Fatshimetry
The Rconst 2259 judgment, handed down by the Constitutional Court of Congo in June 2024, is sparking a lively debate among legal practitioners. Indeed, this judgment raises the question of the praetorian power of the constitutional judge, in particular with regard to the possibility for the Constitutional Court to control the conformity of the judicial acts of other authorities, such as the judgments of the Council of State.
Some critics contest the fact that the Constitutional Court can arrogate to itself the right to censor the conformity of the decisions of other courts with the Constitution. However, other voices argue on the contrary that the Constitutional Court must have this power in order to guarantee respect for fundamental rights and procedural guarantees.
The term “praetorian power” refers to the judge’s power to create case law beyond the law or in the absence of clear legislation. This is essentially the creative power of the judge in matters of law. This power is not an invention of the Congolese Constitutional Court but a notion inherited from Roman law.
Regarding the praetorian competence of the Constitutional Court, it is important to emphasize that this competence has existed since the creation of the Court in 2006. Since then, the Court has had the opportunity to confirm and clarify its power of control of constitutionality, particularly with regard to acts of assembly violating fundamental rights enshrined in the Constitution.
Violations of fundamental rights and procedural guarantees constitute a major challenge in a rule of law. It is crucial that judicial decisions respect these rights and that violations are corrected, even when these decisions are rendered as a last resort.
Thus, the constitutionality control established by the 2006 Constitution represents a solution to guarantee respect for fundamental rights in all circumstances. It is time to make a change and grant the Constitutional Court the necessary power to monitor the conformity of all judicial decisions with constitutional principles and values.
In conclusion, the Rconst 2259 ruling raises important questions about the role and powers of the constitutional judge. It is essential that the Constitutional Court can fully exercise its praetorian power in order to guarantee respect for the fundamental rights of all citizens. This debate is crucial to strengthening the rule of law and protecting the fundamental democratic principles of our society.