering, for each individual, a legally defined question: “Is this person Congolese?” That answer must be provided through a reliable system of civil registration, administrative documentation, certification procedures, and judicial remedies.

When, in practice, this determination can be replaced or contradicted by that of a customary chief, militia, political party, community, local authority, or foreign power, the State's legal monopoly formally survives, but its material effectiveness is considerably weakened.

It is precisely within this gap between proclaimed sovereignty and effectively exercised sovereignty that one of the fundamental dimensions of the crisis of the Congolese State lies.

For COGEX, strengthening Congolese sovereignty therefore requires more than military or diplomatic reinforcement. It also requires rebuilding the State's civil and institutional capacities: reliable civil registration, systematic birth registration, secure citizen identification, effective territorial administration, accessible and independent justice, preservation of public archives, and uniform enforcement of State decisions.

A State is truly sovereign when its law is not merely proclaimed, but effectively experienced by all its citizens.

XI. Nationality, Identity, Autochthony, and Citizenship: Four Concepts That Must No Longer Be Confused

One of the principal sources of confusion in the Congolese debate lies in the conflation of concepts belonging to different legal, historical, sociological, and political registers. Nationality, identity, autochthony, and citizenship are neither synonymous nor interchangeable.

• Nationality is a legal status establishing the bond between an individual and the State. It is determined according to rules established by the Constitution and the law.

• Identity refers to a person's or group's social, cultural, family, linguistic, or historical belonging. It may be multiple, evolving, and transnational.

• Autochthony primarily concerns a historical, social, and political construction based on length of settlement, territorial rootedness, or a community's particular relationship with a given area. It cannot substitute for nationality law.

• Citizenship refers to the rights, freedoms, obligations, and responsibilities attached to an individual's participation in the political community. It therefore constitutes the political dimension of the relationship between the individual and the State.

This distinction establishes a fundamental principle: length of presence in a territory, ethnic affiliation, cultural identity, or a claim of autochthony cannot, by themselves, determine who is legally Congolese.

Conversely, no community can transform a historical claim, cultural proximity, or long-standing presence in a territory into an automatic legal title to that territory. History may explain belonging and social dynamics; it cannot, by itself, replace positive law.

It is therefore essential to distinguish a group's historical belonging, an individual's personal identity, his or her legal status as a national, and his or her political status as a citizen.

For COGEX, this distinction is a fundamental requirement of the rule of law: nationality must neither be ethnicized nor communalized nor confused with autochthony.

Ultimately, identity may be multiple, history may be transnational, autochthony may be claimed, and citizenship may express participation in the political community; but nationality remains a legal bond between the individual and the State.

XII. Land Law: “The Soil and Subsoil Belong to the State” — Scope and Limitations

The commonly used expression that “the land belongs to the Congolese” requires legal clarification. Under Congolese law, nationality, State sovereignty, and land ownership belong to distinct legal categories.

Article 9 of the Constitution establishes the State's permanent sovereignty over natural resources, particularly the soil and subsoil. Such sovereignty must not, however, be equated with the private ownership exercised by an individual over a specific parcel of land.

The Land Law, as amended, establishes the principle that the soil falls under the exclusive ownership of the State while organizing various concession and use rights for individuals, legal entities, and, under conditions established by law, local communities.

Articles 387 and 388 notably recognize the legal reality of lands occupied by local communities, while former Article 389 referred to a presidential ordinance for determining the conditions governing regularly acquired rights of use.

An update is nevertheless indispensable for the definitive version of this study. The 1973 Land Law was amended, including by Law No. 25/062 of December 30, 2025. Any official publication in 2026 must therefore take into account the positive law currently in force.

The same distinction must be made with respect to subsoil resources. The Mining Code establishes the State's exclusive, inalienable, and imprescriptible ownership of mineral deposits.

Four legal levels must therefore be clearly distinguished: State sovereignty over its territory and resources; land ownership and the legal regime governing the soil; surface rights of use or occupation; and mining rights concerning exploitation of subsoil resources.

This distinction is essential to the nationality debate. Congolese nationality does not, by itself, constitute title to a particular piece of land. Likewise, legitimate possession or use of land does not constitute proof of Congolese nationality.

For COGEX, it is therefore necessary to abandon any conception under which national belonging, autochthony, customary occupation, and land ownership are legally interchangeable.

The nationality dispute must be resolved through nationality law; land disputes through land law; disputes concerning exploitation of subsoil resources through mining law; and security issues through sovereign State institutions and the law applicable to criminal offenses.

None of these fields should be used to resolve another problem indirectly.

XIII. Nationality, Autochthony, Chiefdoms, and Land Ownership: Ending the Confusion of Legal Statuses

In the Kivu provinces, the categories of nationality, autochthony, chiefdom, and land ownership have historically, in certain circumstances, been superimposed upon one another to such an extent that legal statuses governed by distinct legal regimes have become confused.

A person declared a “foreigner” may be regarded as illegitimate on the land; someone deprived of access to land becomes economically and socially vulnerable; and whoever controls land may, in certain local configurations, acquire considerable political and social influence. Land then ceases to be merely a land-tenure issue and becomes an instrument of power and, in practice, an instrument of citizenship, even though it should not legally perform that function.

This dynamic creates a particularly dangerous cycle: contestation of nationality may be used to challenge access to land; loss or insecurity of land access may then reinforce social and political exclusion; and that exclusion may, in turn, fuel identity disputes and intercommunal conflict.

The real challenge is therefore not to determine which community should receive particular land privileges, but to construct an impartial, documented, and accessible land system for all.

Land reform must not be a reform “for the Banyamulenge,” nor a reform “against the Banyamulenge,” nor a reform designed for the benefit or detriment of any other community. It must be a reform for the law, for legal certainty, and for all communities living within Congolese territory.

For COGEX, a lasting solution requires moving away from a system in which identity determines access to land and land, in turn, determines political legitimacy.

Citizenship must be guaranteed by law; land rights must be established by law; and political authority must derive from republican institutions.

XIV. COGEX Doctrinal Position

For COGEX, the Banyamulenge question has become a revealing indicator of a broader crisis of the Congolese State: a crisis in the certification of citizenship, a land crisis, a crisis of territorial administration, a security crisis, and a crisis of confidence in the justice system.

COGEX rejects two opposing simplifications. The first consists in portraying all Banyamulenge as recent foreigners, thereby equating an entire community with a presumed foreign origin. The second consists in claiming that every historical controversy can be definitively resolved through a simple ethnic or community assertion. Both approaches replace individual legal determination with collective identity.

The only sustainable framework is Congolese citizenship defined by law, individually established where necessary, documented by reliable institutions, protected by the State, and subject to judicial review.

The question of whether a person is Congolese cannot be resolved on the basis of his or her appearance, name, language, ethnicity, family ties, or the perception of a community. It must be determined according to applicable constitutional and statutory criteria.

COGEX also considers that recognizing and protecting the rights of Banyamulenge citizens is neither a favor granted to them nor a concession made to Rwanda. When a person possesses Congolese nationality, protecting that person's rights simply constitutes fulfillment by the State of its obligations toward its own citizens.

Conversely, defending Congolese sovereignty cannot justify the arbitrary denial or restriction of the rights of a Congolese community. State sovereignty and the protection of citizens are not contradictory requirements; they reinforce each other.

This approach also requires a strict separation between citizenship and criminal responsibility. The involvement of members of a community in an armed movement, crimes, or acts of aggression cannot justify attributing those acts collectively to the entire community.

Likewise, no citizen should be discriminated against or stigmatized because of his or her physical appearance, features, or physiognomy, any more than because of name, language, family origin, or community affiliation.

The COGEX Doctrine

Based on this analysis, COGEX proposes the following doctrinal formulation:

“No Congolese citizen should be a foreigner in his or her own country; no foreigner becomes Congolese solely by virtue of ethnic affiliation; no community may collectively declare another community foreign; no citizen may be collectively equated with an armed group; no foreign power may substitute itself for the Congolese State in protecting its citizens; and no citizen should suffer discrimination or stigmatization on the basis of physical appearance, physiognomy, origin, identity, or community affiliation.”

This doctrine ultimately rests on a simple principle:

The Congolese State must be strong enough to protect its sovereignty without sacrificing its citizens, and just enough to protect its citizens without abandoning its sovereignty.

For COGEX, it is precisely in this dual requirement—a State strong in its sovereignty and a State just in protecting its citizens—that a lasting solution to the crisis of nationality, identity, and citizenship affecting the Kivu provinces and, more broadly, the Democratic Republic of the Congo can be found.

XV. COGEX Proposal for a Definitive Settlement

Given the complexity of the issue and its interaction with land, security, and institutional crises, it appears urgent and essential to conduct a reliable national population census and provide every citizen with a secure official identification document.

This is not merely an administrative operation: identification constitutes one of the fundamental infrastructures of the rule of law.

This reform should include the following measures:

1. Establish an independent, transparent, and adversarial national mechanism for determining and certifying nationality, accessible to every citizen or person whose nationality is disputed, with reasoned decisions, rights of defense, and the possibility of judicial appeal.

2. Digitize, secure, and centralize civil registration archives and historical nationality documents, including pre-1960 records where they exist and can help establish identity, parentage, or legal status. Preservation of archives should be regarded as an infrastructure of sovereignty.

3. Establish a special procedure for displaced persons, refugees, or victims of destroyed archives, allowing them to reconstruct their identity and, where legal requirements are met, establish their nationality. This procedure must be individual and adversarial and rely on a body of evidence without creating automatic collective nationality.

4. Implement land reform in conflict-affected areas, including land mapping, registration and protection of rights, recognition of customary land rights in accordance with law, and accessible mediation and judicial dispute-resolution mechanisms.

5. Create mechanisms for restitution or compensation of property and land, where legal conditions are satisfied, for displaced or dispossessed persons. Such mechanisms must be based on established rights and facts rather than applicants' ethnic affiliation.

6. Establish a Truth, Memory and Reconciliation Commission, responsible for documenting violence, forced displacement, dispossession, and human rights violations committed against all communities. This process should seek truth without establishing collective justice based on community affiliation.

7. Reaffirm the principle of individual criminal responsibility: no ethnic group, community, or category of citizens may be held collectively responsible for crimes committed by some of its members. Perpetrators must be individually identified, prosecuted, and tried.

8. Restore the republican monopoly over the use of force through disarmament, demobilization, reintegration, or judicial processing of members of armed groups according to uniform legal criteria applied without distinction based on ethnic or community affiliation.

9. Establish a permanent State structure for monitoring, early warning, and assessment of community cohesion, tasked with preventing intercommunal tensions, identifying potential drivers of conflict, and proposing preventive and mediation measures before escalation occurs.

10. Strengthen civilian administration, justice, and civil registration in conflict-affected areas, so that populations no longer depend upon parallel structures, armed groups, community authorities, or foreign actors to obtain documents, resolve disputes, or ensure their security.

11. Engage in structured dialogue with neighboring States concerning cross-border issues—security, refugees, population displacement, borders, and support for armed groups—while maintaining one inviolable principle: determination of Congolese nationality falls exclusively within Congolese law and the competent Congolese institutions. No neighboring State may substitute itself for the Democratic Republic of the Congo in determining who is or is not its citizen.

A Reform of the State, Not a Community-Based Reform

For COGEX, these measures must not be presented solely as a response to the “Banyamulenge question” or as a policy intended for a particular community. They must constitute a general reform of the Congolese State, applicable equally to all citizens and communities.

The true objective is to construct a system in which identity is documented, nationality is legally determined, land is registered, rights are protected, crimes are individually prosecuted, and security falls exclusively within republican institutions.

The census, civil registration, national identification, land security, justice, and restoration of civilian authority must therefore be understood as components of a single project: restoring the effectiveness of the State and transforming Congolese citizenship into a certain, documented, and effectively protected status.

The ultimate purpose is not simply to produce more administrative documents, but to ensure that every Congolese citizen can be legally identified, recognized, and protected by the State, regardless of origin, community identity, place of birth, or physical appearance.

XVI. Recommended Documentary Research Program

For a definitive scholarly edition, COGEX recommends a second phase of targeted archival research. This should systematically examine the Moniteur belge, the Bulletin officiel du Congo belge, annual reports of governors and territorial administrators, civil registration records, archives of chiefdoms and territories, files concerning population migrations, Ruanda-Urundi archives, and diplomatic documents concerning borders and populations.

The Belgian African Archives indicate that their collections cover the period 1885–1962 and specifically include administrative, judicial, security, civil registration, ethnographic, historical, and official records relating to the Belgian Congo and Ruanda-Urundi. These primary sources should be compared with contemporary academic research in order to avoid an exclusively administrative interpretation of the colonial period.

XVII. General Conclusion

The so-called “Banyamulenge nationality question” did not originate in 1972, 1981, or 1996. It results from a historical accumulation and interaction of factors: ancient population movements throughout the Great Lakes region; colonial construction of borders and administrative categories; the formation of Congolese nationality; successive legislative changes; competition over access to land and local political authority; the progressive weakening of the State's administrative and judicial capacities; and the internationalization of conflicts in the region.

History therefore demonstrates that the controversy cannot be reduced to a binary opposition between “Congolese” and “foreigners,” much less resolved through an exclusively ethnic interpretation. It must be situated within the evolution of the Congolese State, its nationality law, territorial administration, and capacity to guarantee equality before the law.

The Democratic Republic of the Congo today possesses a constitutional and statutory foundation upon which a lasting solution can be built. The real challenge is now to transform this legal framework into an effective administrative, documentary, judicial, and security reality.

The central question is therefore no longer merely:

“Who are the Banyamulenge?”

It must be reformulated in more institutional terms:

“Is the Democratic Republic of the Congo capable of objectively defining, legally certifying, and effectively protecting the citizenship of each of its nationals?”

It is this question that the reconstruction of the State must answer.

For COGEX, lasting peace in eastern DRC requires rebuilding a State that is simultaneously sovereign, just, and functional:

• sovereign, so as to prevent any foreign power from substituting itself for the Congolese State in defining citizenship, protecting populations, or exercising public authority;

• just, so as to guarantee all citizens equal legal protection without discrimination, stigmatization, or collective guilt based on origin, identity, physical appearance, or community affiliation;

• functional, so as to be capable of certifying nationality, registering births, securing civil registration, protecting land rights, effectively administering justice, and ensuring security throughout the national territory.

A fourth requirement must be added to these three dimensions: permanent capacity to prevent intercommunal conflicts. The State must not wait until identity, land, or political tensions degenerate into violence before intervening. It must establish a permanent national mechanism for monitoring, early warning, follow-up, mediation, and prevention of intercommunal conflicts, responsible for identifying sources of tension, assessing risks, facilitating dialogue, and recommending timely measures necessary to preserve national cohesion and peaceful coexistence.

This mechanism must be conceived as a republican instrument of prevention, not as a means of monitoring or controlling a particular community. Its mandate must be universal: preventing discrimination, hate speech, land conflicts, disputes over citizenship, intercommunal violence, and any political instrumentalization of identity, regardless of the community concerned.

Resolution of the Banyamulenge question must therefore cease to be perceived as a favor granted to a community or a concession made to a neighboring State. Where Congolese citizens are concerned, protection of their rights is first and foremost a constitutional and republican responsibility of the Congolese State. Likewise, defense of national sovereignty cannot serve as justification for denying the rights of Congolese citizens.

The solution must therefore be sought in Congolese law, citizenship, impartial administration, justice, and consolidation of the State. It must be individual whenever a nationality dispute arises, collective in the development of public policies, but never collective in assigning guilt or exclusion.

Ultimately, lasting peace in eastern Democratic Republic of the Congo will not emerge from the victory of one collective memory over another, nor from one community imposing its historical narrative upon another. It will emerge from the victory of common law over arbitrariness, of the State over armed groups, of citizenship over identity-based exclusion, and of justice over collective guilt.

For COGEX, the real issue is therefore not to determine which community must win the right to live in the Congo. The real issue is to build a State in which no Congolese citizen will ever again need to prove his or her community affiliation in order to enjoy the rights guaranteed by citizenship.

“No Congolese citizen should be a foreigner in his or her own country; no citizen should be discriminated against because of identity; no crime should be attributed to an entire community; no foreign power should substitute itself for the Congolese State; and no dispute between citizens should be placed beyond the reach of the law.”

It is through this simultaneous reconstruction of sovereignty, citizenship, justice, administration, and national cohesion that COGEX sees the path toward lasting peace and a Republic truly reconciled with itself.

Essential Documentary and Bibliographic References

• Democratic Republic of the Congo, Constitution of February 18, 2006, particularly Articles 9 and 10.

• Democratic Republic of the Congo, Law No. 04/024 of November 12, 2004 on Congolese Nationality.

• Democratic Republic of the Congo, Law No. 73-021 of July 20, 1973, establishing the general regime governing property, land and real estate, and securities, as amended and supplemented, particularly Articles 53 and 387–389.

• Democratic Republic of the Congo, Law No. 18/001 of March 9, 2018, amending and supplementing the Mining Code, particularly Article 3.

• Democratic Republic of the Congo, Law No. 25/062 of December 30, 2025, amending land legislation — to be incorporated into the final legal verification.

• United Nations, A/HRC/7/23, documents relating to human rights, citizenship, and the Banyamulenge question.

• Anthony Court, “The Banyamulenge of South Kivu: The ‘Nationality Question’,”African Studies, 72(3), 2013, pp. 416–439.

• Koen Vlassenroot, works on citizenship, identity, and conflict in South Kivu, particularly the Banyamulenge question.

• Stephen Jackson, “Of ‘Doubtful Nationality’: Political Manipulation of Citizenship in the D.R. Congo,”Citizenship Studies, 2007.

• United Nations, Mapping Report on the Most Serious Human Rights and International Humanitarian Law Violations Committed in the DRC, 1993–2003.

• African Archives of the Belgian Federal Public Service Foreign Affairs: Belgian Congo and Ruanda-Urundi collections, 1885–1962.

• Moniteur belge, Bulletin officiel du Congo belge, administrative reports, and colonial archival collections to be systematically examined for the definitive scholarly edition.

• International Court of Justice, Armed Activities on the Territory of the Congo (DRC v. Uganda), pleadings and documents, particularly the passage concerning the Banyamulenge and the HCR-PT decision of April 28, 1995. This is probably the strongest institutional reference for this passage.

• Sadiki Koko, works on the Banyarwanda question, particularly his analysis of the Sovereign National Conference and the exclusion of Kinyarwanda-speaking delegates on grounds of “doubtful nationality.”

• Kwang-su Kim, Instability and Ethnicity in the Great Lakes Region: A Historical Contextualization of Banyamulenge Identity, African Studies Quarterly, 2025, addressing contested citizenship, the Vangu Commission, and the April 28, 1995 resolution.

• Ntanyoma & Hintjens, Expressive Violence and the Slow Genocide of the Banyamulenge of South Kivu

COGEX – INTERNATIONAL THINK TANK
The Congo is Great and It Demands Greatness from Us.

Doctrinal Paper – August 2026