Kinshasa, May 22nd; 2025 (CPA) .– The Senate of the Democratic Republic of Congo (DRC) has voted on Thursday, a resolution lifting the immunities of the former president Joseph Kabila, authorizing the military prosecutor’s office to initiate legal proceedings against him. ‘(…) As a consequence of the above, the Senate lifts the parliamentary immunities of Senator for life Joseph Kabila Kabange and former President of the Republic, and authorizes the General Auditor (Military Prosecutor) at the Military High Court to initiate proceedings against him’, adopted with 88 yes votes against 5 no votes and 3 void ballots. The reading of this resolution has been made by the Senator Nefertiti Ngudianza, Reporter of the Upper House of the Parliament, during the plenary session devoted to the presentation of the report of the ad hoc commission in charge of the examination of the indictment of the Chief Military Prosecutor (general auditor).
The report of the ad hoc committee adopted
Earlier, the plenary has assisted to the reading of the report of the ad hoc committee presented by the rapporteur of the aforementioned committee, Senator Carol Agito, which has been chaired by Senator Christophe Lutundula. The report has been unanimously adopted by almost all the senators present in the room. The main resolution of this report, voted an adopted overwhelmingly, was to lift the immunities and authorize the prosecution of the life senator, Joseph Kabila Kabange, to allow the justice system to do its job and their colleague Joseph Kabila Kabange to give his version of the facts and present his defense before the judge. The vote by secret ballot followed to adopt the resolution resulting from the report of the special committee set up, at the end of which 88 senators, i.e. 91.66% of the 96 who have taken part in the vote, have voted in favor of lifting parliamentary immunity and authorizing the prosecution of ex-president Kabila. 5 senators, i.e. 5.2%, have voted against and there were no abstentions but 3 invalid ballots, i.e. 3.12%. In the Senate’s final resolution, it has been recalled that the general Auditor of the Military High Court had asked the Senate to lift parliamentary immunity and authorize the prosecution of Senator for Life Kabila, the former President of the Republic, presumed to be responsible for participation in the M23/AFC insurrectionary movement, treason and participation in war crimes.
The Constitution, the Senate’s source of jurisdiction
According to the Constitution, the Senate has indicated that elected former Presidents of the Republic are by right senators for life and, consequently, the constitutional and regulatory provisions relating to the status of senator are applicable to them without prejudice to the exemption from the obligations to which senators are bound, provided for in the Senate’s internal regulations. The Upper House of the Congolese Parliament has also pointed out in the document presented to the plenary session that the Constitution stipulates that ‘no Member of Parliament may be prosecuted, sought after, arrested, detained or tried on account of opinions expressed or votes cast by him or her in the performance of his or her duties and, furthermore, no Member of Parliament may, during a session, be prosecuted or arrested, except in cases of flagrante delicto, without the authorization of the National Assembly or the Senate as the case may be’. ‘The lifting of a senator’s immunity and the prosecution of him or her is a matter for the Senate, in accordance with Article 107 of the Constitution, paragraph 2’, has set out the Senate’s reporter in her reading. « The Law number 18/021 of July 26th, 2018 on the status of elected former presidents of the Republic which confers in its article 8 paragraph 1, this prerogative to the Congress with regard to its beneficiaries, cannot prevail over the Constitution whose article 119 lists restrictively the attributions of the Congress on the one hand and that only a Constitutional Law can modify or replace a provision of the same nature on the other hand, moreover, there is no provision in the current Rules of Procedure of Congress that mentions or organizes the lifting of parliamentary immunity or authorizes the prosecution of elected former Presidents of the Republic », she has insisted in the resolution. And she went on : ‘the persons who can be justified by the Court of Cassation are justifiable before the Military High Court for acts that fall within the jurisdiction of the military courts, and officers of the Military Public Prosecutor’s Office have the same powers with regard to preparatory investigations as those of the Public Prosecutor’s Office in the ordinary courts’. And he added: ‘Article 111 in fine of the military justice code, which states that military courts have jurisdiction over those who, without being military personnel, commit offences using weapons of war, and another provision of the same code, which states that military courts have jurisdiction over those who, without being military personnel, commit offences using weapons of war, have jurisdiction over those who, without being military personnel, commit offences using weapons of war’. For the Senate, it is clear from the above-mentioned provisions of the Military Code that the General Auditor of the High Military Court is entitled to request the Senate to lift the immunities and authorize the prosecution of the Senator for Life, Mr Joseph Kabila Kabange, former President of the Republic, presumed to have committed the offences contained in his indictment cited above.
The Senate has also pointed out that the judiciary is independent of the legislature and the executive, on the one hand, and that the legislature cannot rule on jurisdictional disputes, modify a court decision or oppose its execution, on the other.
The Parliamentary immunities are not an exemption
Another clarification in the Senate resolution states the following: « By virtue of the rule of separation of powers enshrined in two articles of the Constitution, the Senate does not have jurisdiction to deal with the substance of the facts set out in the Auditor General’s report. Its examination relates to the relationship of the facts imputed to the senator with the exercise of his functions, an exercise protected by the Constitution in the interest of the Senate through parliamentary immunities, as defined by the law and comprising non-accountability as well as parliamentary inviolability for opinions and votes cast in this capacity. As a result, parliamentary immunities are instituted to protect the functions exercised rather than to place their beneficiaries above the laws of the republic or outside of it ». Thus, the Senate has also taken note of the fact that, although regularly invited to present his defenses and his version of the facts to the special committee, in accordance with the Senate’s rules of procedure, Joseph Kabila did not respond favorably to this invitation in a letter from the President of the Senate. As a result, the Senate declares itself duly seized by the Auditor General of the Military High Court and competent to hear his indictment. The Chamber of Wise Men has informed the public that the acts of which Senator for life Kabila is presumed to be the perpetrator have no connection with the exercise of his parliamentary functions and cannot ipso facto entitle him to the parliamentary immunities provided for by the Constitution. As a consequence of the above, the Senate has decided to lift the parliamentary immunities of Senator for life Joseph Kabila, while giving the military prosecutor’s office carte blanche to do its work freely.
What about Senator Lingepo’s indictment?
The other indictment on the agenda had been submitted by the public prosecutor at the Court of Cassation, and concerned the lifting of immunity and authorization to prosecute Senator Michel Lingepo Molonga. The plenary assembly has been informed that the deputy budget minister, Elysee Bokumwana, (the plaintiff) has withdrawn his complaint to the Court of Cassation. It should be recalled that during the plenary session of Thursday May 15th 2025, the Plenary Assembly had set up a Special Committee to examine these two indictments. The committee was given 72 hours to complete its work. Having completed its work, the bureau of the ad hoc committee has made its report public to the senators during today’s plenary ses