The burning news of the Independent National Electoral Commission (CENI) in the Democratic Republic of Congo leaves no one indifferent. Indeed, on Friday January 5, 2024, the CENI made public its decision to cancel the votes in certain polling stations and centers, raising numerous questions as to its competence and the legal nature of this decision.
The CENI, as an independent administrative authority (AAI), has the power to take unilateral decisions, regulate and sanction. However, this independence is not absolute and the CENI is subject to controls, in particular from Parliament and the Council of State.
In the present case, the CENI bases its decision to cancel the votes on provisions of the organic law which organizes it. However, it is appropriate to ask whether the CENI really has the material competence to impose such sanctions, in particular the cancellation of candidates’ votes.
Indeed, none of the provisions of the organic law explicitly recognizes this competence for the CENI. It therefore seems that the CENI’s decision is motivated by an excess of power.
In addition, as an AAI, the CENI is subject to the control of the Council of State, which exercises material jurisdiction in matters of administrative litigation. Thus, if the decision of the CENI offends the fundamental rights or public freedoms of individuals, the Council of State may cancel or suspend the effects of this decision.
It is therefore necessary to determine the competent jurisdiction to hear the dispute over the annulment of the CENI decision. In this specific case, the Council of State appears to be the competent material jurisdiction, given that the CENI is an independent administrative institution. However, it should be emphasized that the independence of the CENI as an AAI is relative and does not exclude judicial review.
In conclusion, the CENI’s decision to cancel votes in certain polling stations and centers raises questions of competence and legality. It is important to ensure respect for fundamental rights and democratic principles in any electoral process, and to allow adequate judicial review in order to guarantee the integrity and transparency of elections. The Council of State plays an essential role in this process and should exercise its control rigorously to preserve the rule of law and citizens’ trust.